Rule of Law
by Sonam Wangdi
former Chief Secretary,Government of Sikkim
In a democracy, the Rule of Law is the most important characteristic of a polity. The root cause of most of the fundamental problems in our country can be traced to our Rulers’ inaction or action – wrong action at right time or wrong action at wrong time, or right action at wrong time – which is not consistent with the Rule of Law. The British people do not have a ‘written’ constitution; but they are governed far better than we in India are with the lengthiest written constitution in history. All the people and the three branches of the British government meticulously follow the Rule of Law. The people at the helm of affairs in the developed countries normally take right action at right time in consonance with the Rule of Law and in consonance with their conscience .
Outsiders in Jorethang
Replying to one of the points raised by a member in the Sikkim Legislative Assembly on 28 March, 1978, the Minister-in-charge, Hon’ble Bhuwani Prasad Dahal from the Rhenock Constituency, (since deceased), said: “It has been mentioned that unauthorized constructions have come up in Jorethang bazaar. During 1973 agitation many people came from outside and started occupying the places.” [Page 160]. The Minister was responding to the statement of Hon’ble Mohan Gurung, Regu Constituency, in the Assembly: “Unauthorized constructions have come up in Jorethang bazaar. The Government should have done the proper planning of the Jorethang Bazar”. [Proceedings of the Assembly, Page 152]
Outsiders, however, are not confined to Jorethang alone; they are all over Sikkim. The outsiders are wanted by the insiders who cannot do without them. Development works in Sikkim, even during pre-merger days, had been done by outsiders from Nepal, Bhutan and India. The Kingdom of Sikkim had the Sikkim Work Permit Rules, 1965 which required the Nepalese, Tibetans and Bhutanese and other non-Indians to obtain work permits in Sikkim. However the Indians were not required to get the permit in accordance with the India-Sikkim Treaty of 1950. The 1965 Rules is one of the many Laws in Sikkim which are in the statute book but not applied. [The Sikkim Code, Vol II Part I, Chapter I II Pp169-71Published by Law Department, Gangtok]
Immigration from Nepal
The largest volume of immigration to Sikkim takes not from India, but from Nepal. In the 1961 census 5,352 persons born in Nepal were enumerated in Sikkim of whom 1,974 were residing there for 16 years or longer, 500 for 11 to 15 years, 735 for 6 to 10 years, 714 for 1 to 5 years and 647 for less than 1 year. The duration of residence of 782 persons was not stated. The 1951 census revealed 3,162 immigrants from Nepal. Therefore, 2,190 persons must have come in the intercensal period.” [Census of India, 1961 Volume XVI, West Bengal & Sikkim, Part I-A , General Report, Book (i) Population Progress, Page 384]
31,180 Fake Sikkim Subject Certificates
I have quoted above only a few of the most authoritative and authentic government documents to drive home my point that there are thousands of illegal settlers in Sikkim. It may be noted that the Sikkim Government itself had stated that there are at least 31, 180 “fake Sikkim Subject certificate holders”. The Sikkim National People’s Party even filed “a formal complaint with Gangtok Sadar Police demanding legal proceedings against 31,180 individuals possessing fake Sikkim Subject certificates as admitted by the State government earlier this year” [Sikkim Express Gangtok 6 Dec, 2010]. The police, however, will not take any action without an order from the Government. And never will the government order any action unless there is a violent agitation. For the time being, there will continue to be the peace of the grave yard. But we should be aware of John Dryden’s “Beware the fury of a patient man.”
During the Dui hazaar saat saal [2007] andolan in Nepal to oust the Rana Rule, many Nepalese came to Sikkim. Some families settled in areas close to my village. Legally speaking, they cannot be Sikkimese, since they came after 1946.
Pink Card
The recent ‘controversy’ about the Residential Card or the Pink Card which the Sikkim government proposes to issue to the people residing in Sikkim from 26 April, 1975 onwards is an avoidable problem. The political war of words over the “Pink Card” or “Residential Card” between the ruling and opposition parties would not have arisen if the powers that be in the past and present had followed the Laws and the Constitution, especially Article 371F, governing the Indian Union and its constituent parts.
The Pink voters’ card in 1975 had extinguished the distinct personality of Sikkim as an Associate State, a kingdom associated with a Republic – an unprecedented event in the annals of mankind. The Pink card proposed to be given to all and sundry who are in Sikkim from 26 April, 1975 onwards will snuff out the Sikkim Subject Certificates for eternity. I quote myself from Now,1 September, 2010: “Since 1975, Sikkim is no more a kingdom. It is unfortunate that the Bhutia, Lepcha and Tsong have lost their country and are strangers in their own land and are being made to part with the Sikkim Subject Certificates given to them by their monarch and go in for “pink cards”. Red is a dangerous colour elsewhere. But in Sikkim, pink is a dangerous hue. In April, 1975, the pink ballot paper was made an instrument to extinguish the distinct international personality of Sikkim. I do not normally vaticinate. But, thirty-six years later, the ‘pink cards’ will certainly herald the eternal death knell of Sikkim Subjects Certificates – the last vestige of a glorious past – if the people are not alert.”
“Non-Sikkimese employees in Sikkim, 1980”
On 26 March, 1980, in response to the question of a member, the Minister-in-charge furnished the Sikkim Assembly with the list of “non-Sikkimese employees in the Government of Sikkim,” along with their names and designations.[Proceedings of the Assembly 26 March, 1980 Pages 388-446]. According to the list, there were 1701 “non-Sikkimese employees” in the Government of Sikkim as on 26 March, 1980. I understand that many of them have passed away. The illegal and unconstitutional Sikkim Government order will make them “Sikkimese” jeopardizing the interests of the Sikkimese Bhutia Lepcha Nepalese and others.
73,431 illegally made citizens
The Government of India in the Ministry of Home Affairs issued Order No 26030/36/90-I. C.I dated the 7 th August, 1990. The relevant extracts are:
“Whereas, the State Government of Sikkim recommended the names of 74966 persons who were considered eligible for being included in the Register maintained under the Sikkim Subjects Regulation, 1961.
Whereas the Central Government have carefully examined the cases of 40,083 persons, whose details are given in the enclosed list.
The Central Government after careful consideration of all the facts and documents produced in respect of the 40,083 persons hereby determines that they were eligible to be included in the Register maintained under the Sikkim Subjects Regulation, 1961, and are accordingly, deemed to have become citizen (sic) of India with effect from 26 th April, 1975, in terms of Sikkim (Citizenship) Order, 1975.” [Gazette No 109 of 29 August, 1990 signed by P K Pradhan, Home Secretary, Emphasis added]
The Government of India in the Ministry of Home Affairs issued ANOTHER similar Order No 26030/36/90-IC I dated the 8 th April, 1991: Pertinent lines are:
“Whereas, the State Government of Sikkim recommended the names of 73, 431 persons who were considered eligible for being included in the Register maintained under the Sikkim Subjects Regulation, 1961.
Whereas the Central Government determined vide their order of even number dated 7th August, 1990 that 40,083 persons were Indian citizen (sic) w.e. f. 26.4. 1975 under Citizenship (Sikkim) Order, 1975
Whereas the Central Government carefully examined the cases of 33,348 persons more, whose details are given in the enclosed lists and have found them eligible to be included in the Register maintained under the Sikkim Subjects Regulation, 1961. The Central Government after careful consideration of all the facts and documents produced in respects (sic) of these 33,348 persons hereby determines that all these persons be deemed to have become citizens of India with effect from 26 th April, 1975, in terms of Sikkim (Citizenship) Order, 1975.” [Gazette No 70 of 25 April, 1991 signed by P K Pradhan, Home Secretary. Emphasis added]
From a reading of the above paragraphs, the State Government of Sikkim recommended the names of 74966 persons in 1990 and 73, 431 persons in 1991 who were considered eligible for being included in the Register maintained under the Sikkim Subjects Regulation, 1961.
Moreover, the ‘enclosed’ list was never printed along with the Sikkim Government Gazettes No 109 of 1990 and 70 of 1991. The people of Sikkim still do not know the 73,431 persons who had been “deemed to have become citizens of India with effect from 26 th April, 1975, in terms of Sikkim (Citizenship) Order, 1975.” The 1975 Order, however came into force only from 16 May, 1975 and not from 26 April, 1975 since the Citizenship Act, 1955[ No 57 of 1955] came into force on 16th May, 1975 and not on 26 April, 1975. Hence the Central government could not have invoked the 1975 Citizenship Order as it did not exist on 26 April, 1975.
With my little knowledge, I am not in a position to understand how the Government of India deemed more than 73 thousand persons as Indian citizens. First, as stated above, the Sikkim (Citizenship) Order, 1975 was not in existence as on 26 April, 1975 as only on the 16 May, 1975 did the Citizenship Act, 1955 come into force.
Secondly, the Citizenship Act and the Rules, made there under, do not provide for en masse conferment of Indian citizenship. The grant of citizenship is an important statutory function and therefore the law provides that notices are issued after individual applications to the People of India whether they have any objection to granting citizenship to the applicants. Since the statutory provision of law was not complied with, the 73,431 persons cannot be considered Indian citizens. Nor, on the other hand, could they be considered as “Sikkim Subjects” since they do no have Serial No, Volume No and other particulars from the Sikkim Subject Register. As all are aware, only the Sikkim king could have made Sikkim Subjects and after the kingdom became a part of history from 26 April de jure and 16 May, 1975 de facto, no authority could either add or amend the Sikkim Subject Register.
Before the grant of any Residential Card, we must study the legal and constitutional provisions. Moreover the term, “Resident” should be defined according to the Law.
According to the Constitution of India, only a person “who has been ordinarily resident in the territory of India” as on 25 January, 1945 can be conferred Indian citizenship on application. Similarly, the Sikkim Subject Regulation, 1961 [Repealed on 26 April, 1975] provided that only a person who “has been ordinarily resident in the territory of Sikkim” as on 2 July, 1946 could be granted Sikkim subject-hood on application. The Constitution and the Laws, governing the Indian Union and its constituent parts, are, therefore, absolutely clear and there is no room for any confusion. Neither is there any constitutional or legal provision for fixing any date such as 26 April, 1975 as done by the Sikkim Govcernment; nor is there any law for any “Cut off” year as was done in Assam or Arunachal Pradesh.
An idea of what the word, “Resident” in the Sikkim context means can be understood from the following legal provisions:
The Sikkim Subject Regulation 1961: Section 3.1“Explanation:- No person shall be deemed to have his domicile in the territory of Sikkim unless – (i) he is a person who has made Sikkim his permanent home and has severed his connections with the country of his origin such as by parting with his property in that country or acquiring immovable property in Sikkim.” [The Sikkim Code, op cit P 244]. Any person therefore having any property outside Sikkim during pre-merger and outside India after merger cannot be a citizen of India in the state of Sikkim. In order to qualify for being a ‘Resident’ of Sikkim, the person must have a ‘permanent home’ with the conditions mentioned above as on 2 July, 1946. Only the descendants of the persons are eligible to the Residential Card or Pink Card.
The Government must publish detailed particulars of persons who are to be given Residential Card, such as names, ages, names of father or husband, occupation, village, block District, immovable properties in rural and urban areas. There shall be a body of eminent Sikkimese to screen the names. Personages such as J B Pradhan, former Cabinet Minister, Pasang Namgyal, Retired Secretary, D K Khati, TP Sharma, Retired Secretary, PK Basnet Retired Secretary, LB Chetri, Retired Secretary, DKGazmair, first Chief Information Commissioner etc. could be requested for scrutinizing each case on spot verification. The procedure may take time; but it will be worth. The grant of Residential Card without complying with the provision of law may create problem the sensitive border State.
Courtesy: Sikkim Mail
Author is former Chief Secretary, Government of Sikkim
