Appeal No 265 of 1956
Appeal from the judgment and order dated August 26 1954 of the Calcutta High Court in Income tax Reference No 107 of 1952
SMitra Dipak Choudhry and B N Ghosh for the appellants
CK Daphtary Solicitor General of India K N Rajagopala Sastri R H Dhebar and D Gupta for the respondent
356 1959
March 16
The Judgment of the Court was delivered by HIDAYATULLAH J
Messrs
Mcgregor  Balfour Ltd Calcutta hereinafter called the Company is a Company incorporated in the United Kingdom
Its head office is also there
It however does business in India also
In some of the previous years the Company was required to pay excess profits tax both in England and in India
When it did so it obtained deduction of the amounts from its profits and gains for purposes of the Indian lncome tax Act under s122 of the Indian Excess Profits Tax Act
In the assessment year 1947 1948 which corresponded to the accounting year of the Company ending on October 31 1946 it obtained a repayment of Rs 231009 out of the excess profits tax paid in England
This was under section 281 of 4  5 Geo
VI Ch 30
For purposes of the levy of the Indian Income tax this sum was included in the taxable profits of the Company by the Income tax Officer
He purported to act under section 1114 of the Indian Finance Act 1946 hereinafter called the Act
The income of the Company in India was held to be Rs 634937 including the sum of Rs 231009 while the in  come outside the taxable territory was held to be Rs 429620
Applying section 4Acb of the Indian Income tax Act the Income tax Officer assessed the Company on its total world income
The appeals of the Company made successively to the Appellate Assistant Commissioner and the Incometax Appellate Tribunal were dismissed
The Tribunal however referred the following questions of law to the High Court at Calcutta under section 66 of the Indian Income tax Act 1 Whether on the above facts and circumstances of this case the Tribunal was right in holding that the sum of Rs 231009 was income of the assessee during the assessment year under consideration and was liable to be assessed under the Indian Income tax Act  and 2If so whether this amount could not be taken into consideration for determining the residence of the 357 assessee under section 4Acb of the Indian Income tax Act   This reference was heard by Chakravarti C J and Lahiri J who by their judgment dated August 26 1954 answered the first question in the affirmative and the second in the negative
They however granted a certificate under section 66A of the Indian Income tax Act read with article 135 of the Constitution to appeal to this Court
No appeal has been filed on behalf of the Department and the second of the two questions must be taken to be finally settled in this case
The contentions of the Company in this appeal thus concern only the first question and they are two It was said firstly that section 1114 of the Finance Act could not be made applicable to the assessment year 1947 1948 because the provision was not incorporated in the Indian Income tax Act or repeated in the subsequent Finance Acts
This argument was not seriously pressed before us and beyond mentioning it Mr Mitra for the Company did not choose to elaborate it
We think that Mr Mitra has been quite correct in not pursuing the matter
The section framed as it is does apply to subsequent assessment years just as it did to the assessment for 1946 1947 and prima facie it was not necessary to follow one of the two courses detailed above
Since the point was not pressed before us we need not give our reasons here
It was said nextly that the High Court was in error in construing section 1114 of the Finance Act as a provision which created a liability proprio vigore as if it was a charging section
It was contended that the repayment was not within the taxable territory and in view of the answer to the second question as to the applicability of section 4Acb there could be no tax upon it
On behalf of the Department it was argued that the sub section created a charge by itself and the fiction therein created being sufficient and clear it was not necessary to consider where the income arose
Section 1114 of the Finance Act reads as follows  Where under the provisions of sub section 2 of 358 section 12 of the Excess Profits Tax Act 1940 XV of 1940 excess profits tax payable under the law in force in the United Kingdom has been deducted in computing for the purposes of income tax and supertax the profits and gains of any business the amount of any repayment under sub section 1 of Section 28 of the Finance Act 1941 4  5 Geo
6 c 30 as amended by Section 37 of the Finance Act 1942 5  6 Geo 6 c 21 in respect of those profits shall be deemed to be income for the purposes of the Indian Income tax Act 1922 and shall for the purpose of assessment to income tax and super tax be treated as income of the previous year during which the repayment is made
 This section may be compared with R 41 of the Rules which are applicable to cases 1 and 11 of sch
D of the Income tax Act 1918 8  9 Geo
V c 40  Where any person has paid excess profits duty the amount so paid shall be allowed as a deduction in computing the profits or gains of the year which included the end of the accounting period in respect of which the excess profits duty has been paid but where any person has received repayment of any amount previously paid by him by way of excess profits duty the amount repaid shall be treated as profit for the _year in which the repayment is received
 The English rule above quoted deals first with the deduction of the amount paid as excess profits duty from the profits or gains of the year which includes the end of the accounting period in respect of which the excess profits duty has been paid a matter dealt with in section 122 of the Indian Excess Profits Tax Act and next with the assessability to tax of the amount repaid from the excess profits duty previously charged a matter dealt with in sub sections 11 and 14 of section 11 of the Finance Act
The object and purpose of the legislation in each case is the same and though the two provisions are not ipsissima verbal they are substantially in the same words and also in pari materia
The concluding words of the English rule  the amount repaid shall be treated as profits of the year in which the repayment is received  and which have been interpreted by 359 English Courts may specially be compared with the concluding words of sub section
14 of section 11 of the Finance Act which run  any repayment shall for the purposes of assessment to income tax and super tax be treated as the income of the previous year during which the repayment is made
 There can be no doubt that the intention underlying the two provisions is the same and the language is substantially similar
Now the English rule was interpreted by the English Courts to create a liability irrespective of considerations arising from the general provisions of the income tax law
In Eglinton Silica Brick Co Ltd vs Marrian 1 the assessee company which had gone into voluntary liquidation in 1904 was carried on by the liquidator till 1921 when the business was sold to another company which took it over on October 5 1921 and the business of the appellant company then ceased
The income tax assessment for the year 192122 was apportioned between the two companies and inasmuch as the assessee company had suffered a loss it was reduced to nil in its case
The assessee company then received pound 7224 and pound 1150 in 1952 after it had ceased to carry on business as repayments of excess profits duty and this income was assessed under R 41 above mentioned
The question was whether this was right
The case was considered by the Lords of the First Division and they are their opinion against the assessee firm
The Lord President Clyde with whom Lords Skerrington Cullen and Sands agreed Lord Sands dubitans explained the two parts of the rule as follows  The principle is obvious
It is that if a taxpayer has made profits assessable directly or indirectly through the operation of the three years  average to income tax and the Revenue takes a share of those profits in the name of Excess Profits Duty it is only fair that the profits actually assessed to Income Tax should suffer some corresponding deduction   11924  98
360 The problem which arose in the case of repayment of Excess Profits Duty was different
Nobody knew or could know how soon or how late repayment might fall to be made nor whether the business whose profits were assessed to Excess Profits Duty would be in the same hands when repayment if any came to be made
By that time the business might have ceased to be in existence
Repayment might therefore have to be made to a person who was not carrying on the original business
The original trader might have given up business died and an executor might have come in his place
The solution provided for all these cases is that contained in the second part of the paragraph according to which the amount repaid to any person is to be I treated as profit for the year in which the repayment is received  It is obvious that the amount of the former trading profits so repaid could not actually be trading profits for such year
None the less the amount repaid is to be treated as if it were that which in fact it is not and cannot be
The amount repaid consists of trading profits which reach the taxpayer out of their proper time
However belated his fruition of them they have not lost their original character as trading profits
In my opinion this is what explains the position of paragraph 1 of Rule 4 as part of the Rules under Cases I and 11 of Schedule D which are concerned with the profits of trades and vocations
That some artificial rule should be formulated was in the circumstances inevitable and the highly artificial character of the rule adopted is shown by the words in which it is expressed  the amount repaid shall be treated as profit for the year in which the repayment is received
In short the amount repaid is deemed to be something that it is not and could not in the actual circumstances possibly be
Nor is this in any way unreasonable or contrary to what might be expected if regard be had to the subject matter
For as has been seen the Excess Profits Duty was itself a part of the trading profits computed by methods familiar under the Income Tax Act
It was not merely a part of something which entered into the computation of profit it was actual 361 computed profit
And but for the disparity between the  accounting period  and the three years  average it would have been directly assessable to Income Tax
 A similar view was taken in the Court of Appeal by Lord Hanworth M R Scrutton L J and Romer J Scrutton L J dubitans in A  W Nesbitt Ltd vs Mitchell 1
There too the assessee company after suffering losses in the accounting period May 1 to November 25 1920 went into liquidation and ceased to trade
On April 22 1924 the repayment of Excess Profits Duty took place and this was assessed to income tax
The Master of the Rolls described the amount received as repayment in these words  But in respect of what is that payment made  It is not a legacy it is not a sum which has fallen from the skies  it is a sum which is repaid because there was too large a sum paid by the Company to the Revenue Authorities over the whole period during which Excess Profits Duty was paid and that sum means and is intended to represent a repayment of a sum which was paid by them in respect of the duty charged upon the excess profits of their trading
It comes back therefore not having lost its character but being still the repayment of a sum too much it is true but a sum taken out of the profits which were made by the Company in the course of its trading profits which at the time they were made were subject to Income Tax and subject to Excess Profits Duty and that is the character of the repayment that has been made
 Dealing with the rule the Master of the Rolls observed  I have pointed out this is a case where the Company has received payment of an amount previously paid by way of Excess Profits Duty and having that characteristic attaching to it and we are told by the Statute that when such a sum is repaid it is to be treated as a profit for the year in which the repayment is received
It is said it may be treated as a 1 217 218
46 362 profit but it ought not to be treated as an assessable profit
The answer to my mind is that it is paid back not by way of a sum which has no origin or ancestry  it is a sum which represents a repayment of the amount previously paid by that company in the form of Excess profits duty upon their trading
If it is to have that character and is to be treated as such a profit although it be a repayment of sums paid in respect of profits it is to be treated as a profit for the year in which the repayment is received
The word  treated  indicates that it is to be deemed to be something which in fact it is not or whether it is so or not it is to be treated as a profit and therefore it is to my mind impossible to discuss the question of whether or not difficulties may arise or whether it may be criticised as financially not quite sound that it should be treated in this method in that particular year but we are told by the Statute that it is to be treated as a profit for the year in which the repayment is received
 In a case similar on facts as the ones cited above Kirke s Trustees vs The Commissioners of Inland Revenue 1 the House of Lords Viscount Cave L C Lord Atkinson Lord Shaw of Dunfermline Lord Sumner and Lord Carson placed the same construction upon the latter part of R 41
The following passage in the speech of Lord Sumner explaining the extent of the fiction in the latter part of the Rule is extremely instructive   The express mandatory terms of the sentence show in carefully chosen language that he is to submit to something by reason of his having previously enjoyed this advantage in the shape of repayment of an amount previously paid by way of Excess Profits Duty
Something which is not a profit but is only a money repayment something which may not result in a profit because although trading goes on there is so great a loss on the year that this repayment does not make up the deficit something which may not be a trading profit because trading has ceased altogether nevertheless is to be treated as profit and as profit for the year
Treated  is a fresh word free from legal technicality
1  332
363 It is the widest word that could be chosen
The Legislature avoided saying shall be assessed as  or I shall be brought into the computation of profit and loss  and simply says that something which is not profit but mere payment shall be treated as profit which it c may or may not be and as profit for the year
I think therefore that the word treated is an apt word to impose a charge 
See also in this connection Olive and Partington Ltd vs Rose 1
These cases were relied on by Chakravarti C J and Lahiri J in the judgment under appeal and the learned Judges pointed out that the addition of the words  for the purposes of assessment to income tax and super tax  rather strengthen the reasoning in its application to the words of the Indian Statute
We agree with this statement
It is to be noticed that the sub section creates two fictions
By the first fiction it makes the amount of any repayment  income  for the purposes of the Indian Income tax Act and goes on to say that that  income  shall be  treated  for purposes of assessment to income tax and super tax as the income of the previous year
Mr Mitra for the Company contends that no doubt the amount may be treated as income  for the purposes of the Indian Income tax Act but the Department is still under a duty to prove that the Company is liable to tax at all
According to him this will have to be treated as income received outside the taxable territory because if the fiction contemplated its being treated as within the taxable territory  it would have said so specifically
In our opinion this submission cannot be accepted
That this would have been taxable income but for the provisions of section 122 of the Excess Profits Tax Act goes without saying
The income character of the receipt is restored by the fiction and it is to be brought under assessment without any further proof than this that it has been received as repayment of the United Kingdom tax in respect of which a deduction was made in the earlier years
The distinction between 1 364 incomes within and without taxable territories is made unnecessary by demanding that this amount by way of repayment shall be brought to tax and  treated  as income within the previous year
The effect thus is that the sub section charges the said amount with a liability to tax by its own force or to borrow the words of Lord Sumner is apt to  impose a charge 
In our opinion the amount received as repayment of excess profits tax must be deemed to be income  for the purposes of the Indian Income tax Act and for assessment it must be treated as income of the previous year
The answer to question No 1 given by the Calcutta High Court was thus correct
The appeal fails and is dismissed with costs
Appeal dismissed


Summary:
On May 8 1973 a tripartite agreement was executed amongst the Chogyal Ruler of Sikkim the Foreign Secretary to the Government of India and the leaders of the political parties representing the people of Sikkim which envisaged right of people of Sikkim to elections on the basis of adult suffrage contemplated setting up of a Legislative Assembly in Sikkim to be reconstituted by election every four years and declared a commitment to free and fair elections to be overseen by a representative of the Election Commission of India
Para 5 of the said agreement provided that the system of elections shall be so organised as to make the Assembly adequately representative of the various sections of the population The size and composition of the Assembly and of the Executive Council shall be such as may be prescribed from time to time care being taken to ensure that no single section of the population acquires a dominating position due mainly to its ethnic origin and that the rights and interests of the Sikkimese Bhutia Lepcha origin and of the Sikkimese Nepali which includes Tsong and Scheduled Caste origin
are fully protected
This agreement was effectuated by a Royal Proclamation called the Representation of Sikkim Subjects Act 1974 issued by the Ruler of  Sikkim
It directed the formation of Sikkim Assembly consisting of 32 elected members 31 to be elected from territorial constituencies and One Sangha constituency to elect one member through on electoral college of 893 Sanghas
Consequently elections for the Sikkim Assembly were held in April 1974
The Sikkim Assembly so elected and constituted passed the Government of Sikkim Act 1974
Section 7 of the said Act gave recognition to paragraph 5 of the tripartite agreement dated May 8 1973
In pursuance of this development the Constitution of India was amended by the Constitution Thirty Fifth Amendment Act 1974 inserting Article 2A which made Sikkim an Associate State with the Union of India
On 10th April 1975 the Sikkim Assembly passed a resolution abolishing the institution of Chogyal and declared that Sikkim would henceforth be a constituent unit of India enjoying a democratic and fully responsible Government
A request was made in the resolution to the Government of India to take the necessary measures
By an opinion poll the said resolution was affirmed by the people of Sikkim
Accordingly the Constitution was further amended by the Constitution Thirty Sixth Amendment Act 1975 whereby Sikkim became a full fledged State in the Union of India and Article 371 F was inserted in the Constitution which envisaged certain special conditions for the admission of Sikkim as a new State in the Union of India
Clause f of the said Article empowered Parliament to make provision for reservation of seats in the Sikkim Assembly for the purpose of protecting the rights and interests of the different sections of the population of Sikkim
Thereafter Parliament enacted the which sought to extend with certain special provisions the Representation of the People Act 1950 and the Representation of the People Act 1951 to Sikkim
Further the Bhutia Lepchas were declared as Scheduled Tribes in relation to the State of Sikkim by a Presidential Order issued under Article 342 of the Constitution of India and they thus became entitled to the benefits of reservation of seats in the State Legislature in accordance with Article 332
The consequential reservation in the State Legislature were made in the Representation of People Act 1950 and Representation of People Act 1951 by the 1976 Act and the Representation of People Amendment Act 1980
Twelve seats out of thirty two seats in the Sikkim Assembly were reserved for Sikkimese of Bhutia Lepcha origin and one seat was reserved for Sanghas election to which was required to be conducted on the basis of a separate electoral roll in which only the Sanghas belonging to monasteries recognised for the purpose of elections held in Sikkim in April 1974 were entitled to be registered
894 The petitioners Sikkimese of Nepali origin filed petitions challenging the reservation of 12 seats for Sikkimese of Bhutia Lepcha origin and one seat for sangha
Objections as to the maintainability of the writ petitions were taken on behalf of the State of Sikkim and the Union of India on the grounds  a that a law made under Article 2 containing the terms and conditions on which a new State is admitted in the Indian Union is by its very nature political involving matters of policy and therefore the terms and conditions contained in such a law are not justiciable on the political question doctrine b in view of the non obstante clause in Article 371 F Parliament can enact such a law in derogation of the other provisions of the Constitution and the said law would not be open to challenge on the ground that it is violative of any other provisions of the Constitution
On behalf of the petitioners it was contended 1 that the reservation of one seat in favour of the Sanghal Bhuddhist Lamaic Religious Monasteries is purely based on religious considerations and is violative of Articles 151 and 325 of the Constitution and offends the secular principles the said reservation based on religion with a separate elec torate at the religious monasteries is violative of basic structure of the Constitution 2 that the provisions in clause f of Article 371 F enabling reservation of seats for sections of the people and law made in exercise of that power providing reservation of seats for Bhutias Lepchas violate fundamental principles of democracy and republicanism under the Indian Constitution 3 the reservation of seats for Sikkimese of Bhutia Lepcha origin without making a corresponding reservation for Sikkimese of Nepali origin is violative of the right to equality guaranteed under Article 14 of the Constitution 4 in view of the Constitution Sikkim Scheduled Tribes Order 1978 declaring Bhutias Lepchas as Scheduled Tribes the extent of reservation of seats is disproportionate and violative of Article 332 3 of the Constitution
and 5 that this departure from the provisions of Article 3323 derogates from the principle of one man one vote enshrined in Article 1702 of the Constitution
On behalf of the respondents it was contended 1 that although basically the monasteries are religious in nature yet they form a separate section of the society on account of the social services they have been rendering mainly to the Bhutia Lepcha section of the population
Viewed in 895 this background they should not be treated as merely religious institutions for the purposes of reservation 2 since the Constitution permits nomination to be made in the legislatures the creation of a separate electorates for the Sangha seat cannot be objected to 3 that the constitutional amendment bringing in Article 371Ff as also the relevant amended provisions of the Representation of the People Acts are legal and valid because a perfect arithmetical equality of value of votes is not a constitutionally mandated imperative of democracy and secondly that even if the impugned provisions made a departure from the tolerance limits and the constitutionally permissible latitudes the discriminations arising are justifiable on the basis of the historical considerations peculiar to and characteristic of the evaluation of Sikkim s political institutions
Dismissing the petitions this Court HELD  By the Court i The questions raised in the petitions pertaining to the terms and conditions of accession of new State are justiciable
975B ii Clause f of Article 371 F of the Constitution of India is not violative of the basic features of democracy
986C iii That impugned provisions providing for reservation of 12 seats out of 32 seats in the Sikkim Legislative Assembly in favour of Bhutias Lepchas are neither unconstitutional as violative of the basic features of democracy and republicanism under the Indian Constitution nor are they violative of Articles 14 1702 and 332 of the Constitution
The impugned provisions are also not ultra vires of Clause f of Article 371 F 986E H 987A H 988A iv The extent of reservation of seats is not violative of Article 3323 of the Constitution
987A B 988A v The reservation of one seat for Sangha to be elected by an Electoral College of Lamaic monasteries is not based purely on religious distinctions and is therefore not unconstitutional as violative of Articles 151 and 325 of the Constitution
989A H Quaere i Whether the terms and conditions of admission of a new State are justiciable 896 1
The power to admit new States into the Union under Article 2 is no doubt in the very nature of the power very wide and its exercise necessarily guided by political issues of considerable complexity many of which may not be judicially manageable
But for that reason it cannot be predicated that Article 2 confers on the Parliament an unreviewable and unfettered power immune from judicial scrutiny
The power is limited by the fundamentals of the Indian constitutionalism and those terms and conditions which the Parliament may deem fit to impose cannot be inconsistent and irreconcilable with the foundational principles of the Constitution and cannot violate or subvert the Constitutional scheme
Therefore if the terms and conditions stipulated in a law made under Article 2 read with clause f of Article 371 F go beyond the constitution ally permissible latitudes that law can be questioned as to its validity
Consequently it cannot be said that the issues are non justiciable
974D F 975B E AK Roy vs Union of India   Madhav Rao vs Union of India  and State of Rajasthan vs Union of India  referred to
Vinod Kumar Shantilal Gosalia vs Gangadhar Narsingdas Agarwal  Ors   Held inapplicable
Marbury vs Madison US 137 170 1803 Martin vs Mott US 19 1827 Ware vs Hylton 3 Dail
1796 Luther vs Borden US 1 1849 Baker vs Carr   Powell vs McCormack 395 US 486 and Japan Whaling Ass n vs American Cetacean Society   referred to
AK Pavithran Substance of Public International Law Western and Eastern First Edition 1965 pp
281 2 The Constitution of the United States of American Analysis and Interpretation and Congressional Research Service Liberty of Congress 1982 Edn p703 referred to
Article 2 gives a wide latitude in the matter of prescription of terms and conditions subject to which a new territory is admitted
There is no constitutional imperative that those terms and conditions should ensure that the new State should in all respects be the same as the other 897 States in the Indian Union
However the terms and conditions should not seek to establish a form or system of Government or political and governmental institutions alien to and fundamentally different from those the Constitution envisages
984C D Constitutional Law of India Edited by Hidayatullah J referred to
In judicial review of the vires of the exercise of a constitutional power such as the one under Article 2 the significance and importance of the political components of the decision deemed fit by Parliament cannot be put out of consideration as long as the conditions do not violate the constitutional fundamentals
In the interpretation of a constitutional document words are but the framework of concepts and concepts may change more than words themselves 
The significance of the change of the concepts themselves is vital and the constitutional issues are not solved by a mere appeal to the meaning of the words without an acceptance of the line of their growth
It is aptly said that the intention of a Constitution is rather to outline principles than to engrave details
985A C 43 Aust
Law Journal p256 referred to
Article 371 F cannot transgress the basic features of the Constitution
The non obstante clause cannot be construed as taking clause f of Article 371 F outside the limitations on the amending power itself
The provision of clause f of Article 371 F and Article 2 have to be construed harmoniously consistent with the foundational principles and basic features of the Constitution
974H 975A Mangal Singh  Anr
vs Union of India   relied on
Per section C Agrawal J Concurring 1
While admitting a new State in the Union Parliament while making a law under Article 2 cannot provide for terms and conditions which are inconsistent with the scheme of the Constitution and it is open to the Court to examine whether the terms and conditions as provided in the law enacted by Parliament under Article 2 are consistent with the constitutional scheme or not
Power conferred on Parliament under Article 2 is not wider in ambit than the amending power under Article 368 and it would be of little practical significance to treat Article 371 F as a law made under Article 2 of the Constitution or introduced by way of 898 amendment under Article 368
In either event it will be subject to the limitation that it cannot alter any of the basic features of the Constitution
The scope of the power conferred by Article 371 F is therefore subject to judicial review
So also is the law that is enacted to give effect to the provisions contained in Article 371 F 1005E H Baker vs Carr  and Powell vs McCormack  referred to
AK Roy vs Union of India   Madhav Rao vs Union of India   State of Rajasthan vs Union of India   SP Gupta vs Union of India 1982 2 SCR 365 and Mrs Sarojini Ramaswami vs Union of India  Ors Writ Petition Civil No 514 of 1992 decided on August 27 1992 referred to
It is not doubt true that is the matter of admission of a new State in the Indian Union Article 2 gives considerable freedom to Parliament to prescribe the terms and conditions on which the new State is being admitted in the Indian Union
But at the same time it cannot be said that the said freedom is without any constitutional limitation
The power conferred on Parliament under Article 2 is circumscribed by the overall constitutional scheme and Parliament while prescribing the terms and conditions on which a new State is admitted in the Indian Union has to act within the said scheme
Parliament cannot admit a new State into the Indian Union on terms and conditions which derogate from the basic features of the Constitution
To hold otherwise would mean that it would be permissible for Parliament to admit to the Union new States on terms and conditions enabling those State to be governed under systems which are inconsistent with the scheme of the Constitution and thereby alter the basic features of the Constitution
It would lead to the anomalous result that by an ordinary law enacted by Parliament under Article 2 it would be possible to bring about a change which cannot be made even by exercise of the constituent power to amend to the Constitution viz to after any of the basic features of the Constitution
The words as it thinks fit  in Article 2 of the Constitution cannot therefore be construed as empowering Parliament to provide terms and conditions for admission of a new State which are inconsistent with the basic features of the Constitution
The said words can only mean that within the framework of the Constitution it is permissible for Parliament to prescribe terms and conditions on 899 new State is admitted in the Union
1003G H 1004A C E Mangal Singh vs Union of India   referred to
RD Lumb The Constitution of Commonwealth of Australia 1986 4th Edn
p 736 referred to
There is no doubt that the non obstante clause in a statute gives overriding effect to the provisions covered by the non obstante clause over the other provisions in the statute to which it applies and in that sense the non obstante clause used in Article 371 F would give overriding effect to clauses a to p of Article 371 F over other provisions of the Constitution
But at the same time it cannot be ignored that the scope of the non obstante clauses in 371 F cannot extend beyond the scope of the legislative power of Parliament under Article 2 or the amending power under Article 368
Therefore the non obstalite clause has to be so construed as to conform to the aforesaid limitation or otherwise Article 371 F would be rendered unconstitutional
A construction which leads to such a consequence has to be eschewed
Thus as a result of the non obstante clause in Article 371 F clauses a to p of the said Article have to be construed to permit a departure from other provisions of the constitution in respect of the matters covered by clauses a to p provided the said departure is not of such a magnitude as to have the effect of altering any of the basic features of the Constitution
1006B G 4
It cannot be said that Article 371 F contains a political element in the sense that it seeks to give effect to a political agreement relating to admission of Sikkim into the Indian Union
1003D Per LM Sharma CJ
Concurring 1
The courts are not only vested with the jurisdiction to consider and decide the points raised in these writ petitions but are under a duty to do so
If steps are taken to grant legitimacy to a state of affairs repulsive to the basic features of our Constitution the Courts are under a duty to judicially examine the matter
925C H 2
There is a vital difference between the initial acquisition of additional territory and the admission of the same as a full fledged State of the Union of India similar to the other States
921G 900 3
Special provisions for any State can certainly be made by an amendment of the Constitution as is evident by Article 371A 371 B 371C at cetera but it is not permissible to do so in derogation of the basic features of the Constitution
So far the power of sovereignty to acquire new territories is concerned there cannot be any dispute
The power is inherent it was therefore not considered necessary to mention it in express terms in the Constitution
It is also true that if an acquisition of new territories is made by a treaty or under an agreement the terms of the same will be beyond the scrutiny of the courts
The position however is entirely different when new territory is made part of India by giving it the same status as is enjoyed by an existing State under the Constitution of India
The process of such a merger has to be under the Constitution
No other different process adopted can achieve this result
And when this exercise is undertaken there is no option but to adopt the procedure as prescribed in conformity with the Constitution
At this stage the Court s jurisdiction to examine the validity of the adopted methodology cannot be excluded
921H 922A C 4
So far the present case is concerned the decision does not admit of any doubt that when the Thirty Sixth Amendment of the Constitution was made under which Sikkim joined India as a full fledged State like other States power of amendment of the Constitution was invoked and this had to be done only consistent with the basic features of the Constitution
Sikkim became as much a State as any other
Considered in this background the objection to the maintainability of the writ petitions cannot be upheld
922D H 923A Mangal Singh  Anr
vs Union of India 1967 2 SCR109 referred to
It is true that in case of acquisition Article 2 comes into play but that is only at the initial stage when the new territory joins and becomes the territory of India under Article 13 c
In the present case the power under Article 2 was not exercised at any point of time
Initially Sikkim joined India as an Associate State by Article 2A introduced in the Constitution by an amendment
When further steps of its complete merger with India were taken the methodology under Article 3 was not available in view of the observations in Berubari case
Correctly assessing the situation fresh steps for amendment of the Constitution once more were taken and Sikkim was granted the status of a full Statehood at par with the other States by the Thirty Sixth Amendment of the Constitution
Once this 901 was done it had to be consistent with the basic features of the Constitution
924E G The Berubari Union and Exchange of Enclaves 1960 3 SCR 250 relied on
Quaere ii Whether the impugned provisions providing for reservation of Sangha seat with provision for separate electoral roll and Sangha constituency are unconstitutional Per MN Venkatachaliah For himself JS Verma and KJ
Reddy JJ
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 the Sangha it is not merely a religious institution
The literature on the history of development of the political institutions of Sikkim 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
Thus there is material to sustain the conclusion that the Saughal had long been associated itself closely with the political developments of Sikkim and was inter woven 10th 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
The provision can be sustained on this construction
989C H 990A 2
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 Article 333 providing for representation for the Anglo Indian community
It is to be looked at as enabling a nomination but the choice of the nominee being left to the Sangha  itself 989E F Per section C Agrawal J Dissenting 1
The impugned provision providing for a separate electoral roll for 902 Sangha Constituency contravenes Article 325 and reservation of one seat for Sanghas contravenes Article 151
Article 371 F does not permit a departure from the principle contained in Articles 325 and 151 while applying the Constitution to the newly admitted State of Sikkim
Clause f of Article 371 F cannot be construed to permit reservation of a seat for Sanghas and election to that seat on the basis of a separate electoral roll composed of Sanghas only
Consequently clause c of sub section 1 A of Section 7 and Section 25 A of the 1950 Act and the words other than constituency reserved for Sanghas  in clause a of sub section 2 of Section 5 A and clause c of sub section 2 of Section 5 A of the 1951 Act are violative of the provisions of Articles 151 and 325 of the Constitution and are not saved by Article 371 F of the Constitution
The said provisions are however severable from the other provisions which have been inserted in the 1950 Act and the 1951 Act by the 1976 Act and the 1980 Act and the striking down of the impugned provisions does not stand in the way of giving to the other provisions
1023H 1024A B D E 2
Since only a Buddhist can be a Sangha the effect of the reservation of a seat for Sanghas and the provision for special electoral roll for the Sangha Constituency herein only Sanghas are entitled to be registered as electors is that a person who is not a Buddhist cannot contest the said reserved seat and he is being discriminated on the ground only of religion
Similarly a person who is not a Buddhist is rendered ineligible to be included in the electoral roll for Sangha Constituency on the ground only of religion
The historical considerations do not justify this discrimination
1018E G 21
The reservation of one seat for Sanghas in Sikkim Council and subsequently in the Sikkim Assembly was in the context of the administrative set up in Sikkim at that time wherein Sanghas were playing a major part in the taking of decisions in the Council
The said reason does not survive after the admission of Sikkim as a new State in the Indian Union
The continuation of a practice which prevailed in Sikkim with regard to reservation of one seat for Sanghas and the election to the said seat on the basis of a special electoral college composed of Sanghas alone cannot therefore be justified on the basis of historical considerations and the impugned provisions are violative of the Constitutional mandate contained in Article 151 and Article 325 of the Constitution
1019D E 903 Nain Sukh Das and Anr
vs The State of Uttar Pardesh and Ors   Punjab Province vs Daulat Singh and Ors  State of Bombay vs Bombay Education Society and Ors  and The State of Madras vs Srimathi Champakam Dorairajan   relied on
In so far as clause 1 of Article 15 is concerned express provision has been made in clauses 3 and 4 empowering the State to make special provisions for certain classes of persons
Sanghas as such do not fall within the ambit of clauses 3 and 4 of Article 15 and therefore a special provision in their favour in derogation of clause 1 of Article 15 is not permissible
1020C 4
Article 325 is of crucial significance for maintaining the secular character of the Constitution
Any contravention of the said provision cannot but have an adverse impact on the secular character of the Republic which is one of the basic features of the Constitution
The same is true with regard to the provisions of clause 1 of Article 15 which prohibits reservation of seats in the legislatures on the ground only of religion
1023A B Smt
Indira Gandhi vs Raj Narain and Kesa vanalida Bharati vs State of Kerala 1973 Supp
SCR 1 referred to
It is no doubt true that the impugned provisions relate to only one seat out of 32 seats in the Legislative Assembly of Sikkim
But the potentialities of mischief resulting from such provisions cannot be minimised
The existence of such provisions is bound to give rise to similar demands by followers of other religions and revival of the demand for reservation of seats on religious grounds and for separate electorates which was emphatically rejected by the Constituent Assembly
It is poison which if not eradicated from the system at the earliest is bound to eat into the vitals of the nation
It is therefore imperative that such provision should not find place in the statute book so that further mischief is prevented and the secular character of the Republic is protected and preserved
1023C E Kedar Nath Bajoria vs The State of West Bengal  referred to
904 Shiva Rao Framing of India s Constitution Select Documents Vol
II p412 and Constituent Assembly Debates Vol
V p 202 224 225 referred to
Per LM Sharma Cj Dissenting 1
The provisions of Section 25A of the Representation of the People Act 1950 are ultra vires the Constitution
The provisions of
Section 71Ac and the other connected amendments are also ultra vires the Constitution
941B 935G The Buddhist Monasteries which are the beneficiaries of the reservation are admittedly religious institutions
If the entire Constitution is considered harmoniously along with all the other materials relevant in law for this purpose including the Enacting History  there is no escape from the conclusion that any weightage at the poll in favour of a group on the ground of religion is strictly prohibited and further that this is a basic feature which is not amenable to amendment
931D 935G BK Mukherjee Hindu Law of Religious and Charitable Trust George Kotturan The Himalayan Gatewa JC White Sikkim and Bhutan Twenty One Years on the North East Frontier 887 1908 JS Lall The Himalaya Aspects of change 1981 Geoffrey Georer Himalayan Village and AC Sinha Politics of Sikkim A Sociological Study referred to
If the Constitution is so interpreted as
to permit by an amendment a seat to be reserved in the legislature for a group of religious institutions like the Buddhist Monasteries it will follow that such a reservation would be permissible for institutions belonging to other religions also
And all this may ultimately change the very complexion of the legislatures
The effect that only one seat has been reserved today for the Monasteries in Sikkim is the thin edge of the wedge which has the potentiality to tear apart in the course of time the very foundation which the democratic republic is built upon
All this is prohibited as being abhorrent to the basic features of the Constitution
932H 933A D 31
Today a single seat in the legislature of one State is not conspicuously noticeable and may not by itself be capable of causing irreparable damage but this seed of discord has the potentiality of developing into a deadly monster
It is true that some special rights have been envisaged 905 in the Constitution for handicapped classes but this has been done only to offset the disadvantage the classes suffer from and not for bringing another kind of imbalance by making virtue out of minority Status
The Constitution therefore has taken precaution to place rigid limitations on the extent to which this weightage can be granted by including express provisions instead of leaving the matter to be dealt with by subsequent enactments limitations both by putting a ceiling on the reservation of seats in the legislatures and excluding religion as the basis of discrimination
To ignore these limitations is to encourage small groups and classes which are in good number in our country on one basis or the other to stick to and rely on their special status as members of separate groups and classes and not to join the main stream of the nation and be identified as Indians
It is therefore absolutely essential that religion disguised by any mask and concealed within any cloak must be kept out of the field exclusively reserved for the exercise of the State powers
955D H 4
There is also another serious flaw in the reservation for the Sangha rendering the same to be unconstitutional
By the impugned provisions of the 1950 Act a special electorate has been created for this seat which is highly abhorrent to the fundamental tenets of the Constitution
935H 936A 41
From the entire scheme of the Constitution it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India
This conclusion is reinforced by the historical background the celebrations of the Advisory Committee and the discussion which took place in the Constituent Assembly before giving final shape to the Constitution
There is no reason for assuming that while inserting Article 371 Ff in the Constitution there was a complete reversal of faith on this basic and vital matter which was otherwise also not permissible
It follows that consistent with the intention of the rest of the Constitution the provision regarding the delimitation of the Assembly constituencies in Article 371 Ff has to be interpreted in the same sense as the expression has been used in the other provisions
Clause f of Article 371F neither by its plain language nor intendment permits separate electorates and any attempt to give a different construction would not only be highly artificial and speculative but also would be violative of a basic feature if the Constitution
940G H 941A B
Shiva Rao s Framing of Indian constitution Vol
II pp
56 57 392 906 412 referred to
Constituent
Assembly Debates Vol
V P225 224 202 referred to
5There is no parallel between the nominations permitted by the Constitution to be made In the legislatures and the creation of a separate electorates for the Sangha
After the establishment of a democratic government at every level in the country in one form or the other nomination under the Constitution amounts to exercise of a power to induct a member in the legislature by an authority who ultimately represents the people although the process of the representation may be a little involved
So far a handful of the Buddhist Monasteries in Sikkim are concerned they cannot be said to represent the people of Sikkim in any sense of the term
Allotting a seat in the legislature to represent these religious institutions is bad enough by itself  and then to compound it by vesting the exclusive right in them to elect their representative to occupy the reserved seat is to aggravate the evil
This cannot be compared with any of the provisions in the Constitution relating to nominations
940D F Quaere iii Whether the impugned provisions providing for reservation of twelve seats in favour of Bhutia Lepchas are unconstitutional Per MN Venkatachaliah For himself JS Verma and KJ
Reddy JJ
1Article 371Ff cannot be said to violate any basic feature of the Constitution such as the democratic principle
986C 11The provisions of clauses f of Article 371 F and the consequent changes in the electoral laws were intended to recognise and accommodate the pace of the growth of the political institutions of Sikkim and to make the transition gradual and peaceful and to prevent dominance of one section of the population over another on the basis of ethnic loyalties and identities
These adjustments and accommodations reflect a political expediencies for the maintenance of social equilibrium
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
The impugned provisions have been found in the wisdom of Parliament necessary in the admission of a new State into the Union
The departures are not such as to negate fundamental principles
of democracy
Thus the provisions in the particular situa 907 tion and the
permissible latitudes cannot be said to be unconstitutional
986E H 987H 988A H 12
It is true that the reservation of seats of the kind and the extent brought about by the impugned provisions may not if applied to the existing States of the Union pass the Constitutional muster
But in relation to a new territory admitted to the Union the terms and conditions are not such as to fall outside the permissible constitutional limits
Historical considerations and compulsions do justify inequality and special treatment 987A B Lachhman Dass etc
vs State of Punjab  Ors
  and State of Madhya Pradesh vs Bhopal Sugar Industries Ltd   referred to
An examination of the constitutional scheme would indicate that the concept of one person one vote  is in its very nature considerably tolerant of imbalances and departures from a very strict application and enforcement
The provision in the Constitution indicating proportionality of representation is necessarily a broad general and logical principle but not intended to be expressed with arithmetical precision
The principle of mathematical proportionality of representation is not a declared basic requirement in each and every part of the territory of India
The systemic deficiencies in the plenitude of the doctrine of full and effective representation has not been understood in the constitutional philosophy as derogating from the democratic principle
The inequalities in repre sentation in the present case are an inheritance and compulsion from the past
Historical considerations have justified a differential treatment
985G H 986A B Reynolds vs Sims and Attorney General CTH exhibit Rei
Mckinlay vs The Commonwealth 135 CLR
1975 1 referred to
Article 170 incorporates the rule of fair and effective representation Though the rule one person one vote  is a broad principle of democracy it is more a declaration of a political ideal than a mandate for enforcement with arithmetical accuracy
These are the usual problems that arise In the delimitation of constituencies
In what is called First past the post  system of elections the variations in the size and in the voting populations of different constituencies detract from a strict 908 achievement of this ideal
The system has the merit of preponderance of decisiveness over representativeness
976E F Keith Graham The Battle of Democracy
Conflict Consensus and the Individual referred to
The concept of political equality underlying a democratic system is a political value
Perfect political equality is only ideological
977D Rodney Brazier Constitutional Reform Reshaping the British Political System referred to
Brazier Constitutional Practice Clarendon Press Word referred to
Lijphart Democracy in Plural Societies  Howard D Hamilton Legislative Appointment Key to Power Gordon E Baker One Person One Vote Fair and Effective Representation Representation and Misrepresentation Rand McNally  Co Chicago referred to
The contention that clause f of Article 371 F would require that whichever provisions for reservation of seats are considered necessary for the purpose of protecting the rights and interests of different sections of the population of Sikkim such reservations are to be made for all such sections and not as here for one of them alone ignores that the provision in clause f of Article 371 F is merely enabling
If reservation is made by Parliament for only one section it must by implication be construed to have exercised the power respecting the other sections in a negational sense
The provision really enables reservation confined only to a particular section
988B C 4
Clause f of Article 371 F is intended to enable a departure from Article 3322
This is the clear operational effect of the non obstante clause with which Article 371 F opens
988F 5
Mere existence of a Constitution by itself does not ensure constitutionalism or a constitutional culture
It is the political maturity and traditions of a people that import meaning to a Constitution which otherwise merely embodies political hopes and ideals
986E Per SC Agrawal J Concurring 909 1
Clause a of sub section 1 A of Section 7 of the 1950 Act which provides for reservation of 12 seats in an Assembly having 32 seats for Sikkimese of Bhutia Lepcha origin does not transgress the limits of the power conferred on Parliament under Article 371 Ff and it cannot be said that it suffers from
the vice of unconstitutionality
1014E 2
The reservation of seats for Bhutias and Lepchas is necessary because they constitute a minority and in the absence of reservation they may not have any representation in the Legislative Assembly
Sikkimese of Nepali origin constitute the majority in Sikkim and on their own electoral strength they can secure representation in the Legislative Assembly against the unreserved seats
Moreover Sikkimese of Bhutia and Lepcha origin have a distinct culture and tradition which is different from that of Sikkimese of Nepali origin
Keeping this distinction in mind Bhutias and Lepchas have been declared as Scheduled Tribes under Article 342 of the Constitution
The Constitution in Article 332 makes express provision for reservation of seats in the Legislative Assembly of a State for Scheduled Tribes
Such a reservation which is expressly permitted by the Constitu tion cannot be challenged on the ground of denial of right to equality guaranteed under Article 14 of the Constitution
1008B D 3
Clause 3 of Article 332 has to be considered in the light of clause f of Article 371 F The non obstante clause in Article 371 F enables Parliament to make a departure from the ratio contemplated by Article 3323 within the limitation which is inherent in the power conferred by Article 371 F ie not to alter any of the basic features of the Constitution
1008E F 1009B 31
By providing for reservation to the extent of 38 of seats in the Legislative Assembly for Sikkimese of Bhutia Lepcha origin Parliament has sought to strike a balance between protection of the extent of 50 that was available to them in the former State of Sikkim and the protection envisaged under Article 332 3 of the Constitution which would have entitled them to reservation to the extent of 25 seats in accordance with the proportion of their population to the total population of Sikkim
1010C D 4
The principle of one man one vote envisages that there should be parity in the value of votes of electors
Such a parity though ideal for a representative democracy is difficult to achieve
There is some departure in every system following this democratic path
In the matter of delimitation of 910 constituencies it often happens that the population of the one constituency differs from that of the other constituency and as a result although both the constituencies elect one member the value of the vote of the elector in the constituency having lesser population is more than the value of the vote of the elector of the constituency having a larger population
1010G H 1011A Reynolds vs Sims   Mahan vs Howell  and Attorney General CTH Er
Mckinlay vs The Commonwealth 135 CLR 1975 1 referred to
HWR Wade Constitutional Fundamentals The Hamlyn Lectures 32nd Series 1980 p5 referred to
Provisions of Delimitation Act 1962 show that population though important is only one of the factors that has to be taken into account while delimiting constituencies which means that there need not be uniformity of population and electoral strength in the matter of delimitation of constituencies
In other words there is no insistence on strict adherence to equality of votes or to the principle one vote one value
 1013H 1014A 42
The words as nearly as may be in clause 3 of Article 332 indicate that even in the matter of reservation of seats for Scheduled Castes and Scheduled Tribes it would be permissible to have deviation to some extent from the requirement that number of seats reserved for Scheduled Castes or the Scheduled Tribes in the Legislative Assembly of any State shall bear the same proportion to the total number of seats as the population of the Scheduled Castes or the Scheduled Tribes in the State in respect of which seats are so reserved bears to the total population of the state
The non obstante clause in Article 371 F read with clause f of the said Article enlarges the field of deviation in the matter of reservation of seats from the proportion laid down in Article 332 3
The only limitation on such deviation is that it must not be to such an extent as to result in tilting the balance in favour of the Scheduled Castes or the Scheduled Tribes for whom the seats are reserved and thereby convert a minority into majority
This would adversely affect the democratic functioning of the legislature in the State which is the core of representative democracy
1014B D 43
The non obstante clause in Article 371 F when read with clause f of Article 371 F envisages that Parliament may while protecting the rights 911 and interests of the different sections of the population of Sikkim deviate from the provisions of the Constitution including Article 332
101 OF 5
In view of the vast differences in their numbers the Sikkimese of Nepali origin can have no apprehension about their rights and interests being jeopardised on account of reservation of 12 seats for Sikkimise of Bhutia Lepcha origin in the Legislative Assembly composed of 32 seats
Therefore it cannot be said that reservation of seats for Sikkimese of Nepali origin was required in order to protect their rights and interests and in not making any provision for reservation of seats for Sikkimese of Nepali origin Parliament has failed to give effect to the provisions of clause f Article 371 F of the Constitution
1025E H Per LM Sharma CJ
Dissenting 1
The impugned provisions are ultra vires the Constitution including Article 371Ff
954E 2
The problem of Bhutia Lepcha Tribe is identical to that of the other Tribes of several States where they are greatly out numbered by the general population and which has been effectively dealt with by the provisions for reservation in their favour included in Part XVI of the Constitution
It cannot be justifiably suggested that by subjecting the provisions of the reservations to the limitations in clause 3 of Article 332 the Tribes in India have been left unprotected at the mercy of the overwhelming majority of the general population
The reservations in Part XVI were considered adequate protection to them
Therefore adequate safeguard in favour of the Bhutia Lepchas was already available under the Constitution and all that was required was to treat them as Tribes like the other Tribes which was done by a Presidential Order issued under Article 342
Therefore
the object of clause f was not to take care of this problem and it did not authorise the Parliament to pass the Amendment Act 8 of 1980 inserting Section 71A a ill the Representation of the People Act 1950 and Section A in the Representation of the People Act 1951 and other related amendments
They being violative of the Constitutional provisions including those in Article 371F f are ultra 948F H 949A C 3
Clause f permits the Parliament to take only such steps which would be consistent with the provisions of the Constitution coming from before so that Sikkim could completely merge with India and be placed it 912 par with the other States
This conclusion is irresistible if the facts and circumstances which led to the ultimate marger of Sikkim in India are kept in mind
If clause f of Article 371F is so construed as to authorise the Parliament to enact the impugned provisions it will be violative of the basic features of the Constitution and therefore void
946E F 953C 31
The choice of the candidate and the right to stand as a candidate at the election are inherent in the principle of adult suffrage that is one man one vote
By telling the people that they have a choice to elect any of a select group cannot be treated as a free choice of the candidate
This will only amount to lip service too thinly veiled to conceal the reality of an oligarchy underneath
It will be just an apology for democracy a subterfuge and if it is permitted to cross the limit so as to violate the very core of the principle of one man one vote and is not controlled by the constitutional safeguards as included in clause 3 of Article 332 of the Constitution it will amount to a huge fraud perpetrated against the people
950E G 32
The very purpose of providing reservation in favour of a weaker class is to aid the elemental principle of democracy based on one man
one vote to succeed
The disproportionately excessive reservation creates a privileged class not brought to the same plane with others but put on a higher pedestal causing unhealthy competition creating hatred and distrust between classes and fostering divisive forces
950H 951A 33
The unequal apportionment of the role in the polity of the country assigned to different groups tends to foster unhealthy rivalry impairing the mutual feeling of goodwill and fellowship amongst the people and encouraging divisive forces
955B 34
As explained by the Preamble the quality of democracy envisaged by the Constitution does not only secure the equality of opportunity but of status as well to all the citizens
This equality principle is clearly brought out in several Articles in the different parts of the Constitution including Part XVI having special provisions relating to certain classes
The sole objective of providing for reservations in the Constitution is to put the principle of equal status to work So far the case of inadequate representation of a backward class in State services is con cerned the problem is not susceptible to be solved in one stroke and consequently the relevant provisions are kept flexible permitting wider discretion so as to attain the goal of adequate proportionate repre 913 sentation
The situation in respect to representation in the legislature is entirely different
As soon as an election takes place in accordance with the provisions for proportionate representation the objective is achieved immediately because there is no problem of backlog to be tackled
On the earlier legislature disappearing paving the way for new election the people get a clean slate before them
The excessive reservation in this situation will bring in an Imbalance of course of another kind but defeating the cause of equal status all the same
The pendulum does not stand straight it swings to the other side
The casualty In both cases is the equality clause
Both situations defeat the very object for which the democratic forces waged the war of independence and they undo what has been achieved by the Constitution
This is clearly violative of the basic features of the Constitution
952B F H 953A B 4
A perusal of the Agreement dated 8th May 1973 dearly indicates that the spirit of the Indian Constitution pervaded through out the entire Agreement and the terms thereof were drafted respecting the main principles embodied in our Constitution
It must therefore be held that an interpretation cannot be given to the Agreement which will render it as deviating from the constitutional pattern of the Indian Constitution
945A B