Supreme Court Removes Remark Describing Sikkimese-Nepalis As 'Persons Of Foreign Origin' From Judgment

Update: 2023-02-08 10:50 GMT

The Supreme Court on Wednesday removed the observations in its judgment which described Sikkimese-Nepalese persons as "people of foreign origin". This remark made in the judgment passed in the case Association of Old Settlers of Sikkim vs Union of India had sparked protests in Sikkim, with Sikkimese-Nepalese community expressing strong objections.

In this backdrop, the Union of India, the State of Sikkim and third parties filed applications seeking modifications. The judgment was delivered by a bench comprising Justices MR Shah and BV Nagarathna.  The controversial portion was in the judgment authored by Justice Nagarathna which was as follows - "Therefore, there was no difference made out between the original inhabitants of Sikkim, namely the Bhutia-Lepchas and the persons of foreign origin settled in Sikkim like the Nepalis or persons of Indian origin who had settled down in Sikkim generations back".

The bench, initially, agreed to remove the part "the persons of foreign origin settled in Sikkim like the Nepalis". However, Solicitor General of India Tushar Mehta requested 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”

Today, while hearing the applications, the bench said that the writ petitioner had made certain amendments to the writ petition, which were not brought to the notice of the Court.

Justice Nagarathna, while dictating the modification order, stated :

"It is noted that in the said writ petition there was an amended writ petition filed pursuant to an application filed…unfortunately learned counsel for the writ petitioners did not bring to the notice of this court the substantial amendments brought. It was their duty to bring to the notice of the court. Now the MA has been filed seeking corrections as if error has occurred from the point of the court…however, having heard learner senior counsel for the respective parties, we think it is just and proper to correct certain words used in paragraph 10A and 68.8 in my judgment..."

The judgment in the case held that 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) of Income Tax Act as unconstitutional. The comment, which was made while describing the history of Sikkim and has no bearing on the ultimate reasoning in the judgment, sparked widespread protests in Sikkim.

Solicitor General made a further request to make a clarification that the judgment has not touched upon the aspect of Article 371F. However, the bench said that a clarification is unnecessary as Article 371F was not a subject matter of the case.


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