Back
Descendants Cannot Claim if Ancestor Never Renounced Former Nationality: Sikkim High Court
Gangtok, – In a significant ruling that clarifies the limits of , the has held that descendants cannot seek inclusion in the solely on the basis of an ancestor’s unused eligibility. Justice A. Muhamed Mustaque, the Chief Justice, dismissed a by Shri Kishan Kumar Bhujel, who had claimed through his deceased father, Lt. Padam Bahadur Bhujel. The Court emphasised that the mandatory requirement of renouncing former nationality under the 1961 Sikkim Subjects Regulation cannot be bypassed.
A Legacy of Unclaimed Eligibility
The dispute dates back to the pre‑merger era. Lt. Padam Bahadur Bhujel, who died in 2016, never filed an application for as a Sikkim Subject while the was in force. He did not renounce any previous nationality – a condition that was “a matter of personal choice available exclusively” to him, the Court observed. His son, the petitioner, argued that his father was otherwise eligible and that genuine omissions from the Subject Register should be rectified under the .
The 1989 Amendment Order was designed to help those whose names ought to have been entered in the Register between 1961 and 1975 but were missed. It expanded the categories of applicants to include of persons who had, for instance, held land rights, appeared in voters’ lists, or held government jobs before . However, the Order never abolished the that the original 1961 Regulation demanded.
The Dual Hurdle: and Renunciation
Under , a person could become a Sikkim Subject either by birth in the territory or by continuous of at least fifteen years. additionally required every applicant from a foreign country to take an and renounce his or her previous nationality. The ’s inquiry into Lt. Padam Bahadur Bhujel’s status found that while he might have satisfied the criterion, there was “absolutely no evidence” that he ever renounced his former nationality. He had been residing in Kalimpong, West Bengal, before settling in Sikkim, and was never born within Sikkim’s borders.
The petitioner’s counsel contended that the 1989 Order should be interpreted liberally to correct historical oversights. The Court, however, held that the Order merely “reaffirmed and gave effect to the rights available under the Regulation of 1961” and did not dilute any mandatory preconditions.
Key Observations
The judgment distilled the principle with striking clarity. Justice Mustaque wrote:
“Although he was otherwise eligible to apply for , he failed to , as mandatorily required under the Regulation. Accordingly, the descendants cannot claim or seek inclusion in the on the strength of his alone.”
Further, the Court distinguished the claim from that of a person born in Sikkim. Had Lt. Padam Bahadur Bhujel been born in Sikkim, the issue would have stood “on a different footing.” But since no one had ever advanced that argument, the case rested solely on . The bench also noted that the 1989 Amendment Order “did not create any new substantive rights” but merely enlarged the class of persons who could apply to .
What the Decision Means
Dismissing as “,” the High Court upheld the orders of the that had rejected the petitioner’s application. The ruling sends a clear message: while the 1989 Order opens the door for descendants of eligible persons, it does not waive the fundamental requirement of renunciation. For the families of those who, like Lt. Padam Bahadur Bhujel, chose not to renounce their prior nationality, a claim to cannot pass to later generations.
Legal experts note that the decision will likely affect several pending applications where descendants rely on the 1989 Order without being able to prove that the original ancestor had complied with . It underscores that historical eligibility, without the formal act of renunciation, remains an that cannot be inherited.
