Article 371F, a sequel to the Political History of Sikkim

KT GYALTSEN

The erstwhile Kingdom of Sikkim became an integral part of India subsequent to the enactment of the Constitution (Thirty-Sixth Amendment) Act, 1975. Accordingly, Article 371F was inserted in the Constitution of India as special provisions relating to the administration of Sikkim and to meet the special circumstances and the needs of Sikkim. To understand the legal interpretation of Article 371F in its entirety, it is pertinent to revisit the sequence of events and the genesis in the merger terms, as to how Sikkim became an integral part of the Indian Union. In brief, the political history of Sikkim goes back to 1642, when Chogyal Phuntsog Namgyal was consecrated as the first King or the Chogyal of the then Kingdom of Sikkim. It was under Chogyal Phuntsog Namgyal the Namgyal dynasty was established in Sikkim with a defined geographical boundary, administrative set-up and military institution. (Chogyal means the Dharma Raja or the King who rules with righteous as per the law of the Dharma)

In view of the fact that Sikkim is geographically located at a strategic position, surrounded by international borders, from the very beginning it faced continuous threat and attack from its powerful neighbours. The British too, had special interest in Sikkim because of its economic and political concerns with the neighbours having immediate boundaries with Sikkim, like Tibet and China. With the gradual fall of the Mughal rule in India, the British East India Company had established their stronghold in Eastern India and was keen on expanding its powers outside the territory of India. With such new developments happening in India under the British Raj, Sikkim was constrained to enter into an agreement with the East India Company on 10^th February, 1817. Under this treaty Sikkim was obliged to surrender all her rights to deal with any foreign power and conceded unhindered right of free access to the British to the Tibet border. Thereafter, in 1861 when the treaty was further revised Sikkim became a de-facto protectorate of the British Empire. The Anglo-Chinese Convention of 1890 later put a seal on this status.

India’s struggle for independence ultimately culminated in the formation of the Dominion of India on 15^th August, 1947. The Constitution of India was adopted on 26^th November, 1949 and came into effect on 26^th January, 1950, proclaiming India to be a sovereign democratic Republic. It is significant to note that in 1947, Sikkim was still an independent Kingdom under the rule of the Chogyal, with both a separate and distinct political character as a protectorate under the treaty executed earlier with the British. Due to numerous reasons and compulsions it compelled India and Sikkim to sign the Indo-Sikkim Treaty on 5th December, 1950. Thereafter, the Kingdom of Sikkim entered into a new phase as a Protectorate State of independent India. Under the terms of the Indo-Sikkim Treaty the Government of India undertook the responsibility with matters concerning defence, external affairs and communications of Sikkim.

For better understanding of the subject under discourse it is imperative to touch upon the issue of the Sikkim Subjects Regulation, 1961. This Regulation was promulgated through the Royal Proclamation and notified under the Home Department, Notification No. 156/S-61, dated the 3^rd July, 1961 which was published in the Sikkim Darbar Gazette, Extraordinary, dated the 3^rd July, 1961.  Under the Sikkim Subjects Regulation, 1961 and the Rules thereof, Sikkim Subject Certificates were issued to the residents declaring them as subjects of the then Kingdom of Sikkim. The names of such subjects recorded in the Sikkim Subject Register maintained under the Regulation of 1961.  The provisions contained in the Regulation inter alia read as; persons who were residents in the territory of Sikkim or were born in the territory of Sikkim immediately before the commencement of this Regulation were declared as Sikkim Subjects. It was essential for such person or persons to have been ordinarily a resident of the territory of Sikkim for a period of not less than fifteen years immediately preceding such commencement, in order to be a subject of Sikkim. It was essential for every applicant seeking Sikkim Subject Certificate to make declarations to the effect that he/she is not a citizen of any other country. At the time of submitting the applications for the Sikkim Subject Certificates the applicants were required to surrender the citizenship of their origin. Presently the Certificate of Identification is being issued to the Sikkimese people based on the rules laid down in the Regulation of 1961.

With the passage of time and influenced largely by the political activities of India’s freedom movement, a number of political parties began to overtly emerge in Sikkim. The surge for a popular Government and the demand for democracy were the key issues resulting in the political uprising in Sikkim in the early seventies. With the increase in the political unrest in Sikkim along with other political concerns, the historic Tripartite Agreement was executed on 8^th May, 1973 between the Chogyal, the leaders of the political parties representing the people of Sikkim and the Government of India. This Agreement provided the outline for a democratic and responsible government in Sikkim, to bring about administrative reforms etc. It ensured to further strengthen the peace and harmony among the people and to bring about rapid economic and social development in Sikkim. It provided for an equitable representation to all sections of the population of Sikkim in the proposed Sikkim Assembly. It also laid the condition for elections to the Sikkim Assembly to be conducted every four years on the basis of “One Man One Vote” and adult franchise.

As per the terms of the Tripartite Agreement of 1973, elections for the Sikkim Assembly (Thirty–Two Assembly Constituencies) was declared and held from 15th April to 19th April, 1974. The Sikkim Congress Party under the leadership of Kazi Lhendup Dorji won with a clear majority of votes. On 10^th May, 1974, the first day of the Assembly Session the newly elected Members under took the solemn oath thereby, ensuring their loyal and dedicated service to the people and the country. This was followed by the inaugural address delivered by the Chogyal as the Constitutional Head of Sikkim. While keeping Sikkim’s status as the keynote of the inaugural address the Chogyal said, “What we have achieved today is the result of the relentless efforts of our forefathers in the past. Likewise, our actions of today will go to shape the destiny of the generations to come. It is, therefore, inevitable symptom of the evolutionary process which warrants us to take utmost care and balanced judgement in the exercise of our actions of today. We should also bear in mind that the future of our country and the survival of our Sikkimese identity rest on the level of our wisdom, maturity and performance. So long as we fail to fathom these basis essentials our efforts will have been meaningless.”

On 11^th May, 1974, the President (Chief Executive of Sikkim) addressed the Assembly and mentioned that, “Any elected body has to work within a particular framework which has a legal sanction. The fundamentals and legality of the system have been clearly defined by the Agreement of May, 8^th, 1973. No doubt, the details of procedure and the business of the House have not been spelt out in detail. This will have to be a gradual evolutionary process, guided, if necessary, by expert advice. This is not a difficult task so long as the parameters of our functioning are defined, which the May Agreement already contains.” He further outlined the fact that all the legislative or administrative functioning would have the sanction of the Agreement. Kazi Lhendup Dorji, the Leader of the House while addressing the motion on the vote of thanks placed two points; firstly, the framing of a new Constitution for Sikkim under the May Agreement and Sikkim’s participation in the political and economic institutions of Sikkim. The discussions submitted by the Members and the resolutions passed in the House made it very appositely clear that the establishment of a democratic rule in Sikkim was to be broadly based on the provisions embodied in the historic Agreement of 8th May, 1973.  On 28^th June, 1974 the motion was moved for the leave of the House to introduce the Government of Sikkim Bill, 1974. The motion was unanimously adopted and the Bill was introduced in the House.

On 3^rd July, 1974 the President of the Assembly read out the address of the Chogyal in his absence. As per the said letter, the Chogyal expressed his views and comments on the Bill keeping in mind the larger interest of Sikkim, her people and the Indo-Sikkim relation. The letter of the Chogyal read as, “A constitution should be in consonance with aspirations of our people and the Honourable Members for establishing a fully responsible and democratic government and to safeguard Sikkim’s separate identity under the 1950 Indo-Sikkim Treaty which would be affected by Clause 30 in Chapter VI of the Bill.” Thereafter, the House unanimously adopted and passed the Government of Sikkim Bill, 1974. Subsequently, the Government of Sikkim Bill, 1974 received the assent of the Chogyal on 4^th July, 1974 which led to the enactment of the Government of Sikkim Act, 1974. The Act was passed by the Royal proclamation and promulgated and notified for the general information in the Sikkim Darbar Gazette Extraordinary on 6^th July, 1974. The primary object of the Government of Sikkim Act, 1974 was to set up, “an Act in pursuance of the historic agreement of the 8^th May 1973, between the Chogyal, the leaders of the political parties representing the people of Sikkim and the Government of India and the unanimous desire of the Members of the Assembly held on May 11, 1974 for the progressive realisation of a fully responsible government in Sikkim and for further strengthening its close relationship with India.” This Act was then referred to as the New Constitution of Sikkim.  Accordingly, the Act was placed before the Government of India and then the Parliament passed the Constitution (Thirty- Fifth Amendment) Act, 1974 on 22^nd February, 1975. With this enactment, Sikkim was recognised as an “Associate State of India”. It was apparent that by this enactment Sikkim was not to be a part of the territory of India, but an “Associate State”, which was brought into the framework of the Constitution by inserting Article 2A and necessary amendments in the Tenth Schedule of the Constitution of India.

Even after the Constitution (Thirty-Fifth Amendment) Act, 1974 was passed, the political situation in Sikkim failed to settle down as desired by the parties concerned. This ultimately resulted in the Sikkim Assembly unanimously adopting a Resolution on 10^th April, 1975 which inter alia, resolved that Sikkim shall henceforth be a Constituent Unit of India, enjoying a democratic and fully responsible Government. This resolution of the Assembly was placed before the people forthwith for their approval. On the Referendum so held which was conducted on the 14^th of April, 1975, resulted in a total of 59,637 votes in favour and 1,496 votes against the resolution out of the total electorate of approximately 97,000. The result of the Referendum was immediately communicated to the Government of India requesting the latter to take appropriate decision. With the purpose of accomplishing the above objectives as placed by the Government of Sikkim and to include Sikkim as a full-fledged Sate in the First Schedule of the Constitution, the Constitution (Thirty-Sixth Amendment) Act, 1975 was adopted and passed by the Parliament on the 16^th of May, 1975. However, this Act came in to force with retrospective effect from the 26^th April, 1975, referred to as the “Appointed Day”. Sikkim thus became the twenty-State of the Union of India. Article 371F was inserted in the Constitution as, Special provisions with respect to the State of Sikkim, which begins with the Non-Obsante Clause i.e.  “Notwithstanding anything in this Constitution-“

 As per the order of the President of India the adaption of Sikkim Laws (Number 1) Order 1975 was published in the Sikkim Government Gazette on 16^th May, 1975 which was deemed to have come into force on the 26^th April, 1975 and referred to as the “Appointed Day”. Under this Order the Sikkim Subjects Regulation, 1961 stood repealed from the Appointed Day. In exercise of the powers conferred by Section 7 of the Citizenship Act, 1955 (57 of 1955), the Central Government passed the Sikkim (Citizenship) Order, 1975. Under this Citizenship Order, declared “every person who immediately before 26^th April, 1975 was a Sikkim Subject under the Sikkim Subjects Regulation, 1961 was deemed to have become a citizen of India”. However, the unique identity and importance of the Sikkim Subject Certificate still stands operative in law and spirit. This is evident from the fact that as on date the persons holding the Sikkim Subject Certificates or the Certificate of Identification are exempted from the purview of the Central Income Tax by the Government of India thereby upholding the spirit of Article 371F.

When Sikkim became the twenty-second State of India there was an unequivocal promise solemnly made and specific conditions laid down which was duly accepted by the Government of India ensuring thereby that the rights and interest of the Sikkimese people will be completely safeguarded. This solemn promise and understanding has been enshrined in Article 371F of the Constitution of India. The legal position and interpretation of this special law is well settled by the Hon’ble Supreme Court of India in several landmark judgements, for reference, State of Sikkim versus Serener Prasad Sharma , AIR 1994 SC 2342 1994 (5) SSC282 and R. C. Poudyal versus UOI & Ors. [1994 Supp (1) SCC 324].  Several legal opinions which have been written by the Constitutional Experts on issues concerning the interpretation of Article 371F are also found for reference.

As far as the issue on the process or the modus-operandi of the merger is concerned, every scholar, writer, historian, individual and particularly those who had witnessed this historical transition, may have their own personal views or opinions, which I fully respect. As far as my intention of writing this article is concerned, it is simply to connect the past with the present for better understanding of the provisions of Article 371F, in the present day context and its relevance for the future. Unless one revisits the sequence of events or the political history of Sikkim prior to the merger of 1975, we may fail to appreciate the understanding of Article 371F in its true spirit. As I firmly believe that this special provision of the Constitution cannot be understood by reading the same in isolation, unlike the other Articles as found in the Constitution. A broad understanding, proper implementation and protection of this special provision of law by the law-makers and the people at large are extremely essential for the future of Sikkim. A heavy responsibility falls on the shoulders of our younger Sikkimese brothers and sisters to realise the value and importance of Article 371F to safeguard the interest and special identity of Sikkim and its people.

(The writer is a former Speaker, Sikkim Legislative Assembly)