{"id":178721,"date":"2006-03-28T00:00:00","date_gmt":"2006-03-27T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ewanlangki-e-rymbai-vs-jaintia-hills-district-council-on-28-march-2006"},"modified":"2015-02-13T11:39:43","modified_gmt":"2015-02-13T06:09:43","slug":"ewanlangki-e-rymbai-vs-jaintia-hills-district-council-on-28-march-2006","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ewanlangki-e-rymbai-vs-jaintia-hills-district-council-on-28-march-2006","title":{"rendered":"Ewanlangki-E-Rymbai vs Jaintia Hills District Council … on 28 March, 2006"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ewanlangki-E-Rymbai vs Jaintia Hills District Council … on 28 March, 2006<\/div>\n
Author: B Singh<\/div>\n
Bench: B.P. Singh, Arun Kumar<\/div>\n
           CASE NO.:\nAppeal (civil)  9561-9562 of 2003\n\nPETITIONER:\nEwanlangki-e-Rymbai\n\nRESPONDENT:\nJaintia Hills District Council and others\n\nDATE OF JUDGMENT: 28\/03\/2006\n\nBENCH:\nB.P. SINGH & ARUN KUMAR\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T
\nAND
\nElaka Jowai Secular Movement\t\t\t \t\t     Appellant
\nVersus
\nJaintia Hills District Council and others\t \t\t   Respondents<\/p>\n
B.P. SINGH, J.\n<\/p>\n
\tThese appeals by special leave are directed against the common
\njudgment and order of the Gauhati High Court dated 21st July, 2003 in Writ
\nPetition (C) No. 6541 of 2001 [WP (C) No.221(SH)\/2002] and Writ Petition
\n(C) No. 6542 of 2001 [WP (C) No.222(SH)\/2002] whereby the High Court
\ndismissed the writ petitions filed by the appellants herein.\n<\/p>\n
\tAppellant Ewanlangki-e Rymbai, a Christian by faith is a Member of
\nthe Jaintia Scheduled Tribe.  The other appellant, namely  Elaka Jowai
\nSecular Movement is represented by its Vice Chairman and Executive
\nMember.  In both the writ petitions the constitutional validity of Section 3 of
\nthe United Khasi Jaintia Hills Autonomous District (Appointment and
\nSuccession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as
\n‘the Act of 1959’) has been challenged.  The writ petitions also challenged
\nthe notice dated August 28, 2001 issued by the Jaintia Hills Autonomous
\nDistrict Council, Jowai declaring the programme for the election of Dolloi in
\nthe Elaka Jowai and also the notice dated September 4, 2001 issued by the
\nSecretary, Executive Committee, Jaintia Hills Autonomous District Council,
\nJowai.\n<\/p>\n
Section 3 of the Act of 1959 provides that subject to the provisions of
\nthe Act and the Rules made thereunder all elections and appointments of
\nChiefs and Headmen shall be in accordance with the existing customs
\nprevailing in the Elaka concerned.  The notice dated September 4, 2001
\nannounced the programme for the conduct of election for Dolloi in the Elaka
\nJowai but the notice issued by the Secretary on behalf of the Executive
\nCommittee, Jaintia Hills Autonomous District Council, Jowai provided that
\nonly the members of the clans mentioned therein could contest the aforesaid
\nelection and thereby the persons belonging to the Christian faith were
\nexcluded from contesting the said election.  The appellants contend that
\nexclusion of Christians from contesting the election is in violation of
\nArticles 14, 15 and 16 of the Constitution of India since they are excluded
\nonly on the ground of religion.  They further contend that Section 3 of the
\nAct of 1959 which provided that the appointment of the Chiefs or Headmen
\nshall be in accordance with the existing customs prevailing in the Elaka
\nconcerned, is also bad.  It gives legal sanctity to a customs which itself is in
\nbreach of Articles 14 to 16 of the Constitution of India.  In sum and sub
\nstance the appellants contend that exclusion of Christians from contesting
\nelection for the post of Dolloi in Elaka Jowai is discriminatory and in breach
\nof Articles 14 to 16 of the Constitution of India since their exclusion is
\nmerely on the ground of religion.\n<\/p>\n
We may notice at the threshold that Jowai District is an autonomous
\nDistrict to which  the provisions of Sixth Schedule of the Constitution of
\nIndia apply in view of the provisions of Article 244(2) of the Constitution of
\nIndia.  The brief historical background in which the aforesaid autonomous
\ndistrict was created may be noticed at this stage :-\n<\/p>\n
On coming into force of the Constitution of India the United Khasi-
\nJaintia Hills District was formed as one of the Tribal Areas of Assam by
\nmerging the Khasi States with the other areas of the Khasi-Jaintia Hills,
\nboundaries whereof were defined by para 20(2) of the Sixth Schedule to the
\nConstitution (hereinafter referred to as ‘the Schedule’).  Under para 2(4) of
\nthe Schedule, the administration of the aforesaid district vested in the
\nDistrict Council which was clothed with administrative and judicial powers.
\nIn view of the demand for creation of an autonomous District comprising the
\nJowai sub-division of the aforesaid District, the Governor of Assam
\nappointed a Commission to look into the matter and make its
\nrecommendation.  The report of the Commission was placed before the
\nLegislative Assembly which approved the action proposed to be taken
\npursuant to the report.  Consequently on November 23, 1964 a Notification
\nwas issued by the Governor of Assam creating a new autonomous District
\nCouncil for the Jowai Sub-Division by excluding Jowai Sub-division from
\nthe United Khasi-Jaintia Hills Autonomous District with effect from
\nDecember 1, 1964.  Thus the Jowai District came into existence as an
\nautonomous District with effect from December 1, 1964.\n<\/p>\n
As earlier noticed Article 244(2) of the Constitution provides that the
\nprovision of the Sixth Schedule shall be applied to the administration of the
\ntribal areas in the State of Assam.  The tribal areas in Assam are governed
\nnot by the relevant provisions of the Constitution which apply to the other
\nConstituent States of the Union of India but by the provisions contained in
\nthe Sixth Schedule.   These provisions purport to provide for a self-contained
\ncode for the governance of the tribal areas forming part of Assam and they
\ndeal with all the relevant topics in that behalf.  (See : Edwingson Bareh  vs.
\nThe State of Assam and others<\/a> : AIR 1966 SC 1220).\n<\/p>\n
Paragraph 1 of the Sixth Schedule provides for the formation of an
\nautonomous district and further provides that if there are different scheduled
\ntribes in an autonomous district, the Governor may by public notification
\ndivide the area or areas inhabited by them into autonomous regions.
\nParagraph 2 provides for the constitution of a District Council for each
\nautonomous district.   Similarly for each autonomous region a separate
\nRegional Council is provided.  The administration of an autonomous district
\ninsofar as it is not vested under the Schedule in any Regional Council within
\nsuch district, is vested in the District Council for such district.  The
\nadministration of an autonomous region is vested in the Regional Council
\nfor such region.  Sub-paragraph (6) of paragraph 2 empowers the Governor
\nto make Rules for the first constitution of District Councils and Regional
\nCouncils in consultation with the existing tribal Councils or other
\nrepresentative tribal organizations within the autonomous districts or regions
\nconcerned.  Paragraphs 3 to 17 make provision for the administration of the
\nautonomous Districts and the Regions.  Paragraph 3 in particular provides
\nthat the District Council for an autonomous district in respect of all areas
\nwithin the district except those which are under the authority of Regional
\nCouncils, if any, shall have power to make laws with respect to the matters
\nenumerated therein which provide inter alia  “for the appointment or
\nsuccession of Chiefs or Headmen”.  The laws made under this paragraph are
\nrequired to be submitted forthwith to the Governor and, until assented to by
\nhim, shall have no effect.\n<\/p>\n
In exercise of powers conferred upon him by sub-paragraph (6) of
\nparagraph 2, the Governor framed rules called “the Assam Autonomous
\nDistricts (Constitution of District Councils) Rules, 1951”.  The Rules
\nprovide, inter alia, for the constitution of an Executive Committee consisting
\nof the Chief Executive Members as the head and two other members to
\nexercise the executive functions of the District Council.\n<\/p>\n
After the coming into the existence of Jowai District as an
\nautonomous District the Jowai Autonomous District Act, 1967 was enacted.
\nThe provisions of this Act were made applicable to the Jowai Autonomous
\nDistrict and the Rules of 1951, as amended from time to time, were made
\napplicable.   The Act, Rules and Regulations framed under the United Khasi-
\nJaintia Hills District Council as listed in Appendix  I were also made
\napplicable to the Jowai Autonomous District till such time the Jowai
\nAutonomous District Council made its own laws.  Appendix  I includes the
\nUnited Khasi Jaintia Hills Autonomous District (Appointment and
\nSuccession of Chiefs and Headmen) Act, 1959 (hereinafter referred to as
\n‘the 1959 Act’) which was made applicable to the Jowai District Council.\n<\/p>\n
Section 2 (a), (b) and (g) of the 1959 Act are as follows  :-\n<\/p>\n
“2.  Definition.  In this Act, unless the context otherwise
\nrequires, the following expressions shall have the meanings
\nhereby respectively assigned to them, that is to say :-\n<\/p>\n
(a)\t“Chief” means a Sylem, a Lyngdoh, a Dolloi, a Sirdar or
\na Wahadadar as the case may be, of any Elaka.\n<\/p>\n
(b)\t“Custom” with reference to any Elaka means any rule
\nregarding the appointment of a Chief or Headman for that
\nElaka which having been continuously and uniformly
\nobserved for a long time, has obtained the force of law in
\nthat Elaka.\n<\/p>\n
.\t\t\t\t.\t\t\t\t.\n<\/p>\n
(g)\t“Elaka” means any administrative unit in the District
\nspecified in Appendixes I, II and III or any other
\nadministrative unit to be constituted and declared as
\nsuch by the Executive Committee.”\n<\/p>\n
Section 3 reads as follows :-\n<\/p>\n
“3.  Elections and Appointment of Chiefs and Headmen. –
\nSubject to the provision of this Act and the Rules made
\nthereunder all elections and appointments of Chiefs or
\nHeadmen shall be in accordance with the existing customs
\nprevailing in the Elaka concerned.”\n<\/p>\n
\tAll appointments of Chiefs are made subject to the approval of the
\nDistrict Council which may confirm such appointments under terms and
\nconditions which it may by Rules, from time to time, adopt.\n<\/p>\n
 \tUnder Appendix  III Jowai has been specified as an Elaka, headed by
\na Chief who would be a Dolloi.  Apart from challenging the constitutional
\nvalidity of Section 3 of the Act of 1959, appellants also challenge the
\nvalidity of the notice issued by the Secretary of Executive Committee  of
\nJowai District dated September 4, 2001 which is reproduced below :-\n<\/p>\n
“OFFICE OF THE JAINTIA HILLS AUTONOMOUS DISTRICT
\nCOUNCIL, JOWAI<\/p>\n
NOTICE<\/p>\n
           DATED JOWAI, THE 4TH SEPT. 2001<\/p>\n
This is Public Notice that the Executive Committee, Jaintia
\nHills Autonomous District Council, Jowai after thorough investigation
\nand scrutinisation has decided that the following Clans has the right to
\nstand for the election of the Dolloiship in the Elaka Jowsai :<\/p>\n
\n\n\"A' \tFrom the Clan Sookpoh Khatar Wyrnai  \n\n1.\tPasubon\t\t2.   \tRngad\t\t3.\tLipon\n4.\tNikhla\t\t5.\tWar\t\t\t6.\tPakyntein\n7.\tLeinphoh\t\t8.\tSingphoh\t\t9.\tNiangphoh\n10.\tKathphoh\t\t11.\tKynjing\t\t12.\tLakiang\n13.\tBlein\t\t\t14.\tLanong\t\t15.\tLywait\n16.\tKma\t\t\t17.\tLytan-Mutyen\t18.\tPawet\n19.\tNangbah\t\t20.\tSiangbood\t\t21.\tSyngkon bad\n22.     Langodh.\n\n\n\"B\"\tFrom the Clan Le-Kyllung\n\n1.\tRymbai\t\t2.\tNajiar\t\t\t3.\tToi\n\n\n\"C\"\tFrom the Clan Talang-Lato\n1.\tLato\t\t\t2.\tThma\t\t\t3.\tChynret\n\n\n<\/pre>\n
The Executive Committee has decided those who can contest
\nfor the Dolloiship should be only those who are from the Niam Tynrai
\nNiamtre (Non Christians) who will practice the indigenous religion
\nwithin the Raij Jowai.\n<\/p>\n
\t\t\t\t\tSd\/- E.M . Lyngdoh
\n\t\t\t\tSecretary, Executive Committee
\n\t\t\t\tJaintia Hills Autonomous District
\n\t\t\t\tCouncil, Jowai”\n<\/p>\n
It is not disputed before us that Dolloi performs Administrative as
\nwell as religious functions and a Christian cannot perform the religious
\nfunctions which are performed by Dolloi.  However, the appellants have
\nimpunged Section 3 of the Act of 1959 and the notifications issued on the
\nfollowing grounds:-\n<\/p>\n
i)\tThe Notification issued is a law within the meaning of
\nArticle 13 (3) (a) of the Constitution of India.\n<\/p>\n
ii)\tBeing a law preventing a person belonging to a particular
\nreligion from contesting election to a public post is
\nviolative of Articles 14, 15 and 16 of the Constitution of
\nIndia, and therefore, void.\n<\/p>\n
iii)\tSection 3 which provides for the Election and
\nAppointment of Dolloi in accordance with custom is void
\nsince the customs itself clearly discriminates on the
\nground of religion.  A custom must give way to
\nfundamental right and any custom which offends the
\nfundamental rights of a citizen must be held to be invalid.\n<\/p>\n
On the other hand learned counsel appearing for the respondents
\nsubmitted that there is no violation of Articles 14, 15 and 16 of the
\nConstitution of India since reasonable classification is permissible in law
\nand the exclusion of Christians from contesting the election is not only on
\nthe ground of religion, but on the ground that they are unable to perform
\nreligious functions of the office of Dolloi.  It is further submitted that indeed
\nthe provisions only serve to conserve the tribal culture which itself is a
\nfundamental right guaranteed under Article 29 of the Constitution of India.
\nIn substance, the impugned law and the notifications do not incur the wrath
\nof Articles 14 to 16 of the Constitution, on the contrary, they enjoy the
\nprotection of Article 29 of the Constitution of India.\n<\/p>\n
On a consideration of the material placed before it the High Court
\ncame to the conclusion that a custom prevailed in the Elaka Jowai which on
\naccount of its long practice and by common consent acquired the status of a
\ngoverning rule for election and appointment of Dolloi to perform both
\nadministrative and religious functions.  The fact that the Dolloi in Elaka
\nJowai is required to perform both administrative and the religious functions
\nas prevalent by custom is not disputed.  What was submitted on behalf of the
\nappellants was that 2 persons could be called upon to perform those duties,
\none performing the administrative duties and the other the religious
\nfunctions.  Only 2 instances were cited when Christians were appointed as
\nDolloi of Elaka Jowai.  In the year 1890 an attempt was made to install a
\nperson who had converted himself into Chiristianity as Dolloi of Elaka
\nJowai, but he had to face the wrath of the people in performing the religious
\nfunctions and ultimately had to resign from the post.  In the other case the
\nDolloi had to be removed by issuance of an order of termination.  The High
\nCourt found that since time immemorial the custom is to appoint one Dolloi
\nwho has to perform both administrative as well as religious functions.
\nMoreover under the United Khasi-Jaintia Hills Autonomous District
\n(Appointment and Succession of Chiefs and Headmen) Act, 1959 (Act
\nNo.11 of 1959) “service land” and “puja land” were given to Dolloi who
\nwas appointed as the “Chief”.  “Service land” which was revenue free land
\nwas held and cultivated by the Chief or the Headman in lieu of monetary
\nremuneration for services rendered.  “Puja land” was revenue free land held
\nand cultivated by him and the income yielded therefrom  utilized by him in
\nmeeting expenses connected with the religious performances according to
\ncustoms of the Elaka.  The High Court, therefore, recorded a finding that
\nthere was a custom prevalent for a long period which was invariably
\npracticed to the effect that the “Chief”, namely the Dolloi must perform
\nadministrative as well as religious duties.  There was no customs to appoint
\ntwo Dollois  one for the performance of administrative duties and the other
\nfor the performance of religious functions.  Deviation for a short period on
\naccount of existing emergency which needed immediate correction did not
\nderogate from its character as a custom.  The High Court concluded thus :-\n<\/p>\n
“On reading Section 3 read with Section 2(j) and 2(k) of the
\nAct, 1959 and on the pleadings of the parties we hold that the
\nDolloi elected and appointed in Elaka Jowai was required to
\nperform the executive function as well as religious functions
\nwhich is a custom prevalent in the Elaka.  We further hold that
\nthere cannot be two Dollois one performing the administrative
\nfunctions and the other performing the religious functions.
\nUnder the Act, 1959 there can be only one Dolloi performing
\nboth administrative as well as religious functions”.
\n\tAn argument was advanced before the High Court, which was not
\nadvanced before us, that the notice issued on September 4, 2001 by the
\nSecretary, Executive Committee, of the Jowai Autonomous District Council
\nwas without jurisdiction and authority.  The High Court negatived the
\ncontention and held that the Executive Committee in exercise of its
\ndelegated powers can issue such a public notice for appointment by election
\nof Dolloiship in Elaka Jowai in the absence of rules, regulations or
\nenactments providing for such election and appointment.  Reliance was
\nplaced on a judgment of this Court in Edwingson Bareh  vs.  The State of
\nAssam and others<\/a> (supra).  However, the High Court held that any
\nlaw\/regulation\/rule\/notification made or action taken under the Sixth
\nSchedule by the District Council or the Executive Committee formed by the
\nDistrict Council must not in any manner commit a breach of any of the
\nfundamental rights guaranteed under Part III of the Constitution of India.\n<\/p>\n
The High Court then proceeded to consider the submission urged
\nbefore it that the exclusion of Christians from contesting election to the post
\nof Dolloi violated Articles 14, 15 and 16 of the Constitution of India.  In
\ndoing so the High Court also noticed Articles 25 and 26 of the Constitution
\nof India and ultimately concluded that there was no breach of Articles 14, 15
\nand 16 of the Constitution of India and in fact it protected the rights
\nguaranteed under Articles 25 and 26 of the Constitution of India.\n<\/p>\n
The appellants in these appeals have challenged the correctness of the
\ndecision of the High Court.\n<\/p>\n
Shri P.K. Goswami, learned senior counsel appearing on behalf of the
\nDistrict Council (respondents 1 to 3) submitted that the High Court was right
\nin holding that having regard to the facts of the case and the nature of the
\noffice of Dolloi, the notice excluding Christians from contesting for the post
\nof Dolloi was fully justified.  Dolloi performs administrative as well as
\nreligious functions.  Such a custom and such an office existed since time
\nimmemorial and acquired the status of well preserved custom.  It, therefore,
\nbecame the duty of the State to ensure the right guaranteed under Article 26
\nof the Constitution of India.  This was not really a case to which Articles 15
\nand 16 were applicable, but even assuming that to be so, there was no
\ndiscrimination since the exclusion of Christians was not only on the ground
\nof religion, but on the ground that they could not perform the religious
\nfunctions of the office which by custom a Dolli was  required to perform.  It
\nis submitted that under Articles 14, 15 and 16 of the Constitution of India
\nreasonable classification was permissible.  In particular he drew our
\nattention to Article 26(b) of the Constitution of India and submitted that
\nsince the office of Dolloi involves the performance of both the
\nadministrative as well as religious duties, the concerned tribes had a right to
\nmanage their own affairs in matter of religion.   He relied upon authorities
\nin support of his submission that the right of the tribes to have a Dolloi who
\ncould perform administrative as well as religious functions was a right
\nguaranteed under Article 26 of the Constitution of India.\n<\/p>\n
Mr. R.F. Nariman, learned senior counsel appearing on behalf of
\nrespondents 5 and 6 analysed the provisions of Articles 14, 15, 16, 25, 26
\nand 29 of the Constitution of India and submitted that Article 14 permitted
\nreasonable classification in accordance with well settled principles. Article
\n15 was a species of Article 14 inasmuch it prohibited the State from
\ndiscriminating against any citizen on the ground only of religion, race, caste,
\nsex place of birth or any of them.  However, he emphasized the use of the
\nwords “on ground only of religion”.  Thus if a citizen is discriminated
\nagainst “on ground only of religion”, such action may be unconstitutional.
\nThat however, is not the case here.  The exclusion is on account of the
\nadmitted fact that a Christian cannot perform the religious duties of a Dolloi.
\nArticle 16 guarantees equality of opportunity in matters of public
\nemployment but clause (5) thereof expressly provides that nothing in the
\narticle shall affect the operation of any law which provides that the
\nincumbent of an office in connection with the affairs of any religious or
\ndenominational institution or any member of the governing body thereof
\nshall be a person professing a particular  religion or belonging to a particular
\ndenomination.  He submitted that the right guaranteed under Article 25 of
\nthe Constitution was subject to other provisions of Part III of the
\nConstitution of India but so far as Article 26 was concerned, it was only
\nsubject to public order, morality and health.  So far as Article 29 is
\nconcerned it is a absolute right guaranteed for the conservation of a
\nlanguage, script or culture.  He submitted that the rights protected are those
\nguaranteed under Article 26(b) and 29(1) of the Constitution.  He, therefore,
\nsubmitted that election of a tribal head with all concomitants thereof was
\npart of the tribal culture.  The Constitution guarantees uniformity in
\ndiversity.  The cultural rights under Article 29 of the Constitution of India
\nare couched in the widest language unlike under Articles 25 and 26, which
\nare subject to certain limitations.  Having regard to the nature of duties to be
\nperformed by a Dolloi the person elected as Dolloi must be religiously
\nproficient to perform his religious duties.  It was really with a view to
\npreserve their culture that a Christian was excluded from contesting the
\noffice of Dolloi which involved performance of religious duties, which he
\ncould not perform.  It was a core aspect of the tribal culture that Dolloi  must
\nperform administrative functions as well as religious functions which
\ninvolve performance of religious ceremonies which the High Court has
\nelaborated in great detail.  According to him, Articles 14 to 16 were not at all
\nbreached and in the ultimate analysis the right guaranteed under Article 29
\nmust prevail since it is the mandate of Article 29 that such cultural rights
\nmust be preserved.  There is force in the submissions advanced on behalf of
\nthe respondents.\n<\/p>\n
Article 14 ensures equality before law, which means that only persons
\nwho are in like circumstances should be treated equally.  To treat equally
\nthose who are not equal would itself be violative of Article 14 which
\nembodies a rule against arbitrariness.  Thus classification is permissible if it
\nsatisfies the twin test of its being founded on intelligible differentia, which in
\nturn has a rational nexus with the object sought to be achieved.\n<\/p>\n
Article 15 prohibits the State from discriminating against any citizen
\non grounds only of religion, race, caste, sex, place of birth or any of them.
\nThis, however, is subject to the exception carved out by clauses 3 and 4
\nwhich permit special provisions to be made in favour of women and
\nchildren, and for socially and educationally backward classes of citizens i.e.
\nfor the Scheduled Castes and Scheduled Tribes.  These are exceptions to the
\nrule embodied in clauses (1) and (2) of Article 15.\n<\/p>\n
Article 16 also embodies the rule against discrimination, but is limited
\nin its scope than Article 15, since it is confined to office or employment
\nunder the State, whereas Article 15 covers the entire range of State activities.
\nDescent and residence are the two additional grounds on which
\ndiscrimination is not permissible under Article 16.  But the rule is again
\nsubject to the exceptions carved out by clauses 3 to 5 thereof.  Clause 5 is
\nrelevant for our purpose, and it provides as under :-\n<\/p>\n
“(5)\tNothing in this article shall affect the operation of any
\nlaw which provides that the incumbent of an office in
\nconnection with the affairs of any religious or denominational
\ninstitution or any member of the governing body thereof shall
\nbe a person professing a particular religion or belonging to a
\nparticular denomination.”\n<\/p>\n
Thus Article 14 lays down the rule of equality in the widest term,
\nwhile Article 15 prohibit discrimination on grounds specified therein but
\ncovering the entire range of State activities.  Article 16 embodies the same
\nrule but is narrower in its scope since it is confined to State activities relating
\nto office or employment under the State.  Both Articles 15 and 16 operate
\nsubject to exceptions therein.  It has been so laid down by this Court in
\nGovernment of A.P.  vs.   P.B. Vijayakumar and another : (1995) 4 SCC 520
\nand in Cazula Dasaratha Rama Rao  vs.  State of Andhra Pradesh and
\nothers<\/a>  :  AIR 1961 SC 564.\n<\/p>\n
Counsel for the appellants submitted that prohibition against
\ncontesting for the post of Dolloi on the ground of religion ex-facie amounted
\nto discrimination on the ground of religion.  On the contrary the respondents
\ncontend that the exclusion is not on the ground of religion alone, and
\ntherefore, does not invite the wrath of Articles 15 and 16.  The exclusion is
\njustified on the ground that those who cannot perform the dual nature of
\nfunctions of the Dolloi, namely administrative and religious  cannot be
\neligible for the post.  The exclusion, therefore, is neither arbitrary nor
\nirrational.  It is axiomatic that one who cannot perform the duties attached to
\nthe office must be held to be ineligible to hold the office.  His exclusion,
\ntherefore, cannot be considered as either unreasonable or arbitrary or
\ndiscriminatory.\n<\/p>\n
\tThe submission urged on  behalf of the respondents must be accepted.
\nWe have earlier noticed the findings of the High Court to the effect that it is
\nthe tribal custom of the Elaka that the Dolloi of the Elaka Jowai must
\nperform both the administrative and religious functions of his office.  The
\nHigh Court has exhaustively considered the evidence on record and
\nconsidered the various rituals and observances, practices, poojas,
\nceremonies, customary religious functions which are regarded as integral
\npart of religious customs, and which the Dolloi must perform in the
\ndischarge of his duties as the Dolloi.  Such rituals, observances, ceremonies
\netc. are many in number.  The material on record leaves no room for doubt
\nthat the office of Dolloi with its dual functions, administrative and religious,
\nis a part of the tribal religion and culture, governed by custom since time
\nimmemorial.  It logically follows that the Dolloi must be one who is
\nconversant with the indigenous religious practices of the inhabitants of the
\nElaka.  He must be one who should be able to lead the people of the Elaka in
\nthe religious ceremonies according to their custom, and must also be
\ncompetent to perform the rituals, practices, poojas, ceremonies etc. which he
\nis required to perform as a duty attached to his office.  It is not disputed that
\na Christian cannot perform the indigenous religious functions which a Dolloi
\nis required to perform, apart from his administrative functions.  By long
\nstanding custom, the Dolloi must perform both administrative and religious
\nfunctions, and such duties cannot be bifurcated by appointing one other to
\nperform the religious functions only.  There is no such custom prevalent in
\nthe Elaka.  In its long history, such a thing happened only twice, and on both
\noccasions there was a public outcry resulting in dismissal of the Dolloi in
\none case and his resignation in the other.  The custom cannot be said to be
\ndiscontinued or destroyed by such aberrations.  The High Court has also
\nnoticed the judicial recognition given to the customary practice in the Khasi
\nand Jaintia Hills that a Dolloi cannot be a Christian.\n<\/p>\n
\tHaving regard to all these facts, we are in agreement with the High
\nCourt that by excluding Christians from contesting the post of Dolloi,
\nArticles 14, 15 and 16 are not violated.  The exclusion is justified by goond
\nreason, since admittedly the religious duties of a Dolloi of Elaka Jowai
\ncannot be performed by a Christian.  Thus the ground for exclusion of
\nChristians is not solely the ground of religion, but on account of the admitted
\nfact that a Christian cannot perform the religious functions attached to the
\noffice of Dolloi.  The reason cannot be said to be either unreasonable or
\narbitrary.\n<\/p>\n
\tCounsel for the appellants relied upon the decision of this Court in
\nJohn Vallamattom and another  vs. Union of India : (2003) 6 SCCC 611,
\nwherein this Court considered the challenge to the constitutional validity of
\nSection 118 of the Succession Act, 1925.    The aforesaid provision was
\nstruck down by this Court on the ground of arbitrariness violating Article 14
\nof the Constitution.  It found that even the classification of the Christians as
\na class by themselves was neither based on any intelligible differentia nor
\nhad any nexus with the object sought to be achieved.  It was, therefore, held
\nto be discriminatory as also arbitrary.  But the challenge based on Article 15
\nof the Constitution was repelled in the following words :-\n<\/p>\n
”\tSo far as the second argument of the learned counsel for
\nthe petitioner is concerned, it is suffice to say that Article 15 of
\nthe Constitution of India may not have any application in the
\ninstant case as the discrimination forbidden thereby is only such
\ndiscrimination as is based, inter alia, on the ground that a
\nperson belongs to a particular religion.  The said right conferred
\nby clause (1) of Article 15 being only on a “citizen”, the same is
\nan individual right by way of a guarantee which may not be
\nsubjected to discrimination in the matter of rights, privileges
\nand immunities pertaining to him as a citizen.  In other words,
\nthe right conferred by Article 15 is personal.  A statute, which
\nrestricts a right of a class of citizens in the matter of
\ntestamentary disposition who may belong to a particular
\nreligion, would, therefore, not attract the wrath of clause (1) of
\nArticle 15 of the Constitution of India.”\n<\/p>\n
\tMr. Nariman is, therefore, right in distinguishing this case on facts
\nand the nature of legislation challenged and the infirmities found.  In fact, as
\nhe rightly submits, this decision, if at all, supports the case of the
\nrespondents, so far as challenge based on Article 15 is concerned.\n<\/p>\n
\tThe appellants next relied on the decision of this Court in Madhu
\nKishwar and others   vs.  State of Bihar and others<\/a>  : (1996) 5 SCC 125.  In
\nthat case the constitutional validity of Sections 7, 8 and 76 of the Chotanagar
\nTenancy Act, 1908 was challenged on the ground that the provisions
\nviolated Articles 14, 15 and 21 of the Constitution of India.  The right to
\nintestate succession of Scheduled Tribe Women was governed by custom.
\nSections 7 and 8 provided for exclusive right of male succession to the
\ntenancy rights.  Section 76 of the Act saved any custom, usage, or customary
\nright not inconsistent with, or not expressly or by necessary implication
\nmodified or abolished by the provisions of the Act.  This Court did not
\nconsider it desirable to declare the customs of tribal inhabitants as offending
\nArticles 14, 15 and 21 of the Constitution of India, though each case must be
\nexamined when full facts are placed before the Court.  This Court however
\ngave some relief to female dependents by declaring that upon the death of
\nthe male tenant, they could hold on to the land so long as they remained
\ndependent on it for earning their livelihood, for otherwise it would render
\nthem destitute.  Thus the exclusive right of male succession conceived of in
\nSections 7 and 8 has to remain in suspended animation so long as the right of
\nlivelihood of the female descendants of the male holder remained valid and
\nin vogue.  We find no principle laid down in this decision to support the case
\nof the appellants herein, who in effect seek to challenge the validity of a
\ncustom recognized by and given effect to, by law.  On the contrary, this
\nCourt was of the view that striking down such a law on the touchstone of
\nArticle 14 would bring about a chaos in the existing state of law.\n<\/p>\n
\tWe also do not find anything in the decision of this Court in State of
\nKerala and another vs.  Chandramohnan:  (2004) 3 SCC 429 to support the
\ncase of the appellants.  All that was held in that case was that by mere
\nconversion to Christanity one does not cease to be a Scheduled Tribe if
\ndespite conversion he continues to follow the tribal traits and customs.  No
\nsuch question arose in this case.\n<\/p>\n
\tNone of the decisions cited by the appellants supports the challenge to
\nSection 3 of the Act of 1959 and the Notifications impugned in the writ
\npetitions on the ground of violation of Articles 14, 15 and 16 of the
\nConstitution.  On the other hand counsel for the respondents relied upon
\ndecisions in support of their contention, that the exclusion of Christians from
\ncontesting the election to the post of Dolloi in Jowai Elaka is not only on the
\nground of religion and, therefore, their exclusion cannot be challenged on
\nthe ground of violating Articles 15 and 16 of the Constitution of India.  It
\nwas also contended that historical reasons may as well support the
\nclassification, provided it is rational and bears a nexus with the object sought
\nto be achieved.  It was submitted that what was sought to be protected was
\nindeed the tribal culture of the people inhabiting the autonomous District of
\nJowai.  Their tribal sentiments and religious values have been sought to be
\nprotected and given due respect having regard to social and economic
\nconsiderations of the tribals inhabiting in the autonomous District.   Thus
\nthey contend that the exclusion is not based only on the ground of religion
\nand consequently there is no discrimination within the meaning of Articles
\n15 and 16 of the Constitution of India.  In this connection they have relied
\nupon a decision of this Court in Air India  vs.  Nergesh Meerza and others<\/a> :
\n(1981) 4 SCC 335 wherein this Court observed :-\n<\/p>\n
“Even otherwise, what Articles 15(1) and 16(2) prohibits is that
\ndiscrimination should not be made only and only on the ground
\nof sex.  These articles of the Constitution do not prohibit the
\nState from making discrimination on the ground of sex coupled
\nwith other considerations.  On this point, the matter is no longer
\nres integra but is covered by several authorities of this Court.”\n<\/p>\n
\tIn Clarence Pais and others  vs.  Union of India<\/a> : (2001) 4 SCC 325
\nthe challenge to Section 213 and 57 of the Succession Act, 1925 was
\nconsidered and repelled.  No doubt this Court held that the basis of the
\nchallenge, namely  that Section 213(1) of the Act was applicable only to
\nChristians and not to any other religion, was not correct.  However, the
\nCourt made pertinent observations in the following words :-\n<\/p>\n
“We have shown above that it is applicable to Parsis after the
\namendment of the Act in 1962 and to Hindus who reside within
\nthe territories which on 1.9.1870 were subject to the Lt.
\nGovernor of Bengal or to areas covered by original jurisdiction
\nof the High Courts of Bombay and Madras and to all wills
\nmade outside those territories and limits so far as they relate to
\nimmovable property situate within those territories and limits. If
\nthat is so, it cannot be said that the section is exclusively
\napplicable only to Christians and, therefore, it is discriminatory.
\nThe whole foundation of the case is thus lost. The differences
\nare not based on any religion but for historical reasons that in
\nthe British Empire in India, probate was required to prove the
\nright of a legatee or an executor but not in Part “B” or “C”
\nStates. That position has continued even after the Constitution
\nhas come into force. Historical reasons may justify differential
\ntreatment of separate geographical regions provided it bears a
\nreasonable and just relation to the matter in respect of which
\ndifferential treatment is accorded. Uniformity in law has to be
\nachieved, but that is a long drawn process. Undoubtedly, the
\nStates and Union should be alive to this problem. Only on the
\nbasis that some differences arise in one or the other States in
\nregard to testamentary succession, the law does not become
\ndiscriminatory so as to be invalid. Such differences are bound
\nto arise in a federal set up.”\n<\/p>\n
\tIn R.C. Poudyal   vs.  Union of India and others : 1994 Supp. (1) SCC
\n324 reservation of one seat for the Sangha in the Sikkim Assembly was
\nchallenged.  In the reply it was urged that though Sangha was essentially a
\nreligious institution of the Buddhists, it however, occupied a unique position
\nin the political, social and cultural life of the Sikkimese Society and the one
\nseat reserved for it cannot, therefore, be said to be based on considerations
\n‘only’ of religion.  This Court repelled the contention that reservation of  one
\nseat in favour of the Sangha is one purely based on religious considerations
\nand, therefore, violative of Articles 15(1) and 325 of the Constitution of
\nIndia and offended its secular principles.  This Court held :-
\n“The Sangha, the Buddha and the Dharma are the three
\nfundamental postulates and symbols of Buddhism. In that sense
\nthey are religious institutions. However, the literature on the
\nhistory of development of the political institutions of Sikkim
\nadverted to earlier tend to show that the Sangha had played an
\nimportant role in the political and social life of the Sikkimese
\npeople. It had made its own contribution to the Sikkimese
\nculture and political development. There is material to sustain
\nthe conclusion that the ‘Sangha’ had for long associated itself
\nclosely with the political developments of Sikkim and was
\ninter-woven with the social and political life of its people. In
\nview of this historical association, the provisions in the matter
\nof reservation of a seat for the Sangha recognises the social and
\npolitical role of the institution more than its purely religious
\nidentity. In the historical setting of Sikkim and its social and
\npolitical evolution the provision has to be construed really as
\nnot invoking the impermissible idea of a separate electorate
\neither. Indeed, the provision bears comparison to Art. 333
\nproviding for representation for the Anglo-Indian community.
\nSo far as the provision for the Sangha is concerned, it is to be
\nlooked at as enabling a nomination but the choice of the
\nnominee being left to the ‘Sangha’ itself. We are conscious that
\na separate electorate for a religious denomination would be
\nobnoxious to the fundamental principles of our secular
\nConstitution. If a provision is made purely on the basis of
\nreligious considerations for election of a member of that
\nreligious group on the basis of a separate electorate, that would,
\nindeed, be wholly unconstitutional. But in the case of Sangha, it
\nis not merely a religious institution. It has been historically a
\npolitical and social institution in Sikkim and the provisions in
\nregard to the seat reserved admit of being construed as a
\nnomination and the Sangha itself being assigned the task of and
\nenabled to indicate the choice of its nominee. The provision can
\nbe sustained on this construction. Contention (g) is answered
\naccordingly.”\n<\/p>\n
\tThese decisions do justify the stand of the respondents that unless it is
\nshown that the exclusion of Christians was only on religious ground, the
\nchallenge cannot be sustained.  In the instant case, we have noticed the
\nreasons why such an exclusion was made and we have also held that the
\nreasons therefor are neither arbitrary nor unreasonable.  We, therefore,
\nconclude agreeing with the High Court that Section 3(1) of the Act of 1959
\nas also the Notifications impugned in the writ petitions cannot be struck
\ndown on the ground of violation of Articles 14, 15 and 16 of the
\nConstitution of India.\n<\/p>\n
\tWe may notice that the High Court has held that the spiritual
\nfraternity represented by classes belonging to Niam Tynrai Niamtre (Non-
\nchristian) who practice the indigenous religion within the Raij Jowai is a
\nsocio cultural religious organization of Jaintia people who follow Niam
\nTynrai Niamtre faith.  They are governed by common customary laws of
\ntheir own in the matters of administration as well in following religious
\nfaith.  These classes within the Raij Jowai being followers of Niam Tynrai
\nNiamtre are certainly a religious denomination within the meaning of Article
\n26 of the Constitution of India.\n<\/p>\n
\tBefore us also, Mr. Goswami, learned counsel appearing for the
\nrespondents urged submissions based on Articles 25 and 26 of the
\nConstitution of India.  Mr. Nariman, however, laid emphasis on Article 29 of
\nthe Constitution of India and submitted that the effort was really to conserve
\nthe culture of the tribal population in the autonomous District and, therefore,
\nprotected by Article 29 of the Constitution of India.  These are matters
\nwhich may require consideration in an appropriate case.  So far as the instant
\ncase is concerned, having found that the challenge to the impugned
\nprovisions and Notifications was not sustainable on the ground of violation
\nof Articles 14, 15 and 16 of the Constitution of India, it is not necessary for
\nus to deal with other issues which the respondents have urged on the basis of
\nArticles 25, 26 and 29 of the Constitution of India in support of their stand.\n<\/p>\n
\tIn the result these appeals fail and are dismissed.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ewanlangki-E-Rymbai vs Jaintia Hills District Council … on 28 March, 2006 Author: B Singh Bench: B.P. Singh, Arun Kumar 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-178721","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nEwanlangki-E-Rymbai vs Jaintia Hills District Council ... on 28 March, 2006 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ewanlangki-e-rymbai-vs-jaintia-hills-district-council-on-28-march-2006\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ewanlangki-E-Rymbai vs Jaintia Hills District Council ... on 28 March, 2006 - 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