Ewanlangki-E-Rymbai Vs. Jaintia Hills District
Council & Ors [2006] Insc 159 (28
March 2006)
B.P. Singh & Arun
Kumar
AND Elaka Jowai
Secular Movement Appellant Versus Jaintia Hills District Council and others Respondents B.P. SINGH, J.
These
appeals by special leave are directed against the common judgment and order of
the Gauhati High Court dated 21st July, 2003 in Writ
Petition (C) No. 6541 of 2001 [WP (C) No.221(SH)/2002]
and Writ Petition (C) No. 6542 of 2001 [WP (C) No.222(SH)/2002] whereby the High
Court dismissed the writ petitions filed by the appellants herein.
Appellant
Ewanlangki-e Rymbai, a
Christian by faith is a Member of the Jaintia
Scheduled Tribe. The other appellant, namely Elaka Jowai Secular Movement is represented by its Vice Chairman
and Executive Member. In both the writ petitions the constitutional validity of
Section 3 of the United Khasi Jaintia
Hills Autonomous District (Appointment and Succession of Chiefs and Headmen)
Act, 1959 (hereinafter referred to as 'the Act of 1959') has been challenged.
The writ petitions also challenged the notice dated August
28, 2001
issued by the Jaintia Hills Autonomous District
Council, Jowai declaring the programme
for the election of Dolloi in the Elaka
Jowai and also the notice dated September
4, 2001
issued by the Secretary, Executive Committee, Jaintia
Hills Autonomous District Council, Jowai.
Section
3 of the Act of 1959 provides that subject to the provisions of the Act and the
Rules made thereunder all elections and appointments
of Chiefs and Headmen shall be in accordance with the existing customs
prevailing in the Elaka concerned. The notice dated
September 4, 2001 announced the programme for the
conduct of election for Dolloi in the Elaka Jowai but the notice issued
by the Secretary on behalf of the Executive Committee, Jaintia
Hills Autonomous District Council, Jowai provided
that only the members of the clans mentioned therein could contest the
aforesaid election and thereby the persons belonging to the Christian faith
were excluded from contesting the said election. The appellants contend that
exclusion of Christians from contesting the election is in violation of
Articles 14, 15 and 16 of the Constitution of India since they are excluded
only on the ground of religion. They further contend that Section 3 of the Act
of 1959 which provided that the appointment of the Chiefs or Headmen shall be
in accordance with the existing customs prevailing in the Elaka
concerned, is also bad. It gives legal sanctity to a
customs which itself is in breach of Articles 14 to 16 of the Constitution of
India. In sum and sub stance the appellants contend that exclusion of
Christians from contesting election for the post of Dolloi
in Elaka Jowai is
discriminatory and in breach of Articles 14 to 16 of the Constitution of India
since their exclusion is merely on the ground of religion.
We may
notice at the threshold that Jowai District is an
autonomous District to which the provisions of Sixth Schedule of the
Constitution of India apply in view of the provisions of Article 244(2) of the
Constitution of India. The brief historical background in which the aforesaid
autonomous district was created may be noticed at this stage
:- On coming into force of the Constitution of India the United Khasi- Jaintia Hills District was
formed as one of the Tribal Areas of Assam by merging the Khasi
States with the other areas of the Khasi-Jaintia
Hills, boundaries whereof were defined by para 20(2)
of the Sixth Schedule to the Constitution (hereinafter referred to as 'the Schedule').
Under para 2(4) of the Schedule, the administration
of the aforesaid district vested in the District Council which was clothed with
administrative and judicial powers.
In
view of the demand for creation of an autonomous District comprising the Jowai sub-division of the aforesaid District, the Governor
of Assam appointed a Commission to look into the matter and make its
recommendation. The report of the Commission was placed before the Legislative
Assembly which approved the action proposed to be taken pursuant to the report.
Consequently on November 23, 1964 a Notification was issued by the
Governor of Assam creating a new autonomous District Council for the Jowai Sub-Division by excluding Jowai
Sub-division from the United Khasi-Jaintia Hills Autonomous
District with effect from December 1, 1964. Thus the Jowai
District came into existence as an autonomous District with effect from December
1, 1964.
As
earlier noticed Article 244(2) of the Constitution provides that the provision
of the Sixth Schedule shall be applied to the administration of the tribal
areas in the State of Assam. The tribal areas in Assam are governed not by the relevant
provisions of the Constitution which apply to the other Constituent States of
the Union of India but by the provisions contained in the Sixth Schedule. These
provisions purport to provide for a self-contained code for the governance of
the tribal areas forming part of Assam and they deal with all the relevant
topics in that behalf. (See : Edwingson
Bareh vs. The State of Assam and others : AIR 1966 SC
1220).
Paragraph
1 of the Sixth Schedule provides for the formation of an autonomous district
and further provides that if there are different scheduled tribes in an
autonomous district, the Governor may by public notification divide the area or
areas inhabited by them into autonomous regions.
Paragraph
2 provides for the constitution of a District Council for each autonomous
district. Similarly for each autonomous region a separate Regional Council is
provided. The administration of an autonomous district insofar as it is not
vested under the Schedule in any Regional Council within such district, is
vested in the District Council for such district. The administration of an
autonomous region is vested in the Regional Council for such region.
Sub-paragraph (6) of paragraph 2 empowers the Governor to make Rules for the
first constitution of District Councils and Regional Councils in consultation
with the existing tribal Councils or other representative tribal organizations
within the autonomous districts or regions concerned. Paragraphs 3 to 17 make
provision for the administration of the autonomous Districts and the Regions.
Paragraph 3 in particular provides that the District Council for an autonomous
district in respect of all areas within the district except those which are
under the authority of Regional Councils, if any, shall have power to make laws
with respect to the matters enumerated therein which provide inter alia "for the
appointment or succession of Chiefs or Headmen". The laws made under this
paragraph are required to be submitted forthwith to the Governor and, until assented to by him, shall have no effect.
In
exercise of powers conferred upon him by sub-paragraph (6) of paragraph 2, the
Governor framed rules called "the Assam Autonomous Districts (Constitution
of District Councils) Rules, 1951". The Rules provide, inter alia, for the constitution of an Executive Committee
consisting of the Chief Executive Members as the head and two other members to
exercise the executive functions of the District Council.
After
the coming into the existence of Jowai District as an
autonomous District the Jowai Autonomous District
Act, 1967 was enacted.
The
provisions of this Act were made applicable to the Jowai
Autonomous District and the Rules of 1951, as amended from time to time, were
made applicable. The Act, Rules and Regulations framed under the United Khasi- Jaintia Hills District
Council as listed in Appendix I were
also made applicable to the Jowai Autonomous District
till such time the Jowai Autonomous District Council
made its own laws. Appendix I includes the United Khasi Jaintia Hills Autonomous District (Appointment and
Succession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as 'the
1959 Act') which was made applicable to the Jowai
District Council.
Section
2 (a), (b) and (g) of the 1959 Act are as follows :-
"2. Definition. In this Act, unless the context
otherwise requires, the following expressions shall have the meanings hereby
respectively assigned to them, that is to say :-
-
"Chief"
means a Sylem, a Lyngdoh, a
Dolloi, a Sirdar or a Wahadadar as the case may be, of any Elaka.
-
"Custom"
with reference to any Elaka means any rule regarding
the appointment of a Chief or Headman for that Elaka
which having been continuously and uniformly observed for a long time, has
obtained the force of law in that Elaka.
. . .
-
"Elaka" means any administrative unit in the District
specified in Appendixes I, II and III or any other administrative unit to be
constituted and declared as such by the Executive Committee." Section 3
reads as follows :-
"3. Elections and Appointment of Chiefs and Headmen. - Subject to the provision of this
Act and the Rules made thereunder all elections and
appointments of Chiefs or Headmen shall be in accordance with the existing
customs prevailing in the Elaka concerned." All
appointments of Chiefs are made subject to the approval of the District Council
which may confirm such appointments under terms and conditions which it may by
Rules, from time to time, adopt.
Under
Appendix III Jowai
has been specified as an Elaka, headed by a Chief who
would be a Dolloi. Apart from challenging the
constitutional validity of Section 3 of the Act of 1959, appellants also
challenge the validity of the notice issued by the Secretary of Executive
Committee of Jowai District dated September 4, 2001
which is reproduced below :-
"OFFICE
OF THE JAINTIA HILLS AUTONOMOUS DISTRICT COUNCIL, JOWAI NOTICE DATED JOWAI, THE
4TH SEPT. 2001 This is Public Notice that the Executive Committee, Jaintia Hills Autonomous District Council, Jowai after thorough investigation and scrutinisation
has decided that the following Clans has the right to stand for the election of
the Dolloiship in the Elaka
Jowsai :
-
"From the Clan Sookpoh Khatar
Wyrnai
-
Pasubon
-
Rngad
-
Lipon
-
Nikhla
-
War
-
Pakyntein
-
Leinphoh
-
Singphoh
-
Niangphoh
-
Kathphoh
-
Kynjing
-
Lakiang
-
Blein
-
Lanong
-
Lywait
-
Kma
-
Lytan-Mutyen
-
Pawet
-
Nangbah
-
Siangbood
-
Syngkon bad
-
Langodh.
-
"From the Clan Le-Kyllung
-
Rymbai
-
Najiar
-
Toi
-
"From the Clan Talang-Lato
-
Lato
-
Thma
-
Chynret
The
Executive Committee has decided those who can contest for the Dolloiship should be only those who are from the Niam Tynrai Niamtre
(Non Christians) who will practice the indigenous religion within the Raij Jowai. Sd/-
E.M . Lyngdoh Secretary,
Executive Committee Jaintia Hills Autonomous District
Council, Jowai" It is not disputed before us
that Dolloi performs Administrative as well as
religious functions and a Christian cannot perform the religious functions
which are performed by Dolloi. However, the
appellants have impunged Section 3 of the Act of 1959
and the notifications issued on the following grounds:-
-
The
Notification issued is a law within the meaning of Article 13 (3) (a) of the
Constitution of India.
-
Being
a law preventing a person belonging to a particular religion from contesting
election to a public post is violative of Articles
14, 15 and 16 of the Constitution of India, and therefore, void.
-
Section
3 which provides for the Election and Appointment of Dolloi
in accordance with custom is void since the customs itself clearly
discriminates on the ground of religion. A custom must give way to fundamental
right and any custom which offends the fundamental rights of a citizen must be
held to be invalid.
On the
other hand learned counsel appearing for the respondents submitted that there
is no violation of Articles 14, 15 and 16 of the Constitution of India since
reasonable classification is permissible in law and the exclusion of Christians
from contesting the election is not only on the ground
of religion, but on the ground that they are unable to perform religious
functions of the office of Dolloi. It is further
submitted that indeed the provisions only serve to conserve the tribal culture
which itself is a fundamental right guaranteed under Article 29 of the
Constitution of India.
In
substance, the impugned law and the notifications do not incur the wrath of
Articles 14 to 16 of the Constitution, on the
contrary, they enjoy the protection of Article 29 of the Constitution of India.
On a
consideration of the material placed before it the High Court came to the
conclusion that a custom prevailed in the Elaka Jowai which on account of its long practice and by common
consent acquired the status of a governing rule for election and appointment of
Dolloi to perform both administrative and religious
functions. The fact that the Dolloi in Elaka Jowai is required to
perform both administrative and the religious functions as prevalent by custom
is not disputed. What was submitted on behalf of the appellants was that 2
persons could be called upon to perform those duties, one performing the
administrative duties and the other the religious functions. Only 2 instances
were cited when Christians were appointed as Dolloi
of Elaka Jowai. In the year
1890 an attempt was made to install a person who had converted himself into Chiristianity as Dolloi of Elaka Jowai, but he had to face
the wrath of the people in performing the religious functions and ultimately
had to resign from the post. In the other case the Dolloi
had to be removed by issuance of an order of termination. The High Court found
that since time immemorial the custom is to appoint one Dolloi
who has to perform both administrative as well as religious functions.
Moreover
under the United Khasi-Jaintia Hills Autonomous
District (Appointment and Succession of Chiefs and Headmen) Act, 1959 (Act
No.11 of 1959) "service land" and "puja
land" were given to Dolloi who was appointed as
the "Chief". "Service land" which was revenue free land was
held and cultivated by the Chief or the Headman in lieu of monetary
remuneration for services rendered. "Puja
land" was revenue free land held and cultivated by him and the income
yielded therefrom utilized by him in meeting expenses
connected with the religious performances according to customs of the Elaka. The High Court, therefore, recorded a finding that
there was a custom prevalent for a long period which was invariably practiced
to the effect that the "Chief", namely the Dolloi
must perform administrative as well as religious duties. There was no customs
to appoint two Dollois one for the performance of administrative
duties and the other for the performance of religious functions. Deviation for
a short period on account of existing emergency which needed immediate
correction did not derogate from its character as a custom. The High Court
concluded thus :- "On reading Section 3 read with
Section 2(j) and 2(k) of the Act, 1959 and on the pleadings of the parties we
hold that the Dolloi elected and appointed in Elaka Jowai was required to
perform the executive function as well as religious functions which is a custom
prevalent in the Elaka. We further hold that there
cannot be two Dollois one performing the
administrative functions and the other performing the religious functions.
Under the Act, 1959 there can be only one Dolloi
performing both administrative as well as religious functions".
An
argument was advanced before the High Court, which was not advanced before us, that the notice issued on September
4, 2001 by
the Secretary, Executive Committee, of the Jowai
Autonomous District Council was without jurisdiction and authority. The High
Court negatived the contention and held that the
Executive Committee in exercise of its delegated powers can issue such a public
notice for appointment by election of Dolloiship in Elaka Jowai in the absence of
rules, regulations or enactments providing for such election and appointment. Reliance
was placed on a judgment of this Court in Edwingson Bareh vs. The State of Assam and others (supra). However,
the High Court held that any law/regulation/rule/notification made or action
taken under the Sixth Schedule by the District Council or the Executive
Committee formed by the District Council must not in any manner commit a breach
of any of the fundamental rights guaranteed under Part III of the Constitution
of India.
The
High Court then proceeded to consider the submission urged before it that the
exclusion of Christians from contesting election to the post of Dolloi violated Articles 14, 15 and 16 of the Constitution
of India. In doing so the High Court also noticed Articles 25 and 26 of the
Constitution of India and ultimately concluded that there was no breach of
Articles 14, 15 and 16 of the Constitution of India and in fact it protected
the rights guaranteed under Articles 25 and 26 of the Constitution of India.
The
appellants in these appeals have challenged the correctness of the decision of
the High Court. Shri P.K. Goswami,
learned senior counsel appearing on behalf of the District Council (respondents
1 to 3) submitted that the High Court was right in holding that having regard
to the facts of the case and the nature of the office of Dolloi,
the notice excluding Christians from contesting for the post of Dolloi was fully justified. Dolloi
performs administrative as well as religious functions. Such a custom and such
an office existed since time immemorial and acquired the status of well
preserved custom. It, therefore, became the duty of the State to ensure the
right guaranteed under Article 26 of the Constitution of India. This was not
really a case to which Articles 15 and 16 were applicable, but even assuming
that to be so, there was no discrimination since the exclusion of Christians
was not only on the ground of religion, but on the ground that they could not
perform the religious functions of the office which by custom a Dolli was required to perform. It is submitted that under
Articles 14, 15 and 16 of the Constitution of India reasonable classification
was permissible. In particular he drew our attention to Article 26(b) of the
Constitution of India and submitted that since the office of Dolloi involves the performance of both the administrative
as well as religious duties, the concerned tribes had a right to manage their
own affairs in matter of religion. He relied upon authorities in support of his
submission that the right of the tribes to have a Dolloi
who could perform administrative as well as religious functions was a right
guaranteed under Article 26 of the Constitution of India.
Mr.
R.F. Nariman, learned senior counsel appearing on behalf of respondents
5 and 6 analysed the provisions of Articles 14, 15,
16, 25, 26 and 29 of the Constitution of India and submitted that Article 14
permitted reasonable classification in accordance with well settled principles.
Article 15 was a species of Article 14 inasmuch it prohibited the State from
discriminating against any citizen on the ground only of religion, race, caste,
sex place of birth or any of them. However, he
emphasized the use of the words "on ground only of religion". Thus if
a citizen is discriminated against "on ground only of religion", such
action may be unconstitutional.
That
however, is not the case here. The exclusion is on account of the admitted fact
that a Christian cannot perform the religious duties of a Dolloi.
Article
16 guarantees equality of opportunity in matters of public employment but
clause (5) thereof expressly provides that nothing in the article shall affect
the operation of any law which provides that the incumbent of an office in
connection with the affairs of any religious or denominational institution or
any member of the governing body thereof shall be a person professing a
particular religion or belonging to a particular denomination. He submitted
that the right guaranteed under Article 25 of the Constitution was subject to
other provisions of Part III of the Constitution of India but so far as Article
26 was concerned, it was only subject to public order, morality and health. So
far as Article 29 is concerned it is a absolute right
guaranteed for the conservation of a language, script or culture. He submitted
that the rights protected are those guaranteed under Article 26(b) and 29(1) of
the Constitution. He, therefore, submitted that election of a tribal head with
all concomitants thereof was part of the tribal culture. The Constitution
guarantees uniformity in diversity. The cultural rights under Article 29 of the
Constitution of India are couched in the widest language unlike under Articles
25 and 26, which are subject to certain limitations. Having regard to the
nature of duties to be performed by a Dolloi the
person elected as Dolloi must be religiously
proficient to perform his religious duties. It was really with a view to
preserve their culture that a Christian was excluded from contesting the office
of Dolloi which involved performance of religious
duties, which he could not perform. It was a core aspect of the tribal culture
that Dolloi must perform administrative functions as
well as religious functions which involve performance of religious ceremonies
which the High Court has elaborated in great detail. According to him, Articles
14 to 16 were not at all breached and in the ultimate analysis the right
guaranteed under Article 29 must prevail since it is the mandate of Article 29
that such cultural rights must be preserved. There is force in the submissions
advanced on behalf of the respondents.
Article
14 ensures equality before law, which means that only persons who are in like
circumstances should be treated equally. To treat equally those who are not
equal would itself be violative of Article 14 which
embodies a rule against arbitrariness. Thus classification is permissible if it
satisfies the twin test of its being founded on intelligible differentia, which
in turn has a rational nexus with the object sought to be achieved.
Article
15 prohibits the State from discriminating against any citizen on grounds only
of religion, race, caste, sex, place of birth or any
of them.
This,
however, is subject to the exception carved out by clauses 3 and 4 which permit
special provisions to be made in favour of women and
children, and for socially and educationally backward classes of citizens i.e. for the Scheduled Castes and Scheduled Tribes.
These are exceptions to the rule embodied in clauses (1) and (2) of Article 15.
Article
16 also embodies the rule against discrimination, but is limited in its scope
than Article 15, since it is confined to office or employment under the State,
whereas Article 15 covers the entire range of State activities.
Descent
and residence are the two additional grounds on which discrimination is not
permissible under Article 16. But the rule is again subject to the exceptions
carved out by clauses 3 to 5 thereof. Clause 5 is relevant for our purpose, and
it provides as under :-
"(5)
Nothing in this article shall affect the operation of any law which provides
that the incumbent of an office in connection with the affairs of any religious
or denominational institution or any member of the governing body thereof shall
be a person professing a particular religion or belonging to a particular
denomination." Thus Article 14 lays down the rule of equality in the
widest term, while Article 15 prohibit discrimination on grounds specified
therein but covering the entire range of State activities. Article 16 embodies
the same rule but is narrower in its scope since it is confined to State
activities relating to office or employment under the State. Both Articles 15
and 16 operate subject to exceptions therein. It has been so laid down by this
Court in Government of A.P. vs. P.B. Vijayakumar and another : (1995) 4 SCC 520 and in Cazula
Dasaratha Rama Rao vs. State of Andhra Pradesh and others : AIR 1961 SC 564.
Counsel
for the appellants submitted that prohibition against contesting for the post
of Dolloi on the ground of religion ex-facie amounted
to discrimination on the ground of religion. On the contrary the respondents
contend that the exclusion is not on the ground of religion alone, and
therefore, does not invite the wrath of Articles 15 and 16. The exclusion is
justified on the ground that those who cannot perform the dual nature of
functions of the Dolloi, namely administrative and
religious cannot be eligible for the
post. The exclusion, therefore, is neither arbitrary nor irrational. It is
axiomatic that one who cannot perform the duties attached to the office must be
held to be ineligible to hold the office. His exclusion, therefore, cannot be
considered as either unreasonable or arbitrary or discriminatory.
The
submission urged on behalf of the respondents must be accepted. We have earlier
noticed the findings of the High Court to the effect that it is the tribal
custom of the Elaka that the Dolloi
of the Elaka Jowai must
perform both the administrative and religious functions of his office. The High
Court has exhaustively considered the evidence on record and considered the
various rituals and observances, practices, poojas,
ceremonies, customary religious functions which are regarded as integral part
of religious customs, and which the Dolloi must
perform in the discharge of his duties as the Dolloi.
Such rituals, observances, ceremonies etc. are many in number. The material on
record leaves no room for doubt that the office of Dolloi
with its dual functions, administrative and religious, is a part of the tribal
religion and culture, governed by custom since time immemorial. It logically
follows that the Dolloi must be one who is conversant
with the indigenous religious practices of the inhabitants of the Elaka. He must be one who should be able to lead the people
of the Elaka in the religious ceremonies according to
their custom, and must also be competent to perform the rituals, practices, poojas, ceremonies etc. which he is required to perform as
a duty attached to his office. It is not disputed that a Christian cannot
perform the indigenous religious functions which a Dolloi
is required to perform, apart from his administrative functions. By long
standing custom, the Dolloi must perform both
administrative and religious functions, and such duties cannot be bifurcated by
appointing one other to perform the religious functions only. There is no such
custom prevalent in the Elaka. In its long history,
such a thing happened only twice, and on both occasions there was a public
outcry resulting in dismissal of the Dolloi in one
case and his resignation in the other. The custom cannot be said to be
discontinued or destroyed by such aberrations. The High Court has also noticed
the judicial recognition given to the customary practice in the Khasi and Jaintia Hills that a Dolloi cannot be a Christian.
Having
regard to all these facts, we are in agreement with the High Court that by
excluding Christians from contesting the post of Dolloi,
Articles 14, 15 and 16 are not violated. The exclusion is justified by goond reason, since admittedly the religious duties of a Dolloi of Elaka Jowai cannot be performed by a Christian. Thus the ground
for exclusion of Christians is not solely the ground of religion, but on
account of the admitted fact that a Christian cannot perform the religious
functions attached to the office of Dolloi. The reason
cannot be said to be either unreasonable or arbitrary.
Counsel
for the appellants relied upon the decision of this Court in John Vallamattom and another vs. Union of India : (2003) 6 SCCC
611, wherein this Court considered the challenge to the constitutional validity
of Section 118 of the Succession Act, 1925. The aforesaid provision was struck
down by this Court on the ground of arbitrariness violating Article 14 of the
Constitution. It found that even the classification of the Christians as a
class by themselves was neither based on any intelligible differentia nor had
any nexus with the object sought to be achieved. It was, therefore, held to be
discriminatory as also arbitrary. But the challenge based on Article 15 of the
Constitution was repelled in the following words :-
" So far as the second argument of the learned counsel for the petitioner
is concerned, it is suffice to say that Article 15 of the Constitution of India
may not have any application in the instant case as the discrimination forbidden
thereby is only such discrimination as is based, inter alia,
on the ground that a person belongs to a particular religion. The said right
conferred by clause (1) of Article 15 being only on a "citizen", the
same is an individual right by way of a guarantee which may not be subjected to
discrimination in the matter of rights, privileges and immunities pertaining to
him as a citizen. In other words, the right conferred by Article 15 is
personal. A statute, which restricts a right of a class of citizens in the
matter of testamentary disposition who may belong to a particular religion,
would, therefore, not attract the wrath of clause (1) of Article 15 of the
Constitution of India." Mr. Nariman is,
therefore, right in distinguishing this case on facts and the nature of
legislation challenged and the infirmities found. In fact, as he rightly
submits, this decision, if at all, supports the case of the respondents, so far
as challenge based on Article 15 is concerned.
The
appellants next relied on the decision of this Court in Madhu
Kishwar and others vs. State of Bihar and others :
(1996) 5 SCC 125. In that case the constitutional validity of Sections 7, 8 and
76 of the Chotanagar Tenancy Act, 1908 was challenged
on the ground that the provisions violated Articles 14, 15 and 21 of the
Constitution of India. The right to intestate succession of Scheduled Tribe
Women was governed by custom.
Sections
7 and 8 provided for exclusive right of male succession to the tenancy rights.
Section 76 of the Act saved any custom, usage, or customary right not
inconsistent with, or not expressly or by necessary implication modified or
abolished by the provisions of the Act. This Court did not consider it
desirable to declare the customs of tribal inhabitants as offending Articles
14, 15 and 21 of the Constitution of India, though
each case must be examined when full facts are placed before the Court. This
Court however gave some relief to female dependents by declaring that upon the
death of the male tenant, they could hold on to the land so long as they
remained dependent on it for earning their livelihood, for otherwise it would
render them destitute. Thus the exclusive right of male succession conceived of
in Sections 7 and 8 has to remain in suspended animation so long as the right
of livelihood of the female descendants of the male holder remained valid and
in vogue. We find no principle laid down in this decision to support the case
of the appellants herein, who in effect seek to challenge the validity of a
custom recognized by and given effect to, by law. On the contrary, this Court
was of the view that striking down such a law on the touchstone of Article 14
would bring about a chaos in the existing state of law.
We
also do not find anything in the decision of this Court in State of
Kerala and another vs. Chandramohnan:
(2004) 3 SCC 429 to support the case of the appellants. All that was held in
that case was that by mere conversion to Christanity
one does not cease to be a Scheduled Tribe if despite conversion he continues to
follow the tribal traits and customs. No such question arose in this case.
None
of the decisions cited by the appellants supports the challenge to Section 3 of
the Act of 1959 and the Notifications impugned in the writ petitions on the
ground of violation of Articles 14, 15 and 16 of the Constitution. On the other
hand counsel for the respondents relied upon decisions in support of their
contention, that the exclusion of Christians from contesting the election to
the post of Dolloi in Jowai
Elaka is not only on the ground of religion and,
therefore, their exclusion cannot be challenged on the ground of violating
Articles 15 and 16 of the Constitution of India. It was also contended that
historical reasons may as well support the classification, provided it is
rational and bears a nexus with the object sought to be achieved. It was
submitted that what was sought to be protected was indeed the tribal culture of
the people inhabiting the autonomous District of Jowai.
Their tribal sentiments and religious values have been sought to be protected
and given due respect having regard to social and economic considerations of
the tribals inhabiting in the autonomous District.
Thus they contend that the exclusion is not based only on the ground of
religion and consequently there is no discrimination within the meaning of
Articles 15 and 16 of the Constitution of India. In this connection they have
relied upon a decision of this Court in Air India vs. Nergesh
Meerza and others : (1981) 4
SCC 335 wherein this Court observed :- "Even otherwise, what Articles
15(1) and 16(2) prohibits is that discrimination should not be made only and
only on the ground of sex. These articles of the Constitution do not prohibit
the State from making discrimination on the ground of sex coupled with other
considerations. On this point, the matter is no longer res
integra but is covered by several authorities of this
Court." In Clarence Pais and others vs. Union of
India : (2001) 4 SCC 325 the challenge to Section 213
and 57 of the Succession Act, 1925 was considered and repelled. No doubt this
Court held that the basis of the challenge, namely that Section 213(1) of the Act was applicable
only to Christians and not to any other religion, was not correct. However, the
Court made pertinent observations in the following words :-
"We
have shown above that it is applicable to Parsis
after the amendment of the Act in 1962 and to Hindus who reside within the
territories which on 1.9.1870 were subject to the Lt. Governor of Bengal or to
areas covered by original jurisdiction of the High Courts of Bombay and Madras
and to all wills made outside those territories and limits so far as they
relate to immovable property situate within those territories and limits. If
that is so, it cannot be said that the section is exclusively applicable only
to Christians and, therefore, it is discriminatory.
The
whole foundation of the case is thus lost. The differences are not based on any
religion but for historical reasons that in the British Empire in India,
probate was required to prove the right of a legatee or an executor but not in
Part "B" or "C" States. That position has continued even
after the Constitution has come into force. Historical reasons may justify
differential treatment of separate geographical regions provided it bears a
reasonable and just relation to the matter in respect of which differential
treatment is accorded. Uniformity in law has to be achieved, but that is a long
drawn process. Undoubtedly, the States and Union should be alive to this problem.
Only on the basis that some differences arise in one or the other States in
regard to testamentary succession, the law does not become discriminatory so as
to be invalid. Such differences are bound to arise in a federal set up."
In R.C. Poudyal vs. Union of India and others : 1994
Supp. (1) SCC 324 reservation of one seat for the Sangha
in the Sikkim Assembly was challenged. In the reply
it was urged that though Sangha was essentially a
religious institution of the Buddhists, it however, occupied a unique position
in the political, social and cultural life of the Sikkimese
Society and the one seat reserved for it cannot, therefore, be said to be based
on considerations 'only' of religion. This Court repelled the contention that
reservation of one seat in favour of the Sangha is one purely based on religious considerations and,
therefore, violative of Articles 15(1) and 325 of the
Constitution of India and offended its secular principles. This Court held :-
"The Sangha,
the Buddha and the Dharma are the three fundamental postulates and symbols of
Buddhism. In that sense they are religious institutions. However, the
literature on the history of development of the political institutions of Sikkim adverted to earlier 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 own contribution to the Sikkimese
culture and political development. There is material to sustain the conclusion
that the 'Sangha' had for long associated itself closely
with the political developments of Sikkim and was inter-woven with the social
and political life of its people. In view of this historical association, the provisions in the matter of reservation of a seat for the Sangha recognises the
social and political role of the institution more than its purely religious
identity. In the historical setting of Sikkim and its
social and political evolution the provision has to be construed really as not
invoking the impermissible idea of a separate electorate either. Indeed, the
provision bears comparison to Art. 333 providing for
representation for the Anglo-Indian community.
So far
as the provision for the Sangha is concerned, it is
to be looked at as enabling a nomination but the choice of the nominee being
left to the 'Sangha' itself. We are conscious that 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,
be wholly unconstitutional. But in the case of Sangha,
it is not merely a religious institution. It has been historically a political
and social institution in Sikkim and the provisions in regard to the
seat reserved admit of being construed as a nomination and the Sangha itself being assigned the task of and enabled to
indicate the choice of its nominee. The provision can be sustained on this
construction. Contention (g) is answered accordingly." These decisions do
justify the stand of the respondents that unless it is shown that the exclusion
of Christians was only on religious ground, the challenge cannot be sustained.
In the instant case, we have noticed the reasons why such an
exclusion was made and we have also held that the reasons therefor are neither arbitrary nor unreasonable. We,
therefore, conclude agreeing with the High Court that Section 3(1) of the Act
of 1959 as also the Notifications impugned in the writ petitions cannot be
struck down on the ground of violation of Articles 14, 15 and 16 of the
Constitution of India.
We may
notice that the High Court has held that the spiritual fraternity represented
by classes belonging to Niam Tynrai
Niamtre (Non- christian)
who practice the indigenous religion within the Raij Jowai is a socio cultural religious organization of Jaintia people who follow Niam Tynrai Niamtre faith. They are
governed by common customary laws of their own in the matters of administration
as well in following religious faith. These classes within the Raij Jowai being followers of Niam Tynrai Niamtre
are certainly a religious denomination within the meaning of Article 26 of the
Constitution of India.
Before
us also, Mr. Goswami, learned counsel appearing for
the respondents urged submissions based on Articles 25 and 26 of the
Constitution of India. Mr. Nariman, however, laid
emphasis on Article 29 of the Constitution of India and submitted that the
effort was really to conserve the culture of the tribal population in the
autonomous District and, therefore, protected by Article 29 of the Constitution
of India. These are matters which may require consideration in an appropriate
case. So far as the instant case is concerned, having found that the challenge
to the impugned provisions and Notifications was not sustainable on the ground
of violation of Articles 14, 15 and 16 of the Constitution of India, it is not
necessary for us to deal with other issues which the respondents have urged on
the basis of Articles 25, 26 and 29 of the Constitution of India in support of
their stand.
In the
result these appeals fail and are dismissed.
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