This article is written by Gautam Badlani, a student at Chanakya National Law University, Patna. This article examines the provisions and judicial decisions relating to the Constitution (Thirty-fifth Amendment) Act, 1974. The article highlights the salient features of the Act and the special provisions made for the representation of the people of Sikkim in the Indian political institutions. The article also highlights the significance of the 35th amendment and its aftermath.
It has been published by Rachit Garg.
The Constitution (Thirty-fifth Amendment) Act was passed in the year 1974 by the Parliament. The Act provided for the designation of an Associate State for Sikkim, which was unprecedented in Indian history. The 35th amendment is considered to have paved the way for the admission of Sikkim as a full state in the Indian Union. This article explains the historical reasons for the amendment, the provisions and key features of the amendment, and the aftermath.
Prior to the 35th Amendment, Sikkim was a protectorate state, and the people of Sikkim wanted to build closer ties with India. On 8th May, 1973, a tripartite agreement was entered into by the Sikkim Chogyal, the representative of the Indian Government (Foreign Secretary, Keval Singh) and the representatives of the political parties of Sikkim. The agreement provided that the people of Sikkim had a right to participate in an election based on adult suffrage and envisaged the setting up of the Sikkim Assembly, which would have a 4-year term. Subsequently, the Sikkim Assembly was established in 1974. The Assembly expressed a desire to build close relations with India.
Subsequently, the Government of Sikkim Bill, 1974 was passed by the Sikkim Government with a complete majority. The Bill envisaged greater participation and representation of the people of Sikkim in the political institutions of India. Thus, the 35th Constitutional Amendment was enacted to give effect to the Government of Sikkim Act, 1974 and to uphold the wishes of the Sikkim people to build closer ties with India.
The Amendment inserted Article 2A in the Constitution, which provides for Sikkim’s association with the Union. Furthermore, the Act also inserted the 10th Schedule in the Constitution, which laid down the territories of Sikkim and the conditions on which Sikkim had been associated with the Union.
The Government of India had the following responsibilities:
The Act also provided for the representation of the people of Sikkim in the Legislature and other political institutions. It contained the following provisions:
The 35th Constitutional Amendment was repealed by the 36th Constitutional Amendment, 1975, which provided the status of a full state to Sikkim, and the name of Sikkim was included as a state in the First Schedule of the Indian Constitution. Sikkim became the 22nd State of India through the 36th Amendment to the Indian Constitution. This Amendment omitted the Tenth Schedule. The 36th Constitutional Amendment was ratified by the states in accordance with Article 368 of the Constitution and amended Article 80, Article 81, First Schedule, and Fourth Schedule.
The 36th Amendment also inserted Article 371-F which provides for certain special provisions concerning Sikkim. These special provisions are:
The Court made the following observations regarding the inclusion of Sikkim as an Indian state:
The Court further observed that the insertion of Article 371F was essential as the laws in Sikkim, before it became a part of India, were made for a society under a monarchy and were not consistent with the Indian Constitution, which provides for a free society. Thus, it was essential to make special provisions to fulfil the assurances that were given to the people of Sikkim. Article 371F ensured that there was a smooth transition of Sikkim from a monarchy to a democratic free society.
The Court then held that the petitioner had won the lottery in India and had paid the tax as per a special taxation law applicable in an Indian state. Furthermore, the Income Tax Act, 1961, was not applicable in Sikkim at the time when the petitioner won the lottery. The Court, while allowing the petition, held that the Income Tax Act could not be applied to income earned in Sikkim at a time when the Act was not applicable to Sikkim.
The petitioner contended that the reservation was violative of Article 14 and Article 371F was in violation of the democratic and republican principles of the Indian Constitution. Furthermore, since the reservation was on the basis of religion, it violated Article 15 of the Constitution.
The State contended that a law providing for the terms and conditions of the admission of a new state, made in accordance with Article 2 of the Constitution was not justiciable and hence the petition was not maintainable. Furthermore, the petitioners pleaded that Article 371F empowered Parliament to make reservations for less-represented communities in the Sikkim Assembly even if such a reservation was in contravention of the Constitutional provisions. Article 371F specifically barred judicial review of the Parliament’s decision.
The Court held that the petition was maintainable and laws made concerning the terms of admission of new states were justifiable. Even though the powers conferred on the Legislature under Article 2 are very broad, it cannot be held that Parliament enjoys unfettered power and cannot be subjected to judicial scrutiny. The terms and conditions cannot be in violation of the fundamental principles of the Indian Constitution.
The Court observed that Article 2 and Article 371F of the Constitution need to be read harmoniously in such a manner that they are not inconsistent with the provisions of the Constitution.
The Court held that Article 371F was valid as the Constitution does not mandate perfect mathematical equality of voters and even if it resulted in any discrimination, then such discrimination was justified in view of the historical realities of the State of Sikkim. The reservation was necessary as the beneficiary communities were minority groups who would not enjoy adequate representation in the State Assembly in the absence of such a reservation.
The 35th Constitutional Amendment is a landmark and unprecedented amendment that provided the status of an Associate State and ultimately paved the way for the inclusion of Sikkim as the 22nd State of India. It helped Sikkim in building close ties with India, and this was evident in the result of the public opinion poll held by the Sikkim Chief Minister in 1975. The representation provided to Sikkim in the legislative instruments of India played a key role and led to the enactment of the 36th Constitutional Amendment.
There have been 105 amendments to the Indian Constitution. The latest amendment was made in the year 2021, which restored the States’ and Union Territories’ right to identify and maintain a list of economically and socially backward communities.
Kazi Lhendup Dorjee was the first Chief Minister of Sikkim.
Four languages are largely spoken in Sikkim: Sikkimese (Bhutia), English, Lepcha, and Nepali.
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