SIKKIMESE PATRIOT, MM RASAILY, CHALLENGES CLOSER TIES WITH INDIA
The petition challenged the validity of section 30 of the Government of Sikkim Act, 1974, which stated that Sikkim may request the Government of India to “seek participation and representation of the people of Sikkim in the political institutions of India.” The constitution suit – filed against the Chief Executive, the Chief Minister, and the Sikkim Assembly – also challenged all provisions of the Tripartite Agreement of May 8, 1973, the Government of Sikkim Act, 1974, and the Constitution (35th Amendment) Act of 1974 of the Indian Parliament, which made Sikkim an Associate State of India.
Having almost exhausted all political options to stop the merger, the Chogyal and anti-merger leaders had no other alternative but to approach the highest judicial forum in the kingdom to seek justice. The movement for a more democratic set-up in Sikkim also included the demand for an independent judiciary. Therefore, much hope was pinned on Rasaily’s petition. There was much jubilation in the capital when the interim injunction, sought against the election of two members of the Sikkim Assembly to the Indian Parliament, was granted by the Central Court Judge, Tarachand Harimol, on March 29, 1975.
Rasaily’s petition and the interim order had an electrifying effect among anti-merger forces in Sikkim. It made the pro-merger groups feel more insecure and apprehensive about their future role in the kingdom. They felt that even the judiciary was harping on its independence and, therefore, not giving the desired support and cooperation to Lal to complete India’s design in Sikkim. What made things worse was the decision of the Chief Judge of the High Court at Gangtok, S.K. Prasad, to allow the release of six persons jailed on December 6, 1974 for alleged attempts to assassinate Kazi.
The Choygal stoutly backed the judges and opposed Lal’s attempts to denigrate the independence of the judiciary in Sikkim, “I am irrevocably committed to a full responsible government for my people, and it would be my sacred duty to ensure that the judiciary remains truly independent. I am not adverse to any essential changes in order to strengthen, but not to reduce, the independence of the judiciary.” 1
Datta-Ray describes the hearing of Rasaily’s petition in the court on March 29, 1975, “The first hearing of these two cases was on 29 March. Harimol had not had time to study the constitutional points raised in Rasaily’s 18-page application. Ananda Bhattacharyya, the government advocate representing Lal, Kazi, and the other defendants, also said he would like some time; he, therefore, agreed to the judge’s plan for an interim order to maintain status quo until both had been able to examine the submission. But Bhattacharyya was suddenly called out of the courtroom just as the order was about to be issued; he returned a few minutes later with an application signed by some of the defendants, opposing an interim injunction and requesting adjournment. Harimol ignored the advocate’s second thoughts, and dictated an order restraining the assembly for the time being from sending MPs to New Delhi or discussing the Chogyal and his relatives.” 2 Lal and Kazi were asked to file their objections by April 28, the date fixed for final order.
Delhi’s reaction to the Chogyal’s defiance and Harimol’s straightforwardness was swift and decisive. It took the unilateral liberty of interpreting the Government of Sikkim Act, 1974, and placed the Chief Executive as the supreme authority in Sikkim’s judiciary. Harimol was forced to take leave, and he left for New Delhi on April 10, 1975. Meanwhile, the Sikkim Assembly passed a resolution maintaining that the Government of Sikkim Act, 1974, was the highest law of the land and its validity could not be challenged in any court of law. 3 The Sikkim Congress press note said, “…the provisions of the Tripartite Agreement of May 8, 1973, and the Government of Sikkim Act, 1974, are the paramount law of the land to which all authorities in Sikkim – the legislative, the executive and the judiciary – are subordinate and its validity cannot be challenged in any court of law in Sikkim.” 4
These developments put an abrupt end to Rasaily’s petition, and all legal means to safeguard Sikkim’s separate identity came to a grinding halt. Harimol described the period as “the complete collapse of the administration of justice, in a way most humiliating and distressing.” 5 In his 14-page note, titled “Now It Can Be Told,” to the Janata Government headed by Prime Minister, Morarji Desai, two years later in April 1977, Harimol wrote, “The lighthouse was damaged and demolished with contempt which it never deserved. About two days later, (in early April, perhaps on April 2 or 3 – author) I was called by the chief executive on the pretext of discussing and drawing up a scheme for the appointment of some civil judicial officers. But his main target was the ad interim order dated March 29 in the civil suit (Rasaily’s two petitions).”
He added, “In a tone arrogant and insulting, he asked me why I had passed even such an apparently innocuous order and not adjourned the matter. Little did he know that it was judicial order and not an administrative one. Any such interference could entail serious consequences. But the judiciary is powerless if ignored by the executive. It was the most humiliating experience in my life as a judge. Little did he realise that it was not an insult to me, but he was trying to debase the institution and its value. I must admit I could not stand it. I told the chief executive that I would not continue in office and would submit my resignation immediately. But it appeared he did not want that. He intended to humiliate the judiciary further. My resignation could have possibly created some public stir there or in India. The chief executive abruptly changed his mood, spoke a few kind words and persuaded me not to put in my resignation.”
(Ref: Sons of Sikkim: The Rise and Fall of the Namgyal Dynasty of Sikkim)