After Sikkim’s merger to India and constitution of its legislature’s seats, a seat was also reserved to sangha. A writ Petition was filed against this reservation. The Court decided the issue in the case of ‘R.C. Poudyal v. Union of India (1993)’.
Sangha and its status in law
Sangha also described as a Buddhist congregation has, like the Christian Church, a corporate life and a jural existence. Maths were founded by Adi Shankaracharya and other Hindu ascetics on the model of these Buddhist vihars. Section 7(1A)(c) of the Representation of the People Act, 1950 allots one seats for Sanghas referred to in section 25A.
Section 25A states that notwithstanding anything contained in sections 15 and 19, the Sanghas belonging only to such Monasteries as were recognised for the purpose of elections held in April 1974 for forming the Assembly for Sikkim, shall be entitled to be registered in the electoral roll.
The Election Commission has to prepare or revise the same in consultation with the Government of Sikkim. Before Sikkim joined India, Buddhism was the State religion. The Gazetteer 1864 of Sikkim stated that “Lamas or Tibetan Buddhism is the State religion of Sikkim”. The position continued till 1974 when the elections for Constituent Assembly were held.
Case of the Writ Petitioner
The case of the writ petitioner was that the reservation in favour of the Sangha based on religious with a separate electorate of the religious monasteries is violative of the basic structure of the Constitution of India, and is not permissible after Sikkim joined India as a full-fledged State. It was further contended that the number of the persons actually entitled to exercise the right being considerably very small (about 30 only). Their share works out to be disproportionately very high.
In reply Responded counsel contended that Sangha has played a vital role in the life of the community for a long time in the past, and a body consisting of Lamas and laity Lhade- Medi has contributed towards cultural, social and political development of the people of Sikkim. The Sangha seat was, therefore, introduced in order to provide for their representation. Their interest is synonymous with the interest of the minority communities and this reservation, which is coming from the time of Chogyal, should be maintained.
Book References and emphasis on decline of Sangha’s Impact on People
He quoted from the Book ‘the Himalayan Gateway’ by George Kotturan, dealing with the history and culture of Sikkim, which states that the author found the monasteries everywhere looking after the spiritual needs of a small community. The Chogyal also allowed the Lamas to play a role in the administration and this arrangement is, therefore, not fit to be disturbed. The learned counsel explained the position in his own way as asserting that in substance the reservation is not in favour of a religious body and it is not based solely on religious consideration.
The Buddhist priests were rendering useful service to the people and the reservation must, therefore be upheld as valid and the fact that they belong to a particular religious body should be ignored.
Mr. Phur Ishering Lepcha who was added later in these cases as a party-respondent on an intervention application, filed his written argument inter alia stating that Sangha is a distinct identity which has played a very vital role in the life of the community since the earliest known history of Sikkim and has played a major part in deciding the important issues.
The Lhadi-Medi, a body consisting of all the Lamas and laity has contributed towards cultural,, social and political development of the people of Sikkim, and the reservation in favour of Sangha was introduced in order to provide for the representation of’ a section which was responsible for the basic culture of the Sikkimese Bhutia-Lepchas including some sections of the Nepali community of Sikkim.
It was further stated that the culture of Sikkim under the Chogyal was essentially religious and the patron saint of Sikkim Lhatsum Chhembo, believed to be an incarna- tion of an Indian Saint, is according to the traditional belief, incarnated more than once; and that the late 12th Chogyal of Sikkim, Palden Thondup Namgyal (referred to in the book as ‘Present Chogyal’) was (according to the belief) and incarnate of Chogyal Sidkeong who himself was an incar- nate Lama.
There is a list of Monasteries of Sikkim as given at page 481 which indicates that the separate electorate contains only a little more than 30 Sanghas. Some passages from other books have also been quoted in the written argument and what is stated at page 15 of ‘Sikkim and Bhutan Twenty-One years on the North- East Frontier 1887-1908″ by J.C. White, C.I.E. (Political Officer of Sikkim 1889-1908) indicates that
‘as a rule the Lamas are ignorant, idle and useless, living at the expense of the country, which they are surely dragging down. There are, of course, exceptions to every rule and I have met several lamas” who appeared to be thoroughly capable, ‘but I am sorry to say that such men were few and far between. The majority generally lead a worldly life and only enter the priesthood as, a lucrative profession and one which entails no trouble to themselves”.
Another book ‘The Himalaya Aspects of Change, 1981′ by J.S. Lall (Dewan of Sikkim, 1949-1952) mentions at pages 228-229 that ‘Though Lamaist Buddhism continues to be the official religion, it is professed mainly by the Butias, Lepchas and Newars, along with a few of the other tribal groups such as Tamangas, and the Buddhistic overlay wears thin in Dzongu where nun traditions survive”.
It is further mentioned that the influence of the Monasteries was diminishing and fewer and fewer young boys were being sent by their families as novices for the priesthood. The last Chogyal, who was himself an incarnate Lama was greatly concerned at this loss of interest and set up a training school for attracting more novices. Fresh impetus in a different way was also given to the “Buddhist revival’ through the presence of a renowned teacher and mystic from Tibet. All this was happening quite late probably in 1950s.
Reliance was also placed on ‘Himalayan Village’, a book by Geoffrey Gorer which at pages 192-193 reads thus “Finally lamaism is a social Organisation. The lamas (to a lesser extent the nuns) are arranged in a disciplined hierarchy. They are a section of society which performs for the whole society its religious functions; in return the rest of society should give material support to the lamas. In Tibet this social aspect is extremely important, the lamas possess the greater part of the temporal power and are also as a group an exploiting class; the monasteries own land and the peasants attached to the land are practically monastery serfs.
The lower-ranking lamas also work for the benefit of those of higher rank and are possibly as much exploited as the peasants, but they have, at least in theory, the possibility of rising to the higher ranks, which possibilities are completely shut out from the laymen. In Sikkim, as far as I can learn, the social influence of the lamas is considerably less;”.
Another book by A.C. Sinha “Politics of Sikkim A Sociological Study” describes the system of Sikkim thus “The political system of Sikkim is a typically Himalayan theocratic feudalism parallel to the Tibetan Lamaist pattern. The ruler is not only the secular head of the State, but also an incarnate lama with responsibility to rule the subjects in accordance with the tenets of the “Choos” the Dharma. The basic tenets of the Lamaist polity in Sikkim ever since 1642 are the Chos (Chhos) as the established religion and the rulers (rGyalpo) who are instrumental in upholding the doctrine justifying the appellation, the “Chos-rGyal” (Chogyal).”
This book goes on to record how the Buddhist Monasteries having the patronage of the Chogyal came to wield authority in Sikkim. The Monks, however, “Were drawn from the high born Bhotias and Lepchas”. The Lamas did not confine their participation only to the administration but also controlled the electorate. At page 78 it is stated that the major portion of the trans-Himalayan trade was in the hands of Marwaris, the aristocracy and some of the Lamas.
Another intervenor which placed its case is Sikkim Tribal Welfare Association, a registered Organisation for the purpose of inter alia “to effectively and efficiently establish and promote a strong and healthy Organisation of the Bhutias, Lepchas and Sherpas of Sikkim at Gangtok, and subsequently to build up similar organisations in the four districts of Sikkim”.
In its written argument very long excerpts have been given from a book by Joseph Dalton Hooker who visited Sikkim in 1848 (the book was published in 1854), giving detailed descriptions of the features, habits, customs et cetera of the Lepchas which are certainly very interesting but, of little relevance in the present cases. The intervenor has relied on this book for showing that the Lepchas were inhabiting Sikkim earlier than the arrival of the Nepalis who were inducted by the British rulers and others.
The customs followed by them, as mentioned in the book, indicate that “their existence was primitive in nature so much so that every tribe had a priest doctor; who neither knew or practised the healing art, but was a pure exorcist; all bodily ailments being deemed the operations of devils, who are cast out by prayers and invocations”. On the question as to who are the early settlers in Sikkim there is serious controversy, the other view being that so far the Bhutias are concerned they could not be treated as aboriginals.
From the records, it is clear that a seat in the Council was allotted to the Sanghas for the first time in 1958 and the Lamas manning the Sanghas are drawn from the minority section of the population (less than 25%) belonging to Bhutia and Lepcha tribes. The reason given by the different respondents in support of the reservation of the Sangha seat is the historical background showing that the Lamas, besides performing the religious rites and discharging the religious and spiritual duties were rendering social service and with the patronage of Chogyal were permitted to take part in the administration.
It was argued that although the Chogyal might have disappeared, the participation by these Buddhist Monks in the administration should not be denied. The issue was whether this was permissible after Sikkim joined India as a full-fledged State.
The Court said,
It is firmly established and needs no elaboration that an amendment of the Constitution which violates the basic features of the Constitution is not permissible. It has been contended on behalf of the respondents that the provisions of clause (f) of Article 371F do not in any way offence any of the basic features and since the clause permits the impugned reservations in the Representation of the People Acts, they have to be upheld So far the reservation of Sangha seat is concerned, the question is whether this violates Article 15 as also several other provisions of the Constitution; and further whether these constitutional provisions are unalterable by amendment.
If they are basic in nature they will have to be respected and clause (f) must be construed not to have violated them in spite of the non-obstante clause with which the Article begins.
Analysis of the Court
The Court said,
The Buddhist Monasteries, which are the beneficiaries of the reservation, are admittedly religious institutions. What the respondents have tried to suggest is that although basically the Monasteries are religious in nature, 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. Further emphasis has been laid on the fact that they were participating in the administration by the blessings of the Chogyals for about 17 years yes, only 17 years as the, seat in their favour was created for the first time in 1958 before the merger with India.
The argument is that in this background they should not be treated as merely religious institutions for the purposes of reservation, and in any event religion is not the only basis for putting them in a separate group. The classification, therefore, is not unconstitutional. I do not find myself in a position to agree with the respondents. The Buddhist, Monasteries are religious in nature out and out, and, besides taking care, of the spiritual needs of the people and looking after the ritual side of the Buddhist religion, they are also trying to do all what their religion expects, from them. The concern for the people and the society stands high on the agenda of Buddhism, and for that matter, of all religions.
But it is only in the capacity of Monks that they have been trying to help a minority section’ of the people of Sikkim and that is their true identification. The position could have been different if the reservation had been in favour of a social group devoted to public service, which for identification had led to religious groups including these Monks as well. But that is not so. The position is just the other way. The attempt of the respondents is to defend reservation in favour of a particular religious body and by way of justification for the same to bring in the element of social service.
They forget that the role of the Sanghas in rendering social service to a section of the public is not a feature special for these Monasteries. The self-less services rendered by the Christian Missionaries to the helpless sick persons, specially in many under-developed parts of the world, and to the badly injured soldiers in the war; or, for that matter, the all round care of the society which has been taken by the innumerable Hindu Maths and temples trusts) in the different parts of India for ages cannot be ignored. A very large number of charitable institutions run by Hindu and Muslim religious bodies have been always helping the people in many ways.
Learned and selfless religious saints and leaders have made significant contributions in establishment of civilised society for centuries and history shows that this has been done through the instrumentality of religious institutions and organisations. Similar is the position with respect to the other religions in India. The positive role religion has played in lifting humanity from barbaric oblivion to the present enlightened and cultured existence should not be belittled. But, at the same time, it cannot be forgotten that religion has been from time to time, misused to bring on great misfortunes on mankind.
In modern times, therefore, social and political thinkers do not hold unanimous view on the question of the desirability to allow religion to influence and control politics and the State instrumentality. The difference in the two perceptions is vital and far-reaching in effect, and generally one view or the other has been accepted as national commitment, not subject to a change.
When I proceed to examine the issue further I will not be using the expression ‘religion’ in its pure and true sense spreading universal compassion and love, but in the ordinary concept as it is popularly understood today and accepted by the general man in the modern time, sometimes as a spiritual experience, sometimes as customary rituals but most of the time as a social and political influence on one segment of the population or other, bringing with it (although not so intended) mutual distrust between man and man, and hostility amongst different religious groups.
In this process the very welfare of the society, which is of prime consideration becomes the casualty. It has to be remembered that 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.
There will not be any justifiable reason available against a similar provision for the Christian Missionary institutions in the country on the ground of their services, to the cause of upliftment of Adivasis, their contribution in the field of education, and their efforts for medical assistance to the underprivileged; or, for the innumerable other religious institutions of Hindus, Muslims, Sikhs and other religions providing invaluable relief to the helpless. 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.
In this background the question to ask is whether all this is prohibited as being abhorrent to the basic feature of the Constitution. I have no hesitation in answering the issue in the positive.
After the establishment of a democratic government at every level in the country in one from 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. I do not think this can be compared with any of the provisions in the Constitution relating to nominations. From the entire scheme of the Constitution, it is clear that its basic philosophy eloquently rejects the concept of separate electorate in India.
Reference
R.C. Poudyal v. Union of India (1993)