SIKKIMESE PATRIOT, MM RASAILY, CHALLENGES CLOSER TIES WITH INDIA
Madan Mohan Rasaily was the next main target of the pro-India elements in Sikkim. As Secretary and Auditor General of the Sikkim Government, Rasaily was perhaps one of the Chogyal’s most able and trusted among the senior officials. That he belonged to the majority Nepali community added a new dimension to his proximity to the Chogyal. Not only was Rasaily a prominent member of the ‘Study Forum’ – viewed by observers as Sikkim’s think-tank – but was also a regular fixture at the Palace. Rasaily not only accompanied the Chogyal to Kathmandu along with Jigdal Densapa but had also filed a petition in the Central Court of Gangtok, challenging New Delhi’s dictatorial role in Sikkim.
The petition challenged the validity of
section 30 of the Government of Sikkim Act, 1974, which stated that Sikkim may
request the Government of India to “seek participation and representation of
the people of Sikkim in the political institutions of India.” The constitution
suit – filed against the Chief Executive, the Chief Minister, and the Sikkim
Assembly – also challenged all provisions of the Tripartite Agreement of May 8,
1973, the Government of Sikkim Act, 1974, and the Constitution (35th Amendment)
Act of 1974 of the Indian Parliament, which made Sikkim an Associate State of
India.
Having almost exhausted all political
options to stop the merger, the Chogyal and anti-merger leaders had no other
alternative but to approach the highest judicial forum in the kingdom to seek
justice. The movement for a more democratic set-up in Sikkim also included the
demand for an independent judiciary. Therefore, much hope was pinned on
Rasaily’s petition. There was much jubilation in the capital when the interim
injunction, sought against the election of two members of the Sikkim Assembly
to the Indian Parliament, was granted by the Central Court Judge, Tarachand
Harimol, on March 29, 1975.
Rasaily’s petition and the interim order had
an electrifying effect among anti-merger forces in Sikkim. It made the
pro-merger groups feel more insecure and apprehensive about their future role
in the kingdom. They felt that even the judiciary was harping on its
independence and, therefore, not giving the desired support and cooperation to
Lal to complete India’s design in Sikkim. What made things worse was the
decision of the Chief Judge of the High Court at Gangtok, S.K. Prasad, to allow
the release of six persons jailed on December 6, 1974 for alleged attempts to
assassinate Kazi.
The Choygal stoutly backed the judges and
opposed Lal’s attempts to denigrate the independence of the judiciary in
Sikkim, “I am irrevocably committed to a full responsible government for my
people, and it would be my sacred duty to ensure that the judiciary remains
truly independent. I am not adverse to any essential changes in order to
strengthen, but not to reduce, the independence of the judiciary.” 1
Datta-Ray describes the hearing of Rasaily’s
petition in the court on March 29, 1975, “The first hearing of these two cases
was on 29 March. Harimol had not had time to study the constitutional points
raised in Rasaily’s 18-page application. Ananda Bhattacharyya, the government
advocate representing Lal, Kazi, and the other defendants, also said he would
like some time; he, therefore, agreed to the judge’s plan for an interim order
to maintain status quo until both had been able to examine the submission. But
Bhattacharyya was suddenly called out of the courtroom just as the order was
about to be issued; he returned a few minutes later with an application signed
by some of the defendants, opposing an interim injunction and requesting
adjournment. Harimol ignored the advocate’s second thoughts, and dictated an
order restraining the assembly for the time being from sending MPs to New Delhi
or discussing the Chogyal and his relatives.” 2 Lal and Kazi were asked to file
their objections by April 28, the date fixed for final order.
Delhi’s reaction to the Chogyal’s defiance
and Harimol’s straightforwardness was swift and decisive. It took the
unilateral liberty of interpreting the Government of Sikkim Act, 1974, and
placed the Chief Executive as the supreme authority in Sikkim’s judiciary.
Harimol was forced to take leave, and he left for New Delhi on April 10, 1975.
Meanwhile, the Sikkim Assembly passed a resolution maintaining that the
Government of Sikkim Act, 1974, was the highest law of the land and its
validity could not be challenged in any court of law. 3 The Sikkim Congress
press note said, “…the provisions of the Tripartite Agreement of May 8, 1973,
and the Government of Sikkim Act, 1974, are the paramount law of the land to
which all authorities in Sikkim – the legislative, the executive and the
judiciary – are subordinate and its validity cannot be challenged in any court of
law in Sikkim.” 4
These developments put an abrupt end to
Rasaily’s petition, and all legal means to safeguard Sikkim’s separate identity
came to a grinding halt. Harimol described the period as “the complete collapse
of the administration of justice, in a way most humiliating and distressing.” 5
In his 14-page note, titled “Now It Can Be Told,” to the Janata Government
headed by Prime Minister, Morarji Desai, two years later in April 1977, Harimol
wrote, “The lighthouse was damaged and demolished with contempt which it never
deserved. About two days later, (in early April, perhaps on April 2 or 3 –
author) I was called by the chief executive on the pretext of discussing and
drawing up a scheme for the appointment of some civil judicial officers. But
his main target was the ad interim order dated March 29 in the civil suit
(Rasaily’s two petitions).”
He added, “In a tone arrogant and insulting, he asked me why I had passed even such an apparently innocuous order and not adjourned the matter. Little did he know that it was judicial order and not an administrative one. Any such interference could entail serious consequences. But the judiciary is powerless if ignored by the executive. It was the most humiliating experience in my life as a judge. Little did he realise that it was not an insult to me, but he was trying to debase the institution and its value. I must admit I could not stand it. I told the chief executive that I would not continue in office and would submit my resignation immediately. But it appeared he did not want that. He intended to humiliate the judiciary further. My resignation could have possibly created some public stir there or in India. The chief executive abruptly changed his mood, spoke a few kind words and persuaded me not to put in my resignation.”
(Ref:
Sons of Sikkim: The Rise and Fall of the Namgyal Dynasty of Sikkim)