Battle for Article 371F: Struggle And Triumph

The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment: Supreme Court of India, 1993.

  ---------------------------------------------------------------------------------------------------------------

   “These are the times that try men’s souls. The summer solidiers and the sunshine patriots will, in this crisis, shrink from the service of his country; but he that stands it now, deserves the love and thanks of man and woman. Tyranny, like hell, is not easily conquered; yet we have this consolation with us, that the harder the conflict the more glorious the triumph.”

-Thomas Paine

   “…for without victory, there is no survival.”

-          Wintson Churchill

   “And I know that if you carry these words through to the end, it will be a victory…not just for you, but for something that should win, that moves the world…and never wins acknowledgment.”

-          Aryan Rand, Atlas Shrugged

 

     I began the new year on a positive note. I was convinced that 1993 would bring significant changes in my life. I have always been acutely aware of the fact that on completion of every ten years, new avenues and new opportunities seem to gradually unfold. And as I lay on my bed on the first day of January 1993, I was deeply conscious of the fact that the new year would bring something different in my personal and professional life.

   One of the most exciting and meaningful news for me in recent times came on February 10. We had won in the Assembly seat reservation case in the Supreme Court, which was kept pending for 14 years. The Supreme Court, in a landmark judgement on February 10, upheld reservation of 12 seats for the Bhutia-Lepchas (BLs) and one seat for the Sangha in the State Legislative Assembly. The judgement also upheld the validity of the 36^th Constitution (Amendment) Act, 1975, which provided special status to ethnic and religious groups in Sikkim.  This historic judgement, delivered by a five-judge constitution bench on February 10, came as a great surprise to most people although some of us were expecting a verdict on the seat issue any time during that period.

   For me, the Supreme Court verdict was a personal victory. It was my first New Year gift! I felt a deep sense of satisfaction and security and was happy that our efforts to preserve our identity and retain our political rights had not gone waste. After nearly one and half decades of legal wrangle, we had finally triumphed. This was a significant achievement of historical significance.

   A five-judge constitution bench by 3:2 majority judgement upheld the validity of the 36^th Constitution (Amendment) Act, 1975, which provided special provisions in Article 371F of the Constitution to accommodate certain incidents of the evolution of the political institutions of Sikkim. The verdict also upheld the validity of an amendment to the Representation of People Act, 1950/51, reserving 12 seats for the minority ethnic Bhutia-Lepchas and one seat for the Sangha in the State Legislative Assembly.  The majority judgement delivered by the Chief Justice designate, Justice M.N. Venkatachaliah, on behalf of Justice J.S. Verma and Justice K. Jayachandra Reddy and himself, upheld reservation of 12 seats for the Bhutia-Lepchas and one seat for the Sangha in the State Legislative Assembly.

   Justice S.C. Agarwal, in a separate judgement, agreed with the judgement on the issue of reservation of 12 seats for the BLs, but differed on the issue of one seat for the Sangha. Chief Justice L.M. Sharma delivered a dissenting judgement and observed that reservation of as many as 12 seats for the BLs was disproportionate to the ratio of population of the BLs to the total population of Sikkim. Justice Sharma, who was to retire as Chief Justice the very next day (Feb 11), while striking down the seat reserved for the Sangha as unconstitutional, directed dissolution of the Assembly and called for fresh elections.

   The judgement delivered by Justice Venkatachaliah on petitions filed by Ram Chandra Poudyal and his brother Somnath Poudyal (now in the ruling SSP), while upholding the validity of Article 371F of the Constitution, observed: “The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment.”

    The apex court’s views, as reflected in the historic judgement, regarding Article 371F of the Constitution relating to Sikkim, noted: “Article 371F(f) cannot be said to violate any basic feature of the Constitution such as the democratic principle. From 1975 and onwards, Sikkim has been emerging from a political society and monarchical system into the mainstream of a democratic way of life and an industrial civilisation. The process and pace of this political transformation is necessarily reliant on its institutions of the past. Mere existence of a Constitution, by itself, does not ensure constitutionalism or a constitutional culture. It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals. The provisions of clause (f) of Article 371F and the consequent changes in the electoral laws were intended to recognize 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 section of the population over another on the basis of ethnic loyalties and identities. These adjustments reflect a political expediencies for the maintenance of social equilibrium. The political and social maturity and of economic development might in course of time enable the people of Sikkim to transcend and submerge these ethnic apprehensions and imbalances and might in future – one hopes sooner – usher in a more egalitarian dispensation. Indeed, the impugned provisions, in their very nature, contemplate and provide for a transitional phase in the political evolution of Sikkim and are hereby essentially transitional in character.”

   The judgement added: “It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may not, if applied to the existing States of the Union, pass Constitutional muster. We are of the view that the impugned provisions have been found in the wisdom of Parliament necessary in the admission of strategic border State into the Union. The departures are not such as to negate fundamental principles of democracy.”

   Referring to the reservation of 12 seats for the Bhutia-Lepchas, the judgement said: “The degree of proportionality of reservation has to be viewed in the historical development and the rules of apportionment of political power that obtained between the different groups prior to the merger of the territory in India. A parity had been maintained all through. The provisions in the particular situation and the permissible latitudes, cannot be said to be unconstitutional.”

  The judgement further observed: “The provision in the Constitution indicating proportionality of representation is necessarily a broad, general and logical principle but not intended to be express with arithmetical precision. Article 332(3A) and 333 are illustrative instances. The principle of mathematical proportionality of representation is not declared basic requirement in each and every part of the territory of India. Accommodations and adjustments, having regard to the political maturity, awareness and degree of political development in different parts of India, might supply justification for even non-elected Assemblies wholly or in part, in certain parts of the country. The differing degrees of political development and maturity of various parts of the country, may not justify standards based on mathematical accuracy.

   Articles 371A, a special provision in respect of State of Nagaland, 239A and 240 illustrate the permissible areas and degrees of departure. The systematic deficiencies in the plenitude of the doctrine of full and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle. Indeed, the argument in the case, in the perspective, is really one of violation of the equality principle rather than of the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a differential treatment.”

   Regarding reservation of seats for the minority Bhutia-Lepchas in the Assembly, Justice Agarwal in his judgement noted: “The reservation of seats of 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 strength they can secure representation in the Legislative Assembly against the unreserved seats. Moreover, Sikkimese of Bhutia and Lepcha 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 Scheduled Tribes under Article 342 of the Constitution.”

   Justice Agarwal added: “The said declaration has not been questioned before us. The Constitution in Article 342 makes express provision for reservation of seats in the Legislative Assembly of a State for Scheduled Tribes. Such a reservation which is expressly permitted by the Constitution cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution.”

   The Court also upheld the reservation of one seat for the Sangha in the Assembly on similar ground: “The Sangha, the Buddha and the Dharma are the three fundamental postulates and symbols of Buddhism. In that sense they are religious institutions. However, the literature on the history of development of the political institutions of Sikkim adverted to earlier 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 own contribution to the Sikkimese culture and political development. 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 view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognizes the social and political role of the institution more than its purely religious identity.”

   The judgement further observed: “In the historical setting of Sikkim and its social and political evolution the provision has to be construed really as not invoking the impermissible idea of a separate electorate either. Indeed, the provision bears comparison to Article 333 providing reservation for the Anglo-Indian community. So far as the provision for the Sangha is concerned, it is to be looked at as enabling a nomination but the choice of the nomination being left to the ‘Sangha’ itself. We are conscious that 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 consideration for election of a member of that religious group on the basis of a separate electorate, that would, indeed, be wholly unconstitutional. But in the case of the Sangha, it is not merely a religious institution. It has been historically a political and social institution in Sikkim and the provisions in regard to the seat reserved admit of being construed as nomination and the Sangha itself being assigned the task of and enabled to indicate the choice of its nominee. The provision can be sustained on this construction.”

Thanking former Chief Justice of India, Justice MN Venkatachaliah , for the Sikkim verdict. 

   My report on the Supreme Court verdict carried in the February 14, 1993, issue of the Statesman, stated: “The verdict was widely welcomed by the people, particularly the tribals, who claimed that even after 13 years of legal and political onslaught against the community, the effort to abolish their reserved seats and take away their political rights had failed.” The feeling that we had at long last successfully defended our rights in the highest court of the land was shared by many people who celebrated the victory in their own quiet way as is customary among the Sikkimese   In invited Anup Deb, Chewang Tobgay and Sonam P. Wangdi, a Sikkimese lawyer who had contributed his share on the seat reservation case, for lunch at home soon after the news of the Supreme Court decision reached Gangtok. It was a quiet affair and all of us were genuinely happy over the outcome of the case. Members of our 1983-84 team, which fought the seat case in the Supreme Court on behalf of the Sikkim Tribal Welfare Association (STWA), an intervening part in the case, were Deb, Chewang and myself. The only person who was not present at my place was Jigdal T. Densapa, the former Home Secretary, who by then had retired from government service. Though officially representing the State Government – one of the respondents in the case – Densapa was very much part of our team.

   It was truly a well-deserved reward for those who had for a long time worked sincerely and painstakingly for the right cause. We knew that it was a victory not only for the Bhutia-Lepchas and the Sangha but for the entire Sikkimese people, whose rights and interests were protected under Article 371F of the Constitution.

   Those of us who were associated with the case were aware of the fact that Poudyal had really not lost anything in the case as he did not ask for reservation of seats for the Sikkimese Nepalese. Many people in Sikkim were under the impression that Poudyal, in his petition, had demanded restoration of Assembly seats reserved for the Sikkimese Nepalese. We had only ably defended ourselves against those who were determined to erase us from the face of the earth. I was convinced through this experience that no matter how long it may take, sincere effort and hard work for a good cause pays in the long run. I was also fully convinced that no power on earth can crush anyone if the people themselves fight and resist all forms of domination and exploitation with all the might at their disposal.

 

(Ref: Inside Sikkim: Against The Tide, Jigme N. Kazi, Hill Media Publications, 1993)