Supreme Court deletes from its judgment reference to Sikkimese-Nepalis as persons of "foreign origin"

The Supreme Court on Wednesday deleted the reference to Sikkimese-Nepalis as people of 'foreign origin' from its January 13 judgment on tax exemption in Sikkim [Bharat Basnet and anr vs Union of India and anr].

A bench of Justices MR Shah and BV Nagarathna modified the judgment after pleas for modification were filed filed by some Sikkimese-Nepali persons, the State of Sikkim and the Central government.

"We think it just and proper to correct certain words in paras 10A and 68.8 of my judgment by making the following corrections:

In paragraph 10A, the second sentence stands deleted. In paragraph 68.8, 'from the current financial year i.e., 1st April, 2022 onwards 2022' stands deleted. Office to issue a fresh certified copy of the order," the Court ordered.

Pertinently, the Court noted that the error had crept in because the original petition reflected those errors and though the petition was later corrected by making around 25 amendments, the amended petition was not brought to the notice of the Court.

The judges noted that the same was unfortunate, adding,

"It was, infact, their duty to bring to the notice of this Court the said amendments, which were twenty five in number. As a result, the unamended writ petition has been taken into consideration for the purpose of referring to the pleadings in the judgment of ... Now, Miscellaneous Applications have been filed seeking correction of the judgment as if the error has occurred from the side of the Court by ignoring the fact that the amendments brought to the original writ petition(s) were not brought to the notice of this Court," Justice Nagarathna in pronouncing the order noted.

The controversial paragraph was part of Justice Nagarathna's concurring judgment in a case involving the extension of tax exemptions to Sikkimese women who married persons from outside the State and old settlers whose names had not been recorded in a Sikkim Subjects Register.

The paragraph in question said:

" ... there was no difference made out between the original inhabitants of Sikkim, namely, the Bhutia-Lepchas and the persons of foreign origin settled in Sikkim like the Nepalis or persons of Indian origin who had settled down in Sikkim generations back."

The other paragraph modified today was:

"Hence, it has to be directed that till such amendment is made to the down the Explanation to Section 10(26AAA) of the I.T. Act, 1961, all individuals domiciled in Sikkim up to 26th April, 1975 shall be entitled to the exemption under the said provision from the current financial year i.e., 1st April, 2022 onwards."

The portion highlighted in black was deleted.

The reference to Sikkimese Nepalis as being of foreign origin had drawn sharp reactions and public ire in Sikkim.

It had also led to the resignation of its Advocate General, Sudesh Joshi after political parties reportedly alleged that he did not brief the Court properly on the distinction between the Sikkimese Nepali population and the other old settlers.

In the modification application, it was contended that nothing can be further from the truth as the Sikkimese Nepali community forms 70 per cent of the indigenous Sikkimese population and terming them as people of foreign origin cannot be farther from truth.

"Inadvertance has deeply hurt the sentiments of all sections of the people of Sikkim who have jointly taken to the streets to express their resentment", the application stated.

The Court after hearing the parties agreed to delete the offending portions but expressed its displeasure at the counsel for not brining the amended petition to the Court's notice.

"There are 26 letters in the alphabet, and 25 amendments brought in. How can you not inform?" Justice Nagarathna asked during the hearing.

[Read order]