R.C. POUDYAL AND ANR. ETC. ETC. v. UNION OF INDIA AND ORS. ETC. ETC.

FEBRUARY 10, 1993

Representation of People Act, 1950:

~ Sections 7(1-A) and 25A (As inserted by Election Laws EJ.1ension to Sikkim) Act, 1976 and Representation of People (Amendment) Act, c 1981>-Constitutional validity of

Represemation of People Act, 1951:

Section 5A(2) (As inserted by the Representation of People (Amend- D ment)) Act, 1981>-Constitutimial validity of

Sikkim Assembly-Reservation of 12 seats out of 32 seats for Sikkimese of "Bhutia-Lepcha" origin-Whether violative of Articles 14, 170(2) and Gause (f) of Article 371-F-Whet/ler violative of Indian Constitutionalism- Whether violative of P1inciple of Republicanisn.---EJ.1e/l/ of reservation of E seats-Whether disproportionate and violative of Article 332(3 ).

~- Reservation of one seat in favour of 'Sangha' (Budd/1ist Lamaic Religious Monasuies) with provision for election on the basis of separate electoral roll-IV/iether based on pure religious distincti01t-U1iether violative - of Articles 15( I) and 325--Provision of reservation of Sanglia seat-Wliether F to be constnted as a n'on1ination.

Constitution of India, 1950:

Articles 1(3)!c), 2, 3, and 4. G Admission of a new State into Indian Unio1t-Power of Parliament to i111pose tenns and conditions-Constitutional /i11Jitatio11s 011 power of Parlia- ment-Wliat are-Tenns and conditions of admission of new State-Jus- ticiability of-Doctrine of Political questio1t-Applicability of

EJ.pression "as it thinks.fit" in Article 2--Meaning of H 891

892 SUPREME COURT REPORTS [1993 I 1 S.C.R.

A Attic/es 15 and 325:

State Legis/atur~Rcservatwn of seats in favour of 'sangha' (Buddhist y---· Lamaic Re!tgious Mvnastries) with provision for maintenance of separate electoral m. '-Wliether violative of Attic/es I 5 and 325.

B Atticle 371-F-Non-obstallle daus~Scope and effect of

Clause (f)-IV/ietlrer violative of Basic Features of DemocraC)- H1zetlrer violates 'one person one vote' ntle enshrined in Article 170(2J-r H11etlrer enables departure from Atticle 332(3).

C Article 332-State Legislatur~eservation of seats for Sc/ieduled Cas- tes and Sclreduled Tribes-Clause (3)-Words 'As nearly as May be'-Scope of-H1iet/1er pennit deviation from prescribed proportion of Reservation.

Words and Phrases:

D 'Deniocratic Reprtblic'-'Den1ocracy' and 'Denrocratic'-Meaning of.

On May 8, 1973, a tripartitr agreement was executed amongst the Chogyal (Ruler) ol' Sikkim, the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim which envisaged right of people of Sikkim to elections on the basis of adult suffrage, contemplate<! settin~ up of a Legislati\-e Assembly in }.. Sikkim to be reconstituted by election e\'ery four years and declared a commitment to free and fair elections to be overseen by a representative of the Election Commission of India. Para (5) of the said agreement provided that the system of elections shall be so organised as to make the F Assembly adequately representative of the various sections of the popula- tion The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time, care being ~ taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin, and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese G Nepali, which includes Tsong and Scheduled Caste origin, are fully protected. This agreement was effectuated by a Royal Proclamation called the Representation of' Sikkim Subjects Act, 1974, issued by the Ruler of )- Sikkim. It directed the formation of Sikkim Assembly consisting· of 32 elected members - 31 to be elected from territorial constituencies and one H Sangha constituency to elect one ~ember through on electoral college of

RC. POUDYAL v. U.0.1. 893

Sanghas. Consequently, elections for the Sikkim Assembly were held in A Aprii 1974. The Sikkim Assembly so elected and constituted passed the -~. Government of Sikkim Act, 1974. Section 7 of the said Act gave recognition to paragraph 5 of the tripartite agreement dated May 8, 1973. In pur- suance of this development the Constitution of India was amended by the Constitution (Thirty-Fifth Amendment) Act, 1974 inserting Article .2A which made Sikkim an "Associate State" with the Union of India. On 10th B April, 1975, the Sikkim Assembly passed a resolution abolishing the in- stitution of Chogyal and declared that Sikkim would henceforth be a constituent unit of India enjoying a democratic and fully responsible Government. A request was made in the resolution to the Government of India to take the necessary measures. By an opinion poll the said resolu- C lion was affirmed by the people of Sikkim. Accordingly, the Constitution was further amended by the Constitution (Thirty-Sixth Amendment) Act, 1975 whereby Sikkim became a full-Hedged State in the Union of India and Article 371-F was inserted in the Constitution which envisaged certain special conditions for the admission of Sikkim as a new Stair in the Union D of India. Clause (I) of the said Article empowered Parliament to make provision for reservation of seats in the Sikkim Assembly for the purpose • of protecting the rights and interests of the different sections of the population of Sikkim'

Thereafter Parliament enacted the Election Laws (Extension to E Sikkim) Act, 1976 which sought to extend, with certain special provisions, ... the Representation of the People Act, 1950 and the Representation of the

- People Act, 1951 to Sikkim. Further, the Bhutia-Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under Article 342 of the Constitution of India, and they thus became entitled to the benefits of reservation of seats in the State Legis- lature in accordance with Article 332. The consequential reservation in the State Legislature were made in the Representation of People Act, 1950 and Representation of People Act, 1951 by the 1976 Act and the Representation of People (Amendment) Act, 1980. Twelve seats out of thirty-two seats 1n the Sikkim Assembly were reserved for Sikkimese of Bhutia·Lepcha G origin; and one seat was reserved for Sanghas, election to which was required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim in April, 1974 were entitled to be registered. H

p. 894 Copy page pinpoint

A The petitioners, Sikkimese of Nepali origin, filed petitions challeng- ing the reservation of 12 seats for Sikkimese of "Bhutia-Lepcha" origin and 11 one seat for sang;ha".

Objections as to the maintainability of the writ petitions were taken on behalf of the State of Sikkim and the Union of India on the grounds : B (a) that a law made under Article 2 containing the terms and conditions on which a new State is admitted in the Indian Union is, by its very nature, political involving matters of policy and, therefore, the terms and condi- tions contained in such a law are not justiciable on the political question doctrine; (b) in view of the 11011-ob,·ta/lfe clause in Article 371-F, Parlia- C ment can enact such a law in derogation of the other provisions of the Constitution and the said law would not be open to challenge on the ground that it is violative of llDY other provisions of' the Constitution.

On behalf of the petilioners it was contended (1) that the reservation of one seat in favour of the 'Sangha' (Bhuddhist Lamaic Religious J\rlonasteries) is purely based on religious considerations and is violative of Articles 15(1) and 325 of the Constitution and offends the secular principles; the said resen'ation based on religion with a separate elec- torate at the religious n1onasteries is violative of basic structure of the Constitution; (2) that the provisions in clause (I) of Article 371-F enabling reservation of seats for sections of the people and la"'' n1ade in exercise •or tha:t po\ver providing resen'ation of seats for Bhutias-Lepchas violate fundamental principles of democracJ' and republicanism under the Indian Constitution; (3) the resenation of scats for Sikkimese of Bhutia-Lepcha origin \\'ithout n1aking a corresponding reservation for Sikkimese of F Nepali origin i.s violative of the right to equality guaranteed under Article 14 of the Constitution; (4) in view of the Constitution (Sikkim) Scheduled Tribes Order, 1978 declaring Bhutias-Upchas as Scheduled Tribes, the .,.- extent of resen'ation of seat~ is disproportiouate and violative of Article 332 (3) of the Constitution: and· (5) that this departure from the provisions of Article 332(3) derogates fron1 the principle of one 1nan, one rnte enshrined in Article I 70(2) of the Constitution.

On behalf of the respondents it was contended (!) that although basically the monasteri'!s are religious in nature, ) et they form a separate 1 section of the society on account of the social sen'ices they have been rendering mainly to the Bhutia-Lepcha section of the population. Viewed in

R.C. POUDYAL v. U.0.1. 895 this background they should not be treated as merely religious institutions for the purposes of reservation; (2) since the Constitution permits nomina- tion to be made in the legislatures, the creation of a separate electorates for the Sangha seat cannot be objected to; (3) that the constitutional amend- ment bringing in Article 371F(I), as also the relevant amended provisions of the Representation of the People Acts are legal and valid because a perfect arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and secondly, that even if the impugned

- provisions made a departure from the tolerance limits and the constitu- tionally permissible latitudes, the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evoluation of Sikkim's political institutions. c Dismissing the petitions, this Court,

(i) The questions raised in the petitions pertaining to the terms and conditions of accession of new State are justiciable. [975B)

(ii) Clause (I) of Article 371-JI of the Co_nstitution of India, is not violative of the basic features of democracy. [986C]

(iii) Thatimpugned provisions providing for reservation of 12 seats, out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias- Lepchas, are neither unconstitutional as violative of the basic features of

- democracy and republicanism under the Indian Constitution nor are they violative of Articles 14, 170(2) and 332 of the Constitution. The impugned provisions are also not ultra vires of Clause (I) of Article 371-F. F [986E-H, 987A-H, 988A) ..,... (iv) The extent of reservation of seats is not violative of Article 332(3) of the Constitution. [987A-B, 988A]

(v) The reservation of one seat for Sangha to be elected by an G Electoral College of Lamaic monasteries is not based purely on religious distinctions and is, therefore, not unconstitutional as violative of Articles ...{ 15(1) and 325 of the Constitution. [989A-H]

Quaere (i) Whether the terms and conditions of admission of a new State are justiciable'! H

896 SUPREME COURT REPORTS [1993] l S.C.R.

A Per M.N. Venkatachaliah (For himself J.S. Vernia a11d KJ. Reddy, JJ.)

1. The power to admit new States into the Union under Article 2 is, no doubt, in the very nature of the power, very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicially manageable. But for that reason, it cannot be B predicated that Article 2 confers on the Parliament an unreviewable and unfettered power immune from ju1icial scrutiny. The power is limited by

C the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose, cannot be incon- sistent and irreconciliable with the foundational principles of the Con- stitution and cannot violate or subvert the Constitutional scheme. - Therefore, if the terms and conditions stipulated in a law made under Article 2 read with clause (I) of Article 371-F go beyond the constitution- ally permissible latitudes, that law can be questioned as to its validity. Consequently it cannot be said that the issues are non-justiciable. [974D-F, 9758-E) D A.K. Roy v. U11io11 of India, [1982] 2 S.C.R. 272; Madlzav Rao v. Union of India, [1971) 3 S.C.R. 9 and State of Rajastha11 v. Union of India, [1978) 1 S.C.R. 11, referred to.

Vinod Kumar Shami/a/ Gosa/ia v. Gangadhar Narsi11gdas Aganva/ & E Ors., [1982) 1 S.C.R. 392, Held inapplicable.

MarbUI)' v. Madison, 1 Cr. 5 U.S. 137, 170 (1803); Martin v. Mott, 12 Wheat - 25 US 19 (1827); Ware v. Hylton, 3 Dall. 3 U.S. 199 (1796); Luther v. Borden, 7 How. 48 U.S. l (1849); Baker v. Can; 369 U.S. 186; Powell v. F McConnack, 395 U.S. 486 and Japa11 Wha/i11g Ass'n v. American Cetacean Society, 478 (1986) U.S. 221, referred to.

A.K. Pavithran. Substance of Public /nten1atio11al Laiv H1esten1 and Eastem, First Edition, 1965 pp. 281 ·2; 77ie Constiwtion of the United States G of America, Analysis and Interpretation and Congressional Research Sen•ice; Liberty of Congress 1982 Edn. p.703, referred to.

2. Article 2 gives a wide latitude in the matter of prescription of terms and conditions subject to which a new territory is admitted. There is no constitutional imperative that those terms and conditions should H ensure that the new State should, in all respects, be the same as the other

R.C. PO UDY AL v. U.0.1. 897

States in the Indian Union. However, the terms and conditions should not A , • seek to establish a form or system of Government or political and . ~. governmental i.istitutions alien to and fundamentally dilTere~t from those the Constitution envisages. [984C-D]

Constitutional Law of India, Edited by Hidayatullah, J ., referred to. B

3. In judicial review of the vires of the exercise of a constitutional power such as the one under Article 2, the significance and importance of -'(the political components of the decision deemed lit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals. In the interpretation of a constitutional document, "words are but the framework of concepts and concepts may c change more than words themselves". The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth. It is aptly said that "the intention of a Constitution is 'f- rather to outline principles than to engrave details". [985A-C] D 43 Ausi. Law Joumal, p.256, referred to.

4. Article 371-F cannot transgress the basic features of the Constitu- tion. The non obstallte clause cannot be construed as taking clause (I) of .J.. Article 371-F outside the limitations on the amending power itself. The E provision of clause (I) of Article 371-F and Article 2 have to be construed harmoniously consistent with the foundationai principles and basic fea-

- tures of the Constitution. [974H, 975A]

Mangat Singh & Aw. v. Unio11 of !11dio., (1967] 2 S.C.R. 109, relied on. F Per S.C. Agrawal, J. (Conc11ni11g)

1. While admitting a new State in the Union, Parliament, while making a law under Article 2, cannot provide for terms and conditions which are inconsistent with the scheme of the Constitution and it is open to the Court to examine whether the terms and conditions as provided in G the law enacted by Parliament under Article 2 are consistent with the ....( constitutional scheme or not. Power conferred on Parliament under Ar- • ticle 2 is not wider in ambit than the amending power under Article 368 and it would be of little practical significance to treat Article 371-F as a law made under Article 2 of the Constitution or introduced by way of H

898 SUPREME COURT REPORTS (1993] 1 S.C.R.

A amendment under Article 368. In either event, it will be subject to the limitation that it cannot alter any of the basic features of the Constitution. The scope of the power conferred by Article 371-F, is therefore, subject to r-- . judicial review. So also is the law that is enacted to give effect to the provisions contained in Article 371-F. [1005E-H]

B Baker v. Carr, 1962 (369) U.S. 186 and Powell v. McConnack, 395 U.S. 490, referred to. " A.K. Roy v. U11io11 of India, [1982] 2 S.C.R. 272; Madhav Rao v. )- Union of India, [1971] 3 S.C.R. 9; State of Rajasthan v. Union of India, c (1978] 1 S.C.R. 1; S.P. Gupta v. Union of India, [1982] 2 S.C.R. 365 and Mrs. Sarojini Ramaswami v. Union of India & Ors., Writ Petition (Civil) No. 514 of 1992 decided on August 27, 199i, referred to. -

2. It is not doubt true that is the matter of admission of a new State D in ·the Indian Union, Article 2 gives considerable freedom to Parliament to '\: prescribe the terms and conditions on which the new State is being admitted in the Indian Union. But at the same time, it cannot be said that the said freedom is without any constitutional limitation. The power conferred on Parliament under Article 2 is circumscribed by the. overall constitutional scheme and Parliament, while prescribing the terms and E conditions on which a new State is admitted in the Indian Union, has to ~ act within the said scheme. Parliament cannot admit a new State into the Indian Union on terms and conditions which derogate from the basic features of the Constitution. To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and conditions enabling those State to be governed under systems which - F are inconsistent with the scheme of the Constitution and thereby alter the basic features of the Constitution. It would lead to the anomalous result T" that by an ordinary law enacted by Parliament under Article 2 it would be possible to· bring about a change which cannot be made even by exercise of the constituent power to amend to the Constitution, viz., to alter any of G the basic features of the Constitution. The words 'as it thinks fit' in Article 2 of the Constitution cannot, therefore, be construed as empowering Parliament to provide terms and conditions for admission of a new State which are inconsistent with the basic features of the Constitution. The >- said words can only mean that within the framework of the Constitution, H it is permissible for Parliament to prescribe terms and conditions on .

R.C. POUDYAL v. U.0.1. 899 new State is admitted in the Union. [1003G-H, 1004A, C-E] A Mangat Singh v. Union of India, [1967] 2 S.C.R. 109, referred to.

R.D. Lumb, The Constitutio11 of Commonwealth of Australia, 11986) 4th Edn. p. 736, referred to. B

3. TI1ere is no doubt that the 11011-obstante clause in a statute gives overriding effect to the provisions covered by the non-obstante clause over !Jle other provisions in the statute to which it applies and in that sense, the no11-obsta11te clause used in Article 371-F would give overriding effect to clauses (a) to (p) of Article 371-F over other provisions of the Constitu- C tion. But at the same time, it cannot be ignored that the scope of the non-obsta11te clauses in 371-F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368. Therefore, the 11011-obstallle clause has to be so con- strued as to conform to the aforesaid limitation or otherwise Article 371-F would be rendered unconstitutional. A construction which leads to such a D consequence has to be eschewed. Thus as a result of the 11011-obstante clause in Article 371-F, clauses (a) to (p) of the said Article have to be construed to permit a departure from other provisions of the constitution in respect of the matters covered by clauses (a) to (p) provided the said departure is not of such a magnitude as to have the effect of altering any of the basic E features of the Constitution. [10068-G]

4. It cannot be said that Article 371-F contains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union. [1003D] F Per L.M. Shanna, CJ. (Co11curri11g)

1. The courts are not only vested with the jurisdiction to consider and decide the points raised in these writ petitions, but are under a duty to do so. If steps are taken to grant legitimacy to a state of affairs repulsive G to the basic features of our Constitution, the Courts are under a duty to judicially examine the matter. [925C, HJ

2. There is a vital difference between the initial acquisition of ad· ditonal territory and the admission of the same as a full-fledged State of the Union of India similar to the other States. [921G) H

900 SUPREME COURT REPORTS [1993] 1 S.C.R.

A 3. Special provisions for any State can certainly be made by au amend- meut of the Constitution, as is evident by Article 371A, 371B, 371C at cetera, y--- but it is not permissible to do so in derogation of the basic features of the Constitution. So far the power of sovereignty to acquire new territories is concerned, there cannot be any dispute. The power is inherent, it was, there- fore, not considered necessary to mention it in express terms in the Con- B stitutiou. It is also true that if an acquisition of new territories is made by a treaty or under au agreement the terms of the same will be beyond the scrutiny of the courts. The position, however, Is entirely different when new territory is made part of India, by giving it the same status as is enjoyed by 'r an existing State under the Constitution of India. The process or such a c merger has to be under the Constitution. No other different process adopted can achieve this result. And when this exercise is undertaken, there is no option, but to adopt the procedure as prescribed in conformity with the Constitution. At this stage the Court's jurisdiction to examine the validity of the adopted methodology cannot be excluded. [921H, 922A-C] ~ D

4. So far the present case is concerned the decision does not admit of any doubt that when the Thirty-Sixth Amendment of the Constitution was made under which Sikkim joined India as a full-fledged State like other States, power of amendment of the Constitution was invoked, and this had to be done only consistent with the basic features ofthe Constitu- E tion. Sikkim became as much a State as any other. Considered in this background, the objection to the maintainability of the writ petitions cannot be upheld. [922D, H, 923A]

Mangal Singh & Anr. v. Union ofIndia, [1967] 2 S.C.R 109, referred to. F

5. It is true that in case of acquisition Article 2 comes into play hut that is only at the initial stage when the new territory joins and becomes the territory of India under Article 1(3) (c). In the present case the power under Article 2 was not exercised at any point of time. Initially, Sikkim joined India as an Associate State by Article 2A introduced in the Con- G stitution by au amendment. When further steps of its complete merger with India were taken, the methodology nuder Article 3 was not available in view of the observations in Berubari case. Correctly assessing the suua- >- tion, fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other H States by the Thirty-Sixth Amendment of the Constitution. Once this

R.C. POUDYAL '" U.0.1. 901 was done it had to he consistent with the basic features of the Constitu· A tion. [924E·G]

77ie Berubari Union and Exchange of Enclaves, [1960) 3 S.C.R. 250, relied on.

Quaere (ii) Whether the impugned provisions providing B for resen-ation of Sangha seat with provision for separate electoral roll and Sangha constituency are unconstitution· al?

Per M.N. Venkatachaliah (For himself, J.S. Venna and KJ. Reddy, JJ.). c

1. A separate electorate for a religious denomination would be obnoxious to the fundamental principles of our secular Constitution. If a provision is made purely on the basis of religious considerations for election of a member of that religious group on the basis of a separate electorate, that would, indeed, he wholly unconstitutional. But in the case of the Sangha, it is not merely a religious institution. The literature on the history of development of the political institutions of Sikkim tend to show that the Sangha had played an important role in the political and social life of the Sikkimese people. It had made its o.wn contribution to the Sikkimese culture and political development. Thus, there is material to sustain the conclusion that the 'Sangha' had long been associated itself closely with the political developments of Sikkim and was inter-woven with the social and political life of its people. In yiew of this historical associa- tion, the provisions in the matter of resen-ation of a seat for the Sangha recognises the social and political role of the institution more than its purely religious identity. The provision can be sustained on this construe· F tion. [989C-H, 990A)

1' 2. In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the im.permissible idea of a separate electorate either. Indeed, the provision bears comparison to Article 333 providing for representation for the G Anglo-Indian community. It is to be looked at as enabling a nomination but the choice of the nominee being left to the 'Sangha' itself. [989E-F J

Per S.C. Agrawal, J. (Dissenting)

1. The impugned provision providing for a separate electoral roll for H

902 SUPREME COURT REPORTS [1993] 1 S.C.R.

A Sangha Constituency contravenes Article 325 and reservation of one seat for Sanghas contravenes Article 15(1). Article 371-F does not permit a departure from the principle contained in Articles 325 and 15(1) while )- - applying the Constitution to the newly admitted State of Sikkim. Clause (I) of Article 371-F, cannot be construed to permit reservation of a seat for Sanghas and election to that seat on the basis of a separate electoral roll B composed of Sanghas only. Consequently, clause (c) of sub-section (1-A) of Section 7 and Section 25-A of the 1950 Act and the words 'other .than constituency reserved for Sanghas' in clause (a) of sub-section (2) of Section 5-A and clause (c) of sub-section (2) of Section 5-A of the 1951 Act -r· are violative of the provisions of Articles 15(1) and 325 of the Constitution c and are not saved by Article 371-F of the Constitution. The said provisions, are however, severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does not stand in the way of giving to the other provisions. [1023H, 1024A-B, 0-E) D ~

2. Since only a Buddhist can be a Sangha, the effect of the reserva- !ion of a seat for Sanghas and the provision for special electoral roll for the Sangha Constitutency wherein only Sanghas are entitled to be registered as electors, is that a person who is not a Buddhist cannot contest the said reserved seat and he is being discriminated on the ground E only of religion. Similarly, a person who is not a Buddhist is rendered ineligible to be included in the electoral roll for Sangha Constituency on >- the ground only of religion. The historical considerations <lo not justify this discrimination. [1018E-G)

F 2.1. The reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the context of the administra- r live set up in Sikkim at that time wherein Sanghas were playing a major part in the taking of decisions in the Council. The said reason does not survive after the admission of Sikkim as a new State in the Indian Union. G The continuation of a practice which prevailed in Sikkim with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot, therefore, be justified on the basis of historical considerations and the >-- impugned provisions are violative of the Constitutional mandate con- H tained in Article 15(1) and Article 325 of the Constitution. [10190-E] j R.C. PO UDY AL v. U.0.1. •JU3

Nai11 Sukh Das a11d Anr. v. The State of Uttar Pardesh and Ors., A ""( [1953) S.C.R. 1184; Punjab Province v. Dau/at Singh and Ors., 1946 F.C.R. I; State of Bombay v. Bombay Education Society and Ors., [1955) 1 S.C.R. 568 and 77ze State of Madras v. Srimathi Champakam Dorairajan, [1951] S.C.R. 525, relied on.

3. In so far as clause (1) of Article 15 is concerned express provision B has been made in clause• (3) and (4) empowering the State to make special provisions for certain classes of persons. Sanghas, as such, do not --( fall within the ambit of clauses (3) and (4) of Article lS and therefore, a special provision in their favour, in derogation of clause (1) of Article 15 c - is not permissible. [1020C]

4. Article 325 is of crucial significance for maintaining the secular character of the Constitution. Any contravention of the said provision cannot but have an adverse impact on the secular character of the )- Republic which is one of the basic features of the Constitution. The same D is true with regard to the pfovisions of clause (1) of Article 15 which prohibits reservation of seats in the legislatures ori the ground only of religion. [1023A-B)

Smt. Indira Gandhi v. Raj Narain, [1976) 2 S.C.R. 347 and Kesa- ~ vananda Bharati v. State of Kera/a, [1973] S-upp. S.C.R. 1, referred to. E

5. It is no doubt true that the im'pugned provisions, relate to only one seat out of 32 seats in the Legislative Assembly ol Sikkim. But the potentialities of' mischief resulting from such provisions cannot be mini- mised. The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly. It is poison which, if not eradicated from the system at the earliest, is bound to eat into the vitals of the nation. It is, therefore, imperative that such provision should not find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved. !1023C-E]

Kedar Nath Bajoria v. 77ze ~rate of West Bengal, [1954) 5 S.C.R. 30, referred to. H

904 SUPREME COURT REPORTS [1993] l S.C.R.

A Shiva Rao, Framing of India's Constitution, Select Documents, Vol.II, p.412 and Co11stitue11t Assembly Debates, Vol. V. p. 202, 224, 225, referred :r--- to.

Per l.M. Shanna, a. (Dissenting)

B 1. The provisions or Section 25A of the Representation of the People Act, 1950 are ultra vires the Constitution. The provisions of Section 7(1A)(c) and the other connected amendments are also ultra vires the Constitution. (9418, 935G]

The Buddhist Monasteries, which are the beneficiaries of the reser· c vation, are admittedly religious institutions. If the entire Constitution is considered harmoniously along with all the other materials; relevant in - law for this purpose inluding the 'Enacting History', there is no escape from the conclusion that any weightage at the pol! in favour or a group on the ground of religion is strictly prohibited and further, that this is a basic ~ D feature, which is nOt amenable to amendment. (9310, 935G]

B.K. Mukherjee, Hindu Law of Religious and Charitable Tmst; George Kotturan, T7ze Himalayan Gateway; J.C. White, Sikkim and Bhutan · Twellty One Years on the North-East Frontier 1887-1908; J.S. Lall, 77ie E Himalaya - Aspects of change, 198i; Geoffrey Georer, Hii•zalayan Village and A.C. Sinha, Politics of Sikkim - A Sociological Study, referred to. ).._

3. If the Constitution is so' interpreted as to permit, by an amend- ment a seat to be reserved in the legislature for a group of religious institutions like the Buddhist Monasteries, it will follow that such a F reservation would be permissible for institutions belonging to other religions also. And all this may ultimately change the very complexion of the legislatures. The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality, to tear apart, in the course of time, the \'ery foundation, which the democratic republic is built-upon. All this is prohibited as being abhorrent to the basic features of the Constitution. [932H, 933A-D]

3.1. Today a single seat in the legislature of one State is not con· spicuously noticeable and may not by itself be capable of causing ir- reparable damage, but this seed of discord has the potentiality or developing into a deadly monster. It is true that s.ome special rights have been envisaged

,.J R.C. POUDYAL v. U.0.1. 905 in the Constitntion for handicapped classes but this has been done only to offset the disadvantage the classes suffer from, and not for bringing another kind of imbalance by making virtue out of minority Stains. The Constitu- tion, therefore, has taken. precaution to place rigid limitations on the e~tent to which this weightage can be granted, by including express provisions instead of leaving the matter to be dealt with by subsequent enactments - limitations both by putting a ceiling on the reservation of seats in the legislatures and excluding religion as the basis of discrimination. To ignore these limitations is to encourage small groups and classes - which are in good number in our country on one basis or the other- to stick to and rely on their special status as members of separate groups and classes and not to join the main-stream of the nation and be identified as Indians. It is, C • therefore, absolutely essential that religion, disguised by any mask and concealed within any cloak must be kept out of the field exclusively reserved for the exercise of the State powers. [955D-H]

4. There is also another serious flaw in the reservation for the Sangha rendering the same to be unconstitutional. By the impugned provisions of the 1950 Act, a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitu- tion. [935H, 936A]

4.1. From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India. This conclusion is reinforced by the historical background, the delebrations of the Advisory Committee, and the discussion which took place in the Constituent Assembly before giving final shape to the Constitu- tion. There is no reason for assuming that while inserting Article 371 F(O in the Constitution there was a complete reversal of faith on this basic and vital matter, which was otherwise also not permissible. It follows that consistent with the intention of the rest of the Constitution the provision regarding the delimitation ofthe Assembly constituencies in Article 371 F(O has to be interpreted in the san1e sense, as the expression has been used in the other provisions. Clause (f) of Article 371 F neither by its plain language nor intendment permits separate electorates and any attempt to give a different construction would not only be highly artificial and speculative but ~- also would be violative of a basic feature of the Constitution. [940G-H, 941A]

B. Shiva Rao's Framing of Indian Constitution, Vol. II, pp. 56-57, 392, H

906 SUPREME COURT REPORTS [1993] 1 S.C.R.

A 412, referred t ).

Constituent ksemb/y Debates, Vol. V, P .225, 224, 202, referred to.

5. There is no parallel between the nominations permitted by the Constitution to be made in the legislatures and the creation of a separate B electorates for the Sangha. After the establishment of a democratic govern- ment at every level in the country in one form or the other, nomination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority, who ultimately represents the people, although the process of the representation may be a little involved. So far C a handful of the Buddhist Monasteries in Sikkim are concerned, they cannot be said to represent the people of Sikkim in any sense of the term. Allotting a seat in the legislature to represent these religious institntions - is bad enough by itself; and then, to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil. This cannot be compared with any of the provisions in D the Constitution relating to nominations. [940D-F]

Quaere (iii) Whether the impugned provisions providing for reserva- tion of twelve seats in favour ofBhutia-Lepchas are unconstitutional?

Per M.N. Venkatacha/iah (For himself, J.S. Venna and KJ. Reddy, JJ.). E

1. Article 371F(I) cannot be said to violate any basic feature of the Constitution such as the democratic principle. [986C]

1.1. The provisions of clauses (I) of Article 371 F and the consequent F changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one r section of the population over another on the basis of ethnic loyalties and identities. These adjustments and accommodations reflect a political ex- pediencies for the maintenance of social equilibrium. Indeed, the im- G pugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are thereby essentially transitional in character. The impugned provisions have been found in the wisdmn of Parliament necessary in the admission of a new State into the Union. The departures are not such as to negate fundamen- H tal principles. of democracy. Thus, the provisions in the particular situa-

R.C. POUDYAL v. U.0.1. 907 tion and th• permissible latitudes, cannot be said to be unconstitutional. A [986E-H, 987H, 988A, Hl 1.2. It is true tbat the reservation of seats of the kiud and tbe extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass the Constitutional muster. But in relation to a new territory admitted to the Union, the terms and conditions B are not such as to fall outside the permissible coust;tutional limits. His- torical considerations and compulsions do justify inequality and special -<( treatment. (987A-BJ

Lachhman Dass etc. v. State of Punjab & Ors., A.l.R. 1963 S.C. 222 C and State of Madhya Pradesh v. Bhopal Sugar Industries Ltd., (1964] 6 S.C.R. 846, referred to.

2. An examination of the constitutional scheme would indicate tbat the concept of 'one person one vote' is in its very nature considerably f tolerant of imbalances and departures from a very strict application and enforcement. The provision in tbe Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be expressed with arithmetical precision. The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India. The systemic E --'-. deficiencies in tbe plenitude of tbe doctrine of full and effective repre- sentation bas not been understood in the constitutional pbilosophy as derogating from the democratic principle. The inequalities in repre- sentation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a diffen:ntial treatment. [985G-H, 986A-B] F

Reynolds v. Sims, 377 U.S. 506 andAttomey GeneTal (CTH) Ex. Rei. Mckinlay v. The Commonwealth, 135 C.L.R. (1975) 1, referred to.

2.1. Article 170 incorporates the rule of 'fair and effective repre- G sentation'. Though tbe rule 'one person one vote' is a broad principle of democracy, it is more a declaration or a political ideal than a mandate for enforc-.ment with arithmetical accuracy. These are tbe usual problems -( tbat arise !n· tbe delimitation or constituencies. In what is called "First· past- tbe-post" system or elections, the variations in tbe size and in the voting populaiions of different constituencies, detract from a strict H

908 SUPREME COURT REPORTS [1993) 1 S.C.R.

A achievement of this ideal. The system has the merit of preponderdnce of "decisiveness" over "representativeness". [976E-F]

Keith Graham, 771e Battle of Democracy: Conflict, Consensus and the Individual, referred to.

B 2.2. The concept of political equality underlying a democratic system is a political value. Perfect political equality is only ideological. [977D)

Rodney Brazier, Constitutional Refonn: Re-shaping the British Politi- cal System, referred to. )'

C Brazier, Constitutional Practice (Clarendon Press Oxford), referred to.

Lijphart, Democracy in Plural Societies' Howard D. Hamilton, Legis- lative Appointment: Key to Power; Gordon E. Baker, One Person, One Vote: D Fair and Effective Representation? (Representation and Misrepresentation ~­ - Rand McNally & Co. Chicago), referred to.

3. Tlic contention that clause (I) of Article 371 F would require that \v!a:t l:'r~r provisions for reseniation of seats are considered necessary for ibe purpose of protecting the rights and interests of different sections of the population of Sikkim, such reservations are to be made for all such sections and not, as here, for one of them alone ignores thut the provision _>.- in clause (0 of Article 371 F is merley enabling. If reservation is made by Parliament for only one section it must, by implication, be construed to have exercised the power respecting the other sections in a negational sense. The provbion really enables resrvation confined only to a par- F ticular section. (9888-C]

4. Clause (0 of Article 371 F is intended to enable, a departure from r Article 332(2). This is the clear operational elTect of the non obstante clause with which Article 371 F opens. [988F) G

5. Mere existence of a Constitution, by itself, does not ensure con- stitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which other- wise merely embodies political hopes and ideals. [986E)

H Per S.C. Agrawal, J. (Concuning)

R.C. PO UDY AL v. U.0.1. 909

1. Clause (a) of sub-section (l-A) of Section 7 of the 1950 Act which provides for reservation of 12 seats in an Assembly having 32 seats for •· -~ Sikkimese of Bhntia-Lepcha origin does not transgress the limits of the power conferred on Parliament under Article 371 F(I) and it cannot be said that it suffers fron. the vice of unconstitutionality. [1014E]

2. The reservation of seats for Bhutias and Lepchas is necessary because they constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly. Sikkimese of '{ Nepali origin constitute the majority in Sikkim and on their own electoral strengt" they can secure representation in the Legislative Asse.nbly against the unreserved seats. Moreover, Sikkimese of Bhutia and Lepcha C

- origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin. Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution. The Constitution in Article 332 makes express provision for f- reservation of seats in the Legislative Assembly, of a State for Scheduled D Tribes. Such a reservation which is experessly permitted by the Constitu- tion cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution. [10088-D]

3. Clause (3) of Article 332 has to be considered in the light of clause (I) of Article 371-F. The non·obstante clause in Article 371-F enables E Parliament to make a departure from the ratio contemplated by Article 332(3) within the limitation which is inherent in the power conferred by Article 371-F, i.e., not to alter any of the basic features of the Constitution. - [1008E-F, 10098] 3.1. By providing for reservation to the extent of 38% of seats in the F Legislative Assembly for Sikkimese of Bhutia-Lepcha origin Parliament has sought to strike a balance between protection of the extent of 50% that was available to them in the former State of Sikkim and the protection envisaged under Article 332 (3) "of the Constitution which would have entitled them to reservation to the extent of 25% seats in accordance with the proportion of G their population to the total population of Sikkim. [lOlOC-0]

4. The principle of one man. one vote envisages that there should be parity in the value of votes of electors. Such a parity though ideal for a representative democracy is difficult to achieve. There is some departure in every system following this democratic path. In the matter of delimitation of H

•no !'UPREME COURT REPORTS [1993] 1 S.C.R.

A constituencies, it often happens that the population of the one constituency differ>. from that of the other constituency and as a result although both the constituencies elt•ct one member, the value of the vote of the elector in the r ~ constituency having lesser population is more than the value of the vote of t.he elector of the constituency having a larger population. [lOlOG-H, lOllA]

B Reynolds v. Sims, (1964) 377 U.S. 533; Maha11 v. Howel4 410 U.S. 315 and Attomey General (CTH) Ex." Rel. Mckinlay v. The Commo11wealtlt, 135 C.L.R. [1975] 1, referred to.

H.W.R. Wade: Co11stinitio11a/ Fu11damcntals, Tlze Hamlyn Lectures, C 32nd Series, 1980, p.5, referred to.

4.1. Provisions of Delimitation Act, 1962 show that population, though important, is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electordl strength in the matter of delimitation of constituen- D cies. In other words, there is no insistence on strict adherence to equality of -~ votes or to the principle one vote-one value. [1013H, 1014A]

4.2. The words "as nearly as may be" in clause (3) of Article 332 indicate that even in the matter of reservation of seats for Schedllled Castes and Scheduled Tribes it would be permissible to have deviation to E some extent from the requirement that number of seats reserved for ).._ Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved, hears to the total popula- F tion of the state. The 11011-obstante clause in Article 371-F read with clause (I) of the said Article enlarges the field of deviation in the matter of reservation of seats from the proportion laid down in Article 332 (3). The r only limitation on such deviation is that it must not be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the G Scheduled Tribes for whom the seats are reserved and thereby conyert a minority into majority. This would adversely affect the democratic functioning of the legislature in the State which is the core of repre- sentative domocrary. [10148-D] )r- 4.3. The non-obstante clause in Article 371-F when read with clause (0 H of Article 371-F envisages that Parliament may, while protecting the rights

R.C. POUDYAL v. U.0.1. 91l and interests of the different sections of the population of Sikkim deviate A . ~- from the provisions of the Constitution, including Article 332. [IOIOF]

5. In view of the vast differences in their numbers the Sikkimese of Nepali origin can have no apprechension about their rights and interests being jeopardised on account of reservation of 12 seats for Sikkimese of Bhutia-Lepcha origin in the Legislative Assembly composed of .l2 seats. B Therefore, it cannot be said that reservation of seats for Sikkimese of Nepali origin was required in order to protect their rights and interests and in not making any provision for reservation of seats for Sikkimese of Nepali origin Parliament has failed to give effect to the provisions of clause (0 Article 371-F of the Constitution. [1025E-H] (

Per LM. Shanna, 0. (Dissenting) l. The impugned provisions are ultra l'ires the Constitution including + Article 371F(0. [954E) D

2. The problem of Bhutia-Lepcha Tribe is identical to that of the other Tribes of several States where they are greatly out-numbered by the general population, and which has been effectively dealt with by the provisions for reservation in their favour included in Part XVI of the Constitution. It cannot be justifiably suggested that by subjecting the provisions of the ·reservations to the limitations in clause (3) of Article 332, the Tribes in India E have been left unprotected at the mercy of the overwhelming majority of the general population. The reservations in Part XVI were considered adequatt'. protection to them. Therefore, adequate safeguard in favour of the Bhutia· Lepchas was already available under the Constitution and all that "as required was to treat them as Tribes like the other Tribes which W'dS done by F a !'residential Order issued under Article 342. Therefore, the object of clause (I) was not to take care of this problem and it did not authorise the Parlia- ment to pass the Amendment (Act 8of1980) inserting Section 7(1A) (a) in the Representation of the People Act. 1950 and Section SA in the Repre- sentation of the People Act, 1951 and other related amendments. They being G violative of the Constitutional provisions including those in Articl• 37-IF (f) are ultra vires. (948F-H, 949A-CJ

.~. Clause (I) permits the Parliament to take onl~· such steps which r . uould be consistent with the provisions of the Constitution coming from before. so that Sikkim could completely merge with India and be placed al f I •

9l2 SUPREME COURT REPORTS [1993] 1 S.C.R.

A par with the other States. This conclusion is irresistible if the facts and circumstances which led to the ultimate marger of Sikkim in India are ,,.- ~­ kept in mind. If clause (I) of Article 371F is so construed as to authorise the Parliament to enact the impugned provisions it will be violative of the basic features of the Constitution and, therefore, void. [946E-F, 953C]

B 3.1. The choice of the candidate and the right to stand as a candidate at the election are inherent in the principle of adult suffrage, that is, one-man- 011e-vote. By telling the people that they have a choice to elect any of a select group cannot be treated as a free choice or the candidate. This will only r amount to lip service, too thinly veiled to conceal the reality of an oligarchy C underneath. It will be just an apology for democracy; a subterfuge; and ifit is per milted to cross the limit so as to violate the very core of the principle of one-man-one- vote, and is not controlled by the constitutional safeguards as included in clause (3) of Article 332 of the Constitution it will amount to a huge fraud perpetrated against the people. [950E-G]

D 3.2. The very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one-man- one-vote to succeed. The disproportionately excessive reservation creates a privileged class, not brought to the same plane with others but put on a higher pedestal, causing unhealthy competition, creating hatred and dis- E trust between classes and fostering devisive forces. [950H, 951A]

3.3. The unequal apportionment of the role in the polity of the . country assigned to different groups tends to foster unhealthy rivalry impairing the mutual feeling of goodwill and fellowship amongst the people, and encouraging divisive forces. [9558] F 3.4. As explained by the Preamble the quality of democracy en- visaged by the Constitution does not only secure the equality of oppor- r tunity but of status as well, to all the citizens. This equality principle is clearly brought out in several Articles in the different parts of the Con- stitution, including Part XVI having special provisions relating to certain classes. The sole objective of providing for reservations in the Constitu- tion is to put the principle of equal status to work. So far the case of inadequate representation of a backward class in State services is con- )'c- cerned, the problem is not susceptible to be solved in one stroke; and consequently the relevant provisions are kept flexible permitting wider discretion so as to attain the goal of adequate proportionate repre-

R.C. POUDYAL v. U.0.1. [SHARMA, CJ.] 913 sentation. The situation in respect to representation in the legislature is entirely different. As soon as an election takes place in accordance with the provisions for proportionate representation, the objective is achieved immediately, because there Is no problem of backlog to be tackled. On the earlier legislature disappearing, paving the way for new election, the people get a clean slalt: before them. The excessive reservation in this situation will bring in an imbalance • of course of another kind • but defeating the cause of equal status all the same. The pendulum does not stand straight • it swings to the other side. The casualty in beth case• is ~ the equality clause. Both situations defeat the very object for which the democratic forces waged the war of independence; and they undo what has been achieved by the Constitution. This is clearly violative of the b?.sic features of the Constitution. [9528, F -H, 953A-B]

4. A perusal of the Agreement dated 8th May, 1973 clearly Indicates that the spirit of the Indian Constitution pervaded through out the entire Agreement and the terms thereof were drafted respecting the main prin- ciples embodied in our Constitution. It must, therefore, be held that an interpretation cannot be given to the Agreement which will render it as deviating from the constitutional pattern of the Indian Constitution. [945A-B)

CIVIL ORIGINAL JURISDICTION : Transfer Case (C) No. 78 of E 982 etc. etc.

(Under Article 139A of the Constitution of India.)

Vepa Sharathy, Attorney General, G. Ramaswamy, Additional Solicitor General, R.K. Jain, B.N. Bhat, K. Lahiri, K. Parasaran, A.K. Ganguli. F.S. Nariman, Uday Lalit, A.C. Manoj Goel, K.M.K. Nair, Kailash Vasudev, Sudhir Walia, Mohit Mathur, Ms. A. Subhashini, K. Swamy, T. Topgay, Rathin Das, Ajit Kumar Sinha, S.C. Sharma, Amlan Ghosh, Ms. J.S. Wad, Mayakrishnan, D.P. Mukherjee, G.S. Chatterjee, and K. N. Bhat for the appearing Parties. G