MHA files review petition in Supreme Court for rectification of court's observation on Sikkimese Nepalis

New Delhi [India], February 6 : The Ministry of Home Affairs (MHA) on Monday filed a review petition in Supreme Court for rectification of the court's observation on Sikkimese Nepalis.
The MHA filed the petition against some of the observations and directions in a recent judgement dated January 13 this year in two petitions of 2013 and 2021 filed by the Association of Old Settlers of Sikkim and Ors in the Supreme Court.
The Home Ministry of India made the declaration through a series of tweets.
"Ministry of Home Affairs (MHA) files review petition in Supreme Court against some of the observations and directions in a recent judgement dated January 13 2023, in two petitions of 2013 and 2021 filed by Association of Old Settlers of Sikkim and Ors in Supreme Court," Home Ministry of India tweeted.
The government of India reiterated its position about the sanctity of Article 371F of the Constitution that safeguards the Sikkimese identity, which should not be diluted, mentions further tweet.
"Further, the observation in the said order about persons of foreign origin settled in Sikkim like Nepalis should be reviewed as the said persons are Sikkimese of Nepali origin."
Two judges bench of Supreme Court where Justice MR Shah delivered the lead judgement but Justice B V Nagarathna chose to deliver additional arguments in support of the judgement was dealing with the vires of the provisions of Section 10(26AAA) as per which in case of an individual, being a Sikkimese, any income which accrues or arises to him-(a) from any source in the State of Sikkim; or (b) by way of dividend or interest on securities is exempt.
Also as per the proviso, nothing contained in this clause shall apply to a Sikkimese woman who, on or after the 1st day of April 2008, marries an individual who is not a Sikkimese.
The court noted the entire history behind the Kingdom of Sikkim which was formed in the year 1642 and until the merger with India in 1975 it was being ruled for 333 years by the Kingdom.
At the time of the merger, there was a concept called the Sikkim Subject register which basically incorporated those names who were originally Sikkimese or those who surrendered their citizenship of other states and adopted Sikkim Citizenship.
In the process, certain Indian families who were even though living in Sikkim did not surrender their Indian Citizenship and thus were left out of the Sikkim Subject register.
As the tax benefits were made available only to those whose name was recorded in the register, the dispute went up to the Supreme Court on the grounds of arbitrary, unreasonable and ultra vires.
The court upholding the arguments of petitioners declared the Explanation to Section 10(26AAA) as ultra vires and directed the Union of India to amend the explanation until which date all those who had settled in Sikkim before 26-04-1975 would be eligible to get the tax benefits u/s 10(26AAA) and also irrespective of a woman marrying a non-Sikkimese, she would be eligible to get the tax benefit.
It appears that Justice Nagarathna being a lady judge was touched by unreasonable classification and she chose to write at length on this aspect.
This judgement though limited in scope regarding those living in Sikkim will be helpful in dealing with vires of provision as well as interpretation of "proviso", observes the Apex court's finding.
Political parties in Sikkim have voiced opposition to the court's finding that Sikkimese Nepalis are immigrants while granting income tax exemption (under Section 10(26AAA) of the IT Act 1961) to all long-term settlers regardless of ethnicity.