In the decision by the Supreme Court of India, two petitions from Sikkim succeeded in garnering the decision in their favour, viz. from Association of Old Settlers of Sikkim and from others.
As per the judgment pronounced:
1. All old Indian settlers of Sikkim prior to the merger of Sikkim with India who didn’t have their names in the Sikkim Subject Register are also entitled to exemption under Section 10 (26AAAA) of the Income Tax Act;
2. A Sikkimese woman married to a non-Sikkimese man is also entitled to exemption under S. 10(26AAA) of the Income Tax Act as there is distinction between genders prevalent;
3. Section 10(26AAA) of the Income Tax Act to be amended to to incorporate the above-mentioned changes.
The judgement was welcome by one and all but the words used in the observation and the petition caused serious uproars and concern as the observation and the judgement that followed deemed Nepali speaking Sikkimese as foreigners as well as stroke down the very definition of ‘Sikkimese.”
The SC observation in one paragraph quoted Nepali of Sikkim to be of foreign origin, it read, “In 1948, the Sikkim Income Tax Manual. 1948 (SITM) was promulgated by the Ruler of Sikkim (the Chogyal). Under the SITM, all persons engaged in business were subjected to tax irrespective of their origin. 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. It is averred that under the SITM. Income Tax was paid by all without any discrimination on the ground of place of birth, race or ethnicity.”
The SC’s verdict that followed said, “In view of the above and for the reasons stated above, both these petitions succeed. 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) is hereby held to be ultra vires to Article 14 of the Constitution of India and is hereby struck down.”
The repercussions of the words used, mainly tagging “Sikkimese Nepalis” as “foreigners” and “definition of Sikkimese” deemed “ultra vires to Article 14” saw a resounding opposition from all Sikkimese people in unison. Many politicians, be they ruling or opposition, made it clear that it was an erroneous observation and that it caused hurt to regional sentiments. This was following observation and verdict on the IT exemption petition by AOSS, the petition which was observed by the SC before its verdict, and had contained the said “hurtful” and “ignorant” words/definitions.
Similarly, social and non-political organisations, activists, etc., came forward condemning the words used in the observation. Rallies were organised, with Joint Action Committee’s district wide ‘solidarity rally’ being the most notable one where it saw politicians and social activists from different organisations come together and raise a unanimous voice that screamed “justice” to the SC observation.
The main demands from the JAC were : Conducting emergency SLA sessions to address the issue, and the sacking of AG and AAG.
Further, after immense pressure and the issue burning through the state, Additional AG, Sudesh Joshi resigned from his post on February 1, 2023. Joshi tendered his resignation from the post of Additional Advocate General (AAG) of Sikkim amid allegations questioning his loyalty towards Sikkimese welfare.
His letter read;
“I am writing to inform you of my resignation from the post of Additional Advocate General with immediate effect.”
His letter further said that he will always be grateful to the Govt. of Sikkim for providing him an opportunity to work as Addl. Advocate General of Sikkim.
“The judgement of Hon’ble Supreme Court of India in the matter of Association of Old
Settlers of Sikkim Vs. Union of India pronounced on 13 January, 2023 has led to
some social unrest in the Sikkimese society.” Joshi addressed the elephant in the room as he further said, “Some false, unfounded and baseless allegation against me are doing rounds in social
and electronic media which are absolutely devoid of merit and labeled to paint me in
bad light and to attack the Government.”
Joshi, being adamant on his diligence about his post and duties wrote, “I have always been sincere towards my dearest state of Sikkim and its people. There has never been any professional dereliction of duty on my part.”
Talking about his reason for resignation he wrote, “Under the prevailing situation my conscience does not allow me to continue as the Addl. Advocate General of the state.”
“Sikkim was, is and will always remain dearest to me.” Joshi concluded in his resignation letter.
Now, there hadn’t been any reactions or scrutiny on the part of the Advocate General Vivek Kohli in the case and the government also hadn’t spoken anything about it. However, on February 1 a picture of a notification started making rounds on the internet. The document of the order Memo No.:-21(578)LL&PAD/12/171, disclosed that the AG Vivek Kohli had already been relieved of duty on December of 2022.
The said notification read: “The Governor is pleased to dispense with the services of Shri Vivek Kohli,
‘Advocate General of Sikkim in terms of clause (3) of Article 165 of the Constitution of India read with clause 12 of the Office Order No.04/L&PAD/22 dated 21.04.2022 and relieve him from the post and office of the Advocate General of the state of Sikkim with immediate effect
The case files/case briefs and relevant papers and documents shall be handed over to Resident Commissioner, New Delhi immediately.”
The netizens who saw the document dismissed it for being fake, as there was radio silence on the issue from the government. Netizens and people who saw the document dismissed it saying that amid the immense pressure the government would have publicly said something about the fact that the AG was already relieved of his duty.
Sikkim Chronicle spoke with the sources at the Law Department to either debunk or confirm the legitimacy of the order. While some sources refrained from speaking on the issue, some of the sources, officers and Chief Secy of the department confirmed that Kohli had already been relieved and that he was relieved on the last working day of December.
Now what this development means is for the experts to scrutinise and react on, but it is evident that both the posts of AG and AAG have been vacated which fulfils one of JAC’s demands that resonate with the demands of majority of Sikkimese people. Now what remains is the SLA convening and discussing this issue with all the might of the Sikkimese Cabinet.
