2006 Supreme(SC) 286

2006(4) Supreme 426
SUPREME COURT OF INDIA
(From Gauhati High Court)
B.P. Singh and Arun Kumar, JJ.
Ewanlangki-e-Rymbai—Appellant
versus
Jaintia Hills District Councils & Ors.—Respondents
Civil Appeal Nos. 9561-9562 of 2003
Decided on 28-3-2006
Counsel for the Parties :
For the Appellant : Avijit Bhattacharjee, Divakar Borah, Ms. Debjani Dass Purkayastha, Advocates.
For the Respondents : R.F. Naiman, P.K. Goswami, Sr. Advocates, H.S. Thangkhiew, Upamanyu Hazarika, Satya Mitra, Ms. Sunita Hazarika, Rajiv Mehata, B. Aggarwalla, Advocates.

IMPORTANT POINT
Section 3(1) of the United Khasi Jaintia Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, as also the Notifications impugned, cannot be struck down on the ground of violation of Articles 14, 15 and 16 of the Constitution of India as the exclusion of Christians is not based only on the ground of religion.

Headnote:United Khasi Jaintia Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959—Section 3—Constitution of India—Articles 14, 15, 16 and 244(2)—Constitutional validity of Section 3 of the Act challenged—Election of Dolloi in Elaka Jowai—Jowai District is an autonomous District to which provisions of Sixth Schedule of the Constitution apply—Under Appendix-III Jowai has been specified as an Elaka, headed by a Chief who would be a Dolloi—Dolloi performs Administrative as well as religious functions—A Christian cannot perform the religious functions which are performed by Dolloi—Section 3 of the Act provides for the Election and Appointment of Dolloi in accordance with custom—Whether exclusion of Christians from contesting election for the post of Dolloi in Elaka Jowai is discriminatory—(No)—Their exclusion is not merely on ground of religion—Jowai Autonomous District Act, 1967.

       Held : 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.(Para 21)

       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.(Para 22)

       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.(Para 23)

       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.(Para 24)

       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 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.(Para 26)

       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 good 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.(Para 27)

       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.(Paras 35 and 36)