Sikkimese, Nepalese not 'people of foreign origin': SC modifies earlier order

The remark made by the top court in its earlier verdict had sparked protests in Sikkim

The Supreme Court on Wednesday ordered the removal of reference to the Sikkimese-Nepalese as "people of foreign origin" from its January 13 verdict on tax exemption in Sikkim, following a plea by the Centre and others for modification.

The remark made by the top court in its verdict had sparked protests in Sikkim, with the Sikkimese-Nepalese community taking strong objections over it.

A bench of justices MR Shah and BV Nagarathna modified its verdict while hearing the Centre's plea along with petitions filed by Sikkim and private parties seeking modification of the remark.

The top court initially agreed to remove the part "the persons of foreign origin settled in Sikkim like the Nepalese".

However, Solicitor General Tushar Mehta, appearing for the Centre, urged the bench that the entire sentence be deleted.

The bench then agreed to remove the part "namely the Bhutia Lepchas and the persons of foreign origin settled in Sikkim like the Nepalese".

It said that the error has crept in because the original writ petitioners have made more than 25 amendments to the petition but this fact was not brought to the notice of the court.

Mehta requested the court to clarify that the judgement has not touched upon the aspect of Article 371F of the Constitution which deals with special provisions with respect to Sikkim.

The bench, however, said that such a clarification is unnecessary as Article 371F was not a subject matter of the case.

In its January 13 verdict, the top court had said, "Therefore, there was no difference made out between the original inhabitants of Sikkim, namely the Bhutia-Lepchas and the person of foreign origin settled in Sikkim like the Nepalese or persons of Indian origin who had settled down in Sikkim generations back".

Justice Nagarathna, who had penned down the January 13 verdict on behalf of the bench, dictated the modification order, "It is to be noted that in the said writ petition there was an amended writ petition filed pursuant to an application filed. Unfortunately, counsel for the writ petitioners did not bring to the notice of this court the substantial amendments brought".

The bench further said, "It was their (counsel) duty to bring to the notice of the court about the fact. Now miscellaneous applications have been filed seeking corrections as if an error has occurred on the part of the court. However, after having heard the counsel for respective parties, we think it is just and proper to correct words in certain paragraphs of the judgement".

On January 13, the top court had ruled that the exclusion of a Sikkimese woman from exemption allowed under the Income Tax Act merely because she has married a non-Sikkimese man after April 1, 2008 is "discriminatory and unconstitutional".

Asserting that a woman is not a chattel and has an identity of her own, a bench of Justices M R Shah and B V Nagarathna had said that no justification has been shown to exclude a Sikkimese woman from such exemption.

"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 April 1, 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", the bench had said.

Article 14 relates to equality before law, while Article 15 forbids discrimination on grounds of religion, race, caste, sex or place of birth, and Article 21 provides for the right to life and personal liberty.

The top court had said 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 2008, "is arbitrary, discriminatory and violative of Article 14 of the Constitution of India".

Under Section 10(26AAA) of the IT Act, the income of a Sikkimese individual arising either in the state of Sikkim or by way of dividend or interest on securities is not to be included in total income for tax calculation.

The top court's verdict had come on an appeal filed by the Association of Old Settlers of Sikkim and others seeking the striking down of Section 10(26AAA) of the Income Tax 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 April 26, 1975.