Sikkim Subject
Supreme
Court in “Association of Old Settlers of Sikkim and Ors. Vs. Union of India and
Anr.”
Sikkim
Subjects:
In order to
check the influx of foreigners into Sikkim, the Ruler of Sikkim (the Chogyal)
promulgated the Sikkim Subject Regulations, 1961 on 03.07.1961. Under the said
Regulations: (a) the persons falling under Clause 3 of the Regulations were to
be entered as a “Sikkim Subject” in the Register; and (b) Persons who were
citizens of another country were not to be registered as a “Sikkim Subject”
unless he relinquishes the citizenship of the other country. The term 'Sikkim
Subject' was defined as a person who was born in the territory of Sikkim and
was resident therein and similarly situated persons, but however with a caveat
that "a person shall not be a “Sikkim Subject” under this section, unless
he makes a declaration that he is not a citizen of any other country at the
time of inclusion of his name in the register of “Sikkim Subjects".
Because of this caveat, an Indian citizen whose ancestors had settled down in
Sikkim for generations, had to give up his citizenship of India, for the purpose
of converting himself into a “Sikkim Subject”.
By way of
the Constitution 36th Amendment Act 1975, Sikkim was made a full-fledged State
of India and was included in Entry 22 of Schedule I to the Constitution of
India. Article 371-F was also inserted in the Constitution under which it was,
inter alia, open to the President or the Parliament to extend any law to the
State of Sikkim, or repeal any existing law of Sikkim.
On
21.06.1975, the Home Department issued a notification stating that “all Sikkim
Subjects (under the Sikkim Subjects Regulations, 1961) before 26.04.1975 were
to be deemed Indian citizens”. Therefore, this effaced the distinction between
the persons of Indian origin residing in Sikkim (without giving up Indian
Citizenship) and others who had taken up Sikkimese Citizenship.
Since a
large number of eligible persons had been left out of the Sikkim Subject
Register and were consequently denied Indian citizenship, Government of Sikkim
issued a Memorandum that for the purposes of seeking employment, those claiming
to be “Locals” should be able to show whether their parents’ names are
maintained on or before 15.05.1975 in the relevant Government Register.
There is no
reasonable classification between the residents/origins of Sikkim whose names
were registered as “Sikkim Subjects” under the Sikkim Subjects Regulations,
1961 and those Indian old Sikkim settlers, whose names could not be registered
as “Sikkim Subjects” as their forefathers did not surrender the Indian
citizenship
The Chogyal
promulgated the Sikkim Subjects Regulation in 1961 (hereinafter called “1961
Regulation” for the sake of convenience). This Regulation had extraordinary
provisions by which a 'National of another State' ordinarily residing in the
erstwhile Kingdom of Sikkim then, could acquire a Naturalised Sikkim
Subject/Citizenship status. Regulations 8(3), 8(4) of the 1961 Regulation
provide for the power of the government of the erstwhile Chogyal of the Kingdom
of Sikkim to naturalise a person upon an application being made in this regard.
However, in order to be qualified for naturalization, the applicant/person must
be employed in the Posts or Services of the Government Establishment of the
Kingdom of Sikkim and must fulfil the following parameters:
(i) must
have been in the service of the Government of the erstwhile Kingdom of Sikkim
for a period not less than ten years immediately preceding the date of his
application, or
(ii) must
have rendered meritorious service to the erstwhile Kingdom of Sikkim. The
Government of the Chogyal may as provided for under Regulation 8(4) also
naturalise the wife and minor children of a person who is granted a Certificate
of Naturalisation, if an application is made in this regard.
In order
for a Certificate of Naturalisation to be granted under the aforesaid clauses,
the following conditions must be fulfilled: (i) renouncing their Nationality
and (ii) changing their allegiance to the erstwhile Kingdom of Sikkim. The
result of this pre-condition was that an eligible male British Indian Subject
or male Indian National and his wife and minor children had to give up their
Indian Nationality (of which country Sikkim was a protectorate since 1950), for
the purpose of converting themselves into Naturalized Sikkim Subjects.
Although, these Regulations were promulgated, according to the petitioners no
differential treatment was meted out to the Indians as their rights were
protected under the Indo-Sikkim Treaty of 1950.
9. Subsequent
to the merger of Sikkim as a State of the India, the following developments
relevant to these cases could be traced as under:
(a) By way
of a statutory order, the Citizenship Act, 1955 was extended to the State of
Sikkim. On 21 st June, 1975, the Home Department of Government of India issued
a notification titled "Sikkim (Citizenship) Order 1975" stating that
'all Sikkim Subjects under the 1961 Regulation before 26th April, 1975 were to
be deemed Indian citizens'. Therefore, this effaced the distinction between
persons of Indian origin residing in Sikkim (without giving up Indian
Citizenship) and others who had earlier taken up Sikkimese Citizenship by entry
of their names in the Sikkim Subjects Register. According to the petitioners,
as on 26th April, 1975, there was no distinction between Sikkim subjects and
persons of Indian origin and other settlers in Sikkim, all of them being
treated as citizens of India. However, those whose names did not figure in the
Sikkim Subjects Register were left out of consideration.
(b) In view
of the fact that a large number of eligible persons had been left out of the
Sikkim Subjects Register and were consequently denied Indian citizenship, on
25th September, 1976 the Government of Sikkim issued a Memorandum that for the
purposes of seeking employment, those claiming to be locals should be able to
show whether their parents’ names were maintained on or before 15th May, 1975
in the relevant Government Register.
(c)
Further, under Article 371-F, an Adaptation of Sikkim Laws Order was
promulgated wherein, the 1961 Regulation, was repealed w.e.f. 26th April, 1975
by the Order issued on 13th September, 1975.
(d) On 9th
April, 1981, the Government of Sikkim issued a Memorandum to the effect that:
" ...
the Governor has been pleased to authorize District Collectors within
respective district to issue Certificate to person identifying them in the
following groups to enable them to apply for employment in the State-
1. A person
whose name is found in the Old Sikkim Subject Register prior to 1975.
2. A person
whose name is not found registered in the Old Sikkim Subject Register but
he/she has established beyond doubt that the name of his/her
father/husband/paternal grandfather /brother from the same father has been
recorded in the Old Sikkim Subject Register, or 3, A person who has or had
agricultural land in rural areas and has been ordinarily residing in the State
of Sikkim or
4. A person
whose father/husband has/had been in Sikkim Government service on or before
31.12.1969."
(e) In the
year 1988, a petition was moved in the Lok Sabha by a few Members of
Legislative Assembly of Sikkim stating that at the time of merger of Sikkim
with India, only those people whose names were registered in the Sikkim
Subjects Register were made Indian Citizens in terms of Sikkim (Citizenship)
Order 1975, but there were many other persons who were present in Sikkim
between the period 1946 and 1975 who were otherwise by reason of their
residence, domiciled in Sikkim and by allegiance "Sikkimese" and they
should also be made Indian citizens. The Government of India conceded to this
demand and an exercise was carried out to grant Indian Citizenship to the
so-called ‘stateless’ people whose names were deemed to have been genuinely
omitted. For this purpose, the Sikkim Citizenship (Amendment) Order, 1989, was
notified on 3rd April, 1989, wherein a proviso was inserted to deem such cases
of genuine omission as citizens of India. The relevant clause in the amendment
order reads as follows:
“Provided
that any person whose name was eligible to be entered in the register
maintained under the said regulation but was not entered because of any genuine
omission shall also be deemed to have become a citizen of India on that day if
so determined by the Central Government.”
(f) On the
same date i.e., 3rd April, 1989, the Ministry of Home Affairs, Government of
India, constituted a committee comprising of officials of the Government of
India and Government of Sikkim, to look into cases of genuine omission in terms
of the Sikkim Citizenship (Amendment) Order, 1989.
Certain
Guidelines were prescribed to decide the persons who were left out due to
genuine omission from being entered into the Sikkim Subjects Register. It is
averred that in terms of "clauses d, f, g and h'' of the prescribed
Guidelines, persons such as the petitioners were entitled to acquire Indian
Citizenship in terms of Sikkim Citizenship (Amendment) Order, 1989, by virtue
of their fathers’ Government employment in 'Sikkim Darbar' prior to the
commencement of the 'exception' clause introduced w.e.f., 1st April, 1974, by
the Sikkim Government Establishment Rules, 1974.
(g)
Subsequently, vide Government of India orders dated 7th August, 1990 and 08th
April, 1991, a total of 73,431 persons were granted Indian Citizenship on the
basis that it was found that these persons were eligible to have been included
in the Sikkim Subjects Register. Most of these 73,431 persons included citizens
of India and were persons who had permanently settled in Sikkim between 1946
and 1975.
It is
averred that applications in the prescribed format for inclusion in the
Citizenship list in terms of the Sikkim Citizenship (Amendment) Order, 1989,
were submitted by the family members of petitioners in W.P. (C) No.1283 of
2021, which was duly acknowledged by the concerned District Collector. However,
their names neither appeared in the approved list forwarded by the Ministry of Home
Affairs, Government of India nor in the rejected list.
The Voters'
List of 2004 for the State of Sikkim had the following demographic composition:
Bhutia-Lepcha
(STs): 20.64%
Nepalis: 69.71%
(Including
the original Sikkim Subjects)
Sherpa: 4.31%
Others: 5.34%
It is also
averred that the persons who were granted Indian citizenship by way of the
Sikkim Citizenship (Amendment) Order of 1989, were those persons whose names in
point of fact were never included in the Sikkim Subjects Register but were
given the benefit of Indian citizenship.
The fact
that migrants/settlers had earlier not been registered as Sikkim Subjects on
the ground that they failed to surrender their Indian citizenship at the
relevant time, would have no relevance after the merger of Sikkim with the
India, since such migrants as well as Sikkim Subjects had been placed in the
same class of Indian residents of Sikkim, after the merger.
Those
migrants/settlers of Indian origin, who may have been residing in Sikkim prior
to the coming into effect of the 1961 Regulation, chose not to get themselves
registered as Sikkim Subjects by relinquishing their Indian citizenship. This
was a considered choice made by the said class of persons. Having waived their
privileges on account of non-registration as Sikkim Subjects, migrants/settlers
of Indian origin cannot at this juncture claim to be treated at par with Sikkim
Subjects.
Those
migrants/settlers of Indian origin, who may have been residing in Sikkim prior
to the coming into effect of the 1961 Regulation, chose not to get themselves
registered as Sikkim Subjects by relinquishing their Indian citizenship. This
was a considered choice made by the said class of persons. Having waived their
privileges on account of non-registration as Sikkim Subjects, migrants/settlers
of Indian origin cannot at this juncture claim to be treated at par with Sikkim
Subjects.
In the case
under consideration as per the Notification dated 16 th May, 1975 on the
enforcement of Citizenship Act, 1955, and Citizenship Rules, 1956 to the State
of Sikkim on its merger with India and as per the Sikkim (Citizenship) Order,
1975, every person who immediately before 26th April, 1975, was a Sikkim
Subject as per the 1961 Regulation was deemed to have become a citizen of India
on that day. Thus, an individual had a domicile in the territory of Sikkim
immediately before the commencement of the 1961 Regulation, if he/she was:
a) born in
the territory of Sikkim and was resident therein; or
b) had been
ordinarily residing in the territory of Sikkim for a period of not less than
fifteen years immediately preceding the commencement of the 1961 Regulation.
If an
individual from British India or any other part of India after its Independence
was domiciled in Sikkim prior to 26th April, 1975 and has become a citizen of
India by virtue of Part II of the Constitution and the Citizenship Act, 1955,
enacted by the Parliament and Orders made thereunder, pursuant to the merger of
Sikkim Kingdom with India, such individual ought to now be included in the
Register of Sikkim Subjects if not included till date.
The
expression “any other country” in Regulation (4) of the 1961 Regulation must be
read to mean “any other country other than India”. By such an interpretation, a
person domiciled in the territory of Sikkim and who has acquired the
citizenship of India may, on an application made to the authority prescribed by
the 1961 Rules be registered as a Sikkim Subject, if he is a person whose
ancestors were deemed to be Sikkim Subjects.
In order to
check the influx of foreigners into Sikkim, the Chogyal, in 1961, had promulgated
the 1961 Regulation. Under the said Regulation:
a) Persons
falling under Regulation (3) of the 1961 Regulation were to be entered as
‘Sikkim Subjects' in the Register; and
b) Persons
who were citizens of another country were not to be registered as ‘Sikkim
Subjects’ unless they relinquished the citizenship of the other country.
In exercise
of the powers conferred by Section 7 of the Citizenship Act, 1955, the
Government of India amended the Sikkim Citizenship Order, 1975, by virtue of
the Sikkim Citizenship (Amendment) Order, 1989, whereby a proviso was added to
paragraph 2 of the Sikkim (Citizenship) Order, 1975, which reads as follows:
“Provided
that any person whose name was eligible to be entered in the register
maintained under the said regulation but was not so entered because of any
genuine omission shall also be deemed to have become a citizen of India on that
day if so determined by the Central Government".
A Committee
for the purpose of consideration of the cases of genuine omissions in terms of
the Sikkim Citizenship (Amendment) Order, 1989, was formed on 20th March, 1989.
Further, by this Order, Guidelines were issued as criteria for considering the
names of individuals who had been omitted to be registered in the Sikkim
Subjects. The said criteria read as under: -
“ANNEXURE
TO M.H.A. ORDER N0.26030/ 69/88-I.C.I DATED 20.03.1989 GUIDELINES
a. Natural
descendants of a person whose names is in the Sikkim Subject Register.
b. Person
having recorded ownership or tenancy rights on agricultural land or of rural
property within Sikkim before 26th April, 1975, and his natural descendants.
c. Persons
whose name is included in the earliest available voters-list prior to the 26th
April, 1975, and his natural descendants.
d. Person
holding a regular government job before 26th April, 1975 provided that the
appointment has not been made under the 'exception' clause pertaining to
non-subjects; and his natural descendants.
e. Holder
of trade license outside notified bazaar areas prior to 26th April, 1975 and
his natural descendants.
f. He must
not have entered the territory of Sikkim on the basis of work-permit.
g. He must
not have acquired citizenship of any other country.
h. He must
not be holding the status of refugee on the basis of a registration certificate
issued by the competent authority.
(The
criteria laid down from (a) to (e) singly or collectively are by themselves not
be taken as conclusive evidence for granting citizenship, but would have to be
scrutinized in the light of those at (f), (g) & (h).” 69.3. Further, the
Government of India issued Notification vide Order No.26030/36/90-I.C.I. dated
8th April, 1991 and the said Order states that there were a large number of
persons who were eligible to be entered in the Register as Sikkim Subjects
immediately before 26th April, 1975, as per the 1961 Regulation, were not so
entered because of genuine omissions.
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