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CASE NO.:

Appeal (civil) 9561-9562 of 2003

PETITIONER:

Ewanlangki-e-Rymbai

RESPONDENT:

Jaintia Hills District Council and others

DATE OF JUDGMENT: 28/03/2006

BENCH:

B.P. SINGH & ARUN KUMAR

JUDGMENT:

J U D G M E N T

AND

Elaka Jowai Secular Movement \005 Appellant

Versus

Jaintia Hills District Council and others \005 Respondents

B.P. SINGH, J.

These appeals by special leave are directed against the common

judgment and order of the Gauhati High Court dated 21st July, 2003 in Writ

Petition (C) No. 6541 of 2001 [WP (C) No.221(SH)/2002] and Writ Petition

(C) No. 6542 of 2001 [WP (C) No.222(SH)/2002] whereby the High Court

dismissed the writ petitions filed by the appellants herein.

Appellant Ewanlangki-e Rymbai, a Christian by faith is a Member of

the Jaintia Scheduled Tribe. The other appellant, namely \026 Elaka Jowai

Secular Movement is represented by its Vice Chairman and Executive

Member. In both the writ petitions the constitutional validity of Section 3 of

the United Khasi Jaintia Hills Autonomous District (Appointment and

Succession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as

'the Act of 1959') has been challenged. The writ petitions also challenged

the notice dated August 28, 2001 issued by the Jaintia Hills Autonomous

District Council, Jowai declaring the programme for the election of Dolloi in

the Elaka Jowai and also the notice dated September 4, 2001 issued by the

Secretary, Executive Committee, Jaintia Hills Autonomous District Council,

Jowai.

Section 3 of the Act of 1959 provides that subject to the provisions of

the Act and the Rules made thereunder all elections and appointments of

Chiefs and Headmen shall be in accordance with the existing customs

prevailing in the Elaka concerned. The notice dated September 4, 2001

announced the programme for the conduct of election for Dolloi in the Elaka

Jowai but the notice issued by the Secretary on behalf of the Executive

Committee, Jaintia Hills Autonomous District Council, Jowai provided that

only the members of the clans mentioned therein could contest the aforesaid

election and thereby the persons belonging to the Christian faith were

excluded from contesting the said election. The appellants contend that

exclusion of Christians from contesting the election is in violation of

Articles 14, 15 and 16 of the Constitution of India since they are excluded

only on the ground of religion. They further contend that Section 3 of the

Act of 1959 which provided that the appointment of the Chiefs or Headmen

shall be in accordance with the existing customs prevailing in the Elaka

concerned, is also bad. It gives legal sanctity to a customs which itself is in

breach of Articles 14 to 16 of the Constitution of India. In sum and sub

stance the appellants contend that exclusion of Christians from contesting

election for the post of Dolloi in Elaka Jowai is discriminatory and in breach

of Articles 14 to 16 of the Constitution of India since their exclusion is

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merely on the ground of religion.

We may notice at the threshold that Jowai District is an autonomous

District to which the provisions of Sixth Schedule of the Constitution of

India apply in view of the provisions of Article 244(2) of the Constitution of

India. The brief historical background in which the aforesaid autonomous

district was created may be noticed at this stage :-

On coming into force of the Constitution of India the United Khasi-

Jaintia Hills District was formed as one of the Tribal Areas of Assam by

merging the Khasi States with the other areas of the Khasi-Jaintia Hills,

boundaries whereof were defined by para 20(2) of the Sixth Schedule to the

Constitution (hereinafter referred to as 'the Schedule'). Under para 2(4) of

the Schedule, the administration of the aforesaid district vested in the

District Council which was clothed with administrative and judicial powers.

In view of the demand for creation of an autonomous District comprising the

Jowai sub-division of the aforesaid District, the Governor of Assam

appointed a Commission to look into the matter and make its

recommendation. The report of the Commission was placed before the

Legislative Assembly which approved the action proposed to be taken

pursuant to the report. Consequently on November 23, 1964 a Notification

was issued by the Governor of Assam creating a new autonomous District

Council for the Jowai Sub-Division by excluding Jowai Sub-division from

the United Khasi-Jaintia Hills Autonomous District with effect from

December 1, 1964. Thus the Jowai District came into existence as an

autonomous District with effect from December 1, 1964.

As earlier noticed Article 244(2) of the Constitution provides that the

provision of the Sixth Schedule shall be applied to the administration of the

tribal areas in the State of Assam. The tribal areas in Assam are governed

not by the relevant provisions of the Constitution which apply to the other

Constituent States of the Union of India but by the provisions contained in

the Sixth Schedule. These provisions purport to provide for a self-contained

code for the governance of the tribal areas forming part of Assam and they

deal with all the relevant topics in that behalf. (See : Edwingson Bareh vs.

The State of Assam and others : AIR 1966 SC 1220).

Paragraph 1 of the Sixth Schedule provides for the formation of an

autonomous district and further provides that if there are different scheduled

tribes in an autonomous district, the Governor may by public notification

divide the area or areas inhabited by them into autonomous regions.

Paragraph 2 provides for the constitution of a District Council for each

autonomous district. Similarly for each autonomous region a separate

Regional Council is provided. The administration of an autonomous district

insofar as it is not vested under the Schedule in any Regional Council within

such district, is vested in the District Council for such district. The

administration of an autonomous region is vested in the Regional Council

for such region. Sub-paragraph (6) of paragraph 2 empowers the Governor

to make Rules for the first constitution of District Councils and Regional

Councils in consultation with the existing tribal Councils or other

representative tribal organizations within the autonomous districts or regions

concerned. Paragraphs 3 to 17 make provision for the administration of the

autonomous Districts and the Regions. Paragraph 3 in particular provides

that the District Council for an autonomous district in respect of all areas

within the district except those which are under the authority of Regional

Councils, if any, shall have power to make laws with respect to the matters

enumerated therein which provide inter alia \026 "for the appointment or

succession of Chiefs or Headmen". The laws made under this paragraph are

required to be submitted forthwith to the Governor and, until assented to by

him, shall have no effect.

In exercise of powers conferred upon him by sub-paragraph (6) of

paragraph 2, the Governor framed rules called "the Assam Autonomous

Districts (Constitution of District Councils) Rules, 1951". The Rules

provide, inter alia, for the constitution of an Executive Committee consisting

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of the Chief Executive Members as the head and two other members to

exercise the executive functions of the District Council.

After the coming into the existence of Jowai District as an

autonomous District the Jowai Autonomous District Act, 1967 was enacted.

The provisions of this Act were made applicable to the Jowai Autonomous

District and the Rules of 1951, as amended from time to time, were made

applicable. The Act, Rules and Regulations framed under the United Khasi-

Jaintia Hills District Council as listed in Appendix \026 I were also made

applicable to the Jowai Autonomous District till such time the Jowai

Autonomous District Council made its own laws. Appendix \026 I includes the

United Khasi Jaintia Hills Autonomous District (Appointment and

Succession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as

'the 1959 Act') which was made applicable to the Jowai District Council.

Section 2 (a), (b) and (g) of the 1959 Act are as follows :-

"2. Definition. \026 In this Act, unless the context otherwise

requires, the following expressions shall have the meanings

hereby respectively assigned to them, that is to say :-

(a) "Chief" means a Sylem, a Lyngdoh, a Dolloi, a Sirdar or

a Wahadadar as the case may be, of any Elaka.

(b) "Custom" with reference to any Elaka means any rule

regarding the appointment of a Chief or Headman for that

Elaka which having been continuously and uniformly

observed for a long time, has obtained the force of law in

that Elaka.

\005. \005. \005.

(g) "Elaka" means any administrative unit in the District

specified in Appendixes I, II and III or any other

administrative unit to be constituted and declared as

such by the Executive Committee."

Section 3 reads as follows :-

"3. Elections and Appointment of Chiefs and Headmen. -

Subject to the provision of this Act and the Rules made

thereunder all elections and appointments of Chiefs or

Headmen shall be in accordance with the existing customs

prevailing in the Elaka concerned."

All appointments of Chiefs are made subject to the approval of the

District Council which may confirm such appointments under terms and

conditions which it may by Rules, from time to time, adopt.

Under Appendix \026 III Jowai has been specified as an Elaka, headed by

a Chief who would be a Dolloi. Apart from challenging the constitutional

validity of Section 3 of the Act of 1959, appellants also challenge the

validity of the notice issued by the Secretary of Executive Committee of

Jowai District dated September 4, 2001 which is reproduced below :-

"OFFICE OF THE JAINTIA HILLS AUTONOMOUS DISTRICT

COUNCIL, JOWAI

NOTICE

DATED JOWAI, THE 4TH SEPT. 2001

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This is Public Notice that the Executive Committee, Jaintia

Hills Autonomous District Council, Jowai after thorough investigation

and scrutinisation has decided that the following Clans has the right to

stand for the election of the Dolloiship in the Elaka Jowsai :

"A' From the Clan Sookpoh Khatar Wyrnai

1. Pasubon 2. Rngad 3. Lipon

4. Nikhla 5. War 6. Pakyntein

7. Leinphoh 8. Singphoh 9. Niangphoh

10. Kathphoh 11. Kynjing 12. Lakiang

13. Blein 14. Lanong 15. Lywait

16. Kma 17. Lytan-Mutyen 18. Pawet

19. Nangbah 20. Siangbood 21. Syngkon bad

22. Langodh.

"B" From the Clan Le-Kyllung

1. Rymbai 2. Najiar 3. Toi

"C" From the Clan Talang-Lato

1. Lato 2. Thma 3. Chynret

The Executive Committee has decided those who can contest

for the Dolloiship should be only those who are from the Niam Tynrai

Niamtre (Non Christians) who will practice the indigenous religion

within the Raij Jowai.

Sd/- E.M . Lyngdoh

Secretary, Executive Committee

Jaintia Hills Autonomous District

Council, Jowai"

It is not disputed before us that Dolloi performs Administrative as

well as religious functions and a Christian cannot perform the religious

functions which are performed by Dolloi. However, the appellants have

impunged Section 3 of the Act of 1959 and the notifications issued on the

following grounds:-

i) The Notification issued is a law within the meaning of

Article 13 (3) (a) of the Constitution of India.

ii) Being a law preventing a person belonging to a particular

religion from contesting election to a public post is

violative of Articles 14, 15 and 16 of the Constitution of

India, and therefore, void.

iii) Section 3 which provides for the Election and

Appointment of Dolloi in accordance with custom is void

since the customs itself clearly discriminates on the

ground of religion. A custom must give way to

fundamental right and any custom which offends the

fundamental rights of a citizen must be held to be invalid.

On the other hand learned counsel appearing for the respondents

submitted that there is no violation of Articles 14, 15 and 16 of the

Constitution of India since reasonable classification is permissible in law

and the exclusion of Christians from contesting the election is not only on

the ground of religion, but on the ground that they are unable to perform

religious functions of the office of Dolloi. It is further submitted that indeed

the provisions only serve to conserve the tribal culture which itself is a

fundamental right guaranteed under Article 29 of the Constitution of India.

In substance, the impugned law and the notifications do not incur the wrath

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of Articles 14 to 16 of the Constitution, on the contrary, they enjoy the

protection of Article 29 of the Constitution of India.

On a consideration of the material placed before it the High Court

came to the conclusion that a custom prevailed in the Elaka Jowai which on

account of its long practice and by common consent acquired the status of a

governing rule for election and appointment of Dolloi to perform both

administrative and religious functions. The fact that the Dolloi in Elaka

Jowai is required to perform both administrative and the religious functions

as prevalent by custom is not disputed. What was submitted on behalf of the

appellants was that 2 persons could be called upon to perform those duties,

one performing the administrative duties and the other the religious

functions. Only 2 instances were cited when Christians were appointed as

Dolloi of Elaka Jowai. In the year 1890 an attempt was made to install a

person who had converted himself into Chiristianity as Dolloi of Elaka

Jowai, but he had to face the wrath of the people in performing the religious

functions and ultimately had to resign from the post. In the other case the

Dolloi had to be removed by issuance of an order of termination. The High

Court found that since time immemorial the custom is to appoint one Dolloi

who has to perform both administrative as well as religious functions.

Moreover under the United Khasi-Jaintia Hills Autonomous District

(Appointment and Succession of Chiefs and Headmen) Act, 1959 (Act

No.11 of 1959) "service land" and "puja land" were given to Dolloi who

was appointed as the "Chief". "Service land" which was revenue free land

was held and cultivated by the Chief or the Headman in lieu of monetary

remuneration for services rendered. "Puja land" was revenue free land held

and cultivated by him and the income yielded therefrom utilized by him in

meeting expenses connected with the religious performances according to

customs of the Elaka. The High Court, therefore, recorded a finding that

there was a custom prevalent for a long period which was invariably

practiced to the effect that the "Chief", namely the Dolloi must perform

administrative as well as religious duties. There was no customs to appoint

two Dollois \026 one for the performance of administrative duties and the other

for the performance of religious functions. Deviation for a short period on

account of existing emergency which needed immediate correction did not

derogate from its character as a custom. The High Court concluded thus :-

"On reading Section 3 read with Section 2(j) and 2(k) of the

Act, 1959 and on the pleadings of the parties we hold that the

Dolloi elected and appointed in Elaka Jowai was required to

perform the executive function as well as religious functions

which is a custom prevalent in the Elaka. We further hold that

there cannot be two Dollois one performing the administrative

functions and the other performing the religious functions.

Under the Act, 1959 there can be only one Dolloi performing

both administrative as well as religious functions".

An argument was advanced before the High Court, which was not

advanced before us, that the notice issued on September 4, 2001 by the

Secretary, Executive Committee, of the Jowai Autonomous District Council

was without jurisdiction and authority. The High Court negatived the

contention and held that the Executive Committee in exercise of its

delegated powers can issue such a public notice for appointment by election

of Dolloiship in Elaka Jowai in the absence of rules, regulations or

enactments providing for such election and appointment. Reliance was

placed on a judgment of this Court in Edwingson Bareh vs. The State of

Assam and others (supra). However, the High Court held that any

law/regulation/rule/notification made or action taken under the Sixth

Schedule by the District Council or the Executive Committee formed by the

District Council must not in any manner commit a breach of any of the

fundamental rights guaranteed under Part III of the Constitution of India.

The High Court then proceeded to consider the submission urged

before it that the exclusion of Christians from contesting election to the post

of Dolloi violated Articles 14, 15 and 16 of the Constitution of India. In

doing so the High Court also noticed Articles 25 and 26 of the Constitution

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of India and ultimately concluded that there was no breach of Articles 14, 15

and 16 of the Constitution of India and in fact it protected the rights

guaranteed under Articles 25 and 26 of the Constitution of India.

The appellants in these appeals have challenged the correctness of the

decision of the High Court.

Shri P.K. Goswami, learned senior counsel appearing on behalf of the

District Council (respondents 1 to 3) submitted that the High Court was right

in holding that having regard to the facts of the case and the nature of the

office of Dolloi, the notice excluding Christians from contesting for the post

of Dolloi was fully justified. Dolloi performs administrative as well as

religious functions. Such a custom and such an office existed since time

immemorial and acquired the status of well preserved custom. It, therefore,

became the duty of the State to ensure the right guaranteed under Article 26

of the Constitution of India. This was not really a case to which Articles 15

and 16 were applicable, but even assuming that to be so, there was no

discrimination since the exclusion of Christians was not only on the ground

of religion, but on the ground that they could not perform the religious

functions of the office which by custom a Dolli was required to perform. It

is submitted that under Articles 14, 15 and 16 of the Constitution of India

reasonable classification was permissible. In particular he drew our

attention to Article 26(b) of the Constitution of India and submitted that

since the office of Dolloi involves the performance of both the

administrative as well as religious duties, the concerned tribes had a right to

manage their own affairs in matter of religion. He relied upon authorities

in support of his submission that the right of the tribes to have a Dolloi who

could perform administrative as well as religious functions was a right

guaranteed under Article 26 of the Constitution of India.

Mr. R.F. Nariman, learned senior counsel appearing on behalf of

respondents 5 and 6 analysed the provisions of Articles 14, 15, 16, 25, 26

and 29 of the Constitution of India and submitted that Article 14 permitted

reasonable classification in accordance with well settled principles. Article

15 was a species of Article 14 inasmuch it prohibited the State from

discriminating against any citizen on the ground only of religion, race, caste,

sex place of birth or any of them. However, he emphasized the use of the

words "on ground only of religion". Thus if a citizen is discriminated

against "on ground only of religion", such action may be unconstitutional.

That however, is not the case here. The exclusion is on account of the

admitted fact that a Christian cannot perform the religious duties of a Dolloi.

Article 16 guarantees equality of opportunity in matters of public

employment but clause (5) thereof expressly provides that nothing in the

article shall affect the operation of any law which provides that the

incumbent of an office in connection with the affairs of any religious or

denominational institution or any member of the governing body thereof

shall be a person professing a particular religion or belonging to a particular

denomination. He submitted that the right guaranteed under Article 25 of

the Constitution was subject to other provisions of Part III of the

Constitution of India but so far as Article 26 was concerned, it was only

subject to public order, morality and health. So far as Article 29 is

concerned it is a absolute right guaranteed for the conservation of a

language, script or culture. He submitted that the rights protected are those

guaranteed under Article 26(b) and 29(1) of the Constitution. He, therefore,

submitted that election of a tribal head with all concomitants thereof was

part of the tribal culture. The Constitution guarantees uniformity in

diversity. The cultural rights under Article 29 of the Constitution of India

are couched in the widest language unlike under Articles 25 and 26, which

are subject to certain limitations. Having regard to the nature of duties to be

performed by a Dolloi the person elected as Dolloi must be religiously

proficient to perform his religious duties. It was really with a view to

preserve their culture that a Christian was excluded from contesting the

office of Dolloi which involved performance of religious duties, which he

could not perform. It was a core aspect of the tribal culture that Dolloi must

perform administrative functions as well as religious functions which

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involve performance of religious ceremonies which the High Court has

elaborated in great detail. According to him, Articles 14 to 16 were not at all

breached and in the ultimate analysis the right guaranteed under Article 29

must prevail since it is the mandate of Article 29 that such cultural rights

must be preserved. There is force in the submissions advanced on behalf of

the respondents.

Article 14 ensures equality before law, which means that only persons

who are in like circumstances should be treated equally. To treat equally

those who are not equal would itself be violative of Article 14 which

embodies a rule against arbitrariness. Thus classification is permissible if it

satisfies the twin test of its being founded on intelligible differentia, which in

turn has a rational nexus with the object sought to be achieved.

Article 15 prohibits the State from discriminating against any citizen

on grounds only of religion, race, caste, sex, place of birth or any of them.

This, however, is subject to the exception carved out by clauses 3 and 4

which permit special provisions to be made in favour of women and

children, and for socially and educationally backward classes of citizens i.e.

for the Scheduled Castes and Scheduled Tribes. These are exceptions to the

rule embodied in clauses (1) and (2) of Article 15.

Article 16 also embodies the rule against discrimination, but is limited

in its scope than Article 15, since it is confined to office or employment

under the State, whereas Article 15 covers the entire range of State activities.

Descent and residence are the two additional grounds on which

discrimination is not permissible under Article 16. But the rule is again

subject to the exceptions carved out by clauses 3 to 5 thereof. Clause 5 is

relevant for our purpose, and it provides as under :-

"(5) Nothing in this article shall affect the operation of any

law which provides that the incumbent of an office in

connection with the affairs of any religious or denominational

institution or any member of the governing body thereof shall

be a person professing a particular religion or belonging to a

particular denomination."

Thus Article 14 lays down the rule of equality in the widest term,

while Article 15 prohibit discrimination on grounds specified therein but

covering the entire range of State activities. Article 16 embodies the same

rule but is narrower in its scope since it is confined to State activities relating

to office or employment under the State. Both Articles 15 and 16 operate

subject to exceptions therein. It has been so laid down by this Court in

Government of A.P. vs. P.B. Vijayakumar and another : (1995) 4 SCC 520

and in Cazula Dasaratha Rama Rao vs. State of Andhra Pradesh and

others : AIR 1961 SC 564.

Counsel for the appellants submitted that prohibition against

contesting for the post of Dolloi on the ground of religion ex-facie amounted

to discrimination on the ground of religion. On the contrary the respondents

contend that the exclusion is not on the ground of religion alone, and

therefore, does not invite the wrath of Articles 15 and 16. The exclusion is

justified on the ground that those who cannot perform the dual nature of

functions of the Dolloi, namely administrative and religious \026 cannot be

eligible for the post. The exclusion, therefore, is neither arbitrary nor

irrational. It is axiomatic that one who cannot perform the duties attached to

the office must be held to be ineligible to hold the office. His exclusion,

therefore, cannot be considered as either unreasonable or arbitrary or

discriminatory.

The submission urged on behalf of the respondents must be accepted.

We have earlier noticed the findings of the High Court to the effect that it is

the tribal custom of the Elaka that the Dolloi of the Elaka Jowai must

perform both the administrative and religious functions of his office. The

High Court has exhaustively considered the evidence on record and

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considered the various rituals and observances, practices, poojas,

ceremonies, customary religious functions which are regarded as integral

part of religious customs, and which the Dolloi must perform in the

discharge of his duties as the Dolloi. Such rituals, observances, ceremonies

etc. are many in number. The material on record leaves no room for doubt

that the office of Dolloi with its dual functions, administrative and religious,

is a part of the tribal religion and culture, governed by custom since time

immemorial. It logically follows that the Dolloi must be one who is

conversant with the indigenous religious practices of the inhabitants of the

Elaka. He must be one who should be able to lead the people of the Elaka in

the religious ceremonies according to their custom, and must also be

competent to perform the rituals, practices, poojas, ceremonies etc. which he

is required to perform as a duty attached to his office. It is not disputed that

a Christian cannot perform the indigenous religious functions which a Dolloi

is required to perform, apart from his administrative functions. By long

standing custom, the Dolloi must perform both administrative and religious

functions, and such duties cannot be bifurcated by appointing one other to

perform the religious functions only. There is no such custom prevalent in

the Elaka. In its long history, such a thing happened only twice, and on both

occasions there was a public outcry resulting in dismissal of the Dolloi in

one case and his resignation in the other. The custom cannot be said to be

discontinued or destroyed by such aberrations. The High Court has also

noticed the judicial recognition given to the customary practice in the Khasi

and Jaintia Hills that a Dolloi cannot be a Christian.

Having regard to all these facts, we are in agreement with the High

Court that by excluding Christians from contesting the post of Dolloi,

Articles 14, 15 and 16 are not violated. The exclusion is justified by goond

reason, since admittedly the religious duties of a Dolloi of Elaka Jowai

cannot be performed by a Christian. Thus the ground for exclusion of

Christians is not solely the ground of religion, but on account of the admitted

fact that a Christian cannot perform the religious functions attached to the

office of Dolloi. The reason cannot be said to be either unreasonable or

arbitrary.

Counsel for the appellants relied upon the decision of this Court in

John Vallamattom and another vs. Union of India : (2003) 6 SCCC 611,

wherein this Court considered the challenge to the constitutional validity of

Section 118 of the Succession Act, 1925. The aforesaid provision was

struck down by this Court on the ground of arbitrariness violating Article 14

of the Constitution. It found that even the classification of the Christians as

a class by themselves was neither based on any intelligible differentia nor

had any nexus with the object sought to be achieved. It was, therefore, held

to be discriminatory as also arbitrary. But the challenge based on Article 15

of the Constitution was repelled in the following words :-

" So far as the second argument of the learned counsel for

the petitioner is concerned, it is suffice to say that Article 15 of

the Constitution of India may not have any application in the

instant case as the discrimination forbidden thereby is only such

discrimination as is based, inter alia, on the ground that a

person belongs to a particular religion. The said right conferred

by clause (1) of Article 15 being only on a "citizen", the same is

an individual right by way of a guarantee which may not be

subjected to discrimination in the matter of rights, privileges

and immunities pertaining to him as a citizen. In other words,

the right conferred by Article 15 is personal. A statute, which

restricts a right of a class of citizens in the matter of

testamentary disposition who may belong to a particular

religion, would, therefore, not attract the wrath of clause (1) of

Article 15 of the Constitution of India."

Mr. Nariman is, therefore, right in distinguishing this case on facts

and the nature of legislation challenged and the infirmities found. In fact, as

he rightly submits, this decision, if at all, supports the case of the

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respondents, so far as challenge based on Article 15 is concerned.

The appellants next relied on the decision of this Court in Madhu

Kishwar and others vs. State of Bihar and others : (1996) 5 SCC 125. In

that case the constitutional validity of Sections 7, 8 and 76 of the Chotanagar

Tenancy Act, 1908 was challenged on the ground that the provisions

violated Articles 14, 15 and 21 of the Constitution of India. The right to

intestate succession of Scheduled Tribe Women was governed by custom.

Sections 7 and 8 provided for exclusive right of male succession to the

tenancy rights. Section 76 of the Act saved any custom, usage, or customary

right not inconsistent with, or not expressly or by necessary implication

modified or abolished by the provisions of the Act. This Court did not

consider it desirable to declare the customs of tribal inhabitants as offending

Articles 14, 15 and 21 of the Constitution of India, though each case must be

examined when full facts are placed before the Court. This Court however

gave some relief to female dependents by declaring that upon the death of

the male tenant, they could hold on to the land so long as they remained

dependent on it for earning their livelihood, for otherwise it would render

them destitute. Thus the exclusive right of male succession conceived of in

Sections 7 and 8 has to remain in suspended animation so long as the right of

livelihood of the female descendants of the male holder remained valid and

in vogue. We find no principle laid down in this decision to support the case

of the appellants herein, who in effect seek to challenge the validity of a

custom recognized by and given effect to, by law. On the contrary, this

Court was of the view that striking down such a law on the touchstone of

Article 14 would bring about a chaos in the existing state of law.

We also do not find anything in the decision of this Court in State of

Kerala and another vs. Chandramohnan: (2004) 3 SCC 429 to support the

case of the appellants. All that was held in that case was that by mere

conversion to Christanity one does not cease to be a Scheduled Tribe if

despite conversion he continues to follow the tribal traits and customs. No

such question arose in this case.

None of the decisions cited by the appellants supports the challenge to

Section 3 of the Act of 1959 and the Notifications impugned in the writ

petitions on the ground of violation of Articles 14, 15 and 16 of the

Constitution. On the other hand counsel for the respondents relied upon

decisions in support of their contention, that the exclusion of Christians from

contesting the election to the post of Dolloi in Jowai Elaka is not only on the

ground of religion and, therefore, their exclusion cannot be challenged on

the ground of violating Articles 15 and 16 of the Constitution of India. It

was also contended that historical reasons may as well support the

classification, provided it is rational and bears a nexus with the object sought

to be achieved. It was submitted that what was sought to be protected was

indeed the tribal culture of the people inhabiting the autonomous District of

Jowai. Their tribal sentiments and religious values have been sought to be

protected and given due respect having regard to social and economic

considerations of the tribals inhabiting in the autonomous District. Thus

they contend that the exclusion is not based only on the ground of religion

and consequently there is no discrimination within the meaning of Articles

15 and 16 of the Constitution of India. In this connection they have relied

upon a decision of this Court in Air India vs. Nergesh Meerza and others :

(1981) 4 SCC 335 wherein this Court observed :-

"Even otherwise, what Articles 15(1) and 16(2) prohibits is that

discrimination should not be made only and only on the ground

of sex. These articles of the Constitution do not prohibit the

State from making discrimination on the ground of sex coupled

with other considerations. On this point, the matter is no longer

res integra but is covered by several authorities of this Court."

In Clarence Pais and others vs. Union of India : (2001) 4 SCC 325

the challenge to Section 213 and 57 of the Succession Act, 1925 was

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considered and repelled. No doubt this Court held that the basis of the

challenge, namely \026 that Section 213(1) of the Act was applicable only to

Christians and not to any other religion, was not correct. However, the

Court made pertinent observations in the following words :-

"We have shown above that it is applicable to Parsis after the

amendment of the Act in 1962 and to Hindus who reside within

the territories which on 1.9.1870 were subject to the Lt.

Governor of Bengal or to areas covered by original jurisdiction

of the High Courts of Bombay and Madras and to all wills

made outside those territories and limits so far as they relate to

immovable property situate within those territories and limits. If

that is so, it cannot be said that the section is exclusively

applicable only to Christians and, therefore, it is discriminatory.

The whole foundation of the case is thus lost. The differences

are not based on any religion but for historical reasons that in

the British Empire in India, probate was required to prove the

right of a legatee or an executor but not in Part "B" or "C"

States. That position has continued even after the Constitution

has come into force. Historical reasons may justify differential

treatment of separate geographical regions provided it bears a

reasonable and just relation to the matter in respect of which

differential treatment is accorded. Uniformity in law has to be

achieved, but that is a long drawn process. Undoubtedly, the

States and Union should be alive to this problem. Only on the

basis that some differences arise in one or the other States in

regard to testamentary succession, the law does not become

discriminatory so as to be invalid. Such differences are bound

to arise in a federal set up."

In R.C. Poudyal vs. Union of India and others : 1994 Supp. (1) SCC

324 reservation of one seat for the Sangha in the Sikkim Assembly was

challenged. In the reply it was urged that though Sangha was essentially a

religious institution of the Buddhists, it however, occupied a unique position

in the political, social and cultural life of the Sikkimese Society and the one

seat reserved for it cannot, therefore, be said to be based on considerations

'only' of religion. This Court repelled the contention that reservation of one

seat in favour of the Sangha is one purely based on religious considerations

and, therefore, violative of Articles 15(1) and 325 of the Constitution of

India and offended its secular principles. This Court held :-

"The Sangha, the Buddha and the Dharma are the three

fundamental postulates and symbols of Buddhism. In that sense

they are religious institutions. However, the literature on the

history of development of the political institutions of Sikkim

adverted to earlier tend to show that the Sangha had played an

important role in the political and social life of the Sikkimese

people. It had made its own contribution to the Sikkimese

culture and political development. There is material to sustain

the conclusion that the 'Sangha' had for long associated itself

closely with the political developments of Sikkim and was

inter-woven with the social and political life of its people. In

view of this historical association, the provisions in the matter

of reservation of a seat for the Sangha recognises the social and

political role of the institution more than its purely religious

identity. In the historical setting of Sikkim and its social and

political evolution the provision has to be construed really as

not invoking the impermissible idea of a separate electorate

either. Indeed, the provision bears comparison to Art. 333

providing for representation for the Anglo-Indian community.

So far as the provision for the Sangha is concerned, it is to be

looked at as enabling a nomination but the choice of the

nominee being left to the 'Sangha' itself. We are conscious that

a separate electorate for a religious denomination would be

obnoxious to the fundamental principles of our secular

Constitution. If a provision is made purely on the basis of

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religious considerations for election of a member of that

religious group on the basis of a separate electorate, that would,

indeed, be wholly unconstitutional. But in the case of Sangha, it

is not merely a religious institution. It has been historically a

political and social institution in Sikkim and the provisions in

regard to the seat reserved admit of being construed as a

nomination and the Sangha itself being assigned the task of and

enabled to indicate the choice of its nominee. The provision can

be sustained on this construction. Contention (g) is answered

accordingly."

These decisions do justify the stand of the respondents that unless it is

shown that the exclusion of Christians was only on religious ground, the

challenge cannot be sustained. In the instant case, we have noticed the

reasons why such an exclusion was made and we have also held that the

reasons therefor are neither arbitrary nor unreasonable. We, therefore,

conclude agreeing with the High Court that Section 3(1) of the Act of 1959

as also the Notifications impugned in the writ petitions cannot be struck

down on the ground of violation of Articles 14, 15 and 16 of the

Constitution of India.

We may notice that the High Court has held that the spiritual

fraternity represented by classes belonging to Niam Tynrai Niamtre (Non-

christian) who practice the indigenous religion within the Raij Jowai is a

socio cultural religious organization of Jaintia people who follow Niam

Tynrai Niamtre faith. They are governed by common customary laws of

their own in the matters of administration as well in following religious

faith. These classes within the Raij Jowai being followers of Niam Tynrai

Niamtre are certainly a religious denomination within the meaning of Article

26 of the Constitution of India.

Before us also, Mr. Goswami, learned counsel appearing for the

respondents urged submissions based on Articles 25 and 26 of the

Constitution of India. Mr. Nariman, however, laid emphasis on Article 29 of

the Constitution of India and submitted that the effort was really to conserve

the culture of the tribal population in the autonomous District and, therefore,

protected by Article 29 of the Constitution of India. These are matters

which may require consideration in an appropriate case. So far as the instant

case is concerned, having found that the challenge to the impugned

provisions and Notifications was not sustainable on the ground of violation

of Articles 14, 15 and 16 of the Constitution of India, it is not necessary for

us to deal with other issues which the respondents have urged on the basis of

Articles 25, 26 and 29 of the Constitution of India in support of their stand.

In the result these appeals fail and are dismissed.