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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.