Article 371 (F) itself is a constitution for the state of Sikkim within the Indian constitution. In light of the growing importance of this Article, which has been a major challenge for all of us and especially the younger generation to have the right perspective and thought process on this issue. The importance and concern for this provision are growing in manifold after the centre abrogated Article 370, a special provision with respect to the state of Jammu and Kashmir and also some of the vested interests in Sikkim has been trying to misinform the public.
When Sikkim was on the verge of a merger with India in the year 1975, the union government had unambiguously decided to accept different terms and condition laid down by the leaders of Sikkim, including the protection to the old laws of Sikkim in the form of the codified insertion of Article 371 F.
Going by the original provision of the Constitution, Article 371(F) begins with the “Notwithstanding Clause/Non-Obstante Clause” a word that is jargon-ridden. The word, ‘significance’ is so important, as this word goes to the root of understanding of this provision. So, before we delve into the factual narration of the different clauses enumerated into various sub-clauses of 371(F) of the Indian Constitution, let us have a look at what the Notwithstanding Clause says.
Therefore, Notwithstanding Clause in Article 371(F) indicates that this provision will prevail despite the existence of any provision which is contrary. So, if the provision of Article 371(F) is contrary to the other provision of the Constitution, then in that case Article 371(F) will prevail over other provisions.
Non-obstante clause is a protective cover incorporated in a view that old laws protected under Article 371(F) do not get struck down as unconstitutional, merely because it does not satisfy the requirement of the Constitution of India.
The non-obstante clause seeks to extend protection to the existing laws/old laws and puts the existing laws on a higher pedestal, even if they are in conflict with any of the provisions of the Constitution.
In this context, Article 37(F) extends total protection to a matter listed in clauses (a) to (p) through a non-obstante clause.
- Legislative Assembly. Clause (a-b): The clause postulates that Sikkim Legislative Assembly (SLA) shall have elected members of not less than 30 MLAs. The SLA which was formed in the aftermath of the election held on April 1974, culminated into the passage of the 36th Constitutional Amendment Act, 1975 wherein Clause (F) was inserted in the existing Article 371 and the power of the members of the legislative assembly was determined in accordance with the Constitution of India.
- Term of the State Legislative Assembly. Clause(c):
Amendment was made on 9th May 1978, where the term of the Sikkim Assembly was made for 4 years. However, this clause though unequivocally states that the state legislature shall have the term of four years but such prevailing practice of 5 years term period of the state legislature has been overlapping the special provision. The Writ Petition on this is also pending before the High Court of Sikkim, wherein the Petitioner, Vivek Basnet had prayed for having electoral rights only to the Sikkim subject holders and also prayed that the election in the SLA to be held as per Clause (c) of Article 371 (F), that is for the period of four years.
Further, the Supreme Court in RC Poudyal Judgment, 1991 also have remarked that- “As per May 8, 1973, tripartite agreement, it was agreed that the people of Sikkim would enjoy the right of election on the basis of adult suffrage to give effect to the principle of one man one vote and that there shall be an Assembly in Sikkim which shall be elected every four years and the elections shall be fair and free, and shall (be conducted under the supervision of a representative of the Election Commission of India, who shall be appointed for the purpose by the Government of Sikkim.
- Formation of Parliamentary Constituency:
(Clause d & e) of Article 371(F) have vested Sikkim with one Parliamentary seat in the Parliament and further, the representative of the state of Sikkim in the House of People shall be elected by the members of SLA.
- Reservation of seats in Legislative Assembly for different sections of society in Sikkim. Clause (f):
Among many contentious clauses, Clause (f) is a sacrosanct clause where almost all the political leaders of Sikkim used to hobnob by promising seats to different sections and communities in the state Assembly.
This Clause has given power to the Parliament with a view to protect the rights and interests of different sections of the population of Sikkim and to make changes in the seats of SLA if the Parliament is of the opinion that particular section of the communities is not adequately represented. This is in a way a unique feature in the entire country where only the candidates belonging to certain communities shall be entitled to stand for the election.
The Court while dealing with a petition in R.C. Poudyal vs. Union of India 1991, which had then challenged the constitutional validity of Article 371 (F) (f) which has granted reservation of 12 seats to the member of Bhutia and Lepcha communities and reserved 1 seat as a Sangha Constituency- based purely on the religious lines. The majority judges by 4:1 while affirming this clause held that due to the effect of the non-obstinate clause Article 371 (F) (f) is a departure from Article 332 (3) of the constitution which requires that the number of seats shall be reserved proportionate to the population.
Further, while upholding Clause (f) the court said when the reservation is made by Parliament for only one section, then the Parliament must have exercised their power respecting the other sections stipulated under Article 371F (f).
- Role of Governors and the property and asset of the State (Clause-g & h):
Soon after the passage of the 36th constitutional amendment Act, the Governor was appointed under Article 155 of the Indian Constitution, whereby its special role was fixed under clause (g) of Article 371 (F) for ensuring the social and economic advancement of different sections of the population of Sikkim.
Clause (h) empowered all the property vested with the kingdom to the state of Sikkim to be part of the Indian union.
- High Court and its subordinates. (Clause i & j):
In an article penned by Retd. Judge of Sikkim High Court, Justice A.P. Subba, he states that the Sikkim High Court established in the year 1953 was then made final court in all judicial matters, civil or criminal, subject to the exercise of prerogative by the Maharaja to grant mercy, pardon, remission, etc in case of conviction.
Subsequently, post-merger, Clause (i) was inserted, in which the High Court functioning immediately prior to the date of merger became the High court for the state of Sikkim under the Constitution like any other High Courts in the country, and all the subordinate courts started exercising its jurisdiction as per the provision of the Constitution.
- Protection of Old laws and its enforcement (Clause k, l, n & o):
Clause (k) which is the heart and soul of this Article, stipulates the essence for the protection of the old laws that existed prior to 26.04.1975. Old laws were specially protected in a view to ensuring a smooth transition from the Chogyal’s rule to the democratic rule under the constitution.
The Supreme Court in state of Sikkim Vs. Surendra Prasad Sharma, 1994, while dealing with the validity of one of the old laws (Sikkim Establishment Rules, 1974), held that the Establishment Rules is an “existing law” which means any law in force before the appointed day i.e 26.04.1975. Therefore, the court in Surendra Prasad’s case held that the existing law, enacted before 1975 is protected under Clause (k) of 371 (F).
*Power of the President of India to modify the Article:
Clause (l) gave the power to the President of India to modify or amend the old laws within two years of the merger. As mentioned, this was to be done before 1977, if the President feels that the old laws are not in consonance with the constitution of India. No doubt, some of the old laws are inconsistent with the provision of the Constitution, but in order to accord equanimity with the constitution, if in case of any need, President of India was vested with the special power to make adaptation and modification to be exercised within the period of 2 years from the appointed day.
Under Clause (n) the President can exercise his power to extend any enactment in Sikkim, which is in force in any other state of India
- Jurisdiction of Courts in a matter arising out from treaties and agreement:
Clause (m) distinctively bars the courts entertaining any dispute arising out of the treaty, agreement or any instrument relating to the state that was executed before the merger of the state. Therefore, it states that even the Supreme Court shall not have any power to entertain any such dispute arising out of the treaty, etc., executed prior to the merger. But the power of the President to consult the Supreme Court shall not be curtailed under Article 143 of the Indian Constitution.
The High Court of Sikkim in 2005 has already dealt with a similar matter in a Writ Petition filed by Kunga Nima Lepcha, challenging the validity of allotment of lands made through the agreements entered into with three non-local parties by the state is violative of Indo-Sikkim Treaty, 1950 & Article 371-F. The High Court in its judgement authored by Justice A.P. Subba held-
Treaty of 1950 cannot be termed as law or Ordinance or instrument within the purview of Article 371-F (k) of the Constitution – In terms of the provisions of law contained in Article 371-F (m), this Court has no jurisdiction in respect of any dispute arising out of the related Treaty of 1950 – Treaty of 1950 cannot override the related constitutional provision laid down under Article 371-F of the Constitution of India.
With all the promises coming from political leaders to protect Article 371(F) and to safeguard the Sikkimese identity, on the other hand, we should not forget that the responsibility to protect the sanctity of this provision is not just vested with the leaders, but the Sikkimese society and its people who are blended with clarity on these vital issues.
By Pramit Chettri. The author is an Advocate who hails from Malbassey, Budang village under Soreng Sub-Division, West Sikkim and is currently practising law before the Supreme Court of India and Delhi High Court. He can be contacted via his email id email@example.com.
The views expressed in this article are intended for the sole purpose of generating public debate and eliciting a public response.