Descendants Cannot Seek Inclusion In Sikkim Subject Register Based Solely On Ancestor's Unused Eligibility: Sikkim High Court

A bench of Chief Justice A. Muhamed Mustaque observed:

“There is substantial evidence before this Court in the present Writ Petition to establish that Lt. Padam Bahadur Bhujel was eligible to apply for naturalisation as a Sikkim Subject. However, the renunciation of his former nationality was a matter of personal choice available exclusively to Lt. Padam Bahadur Bhujel to become eligible to be included in the Register as a Sikkim Subject. He did not exercise that option. Had he exercised that option at the relevant time, his descendants claiming through him, could have relied upon his eligibility to seek inclusion in the Register. However, in the absence of such renunciation, they are not entitled to claim inclusion in the Register merely on the basis that their predecessor was otherwise eligible to apply.”

The Court further held:

“There is absolutely no evidence to establish that Lt. Padam Bahadur Bhujel had renounced his former nationality or that he was born in Sikkim. The Petitioner, being his descendant, is not entitled to seek inclusion in the Sikkim Subject Register without first establishing that his predecessor had fulfilled the mandatory condition of renouncing the former nationality.”

The dispute arose after Kishan Kumar Bhujel, a descendant of Lt. Padam Bahadur Bhujel, approached the High Court challenging the rejection of his application for a citizenship certificate under the Sikkim Citizenship (Amendment) Order, 1989 and seeking inclusion in the Sikkim Subject Register.

The petitioner argued that his predecessor had died in 2016 without applying for naturalisation as a Sikkim Subject. Claiming to be the natural descendant of a person who was otherwise eligible for inclusion, he contended that he was entitled to seek relief under the Sikkim (Citizenship) Order, 1975, issued by the Ministry of Home Affairs.

The 1975 Order provided that every person who was a Sikkim Subject under the Sikkim Subjects Regulation, 1961 immediately before April 26, 1975, would be deemed to have become an Indian citizen from that date. The Regulation itself stood repealed with effect from April 26, 1975.

Examining the claim, the Court noted that although Lt. Padam Bahadur Bhujel was otherwise eligible to apply for naturalisation as a Sikkim Subject, the Regulation required him to renounce his former nationality. The Court found no evidence to show that he had done so.

The bench observed that renunciation of nationality was a personal choice available exclusively to the predecessor and that his descendants could not rely merely on his unexercised eligibility to claim inclusion in the Register.

The Court also clarified that neither the Sikkim (Citizenship) Order, 1975 nor the Sikkim (Citizenship) Amendment Order, 1989 created any new substantive rights.

In this regard, the bench observed:

“The scope of the 1989 Amendment Order was merely to enlarge the category of persons who could submit applications after the repeal of the Regulation, so as to rectify genuine omissions from the Register arising during the period between the years 1961 to 1975. The said Amendment Order did not dispense with or dilute the substantive condition prescribed under the Sikkim Subject Regulation, 1961, including the requirement of renunciation of former nationality wherever applicable.”

Accordingly, the Court dismissed the writ petition.