# R.C. POUDYAL AND ANR. ETC. ETC v. UNION OF INDIA AND ORS. ETC. ETC - **Citation:** [1993] 1 S.C.R. 891 - **Court:** Supreme Court of India - **Decided:** 1993-02-10 - **Bench:** Lm. Sharma, M.N. Venkatachaliah, J.S. Verma, B K.J. Reddy, S.C. Agrawal - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/r-c-poudyal-and-anr-etc-etc-v-union-of-india-and-ors-etc-etc-11729 - **Pages:** 136 ## Headnote 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, 1981>-Constitutional validity of Represemation of People Act, 1951: c Section 5A(2) (As inserted by the Representation of People (AmendD 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 ConstitutionalismWhether 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. Admission of a new State into Indian Unio1t-Power of Parliament to i111pose tenns and conditions-Constitutional /i11Jitatio11s 011 power of Parliament-Wliat are-Tenns and conditions of admission of new State-Justiciability of-Doctrine of Political questio1t-Applicability of EJ.pression "as it thinks.fit" in Article 2--Meaning of 891 ' . G H ' 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 CasD E 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: '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-Constitutional validity of Represemation of People Act, 1951: c Section 5A(2) (As inserted by the Representation of People (AmendD 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 ConstitutionalismWhether 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. Admission of a new State into Indian Unio1t-Power of Parliament to i111pose tenns and conditions-Constitutional /i11Jitatio11s 011 power of Parliament-Wliat are-Tenns and conditions of admission of new State-Justiciability of-Doctrine of Political questio1t-Applicability of EJ.pression "as it thinks.fit" in Article 2--Meaning of 891 ' . G H ' 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 CasD E 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: '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- 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] 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. 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 A B to clauses (a) to (p) of Article 371-F over other provisions of the ConstituC 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 construed 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] 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 F 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 amendmeut 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, thereB fore, not considered necessary to mention it in express terms in the Constitutiou. 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 'r territory is made part of India, by giving it the same status as is enjoyed by 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 ConstituE 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 of India, [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 G joined India as an Associate State by Article 2A introduced in the Constitution 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 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.). B 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 D 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 E 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 association, 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 B Sanghas and election to that seat on the basis of a separate electoral roll 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 -r· Section 5-A and clause (c) of sub-section (2) of Section 5-A of the 1951 Act 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 E contest the said reserved seat and he is being discriminated on the ground 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 -- therefore, be justified on the basis of historical considerations and the impugned provisions are violative of the Constitutional mandate conH 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 is not permissible. [1020C] c 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 Kesavananda 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 minimised. The existence of such provisions is bound to give rise to similar F 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 G 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. B c Per l.M. Shanna, a. (Dissenting) 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· 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 amendment 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 G 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 irreparable damage, but this seed of discord has the potentiality or developing H into a deadly monster. It is true that s.ome special rights have been envisaged - ,.J • ~- R.C. POUDY AL v. U.0.1. 905 in the Constitntion for handicapped classes but this has been done only to A offset the disadvantage the classes suffer from, and not for bringing another kind of imbalance by making virtue out of minority Stains. The Constitution, 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 B 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 D 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 Constitution. [935H, 936A] 4.1. From the entire scheme of the Constitution, it is clear that its E 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 Constitution. There is no reason for assuming that while inserting Article 371 F(O in F 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 G 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 government 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] E Quaere (iii) Whether the impugned provisions providing for reservation of twelve seats in favour ofBhutia-Lepchas are unconstitutional? Per M.N. Venkatacha/iah (For himself, J.S. Venna and KJ. Reddy, JJ.). 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 expediencies for the maintenance of social equilibrium. Indeed, the imG 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 fundamenH 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. [986E-H, 987H, 988A, Hl A 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. Historical considerations and compulsions do justify inequality and special -<( treatment. (987 A-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 D 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 representation bas not been understood in the constitutional pbilosophy as derogating from the democratic principle. The inequalities in representation in the present case are an inheritance and compulsion from the past. Historical considerations have justified a diffen:ntial treatment. -( [985G-H, 986A-B] Reynolds v. Sims, 377 U.S. 506 andAttomey GeneTal (CTH) Ex. Rei. Mckinlay v. The Commonwealth, 135 C.L.R.