Supreme Court removes remark calling Sikkimese-Nepalis as ‘Persons of Foreign Origin’ from its judgment

The Supreme Court on February 8 ordered the deletion of reference to the Sikkimese-Nepalese as “people of foreign origin” from its January 13 judgment on tax exemption in Sikkim, following a petition by the Centre and others for changes. A bench of Justices MR Shah and BV Nagarathna, after a brief hearing, approved to remove the remarks.

The remark was made in the case of Association of Old Settlers of Sikkim versus Union of India, in which it was held that Indians who had settled in Sikkim on or before April 26, 1975, the date on which the state merged with India, will be eligible to be excused from income tax. A bench presided over by Justices MR Shah and BV Nagarathna had given this judgment.

The state government was party to the judgment. Since the State Government did not object, the court gave the verdict in favour of the old settlers, relieving them from paying income tax and referring to the distinction made between them and the other communities “discriminatory”. While the Sikkimese civil society has not been against the decision of the Supreme court, it has complained regarding the use of “foreigner” tag for the Sikkimese-Nepali community.

Justice Nagarathna, while tracing the history of Sikkim, had observed that the Sikkim Income Tax Manual from 1948 viewed everyone in the same manner “irrespective of their origin”. There was “no difference” between “original inhabitants of Sikkim, namely, the Bhutia-Lepchas and the persons of foreign origin settled in Sikkim like the Nepalis or persons of Indian origin who had settled down in Sikkim generations back”, she had observed.

This remark particularly had caused a furore in Sikkim and led to a series of protests. Former Chief Minister Pawan Chamling’s Sikkim Democratic Front (SDF) called a bandh on February 4 and 5. A Joint Action Committee (JAC) leading the protests called for another State-wide bandh on February 8. Following these events, applications were filed seeking modifications.

The bench agreed to remove the controversial fragment of the judgment but noted that while the hearing on the applications was going on, the writ petitioner had made certain amendments to the writ petition that were not brought to the notice of the court. “It is noted that in the said writ petition there was an amended writ petition filed pursuant to an application filed. Unfortunately, learned counsel for the writ petitioners did not bring to the notice of this court the substantial amendments brought. It was their duty to bring it to the notice of the court. Now the MA has been filed seeking corrections as if an error has occurred from the point of the court. However, having heard senior counsel from the respective parties, we think it is just and proper to correct certain words used in paragraph 10A and 68.8 in my judgment”, stated the bench in its modification order.

Solicitor General of India Tushar Mehta requested the court to shed light on why the judgement has not touched upon the aspect of Article 371F of the Indian Constitution, which deals with special provisions with respect to Sikkim. The bench, however, said that such a clarification is unnecessary as Article 371F was not a subject matter of the case.