The Supreme Court in the case of ‘R.C. Poudyal v. Union of India (1993)’ while deciding the issues related to special provisions of Sikkim state after its merger to India said,
Special provisions for any State can certainly be made by an amendment of the Constitution, as is evident by Articles 371A. 371B, 371C et 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 con 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.
So far the present case in 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 associated with India as a result of the Thirty-Fifth Amendment of the Constitution, it did not become a State of the Union of India. A special status was conferred on Sikkim by Article 2A read with Tenth Schedule but, without amending the list of the States in the First Schedule. Although the Status, thus bestowed on Sikkim then, was mentioned as Associate, it could not be treated as a mere protectorate of India. The protectorate ship had been there in existence from before under the earlier treaties and by Article 2A read with Tenth Schedule something more was achieved. This, however, was short of Statehood.
Consequently Sikkim was not enjoying all the benefits available under the Constitution of India. By the Thirty- Sixth Amendment there came a vital change in the Status of Sikkim. It was included as the 22nd Entry in the list of the States in the First Schedule without any reservation. Article 2A. the Tenth Schedule and other related provisions included in the Constitution by the Thirty-Fifth Amendment, were omitted from the Constitution. Thus, as a result of the Thirty-Sixth Amendment Sikkim became as much a State as any other.
If the conclusion be that clause (f) of Article 371F permits such amendments the further question whether clause (f)) itself is violative of the basic features of the Constitution will have to be examined.
In my view the position appears to have been settled by the Constituted Bench of Supreme Court in Mangal Singh and Anr. v. Union of India, [1967] 2 SCR 109, at page 11.2 in the following terms:
“The law referred to in Arts. 2 & 3 may therefore alter or amend the First Schedule to the Constitution which sets out the names of the States and description of territories thereof and the Fourth Schedule allotting seats to the States in the Council of States in the Union Parliament.
………… Power with which the Parliament is invested by Arts. 2 and 3, is power to admit, establish, or form new States which conform to the democratic pattern envisaged by the Constitution and the power which the Parliament may exercise by law is supplemental, incidental or consequential to the admission, establishment or formation of a State as contemplated by the Constitution, and is not power- to override the constitutional scheme.
It would be of considerable help to refer also to several observations made by Gajendragadkar, J. on behalf of the Bench of 8 learned Judges of the Court in Re: The Berubari Union and Exchange of Enclaves: [1960] 3 SCR 250, although the facts of that case were not similar to those before us.
Dealing with the treaty making power of a sovereign State the learned Judge observed at pages 283-284 of the report that it is an essential attribute of sovereignty that a State can acquire foreign territory and in case of necessity cede the parts of its territory in favour of the foreign State, but this power is of course subject to the limitations which the Constitution of the State may either expressly of by necessary implication impose in that behalf Article 1 (3) (c) does not confer power or authority in India to acquire territories, and what the clause purports to do is to make a formal provision for absorption and integration of any foreign territories which may be acquired by virtue of its inherent rights to do so.
In this background Articles 1, 2, 3 and 4 were examined and the question was concluded thus:
“The crux of the problem, therefore, is: Can Parliament legislate in regard to the Agreement under Art. 3?”
“There can be no doubt that foreign territory which after acquisition becomes a part of the territory of India under Art. 1 (3) (c) is included in the last clause of Art. 3 (a) and that such territory may, after its acquisition, be absorbed in the new State which may be formed under Art. 3 (a). Thus Art. 3 (a) deals with the problem of the formation of a new State and indicates the modes by which a new State can be formed.”
Dealing with the nature of the power of ceding a part of the territory, it was held that such a power cannot be read in Article 3 (c) by implication, and in the case of a part of the Union Territories there can be no doubt that Article 3 does not cover them. The conclusion arrived at was that this was not possible by a law under Article 3 and an amendment of the Constitution was essential. 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 1 (3)(c).
In the present case the power under Article 2 was not exercised at any point of time. Initially, as pointed out earlier, 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 was done it had to be consistent with the basic features of the Constitution.
If we assume that the stand of the respondents as mentioned earlier on this aspect is correct, the result will be that in a part of India, joining the nation later, a different rule may have to be allowed to prevail. This is not a fanciful hypothesis. Even during this last decade of the present century there are Tribes, in isolation from the rest of the world, maintaining a social order of primitive nature completely oblivious of the long strides of civilisation through history. In case of illness, the treatment is entrusted to the witch doctor and the trial of an alleged crime is left to certain persons supposed to be having super-natural powers employing bizzare methods for decision on the accusation.
Without any regard for human dignity, women accused of being possessed of witchery are burnt alive and many such customs are followed which are highly abhorrent to every concept of justice, liberty, equality and every other quality for which our civilisation stand,, today. 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.
Mr. Parasaran, in the course of his argument fervently appealed lo this Court to decline to consider the questions raised by the petitioner on merits, on the ground that the issues are political. He proceeded to contend, in the form of a question, that if one of our neighbouring countries (he discreetly omitted to identify it) wishes to join India on certain conditions inconsistent with the philosophy of our Constitution, should we deny ourselves the opportunity of forming a larger and stronger country, and in the process, of eliminating the unnecessary tension which is causing grave concern internationally.
If I may say so, the fallacy lies in this line of thought due to the assumption that there is only one process available in such a situation and that is by way of a complete merger under our Constitution, as has been adopted in the case of Sikkim, by the Thirty- Sixth Amendment. The plea ignores other alternatives which may be adopted, for example, by forming a confederation. However, this question is highly hypothetical and is surely political in nature and I do not think it is necessary to answer it in precise terms.
Reference
R.C. Poudyal v. Union of India (1993)