Sikkim High Court on March 20 disposed the writ petition filled by Sikkim Gorkha Jagaran Sangh and Others in the year 2018. The judgement for the same was released on April 20, 2023. In the judgment HC observed, “In light of the discussions and decisions extracted above, it is apposite to now consider the prayers raised by the Petitioners in the instant Writ Petition. Prayer (a) in the instant Writ Petition is nebulous and unfathomable as it fails to specify which constitutional and legal rights of the Petitioners and various constitutional and legal duties of the Respondents are sought to be enforced.” “The Writ Petition stands disposed of accordingly”. Observed Sikkim HC
Sikkim Gorkha Jagaran March along with eight others had filled a Writ Petition PIL on June 22, 2018 under Article 226 (Article 226 provides the High Courts with the power to issue writs, including writs in the form of habeas corpus, mandamus, prohibition, quo warranto, certiorari, or any of them, to any person or authority, including the government) of the Indian constitution.
In the Public Interest Litigation, the Petitioners sought various reliefs, including issuing a writ, order, or direction to enforce the Constitutional and/or legal rights of the petitioners and/or enforcement of various Constitutional and legal duties and obligations from the respondents, directing the respondents to reserve seats in the Sikkim Legislative Assembly for different sections of the people of Sikkim including the Sikkimese Gorkhas in terms of Article 371F(f), and providing beneficial treatment to different sections of the people of Sikkim including the Sikkimese Gorkhas as provided under Article 371F(g).
Other reliefs sought by the petitioners, which includes directing the respondents to remove the name of the Bhutia, except Sherpa, given in the Constitution (Sikkim) Scheduled Tribes Order, 1978, or excluding the creamy layer of the Bhutia and others included in the Constitution (Sikkim) Scheduled Tribes Order, 1978. Additionally, the petitioners sought to withdraw/discontinue excessive reservation of seats in the Sikkim State Legislative Assembly in favour of Bhutia under Article 371F(f) and/or Article 332 and/or Article 342 of the Constitution read with R.P. Act, and to increase the total number of seats in the Sikkim Legislative Assembly from the present 32 to 60 under Article 170 or to such other appropriate numbers as may be found necessary and for reservation of Assembly seats in proportion to various sections of the people of Sikkim.
The petitioners also sought to reserve the seats in the Sikkim Legislative Assembly for Schedule Tribes of Limboo and Tamang under Article 332 and/or Article 371F(f) of the Constitution and to provide reservation of Assembly seats to eligible Scheduled Tribes strictly in proportion to their respective population. Finally, they sought to reserve seats in the Sikkim Legislative Assembly for the Gorkha community strictly in proportion to their population, and grant all or any of the foregoing prayers either cumulatively or alternatively.
In this Public Interest Litigation, the Petitioners inter alia seek the following reliefs;
a. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents for the enforcement of various Constitutional and/or legal rights of the petitioners and/or enforcement of various Constitutional and legal duties and obligations of the respondents; and
b. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to direct the respondents to take all the requisite steps to consider to reserve seats in the Sikkim Legislative Assembly for different section (sic) of the people of Sikkim including the Sikkimese Gorkhas in terms of Article 371F(f); and
c. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to direct the respondents to take all the requisite steps to consider to provide beneficial treatment to different sections of the people of Sikkim including the Sikkimese Gorkhas as provided under Article 371F(g); and
d. issue a writ, order or direction including a writ in the nature of Certiorari or any other appropriate writ, order or direction thereby directing the respondents to take all the requisite steps to consider to remove the name of the Bhutia, except Sherpa, given in the Constitution (Sikkim) Scheduled Tribes Order, 1978; or alternatively issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction thereby directing the respondents to take all the requisite steps to consider to exclude the creamy layer of the Bhutia and others included in the Constitution (Sikkim) Scheduled Tribes Order, 1978; and
e. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to direct the respondents to take all the requisite steps to consider to withdraw/ discontinue excessive reservation of seats in the Sikkim State Legislative Assembly in favour of Bhutias under Article 371F(f) and/or Article 332 and/or Article 342 of the Constitution read with R.P. Act, the same provisions being only „transitional‟ and having become spent force; and
f. issue a writ, order or direction including a writ in the nature of Certiorari or any other appropriate writ, order or direction thereby striking down/declaring that the provisions of Sections 7(1A)(a) of 1950 Act and 5A(1)(a), 5A(2)(a) of 1951 Act, so far they relate to Bhutias, except Sherpa, being essentially transitional in nature, now cease to have any valid effect in law as well as in fact; and
g. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents to consider and take all the requisite steps to increase the total number of seats in the Sikkim Legislative Assembly from the present 32 to 60 under Article 170 or to such other appropriate numbers as may be found necessary and for reservation of Assembly seats in proportion to various sections of the people of Sikkim; and
h. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents to consider and to take all the requisite steps to reserve the seats in the Sikkim Legislative Assembly for Schedule Tribes of Limboo and Tamangs under Article 332 and/or Article 371F(f) of the Constitution; and
i. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents to take all the requisite steps to consider and provide reservation of Assembly seats to the eligible Scheduled Tribes strictly in proportion to their respective population; and
j. issue a writ, order or direction including a writ in the nature of mandamus or any other appropriate writ, order or direction to the respondents to take all the requisite steps to consider and reserve seats in the Sikkim Legislative Assembly for Gorkha community strictly in proportion to their population; and grant all or any of the foregoing prayers either cumulatively or alternatively.
k. issue any appropriate order or direction thereby granting any other relief that the petitioners may be found entitled to; and
l. issue any other appropriate writ, order or direction as this Court may deem fit and proper in the circumstances of this case.
Source: THE HIGH COURT OF SIKKIM
The State of Sikkim through Chief Secretary in reply to the Writ Petition contended that, Writ Petition is not maintainable for the reason that prayers (b), (f), (e), (i) and (j) as reflected, were considered by a Constitution Bench of the Supreme Court in R. C. Poudyal vs. Union of India and Others.
“That, prayer (c) invoking Article 371F(g) besides being vague is a matter in the discretion of His Excellency the Governor. That, prayer (d) is contrary to the provisions of Article 342 of the Constitution of India which provides that any exclusion or inclusion in the Presidential Order can be only by way of Legislation by the Union Parliament. The prayer to exclude the creamy layer of Bhutias and others included in the Constitution (Sikkim) Scheduled Tribes Order, 1978, is not applicable to Scheduled Castes/Scheduled Tribes as laid down in Indra Sawhney and Others vs. Union of India and Others2 and also Ashoka Kumar Thakur vs. Union of India and Others3. That, prayer (g) is a subject-matter falling within the exclusive legislative competence of the Parliament. Prayers (a), (k), (l) and (m) are in general terms and if the other reliefs are not maintainable, as submitted, these prayers may also be dealt with accordingly. That, in prayer (h), the Supreme Court has issued directions in the case of Harry Ram Pradha (sic) and Others vs. State of Sikkim and Others which is being pursued by the State Government, hence the Petition be dismissed” added the statement
Further, in course of judgment, Petitioner Kishan Chettri responding to the question of maintainability raised by Respondent No 3 (State of Sikkim through Chief Secretary) contended inter alia that none of the questions of law was raised in R. C. Poudyal vs. Union of India and Others.
The Division bench inclusive of Chief Justice Biswanath Somadder and Justice Meenakshi Madan Rai after hearing both parties, delivered its judgment in reference with R. C. Poudyal vs. Union of India and Others case. On the disposal Sikkim High Court stated, “Having considered the rival verbal contentions of Learned Counsel for the parties on the maintainability of the Writ Petition and having perused the pleadings and all appended documents it is imperative to refer to the Constitution Bench Judgment of the Hon‟ble Supreme Court in R. C. Poudyal (supra).”
“This Court is indeed aware that the Hon‟ble Supreme Court has observed at Paragraph 128 of the ratio in R. C. Poudyal (supra) that “Indeed, the impugned 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” and the Petitioners in prayers (e) and (f) have sought for a direction that excessive seats in the Sikkim Legislative Assembly in favor of Bhutias be withdrawn, the provisions being transitional. However, the “transitional phase” is to be considered and determined by the Hon‟ble Supreme Court in view of its observation supra”
Resiliently, Sikkim HC in its judgement observed that, Sikkim High Court cannot delve into matters duly considered and determined by Supreme Court and thus, disposed the Writ petition.