Sikkim, the 22nd State of India

KT GYALTSEN

On 29th August 1947, a Drafting Committee consisting of seven members was set up under the Chairmanship of Dr. B R. Ambedkar for drafting a permanent Indian Constitution for Independent India. Thereafter, the Indian Constituent Assembly adopted the Constitution of India on 26th November 1949, which came into effect on 26th January 1950 with a democratic government system, completing the country's transition towards becoming a Sovereign Republic. The Constitution replaced the Government of India Act, 1935 as the country’s fundamental governing document. This particular day i.e. 26th January, was chosen, as on this day in 1930, the Indian National Congress had revealed “Purna Swaraj”, the declaration of India’s independence from the British Raj.  

The Constitution of India is the longest written constitution of any country in the world and it cannot be considered as mere law but as the machinery by which laws are made. It provides the basis for the democratic functioning of the governments, both Central and States and the various institutions which exists under the federal system of democracy. Parliamentary democracy in India is based on the lofty ideals of the Constitution namely; participative democracy, social and religious pluralism, social justice and growing opportunities for the citizens to partake in the nation’s progress in all fields, be it social, economic, political, legal, scientific, etc. The democratic form of polity  which the founding framers of the Constitution bequeath to us, to guide the destiny of our country is based on the sovereignty of the people, supremacy of the legislature, responsibility of the executive and independence of the judiciary.   

The Preamble of the Constitution declares India; a Sovereign Socialist Secular and Democratic Republic and further secures to all its citizens; Justice, Liberty, Equality, and to promote among them all Fraternity. The 42nd Amendment Act, 1976, added the words “Secular” and “Socialist” in the Preamble during the emergency. 26th January is celebrated every year as an important national program to commemorate the significance of the Indian Constitution and for India becoming a Sovereign Republic. The basic structure of the Constitution  laid down in the Preamble cannot be amended in exercise of the powers under Article 368 of the Constitution. The landmark judgement passed by the Hon’ble Supreme Court in the Kesavananda Bharati case has settled the basic structure doctrine of the Constitution. The doctrine provides safeguard for the basic structure of the Indian Constitution from parliamentary amendment. Furthermore, the Apex Court in the judgements passed in the Golaknath and the Minerva Mills Cases, decided upon the relevance and importance of the basic structure of the Constitution. The Preamble as such lays down the spirit of the Constitution of India.  

On this historic day when India rises to celebrate the Republic Day and the Indian Constitution, it may be noteworthy for the people of Sikkim to briefly revisit and recollect the sequence of events and the political history of Sikkim under which Sikkim merged into the Union of India as the 22nd State.  It was during the early 70s when  the political unrest which took place in Sikkim began to grow along with Government of India’s political interest and compulsions, the historic Tripartite Agreement was executed on 8th May  1973 between the then Chogyal of Sikkim, the leaders of the political parties representing the people of Sikkim and the Government of India. This historic Agreement provided inter alia, the framework for a democratic and responsible government in Sikkim, to bring about administrative reforms and to promote closer relations between India and Sikkim. It also ensured to 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 Assembly.  

As per the terms and conditions of the Tripartite Agreement, the election for the Sikkim Assembly (Thirty–Two Assembly Constituencies) was held in April 1974. The Sikkim Congress Party was successful in forming the first elected government held under this Agreement.  On 11th May 1974, the then President of the newly formed Sikkim Assembly, who was the Chief Executive of Sikkim, addressed the Assembly and outlined the tasks of the newly formed Assembly. In his address, he 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 8th May 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.”  The Sikkim Assembly discussed several matters related to the framing of a new Constitution for Sikkim under the 8th May Agreement. The discussions submitted by the Members and the resolutions passed in the House made it very appositely clear that the process for 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 20th June 1974 the Draft Constitution for Sikkim was prepared by the Constitutional Adviser deputed by the Government of India, subsequently to be known as the Government of Sikkim Act, 1974, was tabled before the House for discussion and consideration. On 28th June 1974 the motion was moved for the leave of the House to introduce the Government of Sikkim Bill, 1974. The motion was adopted and the Bill was introduced in the House. After extensive discussions and while adopting the resolutions passed by House on the previous dates, the House unanimously adopted and passed the Government of Sikkim Bill, 1974. Subsequently, the Government of Sikkim Bill, 1974 received the assent of the then Chogyal on 4th 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, under Notification No. 35/S.C. dated 6th 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 8th 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 realization of a fully responsible government in Sikkim and for further strengthening its close relationship with India.” This Act of 1974 was referred to as the New Constitution of Sikkim.  

The Government of Sikkim through the then Chief Executive made a formal request to the Government of India seeking for steps as was legally or constitutionally necessary to give effect to the Government of Sikkim Act, 1974 including the Resolutions, which were passed by the Sikkim Assembly. Thus, in order to give constitutional effect to the Government of Sikkim Act, 1974 and for strengthening the Indo-Sikkim co-operation and inter-relationship, the Parliament of India passed the Constitution (Thirty- Fifth Amendment) Act, 1974 on 22nd February 1975. With this Constitutional Amendment brought by the Parliament, Sikkim was recognized as an “Associate State of India.” However, it was apparent that by this Act of Parliament that  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 of India by inserting Article 2A and necessary amendments in the Tenth Schedule of the Constitution of India. 

Even after the enactment of the Government of Sikkim Act, 1974 and the formation of the Sikkim Assembly, the political unrest in Sikkim failed to settle down as expected. This resulted in the Sikkim Assembly unanimously adopting a Resolution on 10th April 1975 which inter alia, resolved that, “the institution of the Chogyal is hereby abolished and Sikkim shall henceforth be a constituent unit of India, enjoying a democratic and fully responsible Government.”  This resolution of the Assembly was, thereafter placed before the people of Sikkim forthwith for their approval. The referendum which was held on 14th April 1975 resulted in a total of 59,637 votes in favor and 1,496 votes against the resolution out of the total electorate of approximately 97,000. The result of this Referendum was then communicated to the Government of India requesting the latter to make immediate response and to accept the above decision to take such measures as found necessary and appropriate to implement the decision as early as possible.

With the purpose of accomplishing the above objectives as placed by the Government of Sikkim and further 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 16th May 1975. However, this Act came in to force with retrospective effect from 26th April 1975, referred to as the Appointed Day. With the introduction of this Constitutional Amendment, Sikkim became the twenty- second State of the Union of India. Article 371F was inserted in the Constitution stating therein the special provisions considered necessary to meet the special circumstances and needs of Sikkim. 

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, every person who immediately before 26th April 1975 was a Sikkim Subject, under the Sikkim Subjects Regulation, 1961 was deemed to have become a citizen of India.  As per the Notifications of the Government of India, Ministry of Home Affairs, 16th May, 1975 was the date  appointed on which the Citizenship Act, 1956 (57 of 1955) was to come into force in the State of Sikkim. The Government of India, Ministry of Home Affairs Notifications dated 16th May 1975, was published by the Government of Sikkim in the Gazette, under Home Department, No. 995/H/75, dated 21st June, 1975 for general information of the public. The Order states that a Subject of Sikkim having a valid Sikkim Subject Certificate issued under the provisions of Sikkim Subjects Regulation, 1961 and the Rules thereof were eligible to be a citizen of India. The Sikkim Subject Certificates was then issued under the special Regulation of 1961 and was done so for a specific purpose and as such, it could be relied upon to differentiate between the Sikkimese people for whom the constitutional protection has been provided under the spirit of the terms and conditions of merger. It may be relevant to state here that it was on the basis of the Sikkim Subject Certificate, the Government of India was pleased to exempt the Indians of Sikkimese origin from the purview of the Income Tax Act, 1961 (Direct Tax Laws). 

When Sikkim became an integral part of India in 1975 there was an unequivocal promise solemnly made and accepted by the Union of India and the people of Sikkim; that the economic, social and political rights, interest and the identity of the Sikkimese people would be fully safeguarded as per the terms expressed in the 8th May Agreement 1973. This solemn promise and conditionality has been enshrined in Article 371F of the Constitution of India through the Constitution (Thirty-Sixth Amendment) Act, 1975. Article 371F was inserted to accommodate certain historical events and the evolution of the political institution and other conditions and circumstances of Sikkim. The spirit of Article 371F was to record the conditionality of the merger and the solemn promise made by the Government of India to the people of Sikkim.  Article 371F stands as, “Special provisions with respect to the State of Sikkim”.  For Sikkim and its people, this special provision of law in the Constitution is based on the terms and conditions stipulated in 8th May Agreement. Therefore, for all practical purpose and purport it is the 8th May Agreement 1973 which  provides the spirit to Article 371F.  

The scope and effect of Article 371F stand fully settled by the Hon’ble Supreme Court in several of its landmark judgments. Article 371F beings with a “non-obstante clause”, (Notwithstanding anything in this Constitution) for the single reason that the matters referred to in the various Clauses of the Article required a protective cover so that such matters are not struck down as unconstitutional because they do not satisfy the general constitutional requirements. The legal interpretation and understanding of which is clearly laid down in one of the historic judgments’ passed by the Hon’ble Supreme Court of India in  R.C. Poudyal versus Union of India  and Others [ 1994 Supp (1)  SCC 324]. Similarly, under Rule 4 (4) of the Sikkim Government Establishment Rule, 1974, enforced prior to the merger of 1975, provides for preference to be given to the local Sikkimese candidates in the matters of public employment. This particular law was challenged on the ground of violation of Article 16 of the Constitution, which was finally decided by the Hon’ble Supreme Court in the case of  State of Sikkim versus Surendra Prasad Sharma AIR 1994SC 2342 1994 (5) SSC 282. The Court held that any action based on the said provision of law cannot be struck down as unconstitutional and would not be inconsistent with Part III of the Constitution, as it is protected by the special provision of Article 371F (k). It is from these judgments we can very well understand the importance and significance of this special provisions of the Constitution, which is enacted to safeguard the rights and interest of the people and for the overall development of Sikkim.

Despite the importance and the legally operative aspect of Article 371F, large sections of the population of Sikkim are experiencing a sense of fear and apprehension concerning the gradual dilution and infringement of Article 371F with the passage of time. On numerous occasions, we have witnessed many individuals and people from various social and political backgrounds expressing their concern over the issue of this law being either violated or dishonored, on various issues. Burning issues such as the Citizenship Amendment Act, One Nation One Ration Card, Sikkim Subject Certificate, Revenue Order No. 1, Employment for the Locals, rapid change in Sikkim’s demography due to influx, etc. continue to remain as matters of serious concern and debate in the public domain. However, many of us look and observe on such issues or instances through the political perception and simply consider it as a general political rhetoric and fail to examine it at length and create one’s intellectual opinion or views. 

It may be further relevant to touch upon the important issue regarding the pending political demands of Sikkim made to the Centre. Despite repetitive demands placed by the people of Sikkim to the Central Government, the pending political demands inter alia; reservation of seats in the Sikkim Legislative Assembly for the Limboo and Tamang communities of Sikkim, recognition of the left-out communities of Sikkim to be included in the List of Scheduled Tribes, etc. have not been favorably decided yupon by the Centre. Though demands like these have been presented and supported with constitutional justification the same remains pending in abeyance despite being under the jurisdiction of the Parliament or the Union List. Indeed these demands which have been made are in-line with the enabling provisions of Article 371F and involve the sentiments and wishes of different sections of the people of Sikkim. Therefore, it is important for the people of Sikkim to deeply introspect and act in order to safeguard the special constitutional provision and work towards getting these demands accomplished.  

Hence, on this very important occasion of the Republic Day of India, it is vital for the different sections of the people to stand united and rise above all political and personal differences and collectively work towards achieving our common goal to preserve and protect the sacred provision of the Constitution, Article 371F, which the Constitution of India has provided to Sikkim and its people. Primarily it is the constitutional duty of the government and all elected representatives to take upon their shoulders the responsibility to debate and discuss on such important issues in the State Assembly the temple of democracy towards safeguarding the rights and interest of the people through the rules of procedure laid down by the Assembly. Therefore, in conclusion it is the right moment for every citizen of the State to work towards upholding and safeguarding the image and identity of Sikkim to ensure a safe, peaceful and progressive environment for our future generations to come. 

“Nothing will ruin the country if the people themselves will undertake its safety;

and nothing can save it if they leave that safety in any hands but their own.”

- Daniel Webster

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