Centre Files Review Petition In Supreme Court Against Judgment Labelling Sikkimese-Nepalis As Of ‘Foreign Origin'

The Sikkimese identity should not be diluted, the centre categorically stated on Monday in response to this controversy. A series of tweets by the Ministry of Home Affairs also revealed that the government has filed a review petition challenging the contentious observation made by the Supreme Court judge. The tweets read, “Ministry files review petition in Supreme Court against some of the observations and directions in a recent judgement dated January 13. The government reiterated its position about the sanctity of Article 371F of the Constitution that safeguards the Sikkimese identity, which should not be diluted. Further, the observation in the said order about persons of foreign origin settled in Sikkim like Nepalis should be reviewed as the said persons are Sikkimese of Nepali origin.”

On the same day, the top court also agreed to hear an application by two Sikkimese-Nepali petitioners seeking modifications in the judgement. The applicants state that this was an ‘inadvertent error’ in the judgment which required to be modified “in the interest of justice and to heal the wounds of more than half a million citizens of India who feel deeply alienated in account of the inadvertence.”

Sikkim has a long and chequered history that can be traced as far back as 1642, when the Kingdom of Sikkim came into existence. In 1950, a peace treaty was brokered between Sikkim and the newly independent Indian government, which recognised the former as a protectorate of India. Subsequently, a register was promulgated by the Chogyal ruler to recognise those who wanted to become subjects of the kingdom by relinquishing their status as citizens of other nations. Around 500 families who had migrated from Indian states like Rajasthan and Haryana refused to give up their Indian citizenship. The kingdom remained independent for another quarter of a century till its merger with the Indian republic in 1975. As a condition for the merger, Sikkim was allowed to retain its old laws and special status under Article 371F of the Constitution. Therefore, until 2008, the state followed its own income tax manual, under which, all residents of Sikkim were exempt from paying taxes to the central government.

In 2008, after the repeal of the Sikkim manual, the Income-tax Act was amended to incorporate the same protection in the form of Section 10 (26AAA). By virtue of this provision, any income accrued to a Sikkimese, from any source in the state, or by way of dividend or interest on securities, would be excluded from the ambit of the total taxable income.

It was Section 10 (26AAA) that came to be assailed by an association of communities predominantly engaged in trade and commerce. Also under challenge was a proviso to this section that engrafted an exception for a Sikkimese woman married to a non-Sikkimese person after 2008, preventing such a class of Sikkimese residents from enjoying the protection conferred by the provision. One of the two question before the top court was whether these trading communities, which had migrated to Sikkim before its merger with the Union of India but had refused to give up their Indian citizenship, would be entitled to the same protection as those that had relinquished their citizenship. A division bench of Justices M.R. Shah and Nagarathna, in January, ruled in favour of the old settlers, calling the differentiation made between them and other communities ‘discriminatory’. Justice Shah wrote, “This section, to the extent it excludes the old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India, but whose names are not recorded as ‘Sikkim Subjects’, from the definition of ‘Sikkimese’ is ultra vires, being arbitrary, discriminatory and violative of Article 14 of the Constitution. The definition of ‘Sikkimese’ in the section shall include all Indians, who have permanently settled in Sikkim prior to the merger of Sikkim irrespective of whether their names have been recorded in the register maintained under the Sikkim Subjects Regulations, 1961.”

While this verdict came as a major relief to the trading communities that has been fighting for equal rights for a long time, the Sikkimese-Nepali community has severely objected to the ‘foreigner’ with which they have been conferred. The protests that followed reportedly turned violent in certain pockets, primarily due to clashes between cadres of political parties. While ethnic and political tensions rumble, another state-wide bandh has been called by the SDF joint action committee on February 8.