ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR

Citation: 2023 INSC 29, [2023] 10 S.C.R. 368, [2023] 10 S.C.R. 289

Court: Supreme Court of India

Bench: M. R. SHAH AND B. V. NAGARATHNA, JJ.

Judgment text

SUPREME COURT OF INDIA ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [2023] 10 S. C. R. 289 : 2023 INSC 29 ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. (Writ Petition (C) No. 59 of 2013) JANUARY 13, 2023* [M. R. SHAH AND B. V. NAGARATHNA, JJ. ] Income Tax Act, 1961 - s. 10(26AAA) - Sikkim Subjects Regulations, 1961 - rr. 3 and 4 - Right to Equality - Prohibition of discrimination - Clause 26AAA to s. 10 of the Income Tax Act, 1961 granted exemption to "Sikkimese" people - Explanation to Clause 26AAA defined the term "Sikkimese" - Definition of "Sikkimese" in Explanation to s. 10(26AAA) to the extent it excludes the Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975; and proviso to s. 10(26AAA) insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" - Challenge to - Held (per M. R. Shah, J.

): Total 95% of the population of Sikkim are getting the benefit of s. 10(26AAA) of the Income Tax Act and only 5% are left out and out of which only 1% are the persons like the Old Indian Settlers, but their names could not be registered as "Sikkim Subjects" like the petitioner - Purpose of s. 10(26AAA) is to grant exemption to the residents of Sikkim from payment of income tax - All such Indians/citizens, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 are to be treated at par - They form the same group/class and are entitled to the exemption u/ s.

10(26AAA) - There is no difference and/or distinction between those "Sikkim Subjects", whose names are recorded in the register maintained under the Regulations, 1961 and those Indians, who have settled in Sikkim prior to the merger of Sikkim, but whose names were not recorded as "Sikkim Subjects" in the register - Merely because at the relevant time and when the Regulations, 1961 was enacted, the Indians settled in Sikkim did not surrender their Indian citizenship or their fathers/forefathers' names were not entered into the register maintained under the Regulations, 1961, by itself, it cannot be said that they cease to be the "Sikkimese" - Exclusion *Ed. Note: Subsequent order dated February 8, 2023 reported in [2023] 10 S. C. R. 368 to be read as part and parcel of the present judgements dated January 13,2023. 289 of old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 from the definition of "Sikkimese" in s.

10(26AAA) is arbitrary, discriminatory and violative of Art. 14 - The exclusion has no nexus with the object and purpose of enacting s. 10(26AAA) of to be achieved - No reasonable intelligible differentia has been shown and therefore, the same can be termed as arbitrary - Hence, petitioners and similarly situated persons who are old Indian settlers who have settled in Sikkim prior to the merger of Sikkim with India on 26th April, 1975 shall also be entitled to the exemption under s. 10 (26AAA) of the I. T. Act, 1961 - Further, there is no justification shown and/or demonstrated to exclude "a Sikkimese woman, who marries a non- Sikkimese after 01. 04. 2008" from the exempted category - The discrimination is based on gender which is wholly violative of Arts. 14, 15 and 21 of the Constitution - To deny the benefit of exemption u/s. 10(26AAA) of the Income Tax Act to "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" is arbitrary, discriminatory and violative of Art.

14 - Therefore the Proviso to s. 10(26AAA) insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" has to be struck down - Held (per B. V. Nagarathna, J. ):Under the 1961 Regulation, for women marriage has been the basis of acquiring the status of having a domicile in Sikkim and being a Sikkim Subject or losing domicile or status as a Sikkim Subject - Marriage of a Sikkimese woman is also the basis for discrimination against her whereas there is no such discrimination vis-à-vis a Sikkimese man marrying a Sikkimese or a non-Sikkimese woman on or after 1st April, 2008 - When the Explanation to s.

10(26AAA) refers to an "individual", it includes both Sikkimese men and women, in fact, all genders - Therefore, it cannot have a restrictive or myopic reference to only Sikkimese men and exclude those Sikkimese women - In the instant case, the proviso is overriding the provision as well as the Explanation in respect of those categories of married Sikkimese women - The proviso is inherently arbitrary and discriminatory against a particular category of Sikkimese women - Hence, all Sikkimese women are entitled to the benefit of s. 10(26AAA) as per the Explanation thereto irrespective of whether they marry a Sikkimese or a non-Sikkimese - The proviso to Clause(26AAA) of s. 10 of the I. T. Act, 1961 is struck down as being ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. in violation of Arts.

14 and 15 - The object and purpose of the exemption is only to exempt the settlers in Sikkim or persons domiciled in Sikkim in terms of the 1961 Regulation or the Government Orders - All individuals domiciled in Sikkim till 26th April, 1975 and who have since become citizens of India are entitled to exemption from payment of income tax - Only such individuals are entitled to the exemption who fall within the three clauses of the Explanation - All other citizens of India who do not fall within the ambit of the Explanation and who have been domiciled in Sikkim State subsequent to 26th April, 1975 would not have the benefit of exemption - This would be discriminatory insofar as those settlers in Sikkim are concerned who have been domiciled in Sikkim subsequent to promulgation of 1961 Regulation and till 26th April, 1975 - Such individuals are old settlers who have become citizens of India from 26th April, 1975 but who were domiciled in Sikkim prior to the said date - These old settlers are also entitled to the exemption under s.

10 (26AAA) - Hence, directions in that regard have to be issued to fill the Legislative vacuum and amendment to the Explanation is necessary - Directions issued to eliminate the discrimination and to save the Explanation from being rendered unconstitutional - Constitution of India - Arts. 14, 15, 21 and 142. Interpretation of Statutes - Internal Aid - Proviso - Function of - Held: The normal function of a proviso is to except something out of the provision or to qualify something enacted therein which, but for the proviso, would be within the purview of the provision - A proviso is added to an enactment to qualify or create an exception to what is in the enactment - A proviso cannot be construed as nullifying the provision or as taking away completely a right conferred by the enactment - If it does so and is discriminatory then it falls foul of the equality clauses of the Constitution of India. Disposing of the writ petitions, the Court HELD: per M. R. Shah, J. 1.

The purpose of Section 10(26AAA) of the Income Tax Act, 1961 is to grant exemption to the residents of Sikkim from payment of income tax under the Income Tax Act. Therefore, all such Indians/citizens, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 are to be treated at par and they form the same group/class and are entitled to the exemption under Section 10(26AAA) of the Income Tax Act. As such, there is no difference and/or distinction between those "Sikkim Subjects", whose names are recorded in the register maintained under the Sikkim Subjects Regulations, 1961 and those Indians, who have settled in Sikkim prior to the merger of Sikkim, but whose names were not recorded as "Sikkim Subjects" in the register maintained under the Sikkim Subjects Regulations, 1961. All are "Sikkimese".

Merely because at the relevant time and when the Sikkim Subjects Regulations, 1961 was enacted, the Indians settled in Sikkim did not surrender their Indian citizenship or their fathers/forefathers' names were not entered into the register maintained under the Sikkim Subjects Regulations, 1961, by itself, it cannot be said that they cease to be the "Sikkimese". All of them are similarly situated with those "Sikkimese" / "Sikkim Subjects", who all have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975. The object and purpose of Section 10(26AAA) is to grant benefit of exemption from payment of income tax under the Income Tax Act to the residents of Sikkim. Therefore, there is no nexus sought to be achieved in excluding the Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 but their names are not recorded as "Sikkim Subjects".

The Union of India has failed to satisfy any reasonable classification and/or nexus to exclude such class of Indians, who, in fact, have settled in Sikkim prior to 26. 04. 1975. Therefore, exclusion of old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 from the definition of "Sikkimese" in Section 10(26AAA) is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. [Para 13. 1][312-D-H; 313- A-B] 2. In the present case, the exclusion has no nexus with the object and purpose of enacting Section 10(26AAA) of the Income Tax Act to be achieved. No reasonable intelligible differentia has been shown and therefore, the same can be termed as arbitrary. This Court is of the firm opinion that Section 10(26AAA) to the extent it excludes the Old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975, ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v.

UNION OF INDIA AND ANR. but whose names are not recorded as "Sikkim Subjects", from the definition of "Sikkimese" is ultra vires, being arbitrary, discriminatory and violative of Article 14 of the Constitution of India. The definition of "Sikkimese" in Section 10(26AAA) of the Income Tax Act shall also include all Indians, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 irrespective of the fact that whether their names have been recorded in the register maintained under the Sikkim Subjects Regulations, 1961 or not. Therefore, the "Sikkimese" like the petitioners, who are old Indian settlers and who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 shall also be entitled to the exemption under Section 10(26AAA) of the Income Tax Act, 1961. [Paras 13. 4 and 14][313-G; 314-B-D] 3.

So far as the challenge to the Proviso to Section 10(26AAA) insofar as it excludes from the exempted category, "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" is concerned, there is no justification shown and/or demonstrated to exclude "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" from the exempted category. Apart from the above, the same is clearly hit by Articles 14, 15 and 21 of the Constitution of India. The discrimination is based on gender, which is wholly violative of Articles 14, 15 and 21 of the Constitution of India. There is no disqualification for a Sikkim man, who marries a non-Sikkimese after 01. 04. 2008. A woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. [Para 15][314-D-G] 4. There is no justification shown to exclude "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008". A Sikkimese woman, who has married a non-Sikkimese prior to 01.

04. 2008 is entitled to the benefit of exemption provided under Section 10(26AAA). There is no justification shown to fix the cut off date of 01. 04. 2008. There is no rational nexus to the object sought to be achieved by excluding "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" and to include "a Sikkimese woman, who has married a non-Sikkimese before 01. 04. 2008". Therefore, to deny the benefit of exemption under Section 10(26AAA) of the Income Tax Act to "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. Therefore, also, the Proviso to Section 10(26AAA) insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" has to be struck down. Therefore, Proviso to Section 10(26AAA) inasmuch as it excludes from the provision of exemption a Sikkimese woman merely because she marries a non-Sikkimese after 01. 04.

2008 is totally discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India, which requires to be struck down. [Paras 15. 1 and 16][315-A-D] D. S. Nakara v. Union of India (1983) 1 SCC 305 : [1983] 2 SCR 165 ;State of Rajasthan v. Manohar Singhji II [1954] SCR 996 and Shayara Bano v. Union of India (2017) 9 SCC 1 : [2017] 9 SCR 797 followed. G. Sekar v. Geetha & Ors. (2009) 6 SCC 99 : [2009] 5 SCR 1005- relied on. Vishundas Hundumal v. State of M. P. (1981) 2 SCC 410: [1981] 3 SCR 234 and Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1: [2007] 12 SCR 991- referred to. per B. V. Nagarathna, J. 1. Under the Sikkim Subjects Regulations, 1961, as far as women are concerned, marriage has been the basis of acquiring the status of having a domicile in Sikkim and being a Sikkim Subject or losing domicile or status as a Sikkim Subject.

Marriage of a Sikkimese woman is also the basis for discrimination against her whereas there is no such discrimination vis-à-vis a Sikkimese man marrying a Sikkimese or a non-Sikkimese woman on or after 1st April, 2008. When the Explanation to Clause 26AAA to Section 10 of the Income Tax Act, 1961 refers to an "individual", it includes both Sikkimese men and women, in fact, all genders; it cannot have a restrictive or myopic reference to only Sikkimese men and exclude those Sikkimese women covered under the proviso. A proviso cannot over arch a provision. But in the instant case, the proviso to Section 10(26AAA) of the Act, 1961 is overriding the provision as well as the Explanation in respect of those categories of married Sikkimese women referred to in the proviso which is impermissible. Thus, the proviso is inherently ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. arbitrary and discriminatory against a particular category of Sikkimese women.

In other words, the Explanation to Section 10(26AAA) of the I. T. Act, 1961 includes both Sikkimese men as well as women. Such being the interpretation, the proviso is antithetical to the Explanation and the Section as well. The expression "an individual" in the Explanation to Section 10 (26AAA) of the I. T. Act, 1961, must include all genders including Sikkimese women. There cannot be a discrimination only on the ground of sex and race. Hence, all Sikkimese women are entitled to the benefit of Section 10 (26AAA) of the I. T. Act, 1961, as per the Explanation thereto irrespective of whether they marry a Sikkimese or a non-Sikkimese. [Paras 50,51, 53 and 55][340-C, D; 341-E-G; 342-C-D] 2.

Pursuant to the merger of Sikkim with India by virtue of which, Sikkim has become one of the States of India and all Sikkim Subjects and all Sikkimese domiciled in the territory of Sikkim have become Indian citizens, there cannot be a discrimination vis-à-vis Sikkimese women marrying a non-Sikkimese individual, whether an Indian citizen or a foreigner, that too, on or after 1st April, 2008. Such discrimination, is therefore, in violation of the guarantee of equality provided under Articles 14 and 15 of the Constitution of India as it is on the basis of sex and race. Hence, the proviso to clause (26AAA) of Section 10 of the I. T. Act, 1961, is a stark example of an unconstitutional sex-based discrimination and is liable to be struck down. [Para 56][342-D-F] 3. The proviso runs counter to the Explanation and is thus manifestly arbitrary. This is because the Explanation intends to give the benefit of Section 10 (26AAA) of the I. T.

Act, 1961 to all Sikkimese who are defined under the said Explanation as those 'individuals' whose names have been recorded and registered in the Register of Sikkim Subjects immediately before 26th April, 1975 or included pursuant to the Government of India Order No. 26030/36/90/I. C. I. dated 7th August, 1990 and Order of even number dated 8th April, 1991, or those persons whose names do not appear in the Register of Sikkim Subjects but it has been established that the name of such individual's father or husband or paternal grandfather or brother from the same father had been recorded in that Register. Hence, the benefit of the Explanation must be extended to all Sikkimese women, irrespective of whether they have married a Sikkimese or a non-Sikkimese after the 1st April, 2008. Thus the proviso to Clause (26AAA) of Section 10 of the I. T. Act, 1961 is struck down as being in violation of Articles 14 and 15 of the Constitution of India. [Paras 64 and 65][352-H; 353-A-C] 4.

The Explanation restricts the exemption only to those Sikkimese individuals who fall within the three clauses of the Explanation, as the object and purpose of the exemption is only to exempt the settlers in Sikkim or persons domiciled in Sikkim in terms of the 1961 Regulation or the Government Orders referred to above. Even though the 1961 Regulation has been repealed, nevertheless, the Register of Sikkim Subjects which is maintained under the said Regulation, which had acquired a sanctity, has been the basis for grant of an exemption and particularly in the form of clause (iii) of the Explanation to Section 10(26AAA) of the I. T. Act, 1961. This would imply that all those individuals who fall outside the scope and ambit of the Explanation would not be granted the exemption. Then, the questions of discrimination against persons such as the petitioners and others similarly situated would arise.

Individuals having become citizens of India and were domiciled in Sikkim as on 26th April, 1975 are also entitled to the benefit of registration and exemption. Thus all individuals domiciled in Sikkim till 26th April, 1975 and who have since become citizens of India are entitled to exemption from payment of income tax as per Section 10 (26AAA) of the I. T. Act, 1961. [Paras 73 and 74][364-D-G] 5. Only such individuals are entitled to the exemption who fall within the three clauses of the Explanation. Hence, the Explanation must be construed strictly as it is in the nature of a definition of the expression "Sikkimese" for the purpose of granting an exemption from payment of income tax under the I. T. Act, 1961. However, the exemption must be extended to incorporate all such individuals who have been domiciled in Sikkim as on 26th April, 1975 and who have since then become citizens of India.

This would mean that all other citizens of India who do not fall within the ambit of the Explanation as interpreted above and who have been domiciled in Sikkim State subsequent to 26th April, 1975 would not have the benefit of exemption under Section 10 (26AAA) of the I. T. Act, 1961. Thus, any individual ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. not falling within the said clause would not be entitled to the said exemption. This would however be discriminatory insofar as those settlers in Sikkim are concerned who have been domiciled in Sikkim subsequent to promulgation of 1961 Regulation and till 26th April, 1975 when Sikkim merged with India. Such individuals are old settlers who have become citizens of India from 26th April, 1975 but who were domiciled in Sikkim prior to the said date. They are also entitled to the exemption under Section 10 (26AAA).

Hence, directions in that regard have to be issued to fill the Legislative vacuum and amendment to the Explanation is necessary. However, those individuals who have been domiciled in Sikkim subsequent to 26th April, 1975 shall not be entitled to the benefit of exemption from payment of income tax. [Paras 75 and 76][364-H; 365-A-B; D-F] 6. This Court has on previous occasions, sought to enforce rights of citizens even in areas of legislative vacuum. To this end, Article 142 of the Constitution of India has been invoked and the law so declared in order to fill the vacuum has been treated as law declared by this Court under Article 141 until a proper legislation is made. [Para 77; 365-G] 7. 1 The Union of India shall make an amendment to Explanation to Section 10 (26AAA) of I. T. Act, 1961, so as to suitably include a clause to extend the exemption from payment of income tax to all Indian citizens domiciled in Sikkim on or before 26th April, 1975.

The reason for such a direction is to save the explanation from unconstitutionality and to ensure parity in the facts and circumstances of the case. [Para 79; 367-B] 7. 2 Till such amendment is made by the Parliament to the Explanation to Section 10 (26AAA) of I. T. Act, 1961, any individual whose name does not appear in the Register of Sikkim Subjects but it is established that such individual was domiciled in Sikkim on or before 26th April, 1975, shall be entitled to the benefit of exemption. This direction is being issued in exercise of powers under Article 142 of the Constitution so as to eliminate discrimination and disparity in respect of the aforesaid category of Sikkimese, who subsequently have become citizens of India w. e. f. 26th April, 1975 and to save the Explanation from being rendered unconstitutional vis-à-vis such individuals who form a small percentage of Sikkimese. [Para 79; 367-C-E] 7.

3 Proviso to Section 10 (26AAA), insofar as it excludes from the exempted category, "a Sikkimese woman who marries a non-Sikkimese man after 1st April, 2008" is hereby struck down as being ultra vires Articles 14, 15 and 21 of the Constitution of India. " [Para 79; 367-E-F] Vishaka and Ors. v. State of Rajasthan, A. I. R. 1997 SC 3011 : [1997] 3 Suppl. SCR 404 - followed. S. K. Dutta v. Lawrence Singh Ingty, A. I. R. 1968 SC 658 : [1968] 2 SCR 165;Southern Electricity Supply Co. of Orissa Ltd. v. Sri Seetaram Rice Mill (2012) 2 SCC 108 : [2011] 15 SCR 211;Aphali Pharmaceuticals Ltd. v. State of Maharashtra (1989) 4 SCC 378 : [1989] 1 Suppl. SCR 129;Anuj Garg and Ors. v. Hotel Association of India and Ors. (2008) 3 SCC 1 : [2007] 12 SCR 991;G. Sekar v. Geetha (2009) 6 SCC 99 : [2009] 5 SCR 1005;Air India v. Nergesh Meerza AIR 1981 SC 1829 : [1982] 1 SCR 438; Air India Cabin Crew Assn. v. Yeshaswinee Merchant and others AIR 2004 SC 187 : [2003] 1 Suppl. SCR 455; C. B. Muthamma v.

Union of India AIR 1979 SC 1868 : [1980] 1 SCR 668;Mackinnon Mackenzie and Co. Ltd. v. Audrey D'costa and Another AIR 1987 SC 1281 : [1987] 2 SCR 659;Githa Hariharan v. Reserve Bank of India (1999) 2 SCC 228 : [1999] 1 SCR 669; Anuj Garg & Ors. v. Hotel Association of India & Ors. (2008) 3 SCC 1 : [2007] 12 SCR 991; G. Sekar v. Geetha & Ors. (2009) 6 SCC 99 : [2009] 5 SCR 1005;State of Maharashtra v. Indian Hotel and Restaurants Association(2013) 8 SCC 519 : [2013] 7 SCR 654 and Secretary, Ministry of Defence v. Babita Puniya and others (2020) 7 SCC 469 : [2020] 3 SCR 833- referred to. Bhe and Ors. v. The Magistrate, Khayelisha and Ors. (2004) 18 BHRC 52 : (2005) 1 BCLR 1 (CC); Reed v. Reed 404 U. S. 71, 92 S. Ct. 251 (1971);Weinberger vs. Wiesenfeld 420 U. S. 636, 95 S. Ct. 1225 (1975); Duren vs. Missouri 439 U. S. 357, 99 S. Ct. 664 (1979); Hishon vs. King & Spalding 467 U. S. 69, 104 S. Ct. 2229 (1984);United States v. Virginia 518 U. S. 515 (1996)- referred to.

ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. Case Law Reference In the judgment of M. R. Shah, J. [1983] 2 SCR 165 followed Para 7 (x) [1954] SCR 996 followed Para 7 (x) [1981] 3 SCR 234 referred to Para7. 1 [2007] 12 SCR 991 referred to Para 8. 1 [2009] 5 SCR 1005 relied on Para 8. 1 [2017] 9 SCR 797 followed Para 13. 4 In the judgment of B. V. Nagarathna, J. [1968] 2 SCR 165 referred to Para 27 [2011] 15 SCR 211 referred to Para 28 [1989] 1 Suppl. SCR 129 referred to Para 29 [2007] 12 SCR 991 referred to Para 29 [2009] 5 SCR 1005 referred to Para 32 [1982] 1 SCR 438 referred to Para 57(a) [2003] 1 Suppl. SCR 455 referred to Para 57(b) [1980] 1 SCR 668 referred to Para 59(i) [1987] 2 SCR 659 referred to Para 59(ii) [1999] 1 SCR 669 referred to Para 59(iii) [2007] 12 SCR 991 referred to Para 59(iv) [2009] 5 SCR 1005 referred to Para 59(v) [2013] 7 SCR 654 referred to Para 59(vi) [2020] 3 SCR 833 referred to Para 59(vii) [1997] 3 Suppl.

SCR 404 followed Para 77 CIVIL ORIGINAL JURISDICTION : Writ Petition (C) No. 59 of 2013. (Under Article 32 of The Constitution of India) With Writ Petition (C) No. 1283 of 2021. K. V. Viswanathan, Arvind P. Datar, G. Umapathy, Sr. Advs. , Ms. Haripriya Padmanabhan, Senthil Jagadeesan, Ms. Shivani Vij, R. Venkataraman, Chanakya Dwivedi, Ms. Pooja Dhar, Venkat Subramanian, Rohit K. Singh, Pritam Bishwas, Ankit Pandey, Aditya Singh, Suvin Kumaran, Advs. for the Petitioners. N. Venkataraman, ASG, Vivek Kohli, Adv. Gen. , H. R. Rao, Devashish Bharukha, Sughosh Subramanyam, Rajat Nair, Bhuvan Kapoor, Pranay Ranjan, Vikrant Yadav, Ms. Gargi Khanna, Raj Bahadur Yadav, Mrs. Anil Katiyar, Sameer Abhyankar, Abhinav Mishra, Ms. Nishi Sangtani, Ms. Vani Vandana Chhetri, Ms. Yeshi Ranchhen, Pranav Sachdeva, Ms. Neha Rathi, M/s. Arputham Aruna and Co. , Narendra Kumar, Advs. for the Respondents. The Judgments* of the Court were delivered by M. R. SHAH, J. 1.

By way of this writ petition under Article 32 of the Constitution of India, the respective writ petitioners - Association of Old Settlers of Sikkim and Others have prayed for an appropriate writ, direction or order striking down Section 10(26AAA) of the Income Tax Act, 1961 (hereinafter referred to as the "Act, 1961"), more particularly, the definition of "Sikkimese" in Section 10 (26AAA) to the extent it excludes Indians who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975. The petitioners have also prayed for an appropriate writ, order or direction striking down the Proviso to Section 10(26AAA) of the Act, 1961, insofar as it excludes from the exempted category, "Sikkimese women" who marries a non-Sikkimese after 01. 04. 2008. 2.

Section 10(26AAA), the vires of which is under challenge reads as under:- "[(26AAA) in case of an individual, being a Sikkimese, any income which accrues or arises to him- (a) from any source in the State of Sikkim; or (b) by way of dividend or interest on securities: Provided that nothing contained in this clause shall apply to a Sikkimese woman who, on or after the 1st day of April, 2008, marries an individual who is not a Sikkimese. *Ed. Note : These were two judgments in the matter-one by Hon'ble Mr. Justice M. R. Shah and the other by Hon'ble Mrs. Justice B. V. Nagarathna. ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] Explanation.

- For the purposes of this clause, "Sikkimese" shall mean- (i) an individual, whose name is recorded in the register maintained under the Sikkim Subjects Regulation, 1961 read with the Sikkim Subject Rules, 1961 (hereinafter referred to as the "Register of Sikkim Subjects"), immediately before the 26th day of April, 1975; or (ii) an individual, whose name is included in the Register of Sikkim Subjects by virtue of the Government of India Order No. 26030/36/90-I. C. I. , dated the 7th August, 1990 and Order of even number dated the 8th April, 1991; or (iii) any other individual, whose name does not appear in the Register of Sikkim Subjects, but it is established beyond doubt that the name of such individual's father or husband or paternal grand-father or brother from the same father has been recorded in that register;" 3.

It is the case on behalf of the respective writ petitioners that by excluding the Indians from the definition of Sikkimese, the exemption granted under Section 10(26AAA) of the Act 1961, is not available to the Indian Settlers resulting in discrimination. There is no valid ground for discriminating against this section of the residents of Sikkim alone. Therefore, it is the case on behalf of the writ petitioners that exclusion of Indians who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 and consequently not granting the exemption granted under Section 10(26AAA) of the Act, 1961 to the class of Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 is arbitrary, discriminatory and the differentia do not have a rational nexus to the object sought to be achieved by the Statute in question. It is also the case on behalf of the writ petitioners in Writ Petition No.

59 of 2013 that Proviso to Section 10(26AAA), insofar as it excludes from the exempted category, "Sikkimese women" who marries a non- Sikkimese after 01. 04. 2008, is discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India as the exclusion is based on gender. 4. Before dealing with and/or considering the rival submissions, history of Kingdom of Sikkim and the chronology of dates and events, which led to enactment of Section 10(26AAA) of the Act, 1961, is required to be referred to and considered, which are as under:- 4. 1 The Kingdom of Sikkim came into existence in 1642. It was ruled as an independent Kingdom for 333 years till its merger with the Union of India in 1975. Originally the Kingdom of Sikkim held a large territory ranging from parts of present-day Bhutan, Bihar, West Bengal, Nepal and Bangladesh. In the 18th and 19th Century, a lot of territory was ceded to the British Empire in various conflicts.

The Imperial British Government took over the control of the erstwhile Kingdom of Sikkim in the year 1888. However, there were conflicts with China. 4. 2 In 1890, a Convention was signed between Great Britain and China to settle the boundaries of Sikkim and Tibet. The British control over Sikkim was recognized by China in the year 1890. Following British taking control of Sikkim, British Indian Subjects were allowed to hold Government employment in Sikkim. 4. 3 In supersession of all earlier treaties, a fresh treaty was entered into between the British Government and the King of Sikkim in the year 1861. Under this treaty, the territory of Sikkim was restored to the King of Sikkim under certain conditions. These conditions included Article 8 under which the Government of Sikkim was to abolish all restrictions on travelers and monopolies in trade between the British territories and Sikkim. Under the said treaty, British subjects were permitted to trade, reside and travel through Sikkim.

Many Indians came to reside in Sikkim over the years. Except for the fact that they could not hold lands in rural areas, the Indians and other foreigners who settled in Sikkim were treated equally with the original inhabitants of Sikkim. 4. 4 The Sikkim Income Tax Manual, 1948 was promulgated by the Ruler of Sikkim (the Chogyal) in the year 1948. Under the said Manual, all persons engaged in business were subjected to tax irrespective of their origin. The India-Sikkim Peace Treaty was entered into on 05. 12. 1950 and under this Treaty Sikkim was to be the protectorate of India as per Article VII of the said treaty. It appears that 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 ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] 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". 4.

5 It appears that some of the families/persons like the members of the petitioners' Association, even though their forefather and they were residents of Sikkim for years together, did not surrender their citizenship of India and, therefore, their names were not registered as "Sikkim Subject" in the register maintained under the Sikkim Subjects Regulations, 1961. 4. 6 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. 4. 7 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. 4. 8 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. In the year 1980, notification was issued that domicile/ residential certificate issued by sources, other than District Collector, shall not be accepted as valid. 4.

9 In the year 1988, a petition was moved in the Lok Sabha by a few MLAs of Sikkim stating that at the time of merger of Sikkim with India, only those people whose names were registered in the Sikkim Subject Register in 1961 were made Indian Citizens, but there were many other stateless persons who were present in Sikkim between the period 1946 and 1975 who were otherwise by the reason of their residence, domicile and allegiance, "Sikkimese", and they should also be made Indians. The Government of India conceded to this demand and an exercise was carried out to grant Indian Citizenship to those so-called stateless people who were deemed to have been genuinely omitted. 4. 10 In the year 1989, the Sikkim Citizenship (Amendment) Order 1989 was notified wherein a proviso was created to deem such cases of genuine omission as citizens of India.

It appears that the principal beneficiaries of the said Amendment were those who had migrated to Sikkim post 1946 and were therefore not even eligible for being on the Sikkim Subject Register. 4. 11 That thereafter the Government of India formed a Committee consisting of its officers and officers of the Sikkim Government and certain guidelines were made to decide who the persons were, who were omitted by mistake from being entered into the "Sikkim Subjects Register". However, these guidelines, did not apply to persons of Indian origin as they were already Indian citizens, but only to those "non- Sikkimese Subjects" who were to be made Indian citizens. 4. 12 Subsequently, vide Government of India's Order dated 07. 08. 1990 and 08. 04. 1991, a total of 73,431 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". 4. 13 That in the year 1989 and w. e. f. 26. 07.

1989, the Indian Income Tax Act, 1961 was extended to Sikkim by the Finance Act, 1989. Under the said amendment, any law corresponding to the Income Tax Act, 1961, which was in force in the State of Sikkim stood repealed. 4. 14 That the State of Sikkim filed a Suit before this Court challenging the extension of the Income Tax Act, 1961 to the State of Sikkim, however, the same came to be withdrawn subsequently. 4. 15 In the year 1985, the Government of India, vide an amendment to the Income Tax Act, 1961 in the Finance Act, 1994, proposed an exemption from Income Tax to the Schedule Tribes in Sikkim as was being done in regard to other states. The same was opposed by the lone M. P. of Sikkim. ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] 4.

16 Thereafter, the Government of India and the Government of Sikkim formed a joint committee consisting of the members from the Central Government and Government of Sikkim to resolve the differences for implementation of the Income Tax Act, 1961 in Sikkim. It appears that while discussing the matters relating to implementation of the Income Tax Act, 1961 to the State of Sikkim, the committee representing the State Government of Sikkim insisted on exemption for persons holding the Sikkim Subjects Certificate and their descendants and were made Indian Citizens vide the Sikkim Citizenship Amendment Order, 1989. It appears that these two categories essentially consisted of the Bhutia Lepchas, Sherpas and the Nepalis who constituted together about 94. 6% of the total population. Discussions were held for four long years to secure exemptions to Sikkim Subjects Certificate holders and the people made citizens of India vide the Government of India orders dated 07. 08. 1990 and 08. 04.

1991 and their descendants. 4. 17 That in the year 2008, the Government of India, gave in to the demands of the State of Sikkim, and passed an amendment to the Income Tax Act, by the Finance Act, 2008, wherein Clause 26AAA was introduced in Section 10 of the Income Tax Act, and the persons of Indian origin in Sikkim were treated differently from the Sikkim subjects and persons who had become citizens of India by the Sikkim Citizenship Amendment Order 1989. Clause 26AAA to Section 10 of the Income Tax Act, 1961 granted an exemption to "Sikkimese" people.

However, the Explanation to Clause 26AAA defined the term "Sikkimese" as follows: "For the purposes of this Clause, "Sikkimese" shall mean:- (i) an individual, whose name is recorded in the register maintained under the Sikkim Subjects Regulations, 1961 read with the Sikkim Subject Rules, 1961 (hereinafter referred to as the "Register of Sikkim Subjects", immediately before the 26th day of April, 1975; or (ii) an individual, whose name is included in the Register of Sikkim Subjects by virtue of the Government of India Order No. 26030/36/90 - I. C. I. dated the 7th August, 1990 and Order of even number dated the 8th April, 1991; or (iii) any other individual, whose name does not appear in the Register of Sikkim Subjects, but it is established beyond doubt that the name of such individual's father or husband or paternal grandfather or brother from the same father has been recorded in that register;" 4.

18 It appears that in view of Section 10(26AAA) of the Income Tax Act, 1961, effectively 94% of the residents of Sikkim are exempted from payment of Income Tax under the Income Tax Act, 1961. However, 5% of the residents of Sikkim of which about 1% are the people like the petitioners, who, as such are also the bona fide settlers of Sikkim, are being singled out from exemption from payment of income tax on the sole ground that they are not recorded in the register under the Sikkim Subjects Regulation 1961. It appears that approximately 500 such families are affected by the definition of the "Sikkimese". 4. 19 It appears that various representations were made against such a discriminatory treatment by the Petitioners to the Government of Sikkim as well as the Union Finance Minister time and again. In the year 2009, the Government of Sikkim appointed a Committee to look into the grievances of the petitioners' Association.

The Committee made certain recommendations, which shall be dealt with hereinbelow. 4. 20 As observed hereinabove, as per Proviso to Section 10(26AAA) "a Sikkimese women who marries a non-Sikkimese after 01. 04. 2008" is excluded for getting the benefit of exemption under Section 10(26AAA). 5. Feeling aggrieved and dissatisfied with the definition of "Sikkimese" in Section 10(26AAA) to the extent it excludes Indians (having Indian citizenship), who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 and thereby not granting the benefit of exemption under Section 10(26AAA) of the Income Tax Act to such Indians and being aggrieved by the Proviso to Section 10(26AAA), insofar as, it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04.

2008", the present writ petitioners have prayed to strike down Section 10(26AAA) to the extent it excludes Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 and insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 4. 2008, being arbitrary, discriminatory and violative of Article 14 of the Constitution of India. 6. Shri K. V. Viswanathan, learned Senior Advocate has appeared on behalf of the writ petitioners in Writ Petition (C) No. 59 of 2013. Ms. ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] Pooja Dhar, learned counsel has appeared on behalf of the writ petitioners in Writ Petition (C) No. 1283 of 2021. We have heard the learned counsel appearing on behalf of the intervenors in I. A. No. 153446 of 2018 filed in Writ Petition (C) No. 59 of 2013. Shri N.

Venkataraman, learned ASG has appeared on behalf of the Revenue - Union of India and Shri Vivek Kohli, learned Advocate General has appeared on behalf of the State of Sikkim. 7. Learned counsel appearing for the respective writ petitioners/ intervenors have challenged the vires of Section 10(26AAA) of the Income Tax Act to the extent it excludes Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 and more particularly, the definition of "Sikkimese" in Section 10(26AAA) of the Income Tax Act and Proviso to Section 10(26AAA) of the Income Tax Act, insofar as, it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008", mainly on the following grounds and making the following submissions:- (i) That the definition of "Sikkimese" in Section 10(26AAA) of the Income Tax Act to the extent it excludes Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04.

1975 is discriminatory, arbitrary and unfair and it violates the fundamental rights of those Indians, who have settled in Sikkim prior to 26. 04. 1975 under Articles 14 and 15 of the Constitution of India; (ii) In the definition of "Sikkimese", the old Indian settlers of Sikkim have been excluded from the purview of the definition of "Sikkimese" and therefore are not entitled to exemption from Income Tax.

It is submitted that the exemption which has been granted to 'Sikkimese" people residing in Sikkim essentially exempts 95% of the residents of Sikkim while taxing only a handful of persons including the 1% / 2% old Indian settlers; (iii) The exclusion of the old Indian settlers from the definition of 'Sikkimese' in Clause 10(26AAA) of the Income Tax Act is clearly violative of Article 14 of the Constitution of India and does not satisfy any of the tests laid down by this Hon'ble Court under Article 14; (iv) It is submitted that as consistently held by this Hon'ble Court that in order to be held valid any legislation under Article 14, the classification should be reasonable and must have a nexus with the object sought to be achieved; (v) It is contended that by way of the amendment, one single class of persons, namely, the citizens of India, are sought to be treated differently for the purpose of taxation; (vi) It is urged that to exclude the old Indian settlers from the exemption under Section 10(26AAA) has no nexus with the object sought to be achieved to grant the exemption to the residents of Sikkim; (vii) It is submitted that 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; (viii)It is further submitted that after the Sikkim became part of the Union of India, all the residents of Sikkim have become the citizens of India.

Therefore, being citizen of India, settled in Sikkim, all are to be treated at par. It is contended that therefore, there is no reasonable justification and/or classification to exclude those Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 solely on the ground that their names were not registered as "Sikkim Subjects" due to non-surrender of Indian citizenship at the relevant time; (ix) It is submitted that as such, the object and purpose of Section 10(26AAA) is to grant exemption from payment of tax under the Income Tax Act to the locals/residents of Sikkim and that is the object sought to be achieved by providing exemption under Section 10(26AAA) of the Income Tax Act.

It is submitted that therefore, there shall not be any further classification between the locals/residents of Sikkim, whose names have been registered as "Sikkim Subjects" in the Register maintained under the Sikkim Subjects Regulations, 1961 and those whose names could not be and/ or were not registered as "Sikkim Subjects" due to non- surrender of their Indian citizenship; ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] (x) It is submitted that as such all the residents of Sikkim, who have settled in Sikkim prior to the merger of Sikkim with India are all to be treated at par as they are all similarly situated and therefore the classification into different groups though similarly situated is discriminatory and violative of Article 14 of the Constitution of India. It is submitted that the classification into groups should be based on identifiable criteria, which sets apart one group from the other.

It is submitted that the second condition which has to be satisfied is that such a classification of a separate and identifiable group should bear a reasonable nexus with the object and purpose sought to be achieved by that law. That in the present case, none of the above two conditions are satisfied and therefore, the classification between the two groups similarly situated would be arbitrary and hit by Article 14 of the Constitution. In support of above submission that classification between the two groups similarly situated would be arbitrary and hit by Article 14 of the Constitution, Shri Vishwanathan, learned Senior Advocate, has heavily relied upon the decisions of this Court in the case of D. S. Nakara Vs. Union of India, (1983) 1 SCC 305 (paras 9 to 15). He has also relied upon the observations made by this Court in paragraph 4 of the decision of this Court in the case of State of Rajasthan Vs. Manohar Singhji, 1954 SCR 996 : AIR 1954 SC 297. 7.

1 Shri Vishwanathan, learned Senior Advocate appearing on behalf of the petitioner has further submitted that Court can remove discrimination and put the petitioners in the same class so as to do away with discrimination. It is submitted that in the present case, in order to remove the arbitrary discrimination against Indian settlers in Sikkim, the definition of "Sikkimese" in Section 10(26AAA) ought to be read to include Indians, who had settled there as on 26. 04. 1975. Therefore, it is prayed to treat the word "means" in the definition of "Sikkimese" as an inclusive one and include Indian settlers within this fold. Reliance is placed on the decision of this Court in the case of Vishundas Hundumal Vs. State of M. P. , (1981) 2 SCC 410. 7. 2 Learned counsel appearing on behalf of the intervenors has, in addition, also relied upon the Parliamentary Report of the Parliament of India (Rajya Sabha Committee) in the 145th Report dated 06. 08.

2013 recommending that the ambit of Section 10 (26AAA) of the Income Tax Act, 1961, which exempted "Sikkimese Subjects" from payment of Income Tax should also be extended to all the Indian citizens and their descendants, who have been residing in Sikkim prior to 26. 04. 1975. 8. Now, so far as challenge to the Proviso to Section 10(26AAA), insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" is concerned, it is vehemently submitted by Shri K. V. Vishwanathan, learned Senior Advocate that the same is discriminatory and based on gender inequality, which is wholly violative of Articles 14, 15 and 21 of the Constitution of India. It is submitted that there is no exclusion of a male Sikkim, who marries a non-Sikkimese person from the exemption granted under clause (26AAA) of Section 10 of the Income Tax Act. 8.

1 It is submitted that a woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. Reliance is placed upon the decisions of this Court in the case of Anuj Garg & Ors. Vs. Hotel Association of India & Ors. (2008) 3 SCC 1 (paras 21, 22, 25, 26) and G. Sekar Vs. Geetha & Ors. (2009) 6 SCC 99 (paras 52, 54), in support to the prayer to strike down and/or hold the Proviso to Section 10(26AAA) of the Income Tax Act is discriminatory and violative of Articles 14 and 21 of the Constitution of India. 9. Shri N. Venkataraman, learned ASG has tried to justify the classification by submitting that a conscious decision has been taken by the legislature/Parliament to grant the benefit of exemption to only those "Sikkim Subjects", whose names have been registered in the Register maintained under the Sikkim Subjects Regulations, 1961. It is submitted that therefore the same may not be interfered with.

However, he is not in a position to justify the classification and satisfy the Court how such a classification will achieve the object and purpose of granting exemption under Section 10(26AAA) of the Income Tax Act. He is not in a position to explain and/or satisfy the Court any reasonable differentia and/or justification to exclude the Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 from the purview of Section 10(26AAA) of the Income Tax Act. He is also not in a position to satisfy the distinguishing features and/or the intelligible differentia, which distinguishes the persons, who are left out of the group namely, ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] the Old Indian Settlers, who have settled in Sikkim prior to the merger of Sikkim with India and with that of the "Sikkim Subjects" registered under the Sikkim Subjects Regulations, 1961. 9.

1 Shri Venkataraman, learned ASG is also not in a position to justify the Proviso to Section 10(26AAA) insofar as it excludes from the exempted category, "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008". 10. Shri Vivek Kohli, learned Advocate General appearing on behalf of the State of Sikkim has as such supported the objections. 10. 1 It is submitted on behalf of the State that the State has no objection if the Proviso to Section 10(26AAA) depriving the right of a "Sikkimese woman" to exemption from payment of Income Tax under Section 10(26AAA) upon her marriage to a non-Sikkimese after 01. 04. 2008 is struck down and/or is done away with so as to treat them equally in the matter of income tax exemption. 10.

2 Now, so far as, the right of the old Indian settlers to pray for the exemption under Section 10(26AAA) of the Income Tax Act is concerned, it is submitted on behalf of the State that the benefit of Section 10(26AAA) has to be extended to all Indian citizens domiciled in the State of Sikkim irrespective of the fact whether their names have been registered as "Sikkim Subjects" in the "Sikkim Subjects Register" maintained under the Sikkim Subjects Regulations, 1961 or not. 11. Heard the learned counsel for the respective parties at length. 12. The challenge in the present petitions under Article 32 of the Constitution of India is :- (i) The definition of "Sikkimese" in Section 10(26AAA) to the extent it excludes the Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975; and (ii) Proviso to Section 10(26AAA) insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" 13.

Now, so far as the first issue is concerned, as per the definition of "Sikkimese" only those individuals, whose names are recorded in the register maintained under the Sikkim Subjects Regulation, 1961 immediately before 26. 04. 1975 or whose names are recorded in the Register of "Sikkim Subjects" by virtue of Government of India's Orders dated 07. 08. 1990 and 08. 04. 1991 or any other individual whose name does not appear in the Register of "Sikkim Subjects", but it is established beyond doubt that the name of such individual's father or husband or paternal grandfather or brother from the same father has been recorded in that register, are considered to be eligible as "Sikkimese" for the purpose of exemption under Section 10(26AAA) of the Income Tax Act. Meaning thereby, all those Sikkimese/Old Indian Settlers in Sikkim, who might have settled in Sikkim prior to 26. 04.

1975 but whose names are not registered as "Sikkim Subjects" in the register maintained under the Sikkim Subjects Regulations, 1961 are not entitled to the exemption available under Section 10(26AAA) of the Income Tax Act. At this stage, it is required to be noted that total 95% of the population of Sikkim are getting the benefit of Section 10(26AAA) of the Income Tax Act and only 5% are left out and out of which only 1% are the persons like the Old Indian Settlers, who have settled in Sikkim prior to the merger with India on 26. 04. 1975, but their names could not be registered as "Sikkim Subjects" like the petitioners. 13. 1 It is to be noted that as such the purpose of Section 10(26AAA) is to grant exemption to the residents of Sikkim from payment of income tax under the Income Tax Act. Therefore, all such Indians/ citizens, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04.

1975 are to be treated at par and they form the same group/class and are entitled to the exemption under Section 10(26AAA) of the Income Tax Act. As such, there is no difference and/or distinction between those "Sikkim Subjects", whose names are recorded in the register maintained under the Sikkim Subjects Regulations, 1961 and those Indians, who have settled in Sikkim prior to the merger of Sikkim, but whose names were not recorded as "Sikkim Subjects" in the register maintained under the Sikkim Subjects Regulations, 1961. All are "Sikkimese". Merely because at the relevant time and when the Sikkim Subjects Regulations, 1961 was enacted, the Indians settled in Sikkim did not surrender their Indian citizenship or their fathers/forefathers' names were not entered into the register maintained under the Sikkim Subjects Regulations, 1961, by itself, it cannot be said that they cease to be the "Sikkimese".

All of them are similarly situated with those "Sikkimese" / "Sikkim Subjects", who all have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975. As observed above, the object and purpose of Section 10(26AAA) is to grant benefit of exemption from payment of income tax under the Income Tax Act to the residents of Sikkim. Therefore, there is no nexus sought to be achieved in excluding ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] the Indians, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 but their names are not recorded as "Sikkim Subjects". The Union of India has failed to satisfy any reasonable classification and/or nexus to exclude such class of Indians, who, in fact, have settled in Sikkim prior to 26. 04. 1975. Therefore, exclusion of old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04.

1975 from the definition of "Sikkimese" in Section 10(26AAA) is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. 13. 2 As observed and held by this Court in the case of D. S. Nakara (supra) Article 14 forbids class legislation but permits reasonable classification for the purpose of legislation, which classification must satisfy the twin tests of classification being founded on an intelligible differentia which distinguishes persons or things that are grouped together from those that are left out of the group and that differentia must have a rational nexus to the object sought to be achieved by the statute in question. In the present case, the exclusion of old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 from the definition of "Sikkimese" in Section 10(26AAA) does not fulfill the aforesaid two conditions. 13.

3 As observed and held by this Court in the case of Manohar Singhji (supra), Article 14 declares that "the State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India". It is observed that such an obvious discrimination can be supported only on the ground that it was based upon a reasonable classification. A proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by those criteria, it seems to us that the discrimination is based on no classification at all and is manifestly baseless, unreasonable and arbitrary. 13. 4 In the present case, as observed hereinabove, the exclusion has no nexus with the object and purpose of enacting Section 10(26AAA) of the Income Tax Act to be achieved. No reasonable intelligible differentia has been shown and therefore, the same can be termed as arbitrary.

As observed and held by this Court in the case of Shayara Bano Vs. Union of India, (2017) 9 SCC 1, in India, arbitrariness is not a separate ground since it will come within the embargo of Article 14 of the Constitution. Therefore, any provision, which is arbitrary, discriminatory and violative of Article 14 of the Constitution of India and any classification which is violative of Article 14 of the Constitution of India can be struck down. 14. In view of the above and for the reasons stated above, we are of the firm opinion that Section 10(26AAA) to the extent it excludes the Old Indian settlers, who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975, but whose names are not recorded as "Sikkim Subjects", from the definition of "Sikkimese" is ultra vires, being arbitrary, discriminatory and violative of Article 14 of the Constitution of India.

The definition of "Sikkimese" in Section 10(26AAA) of the Income Tax Act shall also include all Indians, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 irrespective of the fact that whether their names have been recorded in the register maintained under the Sikkim Subjects Regulations, 1961 or not. Therefore, it is held that the "Sikkimese" like the petitioners, who are old Indian settlers and who have settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975 shall also be entitled to the exemption under Section 10(26AAA) of the Income Tax Act, 1961. 15. Now, so far as the challenge to the Proviso to Section 10(26AAA) insofar as it excludes from the exempted category, "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" is concerned, there is no justification shown and/or demonstrated to exclude "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" from the exempted category.

Apart from the above, the same is clearly hit by Articles 14, 15 and 21 of the Constitution of India. The discrimination is based on gender, which is wholly violative of Articles 14, 15 and 21 of the Constitution of India. It is to be noted that there is no disqualification for a Sikkim man, who marries a non-Sikkimese after 01. 04. 2008. As rightly submitted, a woman is not a chattel and has an identity of her own, and the mere factum of being married ought not to take away that identity. In the case of G. Sekar (supra), it is observed and held that the exclusion of women from inheritance on the ground of gender was a clear violation of the constitutional prohibition against unfair discrimination. It is observed and held that in terms of Articles 14 and 15 of the Constitution of India, the female heirs, subject to the statutory rule operating in that field, are required to be treated equally to the male heirs.

Gender equality is recognised by the world community in general in the human rights regime. ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [M. R. SHAH, J. ] 15. 1 Even otherwise, there is no justification shown to exclude "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008". A Sikkimese woman, who has married a non-Sikkimese prior to 01. 04. 2008 is entitled to the benefit of exemption provided under Section 10(26AAA). There is no justification shown to fix the cut off date of 01. 04. 2008. There is no rational nexus to the object sought to be achieved by excluding "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" and to include "a Sikkimese woman, who has married a non-Sikkimese before 01. 04. 2008". Therefore, to deny the benefit of exemption under Section 10(26AAA) of the Income Tax Act to "a Sikkimese woman, who marries a non-Sikkimese after 01. 04.

2008" is arbitrary, discriminatory and violative of Article 14 of the Constitution of India. Therefore, also, the Proviso to Section 10(26AAA) insofar as it excludes from the exempted category "a Sikkimese woman, who marries a non-Sikkimese after 01. 04. 2008" has to be struck down. 16. Therefore, Proviso to Section 10(26AAA) inasmuch as it excludes from the provision of exemption a Sikkimese woman merely because she marries a non-Sikkimese after 01. 04. 2008 is totally discriminatory and violative of Articles 14, 15 and 21 of the Constitution of India, which requires to be struck down. 17. In view of the above and for the reasons stated above, both these petitions succeed. The exclusion of Old Indian settlers, who have permanently settled in Sikkim prior to merger of Sikkim with India on 26. 04. 1975 from the definition of "Sikkimese" in Section 10(26AAA) is hereby held to be ultra vires to Article 14 of the Constitution of India and is hereby struck down.

It is held that all Indians/old Indian settlers, who have permanently settled in Sikkim prior to the merger of Sikkim with India on 26. 04. 1975, irrespective of whether his/her name is recorded in the register maintained under the Sikkim Subjects Regulations, 1961 read with Sikkim Subject Rules, 1961 or not, are entitled to the exemption under Section 10(26AAA) of the Income Tax Act. 17. 1 Proviso to Section 10(26AAA) insofar as it excludes from the exempted category, "a Sikkimese woman, who marries a non- Sikkimese after 01. 04. 2008" is hereby struck down being ultra vires to Articles 14, 15 and 21 of the Constitution of India. Both these writ petitions are accordingly allowed. However, in the facts and circumstances of the case, there shall be no order as to costs. NAGARATHNA, J. I have perused the judgment and order proposed by His Lordship M. R. Shah J. as well as the conclusions reached by him.

However, I would like to render my separate opinion on the issues raised in these writ petitions revolving around the definition of "Sikkimese" appended as an Explanation to Section 10 (26AAA) of the Income Tax Act, 1961 (hereinafter referred to as 'I. T. Act, 1961') as well as on the vires of the proviso concerning Sikkimese women assailed in these writ petitions. 2. His Lordship M. R. Shah, J. has opined as follows: (i) That Section 10 (26AAA) to the extent that it excludes old Indian settlers from the benefit of exemption from payment of income tax i. e. those who have settled in Sikkim prior to merger of Sikkim with India on 26th April, 1975 but whose names are not recorded as "Sikkim Subjects" from the definition of Sikkimese is ultra vires as, being arbitrary, discriminatory and violative of Article 14 of the Constitution of India.

Hence, petitioners herein and similarly situated persons who are old Indian settlers who have settled in Sikkim prior to the merger of Sikkim with India on 26th April, 1975 shall also be entitled to the exemption under Section 10 (26AAA) of the I. T. Act, 1961. In my view, persons such as the petitioners and similarly situated persons are not entitled to the exemption under the Explanation as it now stands. In the circumstances, in order to remove the discrimination, certain observations have been made and directions have been issued by me to the Union of India on the basis of reasons assigned during the course of my judgment. If those directions are complied with, the discrimination would be removed. (ii) I agree with the conclusion reached by M. R. Shah, J. to the effect that the proviso in Section 10 (26AAA) of the I. T. Act, 1961 is arbitrary, discriminatory and violative of Articles 14 and 15 of the Constitution of India.

I have assigned additional reasons and dealt with the said aspect of the matter in greater detail through the course of my judgment and order. Background facts: 3. Writ Petition (C) No. 1283 of 2021 has been filed by the petitioners under Article 32 of the Constitution of India, assailing the validity of the proviso to Section 10 (26AAA) and Explanation thereto ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J. ] introduced to the I. T. Act, 1961 through the Finance Act, 2008 by which Sikkimese (people from Sikkim State) are purportedly exempted from payment of income tax. They have further sought a direction to the respondents to extend the exemption granted under Section 10 (26AAA) of I. T. Act, 1961 to persons such as the petitioners herein. The petitioners have sought a declaration that they are also entitled to exemption from payment of income tax under Section 10 (26AAA) of the I. T. Act, 1961.

In other words, they have sought a direction to extend the benefit of the said provision to the petitioners herein. Another direction that is sought against respondent No. 2 is to furnish a list of applicants who have submitted applications seeking income tax exemption pursuant to the Public Notice dated 22nd September, 2018. Similar prayers have been sought by the petitioners in W. P. (C) No. 59 of 2013 which is the earlier of the two writ petitions. 4. It is the case of the petitioners that they were ordinarily resident in the former Kingdom of Sikkim prior to its merger with India and they have an ethnic identity in Sikkim. Now, they are citizens of India.

The persons ordinarily resident in the former Kingdom of Sikkim comprised of: (a) a major population of 'Sikkimese Nationals'/'Sikkim Subjects' recognized as 'Persons of Sikkimese origin'; and (b) a minor population of 'British Indian Subjects' of Undivided India/'Indian Nationals' of Independent India recognized as 'Persons of Indian origin' ordinarily residing in the former Kingdom of Sikkim for the purpose of trade, commerce and Government employment/s under the 'Sikkim Darbar '. 5.

The ordinarily resident 'Sikkimese Nationals/Subjects' or 'Persons of Sikkimese origin' of the former Kingdom of Sikkim comprised of persons recognized as having the following ethnicity: (i) 'Sikkimese Bhutia' - meaning persons who could be from among the native 'Bhutia' and the 'Chumbipa', 'Dopthapa', 'Dukpa', 'Kagatey', 'Sherpa', 'Tibetan', 'Tromopa', 'Yolmo' Communities which got recognised and notified as the Scheduled Tribes by 'The Constitution (Sikkim) Scheduled Tribes Order 1978' (ii) 'Sikkimese Lepcha' - meaning persons who could be from the aboriginal Lepcha Community which got recognised and notified as the Scheduled Tribes by 'The Constitution (Sikkim) Scheduled Tribes Order, 1978'.

(iii) 'Sikkimese Nepali' - meaning persons who could be from among the Castes or Classes that included the following: (a) the 'Damai', 'Kami'/'Lahar', 'Majhi', and 'Sarki' Communities which got recognised as the Scheduled Castes by the Constitution (Sikkim) Scheduled Castes Order, 1978; (b) the 'Limbu' and 'Tamang' Communities (earlier notified under 'Central List of Other Backward Classes ' in the year 1995) which got recognised and notified as the Scheduled Tribes in the year 2003 by the Scheduled Castes and Scheduled Tribes Orders (Amendment) Act 2002; (c) the Communities which got recognised and notified for inclusion in the 'Central List of Other Backwards Classes' in the year 1995, namely, 'Bhujel', 'Gurung', 'Manger', 'Kirat Rai', 'Sunuwar', and in the year 1999 namely 'Sanyasi', and in the year 2000 namely 'Jogi'; and (d) the 'Bahun', 'Chettri' and 'Newar' Communities which got recognized and notified in the 'State List of Other Backward Classes of Sikkim in the year 2014. 6.

According to the petitioners, the history regarding ordinarily resident 'British Indian Subjects' and the 'Indian Nationals' engaged in trade, commerce and Government employment in the former Kingdom of Sikkim is pluralistic. They comprised of diverse ethnic, religious and socio-cultural backgrounds from across the territories of Undivided British India and later Independent India. The residents of Sikkim are the inhabitants of Sikkim who were permanent residents prior to the year 1975. 7. In the year 1975, the former Kingdom of Sikkim became a part of India and became known as the State of Sikkim. Till then i. e. , 26th April, 1975 (which is the 'appointed day' of its merger and incorporation with India), the Kingdom of Sikkim was ruled through a lineage of hereditary rulers of Namgyal Dynasty known as the 'Chogyal'. 8.

The history of the period prior to the merger of Sikkim with India as averred in the writ petitions could be encapsulated as under: ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J. ] (a) During the period from 1890 till 1950, the Government of the erstwhile Kingdom of Sikkim and its posts and services were subjected to various situations and conditions which have been described by the petitioners and is referred to hereunder: "(i) During the period from 1890 to 1918, the Imperial British Government exercised direct and exclusive control over the external affairs as well as the internal affairs of the Kingdom of Sikkim. At that time the British Indian Subjects were allowed to hold Office and Employment to the posts and services of the Government Establishment of the erstwhile Kingdom of Sikkim.

(ii) In 1918, the then King of Sikkim Chogyal Tashi Namgyal was given back his authority over the internal affairs of Kingdom of Sikkim; where-after he got empowered with absolute powers over all legislative, judicial and executive functions of his Kingdom; while the external affairs continued to remain under the Government of Imperial British India. From 1918 onwards, the Kingdom of Sikkim had continued to allow the British Indian Subjects to hold Office and Employment in the posts and services of the Government Establishment of the Kingdom of Sikkim i. e. 'Sikkim Darbar'. Such government employees were referred to as 'Darbar' Employees of British Indian origin. (iii) At the time immediately before India's Independence from British Paramountcy, there was a popular demand from the people of Kingdom of Sikkim for a democratic setup and its accession to the Indian Union.

During that time, a popular vote for Sikkim to join India had failed; hence the Kingdom of Sikkim did not accede to the Indian Union then. (iv) When India became independent in 1947, on the cessation of British Paramountcy from India, the Dominion of India inherited the rights and liabilities of the British Crown vis-à-vis the Indian States as on that date. The Kingdom of Sikkim not being exactly like other Indian States did not accede to the Union of India but had signed a standstill agreement for continuation of its previous relationship pending a fresh agreement with India. In the years preceding the proclamation of Republic of India (i. e. before 26th January 1950), it was agreed that the Kingdom of Sikkim was a Special Protectorate State of Indian Union, having its own separate territory.

(v) From 1947 onwards, the Kingdom of Sikkim had continued to allow the British Indian Subjects as well as Indian Nationals to hold Office and employment in the posts and services of the Government Establishment of the Kingdom of Sikkim, i. e. 'Sikkim Darbar'. Such persons of Indian origin serving/ appointed in the posts and services of Government Establishment of the Kingdom of Sikkim were referred to as 'Darbar' Employees of British Indian origins and 'Darbar' Employees of Indian Nationality. " In view of the above historical developments, persons of Indian origin belonging to diverse ethnic, religious and sociocultural backgrounds from across the territories of Undivided British India and later Independent India, resided in Sikkim for the purpose of their employment in various posts and services or for trade and business. (b) On 5th December, 1950, the Indo-Sikkim Peace Treaty was entered into and under this Treaty, Sikkim was to be a protectorate of India.

However, Sikkim still enjoyed autonomy in its internal administration. It is pertinent to note that Article VII of this Treaty allowed the subjects of Sikkim as well as Indian citizens, free movement in each other's territories. Under the said Treaty, Indians in Sikkim were subject to Sikkimese law and the Sikkimese in India were subject to Indian Laws. Indian citizens in Sikkim had reciprocal rights to hold government employment and buy immovable properties once settled in Sikkim and were to be treated equally with Sikkimese in all matters. ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J. ] (c) 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.

It is however, to be noted that, 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. (d) In 1965, the Chogyal of Sikkim notified the Sikkim Work Permit Rules, 1965, by which all foreigners required a Work Permit to enter, work and stay in Sikkim.

Significantly, the term "Foreigner" under the Sikkim Work Permit Rules, 1965, was defined as meaning a "foreigner not being Indian national". Persons of Indian origin were therefore not considered as foreigners in Sikkim and were not required to obtain a work permit irrespective of the fact that they were not Sikkim Subjects. Many of the Indians were also on the voters list of Sikkim. (e) In 1973, an agreement was entered into between India, the Chogyal and the political parties of Sikkim for the establishment of a democratic Government in Sikkim. In pursuance of the same, India was to assist in the conduct of free and fair elections in Sikkim. (f) Thereafter, on 26th April, 1975, by way of the Constitution Thirty-sixth Amendment Act, 1975, Sikkim became a State in India and was included in Entry 22 of Schedule I to the Constitution of India.

(g) Article 371-F was also inserted into the Constitution of India under which it was, inter alia, open to the President of India (within two years from the date of the Amendment) or the Parliament to extend any law to the State of Sikkim, or repeal any existing law of Sikkim. 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 21st 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 ASSOCIATION OF OLD SETTLERS OF SIKKIM AND ORS. v. UNION OF INDIA AND ANR. [B. V. NAGARATHNA, J. ] 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 th