ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR.

p. 332 Copy page pinpoint

A 1961 Regulation, on the sole ground that such migrants/settlers had not been registered as ‘Sikkim Subjects’ under the 1961 Regulation. Further, the proviso to Section 10(26AAA) of the I.T. Act, 1961 is unconstitutional and violative of Articles 14 and 15 of the Constitution of India because it excludes from the exempted category, a Sikkimese woman who married a non-Sikkimese after 1st April, 2008. B

24Copy pinpoint24. As regards the first leg of challenge in the instant Writ Petitions, i.e., challenge to the vires of the definition of ‘Sikkimese’ under Section 10(26AAA) of the I.T. Act, 1961, it was contended that old settlers/ migrants, who had settled in Sikkim much prior to the coming into effect of the 1961 Regulation had been excluded from the definition of C ‘Sikkimese’ and consequently rendered ineligible to claim the benefit of Section 10(26AAA) of the I.T. Act, 1961, on the sole ground that their names could not be registered as Sikkim Subjects as their forefathers did not surrender their Indian citizenship.

25Copy pinpoint25. It was further contended that migrants from other Countries/ D erstwhile Kingdoms such as Nepalese migrants, who had migrated to and settled in Sikkim at the same time or even after migrants/settlers of Indian origin, had been admitted to the benefits of Section 10(26AAA) of the I.T. Act, 1961, while arbitrarily excluding settlers of Indian origin such as the petitioners herein. That the object sought to be achieved by the exemption provision contained in Section 10(26AAA) of the I.T. Act, 1961 was to grant exemption to the residents of Sikkim as per the definition of Sikkimese which is in the form of an Explanation to the provision. Therefore, the discriminatory classification of Sikkim Subjects vis-à-vis old Sikkim settlers, who had not been registered as Sikkim Subjects, whereby the former category of persons was admitted to the benefits of the exemption while excluding the latter, had no nexus with the object of the exemption provision.

26Copy pinpoint26. It was next submitted that classification into groups or categories ought to be based on an intelligible differentia which set one group apart from the other. In this regard, it was stated that Sikkim, G having merged with India on 26th April, 1975, all residents and subjects of Sikkim, had thereafter become Indian citizens. Therefore, there was no justifiable reason to treat Indian settlers of Sikkim differently from Sikkim Subjects who had all subsequently become Indian citizens. That following the merger of Sikkim with India, and Indian citizenship having H been conferred on Sikkim Subjects, the basis for classification had been

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 333 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

eroded. That migrants/settlers who had earlier not been registered as A Sikkim Subjects, as well as Sikkim Subjects were uniformly considered as Indian residents of Sikkim, after 26th April, 1975, and therefore, both such categories were to be admitted to the benefits of income tax exemption under Section 10(26AAA) of the I.T. Act, 1961. The fact that migrants/settlers had earlier not been registered as Sikkim Subjects B on the ground that they failed to surrender their Indian citizenship at the relevant time, would have no relevance after the merger of Sikkim with the India, since such migrants as well as Sikkim Subjects had been placed in the same class of Indian residents of Sikkim, after the merger.

27Copy pinpoint27. It was urged that the rules to the effect that provisions of legislation ought to reflect the object sought to be achieved and that any classification into groups or categories ought to be based on an intelligible differentia, would apply equally to tax legislations, as they apply in any other area of law, vide S.K. Dutta vs. Lawrence Singh Ingty, A.I.R. 1968 SC 658.

28Copy pinpoint28. Sri K.V. Viswanathan, learned Senior Counsel, further submitted that the Explanation to Section 10(26AAA) of the I.T. Act, 1961 begins with the phrase, “‘Sikkimese’ shall mean,” and thereafter lists three categories of persons who shall be considered to be ‘Sikkimese’ for the purposes of the Act. That the term used in the Explanation is ‘mean.’ Therefore, the definition would have to be treated as inclusive, but not exhaustive of the scope of the term ‘Sikkimese.’ In this regard, reliance was placed on Southern Electricity Supply Co. of Orissa Ltd. vs. Sri Seetaram Rice Mill, (2012) 2 SCC 108.

29Copy pinpoint29. It was averred that an Explanation to a provision should not be such as would operate as an exception or a proviso vide Aphali F Pharmaceuticals Ltd. vs. State of Maharashtra, (1989) 4 SCC 378. That the Explanation to Section 10(26AAA) of the I.T. Act, 1961, in effect, acts as an exception to Section 10(26AAA) of the I.T. Act, 1961 by excluding from the scope of the provision migrants/settlers of Indian origin who had settled in Sikkim much prior to the coming into effect of the 1961 Regulation. G

30Copy pinpoint30. It was submitted that in the present case, in order to remove the arbitrary discrimination against Indian settlers in Sikkim, the definition of the term ‘Sikkimese’ should be read to include Indians who had settled there as on 26th April, 1975. That this Court, in order to remedy the H

p. 334 Copy page pinpoint

A discrimination against the writ petitioners, ought to put the Indian settlers in Sikkim in the same class as Sikkim Subjects, for the purposes of all matters which would affect the rights, benefits and privileges of such class of persons.

31Copy pinpoint31. As regards the second prong of the challenge, which is to the vires of the proviso to Section 10(26AAA) of the I.T. Act, 1961, which excludes from the exempted category, a Sikkimese woman who marries a non-Sikkimese after 1st April, 2008, it was contended by learned senior counsel and learned counsel appearing for the writ petitioners that the proviso is violative of Articles 14 and 15 of the Constitution of India. In this regard, it was further contended that a woman, on the mere factum of being married would not lose her identity as a ‘Sikkimese.’ That gender-based discrimination is ex-facie evident in the proviso, more so, because there is no provision for disqualification of a Sikkimese man from claiming exemption under the Act, on marrying a non-Sikkimese woman after 1st April, 2008.

32Copy pinpoint32. It was submitted that the said proviso could not be traced to any consideration other than that of gender alone and therefore, the same ought to be declared as discriminatory against women. Reliance was placed on Anuj Garg and Ors. vs. Hotel Association of India and Ors., (2008) 3 SCC 1and G. Sekar vs. Geetha, (2009) 6 SCC 99 E to contend that exclusion from the benefits of a provision, on the ground of gender alone, would be liable to be struck down as being violative of Article 14 of the Constitution of India.

33Copy pinpoint33. With the aforesaid averments, it was prayed that the definition of the term ‘Sikkimese’ as provided for in the Explanation to Section F 10(26AAA) of the I.T. Act, 1961, should be read to include Indians who had settled there as on 26th April, 1975 and that the proviso to Section 10(26AAA) of the I.T. Act, 1961 which excludes from the exempted category, a Sikkimese woman who marries a non-Sikkimese after 1st April, 2008, should be struck down as being unconstitutional.

G Submissions of the Respondents:

34Copy pinpoint34. Per contra, Sri N. Venkataraman, learned Additional Solicitor General appearing for the Department of Revenue contended that the impugned provision is based on a reasonable classification of Sikkim Subjects, as a group, different from migrants/settlers of Indian origin. That such classification was founded on considerations which were H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 335 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

designed to maintain peace and harmony within the Sikkimese society, A and therefore prayed that the same may not be interfered with.

35Copy pinpoint35. It was submitted that Sikkim merged with India, as the 22nd State of the Union on 26th April, 1965 and consequently, Article 371-F was introduced in the Constitution of India by way of the Constitution (Thirty-sixth Amendment Act) 1975. That subsequently, by virtue of a B Notification dated 23rd February, 1989 issued by the Department of Revenue, Ministry of Finance, the I.T. Act, 1961 was extended to the State of Sikkim with effect from assessment year 1989-1990. That after the extension of the Act to the state of Sikkim, the Government of Sikkim continued to vacillate on extending co-operation for smooth implementation of the central direct tax laws in the state and constantly C sought extensions for the implementation, on various grounds. In order to resolve the continuing impasse, the then Union Minister for Finance, in June 2004 constituted a committee having representation from the Government of Sikkim as well as the Central Government. During the course of deliberations of the said Committee, the then Chief Secretary, D Government of Sikkim identified that Sikkimese society was based on a classification of those Indians of Sikkimese origin who voted in the referendum of 1975, and others who were residents of the erstwhile Kingdom of Sikkim, but had not voted in the referendum as they were not registered ‘Sikkim Subjects.’ Accordingly, it was resolved that such classification would be maintained for the purposes of determining income E tax liability as any other classification would fracture Sikkimese society and lead to unrest and agitations within the society. With the aforesaid background, it was urged that the distinction between Sikkim Subjects and other residents of Sikkim, including migrants/settlers of Indian origin, was based on a reasonable classification. F

36Copy pinpoint36. It was emphasized that this Court had recognized on previous occasions that Sikkim Subjects formed a group which was distinct from other residents of Sikkim.

37Copy pinpoint37. It was next contended that exemption from payment of income tax could not be granted to the entire population of Sikkim simply because G they are domiciled in the State. Therefore, exemption was granted in favour of Sikkim Subjects and such other persons as specified under the Explanation to Section 10(26AAA) of the I.T. Act, 1961, having due regard to tangible social and historical differences between various categories of residents of Sikkim. H

p. 336 Copy page pinpoint

38Copy pinpoint38. Those migrants/settlers of Indian origin, who may have been residing in Sikkim prior to the coming into effect of the 1961 Regulation, chose not to get themselves registered as Sikkim Subjects by relinquishing their Indian citizenship. This was a considered choice made by the said class of persons. Having waived their privileges on account of non- registration as Sikkim Subjects, migrants/settlers of Indian origin cannot at this juncture claim to be treated at par with Sikkim Subjects.

39Copy pinpoint39. Insofar as the validity of the proviso to Section 10(26AAA) of the I.T. Act, 1961 is concerned, it was submitted that the same is not discriminatory against women or violative of Articles 14 and 15 of the Constitution. That the disqualification placed on Sikkimese women marrying non-Sikkimese men after 1st April, 2008, was based on the customary laws of Sikkim which provide that descent shall be through a woman’s father and any privileges vested by virtue of such descent would continue until such woman is married. That the peculiar customary laws of a society could not be ignored while framing laws to bind such society.

40Copy pinpoint40. With the aforesaid averments, it was prayed that the instant writ petitions be dismissed as being devoid of merit.

41Copy pinpoint41. On behalf of the State of Sikkim, learned counsel, Sri Vivek Kohli has fairly submitted that the State Government does not have any objection to the prayer of the writ petitioners herein to extend the income tax exemption to married women of Sikkimese origin, who, after 1st April, 2008 married a non-Sikkimese man. It was also submitted that the benefit of the tax exemption may be extended to all Indian citizens domiciled in Sikkim irrespective of the fact as to whether their names are registered as ‘Sikkim Subjects’ in the ‘Sikkim Subjects Register’ maintained under the 1961 Regulation.

42Copy pinpoint42. There is a two-pronged challenge to clause (26AAA) of Section 10 of the I.T. Act, 1961. Firstly, the proviso restricting a Sikkimese woman who marries after the 1st April, 2008, a non-Sikkimese, is excluded from the benefit under that provision. Secondly, the definition of ‘Sikkimese’ is also assailed in these writ petitions. The same shall be discussed in seriatim. Challenge to the Proviso to Section 10 (26AAA) of I.T. Act, 1961: H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 337 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

43Copy pinpoint43. The proviso to Section 10(26AAA) of the I.T. Act, 1961 has A been assailed. The proviso reads as under: “Provided that nothing contained in this clause shall apply to a Sikkimese woman who, on or after 1st day of April, 2008, marries an individual who is not a Sikkimese”

44Copy pinpoint44. The proviso is challenged on the ground that it excludes B Sikkimese women on the basis that they have married an individual who is not a Sikkimese after 1st April, 2008. In this context, the following aspects can be discerned: i) Firstly, it is the contention of the petitioners that Sikkimese women have been subjected to discrimination which is not valid in law, particularly, having regard to Articles 14 and 15 of the Constitution of India. The contention is that there is a discrimination against Sikkimese women while there is no such discrimination as far as Sikkimese men are concerned, in the sense that if a Sikkimese woman marries an individual who is not a Sikkimese, she is excluded from the benefit of the clause but if a Sikkimese man marries an individual who is not a Sikkimese, such an exclusion does not apply. ii) Secondly, it is only Sikkimese women who have married on or st after 1 April, 2008 who are excluded from the benefit of the said provision but if any Sikkimese woman was married to a non-Sikkimese prior to 1st April, 2008, there is no such exclusion from the benefit granted under the provision. iii) Thirdly, it is contended that marriage cannot be a basis for a classification between a man and a woman so as to make it discriminatory against a woman. A Sikkimese woman cannot be discriminated against vis-à-vis a Sikkimese man who marries a non-Sikkimese. F iv) Fourthly, it is the case of the petitioners that an arbitrary cut- off date of 1st April, 2008 has been inserted in the provision thereby, resulting in discrimination between those Sikkimese women who married a non-Sikkimese prior to the said date and those Sikkimese women who are married after the said date. That those Sikkimese women who married G a non-Sikkimese prior to the said date are included in the beneficial clause of Section 10 (26AAA), but those who married subsequent to that date are denied the benefit. v) Another contention is that the definition of the expression “Sikkimese” itself is assailed and therefore, any Sikkimese woman who H

p. 338 Copy page pinpoint

A marries a person who does not fall within the scope of the definition of “Sikkimese”, does not have the benefit of the said provision.

45Copy pinpoint45. Primarily, it was contended that there cannot be any discrimination on the basis of marriage against Sikkimese women with reference to an arbitrary date i.e., 1st April, 2008. According to the B petitioners, the proviso creates an artificial classification and a discrimination between married women and unmarried women and that marriage cannot be a basis of classification between Sikkimese women themselves. Further, the said classification has no nexus to the object sought to be achieved inasmuch as when all persons who are coming within the scope and ambit of the expression “Sikkimese” as given in the C Explanation to the said provision, are given the benefit of exemption from payment of income tax under the I.T. Act, 1961, there cannot be an exclusion of only Sikkimese women, who are married subsequent to 1st April, 2008, to a non-Sikkimese.

46Copy pinpoint46. The thrust of the submissions of the learned Senior Counsel D for the petitioners is that there is a discrimination against Sikkimese women who have got married to a non-Sikkimese, that too, only those women who have married on or after 1st April, 2008. It is contended that proviso is arbitrary for two reasons: firstly, because it is discriminatory against Sikkimese women who have married non-Sikkimese men and secondly, only those Sikkimese women who were married on or after 1st April, 2008, do not have the benefit of the provision.

47Copy pinpoint47. On analysing the impugned proviso, it is noted that the benefit of the provision does not apply (i) to a Sikkimese woman, (ii) who is married to an individual who is not a Sikkimese, and (iii) the marriage having taken place on or after 1st April, 2008. Thus, what emerges is that marriage of a Sikkimese woman is made the basis of classification. Thus, in other words, there is discrimination in the following ways: i) between Sikkimese women who as opposed to Sikkimese men. G ii) between Sikkimese women who are married as opposed to those who are not married, and iii) between Sikkimese women who are married to a Sikkimese as opposed to those who are married to a non-Sikkimese, and H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 339 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

iv) between Sikkimese women who have married a non- A Sikkimese on or after 1st April, 2008, who are not entitled to the benefit of the provision as opposed to those Sikkimese women who are married to a non-Sikkimese prior to the aforesaid date, who are entitled to the said provision.

48Copy pinpoint48. It is further observed that Section 10 (26AAA) was inserted B to the I.T. Act, 1961 by the Finance Act, 2008 w.e.f. 1st April, 1990. The proviso although inserted in the year 2008 has a retrospective effect from 1st April, 1990 i.e., the date on which I.T. Act, 1961 was introduced in Sikkim. Prior to 1990, SITM, 1948, was applicable to Sikkim. This would imply that there was no such discrimination between 1 st April, 1990 and 1st April, 2008 for a period of eighteen years. Thus, those C Sikkimese women who had the benefit of the exemption have been deprived by the same w.e.f., 1st April, 2008. The retrospectivity of the proviso takes away a vested benefit extended to such category of women covered under the proviso w.e.f., 1st April, 1990 without there being a rationale for the same. D

49Copy pinpoint49. Further, it is necessary to analyse the basis of classification in terms of the categories of persons enunciated under Regulation (3) of the 1961 Regulation as under: (i) If a woman is the wife of a person who has his domicile in the territory of Sikkim immediately before the E commencement of the 1961 Regulation, such a person shall be a Sikkim Subject if he: a) was born in the territory of Sikkim and is resident therein, or F b) has been ordinarily resident in the territory of Sikkim for a period of not less than fifteen years immediately preceding the commencement of the Regulation. (ii) The wife of the person having domiciled in Sikkim shall be deemed to have domiciled in Sikkim for the purpose of G Regulation (3) [vide clause (2) of Explanation to Regulation (3)]. (iii) Under Regulation (6), a woman of a foreign nationality who is married to a Sikkim Subject after the commencement of 1961 Regulation shall ordinarily be eligible to be registered H

p. 340 Copy page pinpoint

A as a Sikkim Subject, on making an application to the Government of the Chogyal in the manner provided by the Rules under the 1961 Regulation, and after renouncing her former nationality and on taking an oath of allegiance. (iv) Clause (b) of Regulation (7) states that any Sikkimese woman who marries a person who is not a Sikkim Subject shall cease to be a Sikkim Subject.

50Copy pinpoint50. Thus, under the 1961 Regulation, as far as women are concerned, marriage has been the basis of acquiring the status of having a domicile in Sikkim and being a Sikkim Subject or losing domicile or status as a Sikkim Subject which aspect shall be discussed while considering the challenge to the proviso to Section 10 (26AAA) of the I.T. Act, 1961.

51Copy pinpoint51. In my view, marriage of a Sikkimese woman is also the basis for discrimination against her whereas there is no such discrimination vis-à-vis a Sikkimese man marrying a Sikkimese or a non-Sikkimese woman on or after 1st April, 2008. Article 14 of the Constitution states that, State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India. Article 15 (1) of the Constitution states that the State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. In fact, Article 15(3) empathetically states that nothing in Article 15 shall prevent the State from making any special provision for women and children but in the instant case, according to petitioners, instead of the proviso being in favour of Sikkimese women, it is antithetical to Articles 14 and 15 (1) and (2) of the Constitution of India as it is discriminatory against Sikkimese women who have married a non-Sikkimese, that too, after 1st April, 2008.

52Copy pinpoint52. This discussion has also to be viewed in light of the Explanation to Section 10 (26AAA) of the I.T. Act, 1961. The Explanation states that, the term ‘Sikkimese’ shall mean, an individual whose name is recorded in the Register of Sikkim Subjects immediately before 26th April, 1975, or an individual whose name is included in the said Register by virtue of the Government of India Orders dated 07th August, 1990 and 08th April, 1991, or also an individual whose name does not appear in the said Register but, it is established beyond doubt that name of such individual’s father or husband or paternal grandfather or brother from the same father has been recorded in that Register. The expression “an

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 341 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

individual” in clauses (1) to (3) of the Explanation cannot refer to only a A Sikkimese man and exclude a Sikkimese woman. Any other interpretation would mean that a Sikkimese woman has no identity of her own even if she is covered under the Explanation to be a Sikkimese and therefore is entitled to the benefit of the provision. It would also mean that a Sikkimese woman covered under the Explanation would be excluded from the benefit of the provision if she is covered under the proviso. In other words, the Explanation which is in the nature of a definition so as to give benefit to all Sikkimese individuals cannot be restricted in its applicability only to Sikkimese men (who are individuals covered under the Explanation), but exclude female Sikkimese individuals of a particular category on account of the proviso, which is inherently discriminatory. This would also imply that the expression “individual” in the Explanation would exclude Sikkimese women. In my view, the proviso cannot be construed to be an exception to the Explanation which is in the nature of a definition clause as it would be inherently discriminatory to do so.

53Copy pinpoint53. Thus, when a benefit is being given to a Sikkimese individual which would include all genders under the provision, by way of the Explanation being added, which is in the nature of a definition, the proviso cannot exclude a certain category of married Sikkimese women from the said Explanation and thereby, deprive them of the said benefit of exemption from payment of income tax on the basis of to whom they are married to. When the Explanation refers to an “individual”, it includes both Sikkimese men and women, in fact, all genders; it cannot have a restrictive or myopic reference to only Sikkimese men and exclude those Sikkimese women covered under the proviso. A proviso cannot over arch a provision. But in the instant case, the proviso is overriding the provision as well as the Explanation in respect of those categories of married Sikkimese women referred to in the proviso which is impermissible. Thus, the proviso is inherently arbitrary and discriminatory against a particular category of Sikkimese women. In other words, the Explanation to Section 10 (26AAA) of the I.T. Act, 1961 includes both Sikkimese men as well as women. Such being the interpretation, in my view, the proviso is antithetical to the Explanation and the Section as well.

54Copy pinpoint54. The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision. As a general rule, H

p. 342 Copy page pinpoint

A a proviso is added to an enactment to qualify or create an exception to what is in the enactment and ordinarily, a proviso is not interpreted as stating a general rule. In other words, a proviso qualifies the generality of the main enactment by providing an exception and taking out as it were, from the main enactment, a portion which, but for the proviso would fall within the main provision. Further, a proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment. If it does so and is discriminatory then it falls foul of the equality clauses of the Constitution of India.

55Copy pinpoint55. It is reiterated that the expression “an individual” in the Explanation to Section 10 (26AAA) of the I.T. Act, 1961, must include all genders including Sikkimese women. There cannot be a discrimination only on the ground of sex and race. Hence, all Sikkimese women are entitled to the benefit of Section 10 (26AAA) of the I.T. Act, 1961, as per the Explanation thereto irrespective of whether they marry a Sikkimese or a non-Sikkimese.

56Copy pinpoint56. Further, pursuant to the merger of Sikkim with India by virtue of which, Sikkim has become one of the States of India and all Sikkim Subjects and all Sikkimese domiciled in the territory of Sikkim have become Indian citizens, there cannot be a discrimination vis-à-vis Sikkimese women marrying a non-Sikkimese individual, whether an Indian citizen E or a foreigner, that too, on or after 1st April, 2008. Such discrimination, is therefore, in violation of the guarantee of equality provided under Articles 14 and 15 of the Constitution of India as it is on the basis of sex and race. Hence, the proviso to clause (26AAA) of Section 10 of the I.T. Act, 1961, is a stark example of an unconstitutional sex-based discrimination and is liable to be struck down. F

57Copy pinpoint57. In this context, the judicial dicta and decisions of this Court could be noted as under: a) In Air India vs. Nergesh Meerza, AIR 1981 SC 1829, the question was, whether, a four-year bar on marriage G immediately on obtaining employment in Air India, applicable only to women employees, could be retained as a reasonable provision. This Court held the same to be a sound and salutary provision on the ground that it would “improve the health of the employee” and “she becomes fully mature and there is every chance of such a marriage proving a H success, all things being equal…….”. The said judgment

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 343 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

was delivered in the year 1981 but with the passage of time and owing to the worldwide movement towards gender justice and elimination of all discrimination against women, acquiring momentum, I am of the considered view that a ban on marriage in respect of a female employee immediately for a period of four years on her being appointed by the employer is also discriminatory. Hence, this aspect of gender discrimination would require a reconsideration and course correction. This is because choice of marriage as well as exercising an option as to when to marry is a Fundamental Right under Article 21 of the Constitution of India. C However, in the very same case, this Court found the termination of service of a woman employee on her first pregnancy to be shocking as it was an open insult to “Indian womanhood” and hence, the said action was extremely detestable and abhorrent to the notions of a civilised society D and therefore, violative of Article 14 of the Constitution. In fact, this Court observed that the rule could be amended so that termination of the services of an employee on her third pregnancy could be permitted which aspect also, in my view, calls for reconsideration in the absence of any qualifying parameters. E

b) In Air India Cabin Crew Assn. vs. Yeshaswinee Merchant and others, AIR 2004 SC 187, this Court set aside a decision of the Bombay High Court and upheld the early retirement of women employees, namely, Air Hostesses in Air India which was then a Public Sector F Undertaking. Justifying its decision, this Court observed that, “there cannot be any cut and dried formula for fixing the age of retirement” and this “would always depend on a proper assessment of the relevant factors and may conceivably vary from case to case”. G

58Copy pinpoint58. With due respect, I find that the aforesaid two judgments have an underlying emphasis on the physique and physical appearance of women related to their marriage, consequent pregnancy and ageing which cannot be the rationale or basis for making policy decisions or regulations as they are discriminatory on the basis of sex and thus, unconstitutional. H

p. 344 Copy page pinpoint

59Copy pinpoint59. As opposed to the aforesaid decisions, it is necessary to also cite the following decisions of this Court: i) The decision of this Court in C.B. Muthamma Vs Union of India AIR 1979 SC 1868 is highly instructive in this regard. The petitioner therein was an officer in the Indian Foreign Service. She filed B a writ petition before this Court claiming denial of promotion on the ground of hostile discrimination, as she was a woman. She also brought to the notice of this court, the following two rules, challenging the same as being violative of the right to equality:

1. Rule 8(2) of the Indian Foreign Service (Conduct and C Discipline) Rules, 1961 which required a woman member in foreign service to obtain permission of the Government in writing before her marriage and to resign if the Government is satisfied that her family and domestic commitments are likely to come in the way of due and efficient discharge of her duties. D

2. Rule 18(4) of the Indian Foreign Service (Recruitment, Cadre, Seniority and Promotion) Rules, 1961, which prohibited a married woman to be appointed in Foreign Service as of right.

E Although during the pendency of the writ petition, Rule 18(4) was deleted, and an affidavit was filed by the Respondent-State that Rule 8(2) was also in the process of being repealed, this Court made the following observations as regards disabilities based on marriage: “5. Discrimination against women, in traumatic transparency, is found in this rule. If a woman member shall obtain the permission of government before she marries, the same risk is run by government if a male member contracts a marriage. If the family and domestic commitments of a woman member of the Service is likely to come in the way of efficient discharge of duties, a similar situation may well arise in the case of a male member. In these days of nuclear families, inter-continental marriages and unconventional behaviour, one fails to understand the naked bias against the gentler of the species.

6. At the first blush this rule is in defiance of Article

H 16. If a married man has a right, a married woman, other

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 345 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

things being equal, stands on no worse footing. This A misogynous posture is a hangover of the masculine culture of manacling the weaker sex forgetting how our struggle for national freedom was also a battle against woman’s thraldom. Freedom is indivisible, so is Justice. That our founding faith enshrined in Articles 14 and 16 should have been tragically B ignored vis-a-vis half of India’s humanity viz. our women, is a sad reflection on the distance between Constitution in the book and law in action. And if the executive as the surrogate of Parliament, makes rules in the teeth of Part III especially when high political office, even diplomatic assignment has been filled by women, the inference of diehard allergy to gender parity is inevitable. C

7. We do not mean to universalise or dogmatise that men and women are equal in all occupations and all situations and do not exclude the need to pragmatise where the requirements of particular employment, the sensitivities of sex or the peculiarities of societal sectors or the handicaps of either sex may compel D selectivity. But save where the differentiation is demonstrable, the rule of equality must govern. This creed of our Constitution has at last told on our governmental mentation, perhaps partly pressured by the pendency of this very writ petition. In the counter- affidavit, it is stated that Rule 18(4) (referred to earlier) has been deleted on November 12, 1973. And, likewise, the Central E Government’s affidavit avers that Rule 8(2) is on its way to oblivion since its deletion is being gazetted. Better late than never. At any rate, we are relieved of the need to scrutinise or strike down these rules.” (Emphasis by me) F

This Court struck down the afore-mentioned provisions as unconstitutional and also impressed upon the Central Government, the need to overhaul all Service Rules and remove the stain of sex discrimination. G (ii) Mackinnon Mackenzie and Co. Ltd. vs. Audrey D’costa and Another, AIR 1987 SC 1281, is a judgment of this Court upholding the decision of the Bombay High Court wherein it was ordered that, all women stenographers were entitled to equal remuneration for work of the same or similar nature as a male stenographer. H

p. 346 Copy page pinpoint

A (iii) In Githa Hariharan vs. Reserve Bank of India, (1999) 2 SCC 228, this Court was faced with the interpretation of Section 6(a) of Hindu Minority and Guardianship Act, 1956 and Section 19(b) of Guardian and Wards Act, 1890. The validity of the aforesaid Sections was assailed as being violative of the equality clause of the Constitution, inasmuch as under the said provisions the mother of a minor child is B relegated to an inferior position on the ground of sex alone since her right as a natural guardian of the minor, is made cognizable only ‘after’ the death of the father. This Court by relying upon the Convention on the Elimination of All Forms of Discrimination against Women, 1979 (“CEDAW”) and the Beijing Declaration, 1995, which directs all State C parties to take appropriate measures to prevent discrimination of all forms against women, observed that gender equality is one of the basic principles of our Constitution and in the event the word ‘after’ is to be read to mean a disqualification of a mother to act as a guardian during the lifetime of the father, the same would definitely run counter to the basic requirement of the constitutional mandate and would lead to a D differentiation between a man and a woman. This Court therefore held that the father, by reason of being conferred a dominant personality, cannot be ascribed to have a preferential right over the mother, in the matter of guardianship, since both fall within the same category and the word ‘after’ shall have to be interpreted in terms of the constitutional safeguards and guarantee given to gender equality so as to give a proper and effective meaning to the words use. (iv) In Anuj Garg & Ors. vs. Hotel Association of India & Ors. (2008) 3 SCC 1,this Court upheld the right of women to have equal treatment in employment in the hospitality sector. In the said case, the constitutional validity of Section 30 of the Punjab Excise Act, 1914, which prohibited employment of “any man under the age of 25 years” or “any woman” in any part of the premises in which liquor or any intoxicating drug was consumed by the public, was challenged. This Court observed that, when the original Act was enacted, the concept of equality between two sexes was unknown. The makers of the Constitution intended to apply equality amongst men and women in all spheres of life by virtue of Articles 14 and 15 of the Constitution. The Court was of the view that: “26. When a discrimination is sought to be made on the purported ground of classification, such classification must be founded on a rational criterion. The criteria which in absence of any constitutional H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 347 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

provision and, it will bear repetition to state, having regard to the societal conditions as they prevailed in early 20th century, may not be a rational criterion in the 21st century. In the early 20th century, the hospitality sector was not open to women in general. In the last 60 years, women in India have gained entry in all spheres of public life. They have also been representing people at grass root democracy. They are now employed as drivers of heavy transport vehicles, conductors of service carriage, pilots et. al. Women can be seen to be occupying Class IV posts to the post of a Chief Executive Officer of a Multinational Company. They are now widely accepted both in police as also army services.” In the said case, this court relied upon the judgment of the South C African Constitutional Court in Bhe and Ors. vs. The Magistrate, Khayelisha and Ors. (2004) 18 BHRC 52 : (2005) 1 BCLR 1 (CC), wherein the South African Constitutional Court had declared the Black Administration Act, 1927 (South Africa) and the Regulations of the Administration and Distribution of the Estates of Deceased Blacks (South D Africa) as ultra vires. It was held by the majority that the rule of male primogeniture as it applied in customary law to the inheritance of property was inconsistent with its Constitution and invalid to the extent that it excluded or hindered women and extra-marital children from inheriting property. The South African Constitutional Court further observed that, the rules of succession in customary law had not been given the space to adapt and to keep pace with changing societal conditions and values, instead, they had over time become increasingly out of step with the real values and circumstances of the societies they were meant to serve. Thus, the official rules of customary law of succession were no longer universally observed. The South African Constitutional Court, therefore, held that, the exclusion of women from inheritance on the grounds of gender was a clear violation of the constitutional prohibition against unfair discrimination. (v) In G. Sekar vs. Geetha & Ors. (2009) 6 SCC 99 this Court observed that, in terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to the male heirs. This Court further observed that, gender equality is recognized by the world community in general in the human rights regime. (vi) In this context, it would be useful to refer to the following observations made by Altamas Kabir, C.J. in his supplemental opinion in H

p. 348 Copy page pinpoint

A State of Maharashtra vs. Indian Hotel and Restaurants Association, (2013) 8 SCC 519: “147. Women worldwide are becoming more and more assertive of their rights and want to be free to make their own choices, which is not an entirely uncommon or unreasonable approach. B But it is necessary to work towards a change in mindset of people in general not only by way of laws and other forms of regulations, but also by way of providing suitable amenities for those who want to get out of this trap and to either improve their existing conditions or to begin a new life altogether. Whichever way one looks at it, the matter requires the serious attention of the State C and its authorities, if the dignity of women, as a whole, and respect for them, is to be restored.” (vii) Recently in Secretary, Ministry of Defence vs. Babita Puniya and others, (2020) 7 SCC 469, a struggle for equality of opportunity for women seeking Permanent Commissions (PCs) in the D Indian Army succeeded after a decade and more spent in litigation in which women engaged in Short Service Commissions (SSCs) in the Army sought parity with their male counterparts in obtaining PCs. In the said case, this Court speaking through Dr. D. Y. Chandrachud, J. (as His Lordship then was) observed as under: E “85…..An absolute bar on women seeking criteria or command appointments would not comport with the guarantee of equality under Article 14. Implicit in the guarantee of equality is that where the action of the State does differentiate between two classes of persons, it does not differentiate them in an unreasonable or irrational manner. In this sense, even at its bare minimum, the right to equality is a right to rationality. Where the State, and in this case the Army as an instrumentality of the State, differentiates between women and men, the burden falls squarely on the Army to justify such differentiation with reason. An absolute prohibition of women SSC officers to obtain anything but staff appointments evidently does not fulfil the purpose of granting PCs as a means of career advancement in the Army. Whether a particular candidate should or should not be granted a criteria or command assignment is a matter for the competent authority to consider having regard to all the exigencies of service, performance and organisational requirements. In the present case the Army has H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 349 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

provided no justification in discharging its burden as to why women A across the board should not be considered for any criteria or command appointments. Command assignments are not automatic for men SSC officers who are granted PC and would not be automatic for women either. The absolute exclusion of women from all others except staff assignments is indefensible. If the B Army has cogent reasons for excluding women from a particular criteria or command appointment, it may provide them to the relevant authorities and if necessary, to future courts. However, such a justification must take place on a case-to-case basis, in light of the requirements and exigencies of a particular appointment. The blanket non-consideration of women for criteria or command appointments absent an individuated justification by the Army cannot be sustained in law.”

60Copy pinpoint60. The fight for non-discrimination based on considerations of gender has assumed centre stage in the United States of America as well. The Fourteenth Amendment to the U.S. Constitution provides that no State shall deny to any person within its jurisdiction, equal protection of the laws. This clause has evolved a body of judicial doctrine which is comprised, inter-alia, in the numerous rulings issued by the United States Supreme Court, that have advanced women’s rights. A few of such landmark decisions may be referred to as under: E (a) In Reed vs. Reed, 404 U.S. 71, 92 S. Ct. 251 (1971), the question before the Supreme Court of the United States was, whether, a statute, namely, the Idaho Probate Code that included a gender-based provision, preferring males over females to administer an estate, violated the Equal Protection clause of the Fourteenth Amendment of the Constitution.In a unanimous decision, the Court held that the Idaho Probate Code’s dissimilar treatment of men and women was unconstitutional and was violative of the Equal Protection clause of the Fourteenth Amendment. The Court observed that, “to give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection clause of the Fourteenth Amendment…The choice in this context may not lawfully be mandated solely on the basis of sex.” H

p. 350 Copy page pinpoint

A (b) InWeinberger vs. Wiesenfeld, 420 U.S. 636, 95 S. Ct. 1225 (1975), the issue was with regard to the Social Security Act which provided survivor’s benefits based on the earnings of a deceased husband and father both to his widow and the couple’s minor children in her care. However, the benefits based on the earnings of a covered deceased wife and mother were granted only to the minor children and not to the widower. In the said case, the question before the Supreme Court of the United States was whether the gender-based distinction in Social Security Benefits violated the Due Process Clause of the Fifth Amendment. In a unanimous decision, the Court held that the purpose of the social security benefits for the surviving spouse and children is to enable the surviving spouse to properly care for the children, regardless of the gender of the parent. The Court observed that, gender-based discrimination regarding these benefits was illogical and counter-productive by excluding a widower. D It was further observed that the Constitution of United States forbade a gender-based differentiation that resulted in less protection for the families of female workers who were required to pay Social Security taxes than was accorded to the families of male workers. The statute’s gender-based distinction was based on an archaic and overbroad generalization about the contributions to family support made by male and female workers. The Court therefore held that such an irrational classification violated the right to equal protection secured by the Fifth Amendment, which prohibited discrimination that was so unjustifiable as to be violative of due process. Thus, in the aforesaid case, the right of a widower was established while at the same time emphasising that discrimination on the basis of gender violated the equality clause which provides a guarantee against such discrimination. (c) The question in Duren vs. Missouri, 439 U.S. 357, 99 S. Ct. 664 (1979)was whether the Jackson County’s practice of automatically exempting women from jury service upon request violated the rights as guaranteed by the Sixth and Fourteenth Amendments. The Court held that the State statute’s exemption of women from jury service on request violated the defendant’s rights as guaranteed by the Sixth and Fourteenth Amendments in failing to ensure that jurors in criminal cases be drawn from a fair

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 351 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

cross section of the community, since it was sufficiently established by the defendant that women, as a group, were distinct from men. The Court further observed that, there existed no significant state interest to justify exemption of women from jury service. (d) In Hishon vs. King & Spalding, 467 U.S. 69, 104 S. Ct. 2229 (1984)the controversy was whether King & Spalding, the law firm where Hishon was employed, violated Title VII of the Civil Rights Act of 1964 (for short, “CR Act, 1964”) by unfairly discriminating against Hishon on the basis of her sex by denying her admission to the partnership of the firm. In a unanimous decision, the Court held that Title VII of the CR Act, 1964 made it illegal for an employer to discriminate against any employee on the basis of her sex. The Court observed that, the promise of equal consideration for partnership that went along with Hishon’s employment was contractual in nature and subject to the regulations of Title VII of the CR Act, 1964. The Court further observed that by preventing Hishon from obtaining partnership because of her sex, the firm had discriminated against her and had breached the “terms, conditions or privileges of employment”. It was therefore held that the firm acted in direct violation of Title VII of the CR Act, 1964. (e) Another question before the Supreme Courtin United States E vs. Virginia, 518 U.S. 515 (1996)was whether the practice undertaken by the Virginia Military Institute (VMI) of offering education only to men and not women constituted a denial of equal protection under the Fourteenth Amendment of the United States Constitution. In a 7:1 decision, the Court held that VMI’s male- only admissions policy was unconstitutional. Justice Ruth Bader F Ginsburg was of the view that Virginia failed to show “an exceedingly persuasive justification” for VMI’s gender-biased admissions policy. The Court observed that the notion that admitting women would downgrade VMI’s stature and destroy the school’s adversity system, was hardly proved. The Court therefore G observed that, it violated the Fourteen Amendment’s equal protection clause.

61Copy pinpoint61. In the case under consideration as per the Notification dated th 16 May, 1975 on the enforcement of Citizenship Act, 1955, and Citizenship Rules, 1956 to the State of Sikkim on its merger with India H

p. 352 Copy page pinpoint

A and as per the Sikkim (Citizenship) Order, 1975, every person who immediately before 26th April, 1975, was a Sikkim Subject as per the 1961 Regulation was deemed to have become a citizen of India on that day. Thus, an individual had a domicile in the territory of Sikkim immediately before the commencement of the 1961 Regulation, if he/ she was: B a) born in the territory of Sikkim and was resident therein; or b) had been ordinarily residing in the territory of Sikkim for a period of not less than fifteen years immediately preceding the commencement of the 1961 Regulation.

62Copy pinpoint62. Such an individual automatically became a citizen of India and his/her name may have also been entered in the Register of Sikkim Subjects immediately before 26th April, 1975. This is also clear from the Government Order dated 7th August, 1990 which was notified by the Government of Sikkim to the effect that every person who immediately D before 26th April, 1975, was a Sikkim Subject under 1961 Regulation, shall be deemed to have become a citizen of India on that day. In fact, where there were genuine omissions, a direction was issued to enter all such eligible persons who had been omitted in the said Register. To the same effect is the Government Order issued by the Government of India dated 8th April, 1991 which was notified by the Government of Sikkim E on the same date.

63Copy pinpoint63. Therefore, on a conspectus consideration of the 1961 Regulation in light of the Government Orders passed subsequent to the merger of Sikkim with India by which Sikkim became a State in India and by which the Sikkim Subjects domiciled in Sikkim had their names included in the Register of Sikkim Subjects, the proviso should not have discriminated against Sikkimese women in the manner analysed above, only because a Sikkimese woman who, though, may have had her name registered in the Register of Sikkim Subjects, married a non-Sikkimese, that too, only on or after, 1st April, 2008, would be excluded from the exemption clause. Such a category of women cannot be deprived of the benefit of the provision under Section 10 (26AAA) of the I.T. Act, 1961.

64Copy pinpoint64. In fact, in my view, the proviso runs counter to the Explanation and is thus manifestly arbitrary. This is because the Explanation intends to give the benefit of Section 10 (26AAA) of the I.T. Act, 1961 to all Sikkimese who are defined under the said Explanation as those H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 353 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

‘individuals’ whose names have been recorded and registered in the A Register of Sikkim Subjects immediately before 26th April, 1975 or included pursuant to the Government of India Order No. 26030/36/90/ I.C.I. dated 7th August, 1990 and Order of even number dated 8th April, 1991, or those persons whose names do not appear in the Register of Sikkim Subjects but it has been established that the name of such B individual’s father or husband or paternal grandfather or brother from the same father had been recorded in that Register. Hence, the benefit of the Explanation must be extended to all Sikkimese women, irrespective of whether they have married a Sikkimese or a non-Sikkimese after the 1st April, 2008.

65Copy pinpoint65. Thus, in view of the aforesaid discussion, the proviso to Clause C (26AAA) of Section 10 of the I.T. Act, 1961 is struck down as being in violation of Articles 14 and 15 of the Constitution of India. Challenge to the Explanation:

66Copy pinpoint66. For the purpose of Section 10 (26AAA) of the I.T. Act, 1961, D the meaning of ‘Sikkimese’ is of significance inasmuch as it is only a ‘Sikkimese’ who is entitled to the benefit under the said Act. The same is under challenge in these petitions. There are three categories of persons included within the expression ‘Sikkimese’ given in the Explanation to the aforesaid provision namely: - E A) an individual, whose name is recorded in the register maintained under the Sikkim Subjects Regulation, 1961 read with the Sikkim Subject Rules, 1961 (Register of Sikkim Subjects), immediately before 26th April, 1975; or B) an individual, whose name is included in the Register of Sikkim F Subjects by virtue of the Government of India Order No. 26030/ 36/90 - I.C.I., dated 7th August 1990 and Order of even number dated 8th April, 1991; or C) any other individual, whose name does not appear in the Register of Sikkim Subjects, but it is established beyond doubt G that the name of such individual’s father or husband or paternal grandfather or brother from the same father has been recorded in that register;

67Copy pinpoint67. Therefore, it is necessary to analyse each of the aforesaid Regulations, Rules, Government of India Orders for the purpose of this H

p. 354 Copy page pinpoint

A case as a challenge is made by the petitioners to the definition of ‘Sikkimese’ in the Explanation to Section 10 (26AAA) of the I.T. Act, 1961 in respect of the three categories of individuals entitled to the benefit.

68Copy pinpoint68. The first category of individuals are those individuals whose names are registered in the Register maintained under the Sikkim Subjects B Regulation, 1961 read with the Sikkim Subject Rules, 1961 (“1961 Regulation” and “1961 Rules” respectively): 68.1. An individual whose name is recorded in the Register of Sikkim Subjects immediately before 26th April, 1975 is a Sikkimese. The same is as per the 1961 Regulation read with 1961 Rules. On a perusal of the 1961 Regulation, which was enacted during the period of the Chogyal in Sikkim, it is noted that Regulation (3) is relevant insofar as these petitioners are concerned. Regulation (3) reads as under: - “3. Certain persons domiciled in Sikkim Territory at the commencement of the Regulation to be Sikkim Subjects: (1) Every person who has his domicile in the territory of Sikkim immediately before the commencement of this Regulation shall be a Sikkim Subject if he- (a) was born in the territory of Sikkim and is resident therein, or (b) has been ordinarily resident in the territory of Sikkim for a period of not less than fifteen years immediately preceding such commencement: Provided that in counting the said period of fifteen years any absence from the said territory on account of service under the Government of India shall be disregarded; or (c) is the wife or minor child of a person mentioned in clause(a) or clause (b): G Provided that a person shall not be a Sikkim Subject under this Section unless he makes a declaration to the effect that he is not a citizen of any other country at the time of inclusion of his name in the register of Sikkim Subjects to be maintained under this Regulation:

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 355 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

Provided further that in the case of a minor or a person of unsound mind, such declaration may be made by his guardian. Explanation: No person shall ·be deemed to have his domicile in the territory of Sikkim unless ... (1) he is a person who has made Sikkim his permanent home and has severed his connections with the country of his origin such as by parting with his property in that country or acquiring immovable property in Sikkim. Provided that a person shall not be deemed to have a permanent home in Sikkim if he indicates an intention of returning to his country of origin, by keeping a live interest therein even though he might have parted with his property in his country of origin and the mere parting of such property will not be regarded as proof of a person’s having acquired a permanent home in Sikkim. D (2) The wife and minor children of a person having his domicile in Sikkim shall be deemed to have domicile in Sikkim for the purpose of this Section. (3) In any case of doubt as to whether a person has domicile within the territory of Sikkim under this Section, E the matter shall be decided by The Chogyal with the assistance of a Board consisting of persons to be appointed in accordance with the rules made under this Regulation.” 68.2. What is pertinent in the said Regulation is that, the following F three categories of persons are stated to have domicile in the territory of Sikkim immediately before the commencement of the 1961 Regulation: - (a) a person born in the territory of Sikkim and is resident therein, or G (b) has been ordinarily resident in the territory of Sikkim for a period of not less than fifteen years immediately preceding such commencement, or (c) is the wife or the minor child of a person mentioned in clause (a) or clause (b) above. H

p. 356 Copy page pinpoint

A 68.3. The proviso to Regulation (3) states that a person shall not be a Sikkim Subject under Regulation (3) “unless he makes a declaration to the effect that he is not a citizen of any other country at the time of inclusion of his name in the Register of Sikkim Subjects to be maintained under the said Regulation.” The said proviso, must now be interpreted in light of the fact that the Kingdom of Sikkim has merged with India with effect from 26th April, 1975 and is an Indian State. When considered in the context of the aforesaid significant fact, the proviso to Regulation (3) would have to be interpreted to mean that an individual who had not made a declaration to the effect that he was not a citizen of any other country at the time of inclusion of his name in the Register of Sikkim Subjects, as he was originally a subject of British India or any of the princely states of India or any other A, B or state as understood under the Constitution of India, had ordinarily been resident in the territory of Sikkim for business, employment or any such other purposes, is now entitled to be registered in the Register of Sikkim Subjects. This is because Sikkim has now merged with India and has become one of the States of India. Also, persons domiciled in the erstwhile Kingdom E of Sikkim i.e., prior to 26th April, 1975, the day Sikkim Kingdom merged with India would now become citizens of India. Therefore, the expression “he is not a citizen of any other country” in the proviso to Regulation (3), after the inclusion of the territory of Sikkim as a part of the Indian territory, must now be read, to exclude a citizen of India F ordinarily resident in Sikkim as on 26th April, 1975. This would imply that if an individual from British India or any other part of India after its Independence was domiciled in Sikkim prior to 26th April, 1975 and has become a citizen of India by virtue of Part II of the Constitution and the G Citizenship Act, 1955, enacted by the Parliament and Orders made thereunder, pursuant to the merger of Sikkim Kingdom with India, such individual ought to now be included in the Register of Sikkim Subjects if not included till date. 68.4. Similarly, the expression “any other country” in Regulation H (4) of the 1961 Regulation must be read to mean “any other

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 357 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

country other than India”. By such an interpretation, a person A domiciled in the territory of Sikkim and who has acquired the citizenship of India may, on an application made to the authority prescribed by the 1961 Rules be registered as a Sikkim Subject, if he is a person whose ancestors were deemed to be Sikkim Subjects. B 68.5. That in order to check the influx of foreigners into Sikkim, the Chogyal, in 1961, had promulgated the 1961 Regulation. Under the said Regulation: a) Persons falling under Regulation (3) of the 1961 Regulation were to be entered as ‘Sikkim Subjects’ in the C Register; and b) Persons who were citizens of another country were not to be registered as ‘Sikkim Subjects’ unless they relinquished the citizenship of the other country. However, after the merger of Sikkim Kingdom with India, D the expression “any other country” would not include India as all residents of Sikkim, whether a Sikkim Subject or not are now Indian citizens. But the term ‘Sikkim Subject’ was defined as a person who was born in the territory of Sikkim and was resident therein and all similarly situated persons, but however, with a caveat that a person shall not be a Sikkim Subject under the 1961 Regulation, unless he made a declaration that he was not a citizen of any other country at the time of inclusion of his name in the Register of Sikkim Subjects. The result of this caveat was that an Indian citizen whose ancestors had settled down in Sikkim for generations, had to give up his citizenship of India (of which country Sikkim was a protectorate since 1950), for the purpose of registering himself as a Sikkim Subject. However, though these Regulations were promulgated, no differential treatment was meted out to the Indians as their rights were protected under the Indo-Sikkim Treaty of 1950. 68.6. Thus, although, as per the 1961 Regulation read with the 1961 Rules, the name of the individual had to be registered before 26th April, 1975 in the Register of Sikkim Subjects, in view of the interpretation now given to the proviso to H

p. 358 Copy page pinpoint

A Regulation (3) and particularly, to the expression ‘in any other country’, as also found in Regulation (4) of the 1961 Regulation, a future cut-off date may have to be indicated by the Union of India by means of a circular or in any other manner for the purpose of enabling the registration of individuals in the Register of Sikkim Subjects who are Indian B citizens, domiciled in the territory of Sikkim on or before 26th April, 1975. This is permissible because Government Order dated 7th August, 1990, would indicate that every person who immediately before 26th April, 1975 was a Sikkim Subject under the 1961 Regulation shall be deemed to have become a citizen of India on that day. The object and purpose of the issuance of the Government Order was to ensure that those persons who were eligible to be entered in the Register of Sikkim Subjects but were not so entered because of a genuine omission were enabled to get themselves registered and are accordingly deemed to have become citizens of India with effect from 26th April, 1975 in terms of the Sikkim (Citizenship) Order, 1975. 68.7. The Sikkim (Citizenship) Order, 1975, as amended by the Sikkim (Citizenship) Amendment Order, 1989, issued by the Government of India would clearly indicate that any person who was a Sikkim Subject under the 1961 Regulation shall be deemed to have become a citizen of India. Conversely, all citizens of India having a domicile in Sikkim on or before 26th April, 1975 must be enabled to register their names in the Register of Sikkim Subjects in order to avail the benefit of exemption under clause (26AAA) of Section 10 of the I.T. Act, 1961. This would imply that the 1961 Regulation is being extended up to 26th April, 1975 for the purpose of Explanation to Section 10 (26AAA) of the I.T. Act, 1961 so as to save it from being rendered discriminatory insofar as the petitioners herein and similarly situated individuals are concerned. 68.8. Further, under the Sikkim Work Permit Rules, 1965 every ‘foreigner’ entering Sikkim was required to obtain a work permit from the Chief Secretary or any other officer authorised by him before he could take up or continue any H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 359 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

employment for gain within the State of Sikkim. However, A under the aforesaid Rules, the definition of ‘foreigner’ included all foreigners except a citizen of India. Therefore, Indian citizens or Indian nationals who became domiciled in Sikkim and were employed in Sikkim did not require a work permit. In view of the aforesaid Rules, it can be B inferred that any Indian citizen who entered Sikkim for the purpose of employment prior to 26th April, 1975 was treated on par with Sikkimese and not as a foreigner. It is plausible that because of the concession given under Work Permit Rules of 1965, Indian citizens or nationals did not get themselves registered under the Register of Sikkim Subjects C at the relevant point of time. 68.9. It is contended that only a small percentage of settlers of Indian origin in Sikkim have not been registered under the Register of Sikkim Subjects and as a result they are not provided the benefit of exemption under the Explanation to D clause (26AAA) of Section 10 of the I.T. Act, 1961. In the circumstances, the respondent-Union of India must consider ways and means in which such persons could also receive the benefit of exemption from payment of income tax if they were domiciled in Sikkim on or before 26th April, 1975 by amending the Explanation to Section 10 (26AAA) of the E I.T. Act, 1961 or by issuing a circular enabling such individuals being given the opportunity to register themselves in the said Register. 68.10. Further, the Government of India has enabled the registration of all such persons who were omitted from the Register of F Sikkim Subjects under the 1961 Regulation read with the 1961 Rules. The Government of India Order dated 7th August, 1990 also has a deeming fiction inasmuch as all subjects registered under the Register of Sikkim Subjects have become citizens of India as on 26th April, 1975. G 68.11. The rationale for extending the registration of persons who were omitted from the Register of Sikkim Subjects under the 1961 Regulation vide Government of India Orders dated 07th August, 1990 and 08th April, 1991 is in recognition of the fact that individuals who were domiciled in Sikkim, for H

p. 360 Copy page pinpoint

A various reasons could not be registered under the Register of Sikkim Subjects. If the criterion of domicile has been the basis for registration of persons in the Register under the 1961 Regulations, then by the very same basis, individuals such as the petitioners and all similarly situated persons domiciled in Sikkim on or before 26th April, 1975 which is the day on which Sikkim merged with India must be given the benefit of the exemption even if their names are presently not registered in the Register of Sikkim Subjects in order to remove the vice of discrimination vis-a-vis such individuals. 68.12. Hence, persons such as the petitioners and other similarly situated persons who have not been registered under the Register of Sikkim Subjects can now seek registration in view of the aforesaid discussion as registration under the said Register is the basis for extending the exemption under Section 10 (26AAA) of the I.T. Act, 1961. Hence, directions have been issued so as to include persons such as the petitioners and other similarly situated persons.

69Copy pinpoint69. The second category of individuals are individuals whose names have been registered in the Register of Sikkim Subjects by virtue of the Government of India Order No.26030/36/90 – I.C.I. dated 7th E August, 1990 and Order of even number dated the 8th April, 1991 and notification issued by the Department of Home, Government of Sikkim dated 16th August, 1990 publishing the Government of India Order dated 7th August, 1990: 69.1. As per the Notification dated 21st June, 1975, issued by the F Home Department, Government of Sikkim, it was declared that 16th May, 1975 was the date on which the Citizenship Act, 1955, shall come into force in the State of Sikkim and the Citizenship Rules, 1956, were also enforced from the aforesaid date. In fact, in exercise of the powers conferred under Section 7 of the Citizenship Act, 1955, the Government of India promulgated the Sikkim (Citizenship) Order, 1975. As per clause G (2) of the aforesaid order: “Every person who immediately, before the 26th day of April, 1975, was the Sikkim Subject under the Sikkim Subjects Regulation, 1961 shall deem to have become a citizen of India on that day”. H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 361 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

Further, in exercise of the powers conferred by Section 7 of the A Citizenship Act, 1955, the Government of India amended the Sikkim Citizenship Order, 1975, by virtue of the Sikkim Citizenship (Amendment) Order, 1989, whereby a proviso was added to paragraph 2 of the Sikkim (Citizenship) Order, 1975, which reads as follows: “Provided that any person whose name was eligible to be B entered in the register maintained under the said regulation but was not so entered because of any genuine omission shall also be deemed to have become a citizen of India on that day if so determined by the Central Government”. 69.2. As per the Notification issued by the Government of India C Order No.26030/69/88-I.C.I. dated 20th March, 1989, a Committee for the purpose of consideration of the cases of genuine omissions in terms of the Sikkim Citizenship (Amendment) Order, 1989, was formed on 20th March, 1989. Further, by this Order, Guidelines were issued as criteria for considering the names of individuals who had been omitted to be registered in the Sikkim Subjects. The said criteria read as under: - D “ANNEXURE TO M.H.A. ORDER N0.26030/ 69/88-I.C.I DATED 20.03.1989 GUIDELINES a. Natural descendants of a person whose names is in the Sikkim Subject Register. E b. Person having recorded ownership or tenancy rights on agricultural land or of rural property within Sikkim before 26th April, 1975, and his natural descendants. c. Persons whose name is included in the earliest available voters- list prior to the 26th April, 1975, and his natural descendants. F th d. Person holding a regular government job before 26 April, 1975 provided that the appointment has not been made under the ‘exception’ clause pertaining to non-subjects; and his natural descendants. e. Holder of trade license outside notified bazaar areas prior to G 26th April, 1975 and his natural descendants. f. He must not have entered the territory of Sikkim on the basis of work-permit. g. He must not have acquired citizenship of any other country. H

p. 362 Copy page pinpoint

A h. He must not be holding the status of refugee on the basis of a registration certificate issued by the competent authority. (The criteria laid down from (a) to (e) singly or collectively are by themselves not be taken as conclusive evidence for granting citizenship, but would have to be scrutinized in the light of those at B (f), (g) & (h).” 69.3. Further, the Government of India issued Notification vide Order No.26030/36/90-I.C.I. dated 8th April, 1991 and the said Order states that there were a large number of persons who were eligible to be entered in the Register as Sikkim Subjects immediately before 26th April, C 1975, as per the 1961 Regulation, were not so entered because of genuine omissions. The said cases of genuine omissions were reviewed and it was recommended that the names of 73,431 persons were considered eligible for being included in the Register of Sikkim Subjects. The Ministry of Home Affairs, Government of India after consideration of the cases found that 33,348 persons were eligible to be registered under the Register D of Sikkim Subjects and were deemed to have become citizens of India with effect from 26th April, 1975, in terms of the Sikkim (Citizenship) Order, 1975. 69.4. By virtue of the aforesaid Government Orders dated 7th August, 1990 and 8th April, 1991 it is clear that persons who were entitled E to be registered in the Register of Sikkim Subjects immediately before 26th April, 1975 but were not registered because of genuine omissions, are to be registered in the said Register by virtue of the said Government Orders as citizens of India and entitled to the benefit of the exemption. Thus, all individuals who were registered in the Register of Sikkim F Subjects became citizens of India by virtue of the aforesaid Government of India’s orders. Therefore, it was a necessary concomitant that to become a citizen of India, an individual must have been/be registered in the Register of Sikkim Subjects. Further registration under the said Register enables such individuals to have the benefit of exemption from G payment of income tax. But individuals such as the petitioners and all similarly situated individuals as of now are not entitled to the benefit of exemption as their names are not registered in the said Register. 69.5. Further, even under the Sikkim Work Permit Rules, 1965, an Indian national was not considered to be a foreigner in Sikkim. Thus, all Indian nationals who have become domiciled in Sikkim till 26th April, H

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 363 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

1975 must be given the benefit of the exemption clause under the I.T. A Act, 1961. This is in order to eliminate the disparity amongst the individuals who are all now citizens of India settled/domiciled in Sikkim prior to 26 th April, 1975. Therefore, directions have been issued in this regard so as to save the Explanation from the vice of being ultra vires under Articles 14 and 15 of the Constitution of India. B

70Copy pinpoint70. The third category of individuals are those, whose names do not appear in the Register of Sikkim Subjects, but it is established beyond doubt that the name of such individuals’ father or husband or paternal grandfather or brother from the same father has been recorded in that register. C 70.1. As far as these categories of individuals are concerned, there is a necessity to prove beyond doubt that the name of such individual’s father or husband or paternal grandfather or brother from the same father has been recorded in the Register. In such a case, even if an individual’s name does not appear in the Register of Sikkim Subjects, for the purpose of clause (26AAA) of Section 10 of the I.T. Act, 1961, D a Sikkimese is entitled to the benefit of the said provision of the said Act. This is on the basis of the concept of domicile of the ancestors or close relations of the individual. Therefore, such category of individuals are also included to avail the benefit of the exemption clause.

71Copy pinpoint71. On an analysis of the Explanation, it would emerge that the E Register of Sikkim Subjects is the basis for granting an exemption from payment of income tax under the I.T. Act, 1961 to a Sikkimese. Therefore, the Government of India has extended opportunities for the names of individuals to be recorded in the Register of Sikkim Subjects even after the merger of Sikkim as a State with India on 26th April, 1975, F by issuance of Government Orders dated 7th August, 1990 and 8th April,

1991. Further, names of individuals which do not appear in the Register of Sikkim Subjects but it is established beyond doubt that the names of such individual’s father or husband or paternal grandfather or brother from the same father have been recorded in that Register, could also be included in the said Register. Hence, even as of now, if any individual’s G name is not entered in the Register, such individual’s name could be entered into the Register by virtue of clause (iii) of the Explanation to Section 10 (26AAA) of the I.T. Act, 1961. The object of providing clause (iii) of the Explanation, which is in the nature of an omnibus clause, is to extend the benefit of the exemption under Section 10 (26AAA) of the H

p. 364 Copy page pinpoint

A I.T. Act, 1961 to all Sikkimese as per the conditions mentioned therein by providing individuals whose names do not appear in the Register, an opportunity of getting their names registered in the said Register so as to avail the benefit of exemption from payment of income tax as per the aforesaid provision.

72Copy pinpoint72. Thus, the object is to provide the exemption from payment of income tax only to those Sikkimese who were domiciled in Sikkim having regard to the 1961 Regulation or by virtue of the Government Orders dated 7th August, 1990 or 8th April, 1991 issued by the Government of India which are again based on the 1961 Regulation. Therefore, under clause (iii) of the Explanation, an opportunity would have to be provided to individuals who fall within the scope and ambit of the said clause of the I.T. Act, 1961, to get their names registered if not yet registered.

73Copy pinpoint73. However, in my view, the Explanation restricts the exemption only to those Sikkimese individuals who fall within the three clauses of the Explanation, as the object and purpose of the exemption is only to exempt the settlers in Sikkim or persons domiciled in Sikkim in terms of the 1961 Regulation or the Government Orders referred to above. Even though the 1961 Regulation has been repealed, nevertheless, the Register of Sikkim Subjects which is maintained under the said Regulation, which had acquired a sanctity, has been the basis for grant of an exemption and particularly in the form of clause (iii) of the Explanation to Section 10(26AAA) of the I.T. Act, 1961. This would imply that all those individuals who fall outside the scope and ambit of the Explanation would not be granted the exemption. Then, the questions of discrimination against persons such as the petitioners and others similarly situated would arise.

74Copy pinpoint74. Individuals having become citizens of India and were domiciled in Sikkim as on 26th April, 1975 are also entitled to the benefit of registration and exemption. Thus, in my view, all individuals domiciled in Sikkim till 26th April, 1975 and who have since become citizens of India are entitled to exemption from payment of income tax as per Section 10 (26AAA) of the I.T. Act, 1961. G

75Copy pinpoint75. The rationale being, Sikkim merged with India and became a State within India in the year 1975 and a special status was given to it by virtue of Article 371-F of the Constitution of India. This does not mean that all persons domiciled in Sikkim who have been treated as citizens of India are entitled to the exemption. Only such individuals are entitled to H the exemption who fall within the three clauses of the Explanation. Hence,

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 365 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

the Explanation must be construed strictly as it is in the nature of a A definition of the expression “Sikkimese” for the purpose of granting an exemption from payment of income tax under the I.T. Act, 1961. However, the exemption must be extended to incorporate all such individuals who have been domiciled in Sikkim as on 26th April, 1975 and who have since then become citizens of India. This would mean that all B other citizens of India who do not fall within the ambit of the Explanation as interpreted above and who have been domiciled in Sikkim State subsequent to 26th April, 1975 would not have the benefit of exemption under Section 10 (26AAA) of the I.T. Act, 1961.

76Copy pinpoint76. In view of the above interpretation, in my view, the Explanation has to be saved from being in violation of Articles 14 or 15 of the C Constitution of India as there is rationale in the three clauses of the Explanation which is a reasonable classification which has a nexus to the object sought to be achieved, which is to grant of exemption from payment of income tax only to those individuals who would qualify as ‘Sikkimese’ in terms of the Explanation to clause (26AAA) of Section D 10 of the I.T. Act, 1961. Thus, any individual not falling within the said clause would not be entitled to the said exemption. This would however be discriminatory insofar as those settlers in Sikkim are concerned who have been domiciled in Sikkim subsequent to promulgation of 1961 Regulation and till 26th April, 1975 when Sikkim merged with India. Such individuals are old settlers who have become citizens of India from 26th E April, 1975 but who were domiciled in Sikkim prior to the said date. In my view, they are also entitled to the exemption under Section 10 (26AAA). Hence, directions in that regard have to be issued to fill the Legislative vacuum and amendment to the Explanation is necessary. However, those individuals who have been domiciled in Sikkim subsequent F to 26th April, 1975 shall not be entitled to the benefit of exemption from payment of income tax.

77Copy pinpoint77. This Court has on previous occasions, sought to enforce rights of citizens even in areas of legislative vacuum. [For instance, in Vishaka and Ors. vs. State of Rajasthan, A.I.R. 1997 SC 3011]. To this end, G Article 142 of the Constitution of India has been invoked and the law so declared in order to fill the vacuum has been treated as law declared by this Court under Article 141 until a proper legislation is made. Hence, it has to be directed that till such amendment is made to the down the Explanation to Section 10(26AAA) of the I.T. Act, 1961, H

p. 366 Copy page pinpoint

A all individuals domiciled in Sikkim up to 26th April, 1975 shall be entitled to the exemption under the said provision from the current financial year i.e., 1st April, 2022 onwards. This direction is being issued in exercise of powers under Article 142 of the Constitution so as to eliminate discrimination and disparity in respect of the aforesaid category of Sikkimese, who subsequently have become citizens of India w.e.f. 26th B April, 1975 and to save the Explanation from being rendered unconstitutional vis-à-vis such individuals who form a small percentage of Sikkimese and who are also entitled to such an exemption. Such as approach is being adopted rather than striking down the Explanation to Section 10(26AAA) of the I.T. Act, 1961 which would have the effect C of withdrawing the benefit of exemption even from those categories of persons who are presently eligible for the same.

78Copy pinpoint78. Hence, until the amendment is made, the following clause shall be read as a part of the Explanation to Section 10(26AAA) of the I.T. Act, 1961, possibly as sub-clause (iv) thereof: D “(iv) any other individual, whose name does not appear in the Register of Sikkim Subjects but it is established that such individual was domiciled in Sikkim on or before 26th April, 1975.” This provision would extend the benefit of exemption to those individuals, domiciled in Sikkim on the day it merged with India, i.e., 26th E April, 1975.

79Copy pinpoint79. In the result, the writ petitions are disposed of in the following terms: i) That the benefit of income-tax exemption presently is restricted only to those Sikkimese who fall within the three clauses of the Explanation to Section 10(26AAA) of the I.T. Act, 1961, or those persons domiciled in Sikkim, or are Sikkimese as covered under the 1961 Regulation. ii) In terms of the Sikkim (Citizenship) Order, 1975 as amended by the Sikkim (Citizenship) Amendment Order, 1989, issued by the Government of India any person who was a Sikkim Subject under the 1961 Regulation was to be deemed to be a citizen of India w.e.f. 26th April, 1975. Conversely, it is held that all citizens of India, having a domicile in Sikkim on the day it merged with India i.e. 26th April, 1975 must be covered under the Explanation in order to avail the benefit

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. 367 UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J.]

of the exemption under Section 10(26AAA) of the I.T. Act, A 1961. iii) The Union of India shall make an amendment to Explanation to Section 10 (26AAA) of I.T. Act, 1961, so as to suitably include a clause to extend the exemption from payment of income tax to all Indian citizens domiciled in Sikkim on or before 26th April, 1975. The reason for such a direction is to save the explanation from unconstitutionality and to ensure parity in the facts and circumstances of the case. iv) Till such amendment is made by the Parliament to the Explanation to Section 10 (26AAA) of I.T. Act, 1961, any individual whose name does not appear in the Register of Sikkim Subjects but it is established that such individual was domiciled in Sikkim on or before 26th April, 1975, shall be entitled to the benefit of exemption. This direction is being issued in exercise of powers under Article D 142 of the Constitution so as to eliminate discrimination and disparity in respect of the aforesaid category of Sikkimese, who subsequently have become citizens of India w.e.f. 26th April, 1975 and to save the Explanation from being rendered unconstitutional vis-à-vis such individuals who form a small percentage of Sikkimese. E v) Proviso to Section 10 (26AAA), insofar as it excludes from the exempted category, “a Sikkimese woman who marries a non- Sikkimese man after 1st April, 2008” is hereby struck down as being ultra vires Articles 14, 15 and 21 of the Constitution of India.” Parties to bear their respective costs. F Bibhuti Bhushan Bose Writ petitions disposed of (Assisted by : Abhishek Pratap Singh and Shubhanshu Das, LCRAs)