Holding

Section 3(1) of the 1959 Act and the exclusion of Christians from contesting the Doloi election are constitutionally valid because the tribal custom of a Doloi performing both administrative and religious functions is a legitimate classification that does not violate Articles 14, 15 or 16.

Summary

The petitioners, a Christian member of the Jaintia Scheduled Tribe, challenged Section 3(1) of the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959, which required the election of the Doloi (chief) to follow the tribal custom that the office must perform both administrative and indigenous religious duties. Since a Christian could not perform the religious functions, a notice issued by the Jaintia Hills Autonomous District Council excluded Christians from contesting the election. The petitioners argued that this exclusion violated Articles 14, 15 and 16 of the Constitution. The Supreme Court held that the custom of a Doloi performing dual functions is a long‑standing tribal practice, that the exclusion is based on the inability to perform religious duties rather than on religion per se, and that the classification is reasonable and has a rational nexus with the objective of preserving tribal culture. Consequently, Section 3(1) and the exclusionary notice were upheld as constitutionally valid. The appeals were dismissed.

Issues considered

The constitutional validity of Section 3(1) of the United Khasi Jaintia Hills Autonomous District (Appointment and Succession of Chiefs and Headmen) Act, 1959.
Whether the exclusion of Christians from contesting the Doloi election violates Articles 14, 15 and 16 of the Constitution of India.
Whether the notice issued by the Jaintia Hills Autonomous District Council constitutes a law within the meaning of Article 13 and can be struck down.
Whether the tribal custom requiring the Doloi to perform religious duties can be overridden by constitutional guarantees of equality.

Subjects

tribal customDoloiautonomous districtSixth ScheduleArticle 14Article 15Article 16religious dutiesdiscriminationcultural preservationconstitutional validity

Judgment

EWANLANGKI-E-RYMBAI A
v.
JAINTIA HILLS DISTRICT COUNCIL AND ORS. ·

MARCH 28, 2006

'[B.P. SINGH AND ARUN KUMAR, JJ.) B

United Khasi Jaintia Hills Autonomous District (Appointment and
Succession of Chiefs and Headmen) Act, 1959: Section 3(1).

Jaintia Hills Autonomous District Council-Election ofDol/oi-ln £/aka C
Jowai-Section 3(1) provided that all elections and appointments of Chiefs
and Headmen shall be in accordance with the existing customs prevailing in
·the £/aka concerned-Constitutional validity of-Christians were excluded
from contesting election to the post of Dol/oi-High Court upheld the
constitutional validity of S. 3(1) holding that there was a custom prevalent D
for a long time to the effect that the "Chief", namely, the Dolloi, must perform
ad1ninistrative as well as religious duties-Correctness of-Held: The ground
for exclusion of Christians is not solely on the ground of religion, but. on
account of the admitted fact that a Christian cannot perform the religious
June/ions attached to the office of Dolloi-Such duties cannot be bifurcated
by appointing one other person to perform the religious functions only-The E
reason is neither unreasonable nor arbitra~Hence, by excluding Christiam
from coniesting the post of Dolloi, Articles 14, 15 and 16 are not violated-
Constitutiona/ validity of S. 3(1) upheld-Constitution of India, Art. 14, 15
and 16.

The appellant, a Christian by faith, and a member of the Jaintia F
Scheduled Tribe filed a writ petition before the High Court challenging
the constitutional validity of Section 3(1) of the United Khasi Jaintia Hills
Autonomous District (Appointment ·and Succession of Chiefs and
Hea.dmen) Act, 1959 and also the notice issued by the Jaintia Hills
Autonomous District Council declaring the programme for the election G
of Dolloi in Elaka Jowai. Section 3 of the Act provided that all elections
and appointments of Chiefs and Headmen shall be in accordance with the
existing customs prevailing in the Elaka concerned. Jowai District was an
autonomou.s District to which the provisions of the Sixth Schedule. of the
497 H
498 SUPREME COURT REPORTS (2006] 3 S.C.R.

A Constitution of India applied. The Dolloi performed Administrative as well as
religious functions and a Christian could not perform the religious functions
-
which were performed by the Dolloi.

The High Court upheld Section 3 of the Act holding that there was a
custom prevalent for a long period which was invariably practiced to the effect
B that the "Chief', namely, the Dolloi must perform administrative as well as
religious duties. The High Court also held that there was no breach of Articles
14 to 16 of the Constitution of India in the exclusion of Christians from
contesting election to the post of Dolloi. Hence the appeals.

Dismissing the appeals, the Court
c
HELD: 1. 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 office of Dolloi with its dual functions, administrative
and religious, is a part of the tribal religion and culture, governed by
D 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
E office. 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
F 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
G a Christian. [509-G; 510-A-E[

Edwingson Bareh v. State of Assam, AIR (1966) SC 1220, relied on.

2. 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
H admittedly the religious duties of a Dolloi of Elaka Jowai cannot be performed
EWANLANGKI-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, .I.] 499

by a Christian. Thus the ground for exclusion of Christians is not solely on A
the ground of religion, but on accont 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. (510-E, F)
3. Unless ii is shown that the exclusion of Christians was only on
religious ground, the challenge cannot be sustained. The reasons for the B
exclusion of Christians are neither arbitrary nor unreasonable. Therefore,
Section 3(1) of the United Khasi Jaintia Hills Autonomous District
(Appointment and Succession of Chiefs and Headmen) Act, 1959 as also
the Notification impugned in the writ petitions cannot be struck down on
the ground of violation of Articles 14, 15 and 16 of the Constitution oflndia. C
[514-G, H; 515-AI

Government of A.P. v. P.B. Vijayakumar, (1995) 4 SCC 520, Cazula
Dasaratha Rama Rao v. State of A.P., AIR (1961) SC 564, Air India V.·
Nergesh Meerza, (1981 I 4 SCC 335, Clarence Pais v. Union of India, (20011
4 SCC 325 and R.C. Poudyal v. Union of India, (19941 Supp. 1 SCC 324, D
relied on.

John Vallamattom v. Union of India, (200316 SCC 611, M..idhu Kishwar
v. State of Bihar, 119961 5 SCC 125 and State of Kera/av. Chandramohnan,
(2004) 3 sec 429, held inapplicable.
E
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 9561-9562/
2003.

From the Final Judgment and Order dated 21.7.2003 of the High Court
of Gauhati in W.P. (C) No. 6541-6542/2001.
F
Avijit Bhattacharjee, Divakar Borah and Ms Debjani Dass Purkayastha
for the Appellant.

R.F. Nariman, P.K. Goswami, H.S. Thangkhiew, Upamanyu Hazarika,
Satya Mitra, Ms. Sumita Hazarika, Rajiv Mehata and B. Aggarwalla for the G
Respondents.

The Judgment of the Court was delivered by

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 H
in Writ Petition (C) No. 6541 of2001 [WP (C) No.221(SH)/2002] and Writ
500 SUPREME COURT REPORTS (2006] 3 S.C.R.

A Petition (C) No. 6542 of 200 I (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-Elaka Jowai Secular
Movement is represented by its Vice Chairman and Executive Member. In
B both the writ petitions the constitutional validity of Section 3 of the United
Khasi Jaintia Hills Autonomous District (Appointment and Successior 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, 200 I issued by the Jaintia Hills Autonomous District Council,
C Jowai declaring the programme for the election of Dol!oi in the Elaka Jowai
and also the notice dated September 4, 200 I 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
D 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
E 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
F
provided that the appointment of the Chiefs or Headmen shall be in accordance
W\th 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
G Elaka Jowai is discriminatory and in breach of Articles 14 to 16 of the
Constitution of India since their exclusion is 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 oflndia
H apply in view of the provisions of Article 244(2) of the ConstitutioP. of India.
The brief historical background in which the aforesaid autonomous district
EWANLANGKl-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL [BP. SINGH, J.] 50]

was created may be noticed at this stage :- A
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 Khe.si 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 B
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 C
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 I, 1964. Thus the Jowai District came D
into existence as an autonomous District with effect from December I, 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 E
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 v. The
State of Assam and Ors., AIR (1966) SC 1220). F
Paragraph I 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 G
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- H
502 SUPREME COURT REPORTS (2006 J 3 S. C.R.

A 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
B 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 "for the appointment or succession of Chiefs or Headmen". The
laws made under this paragraph are required to be submitted forthwith to the
C Governor and, until assented to by him, shall have no effect.

In exercise of powers conferred upon hir.i by sub-paragraph (6) of
paragraph 2, the Governor framed rules called "the Assam Autonomous
Distncts (Constitution of District Councils) Rules, 1951 ". The Rules provide,
inter alia, for the constitution of an Executive Committee consisting of the
D 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
E 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-I were also made applicable to the Jowai
Autonomous District till such time the Jowai Autonomous District Council
made its own laws. Appendix-I includes the United Khasi Jaintia Hills
F 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 :-

G "2. Definition. 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.
H
EWANLANGKI-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, J.] 503

(b) "Custom" with reference to any Elaka means any rule regarding A
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.

(g) "Elaka" means any administrative unit in the District specified in B
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 C
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 D
conditions which it may by Rules, from time to time, adopt.

Under Appendix lII-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 E
notice issued by the Secretary of Executive Committee of Jowai District dated
September 4, 200 I which is reproduced below :-

"OFFICE OF THE JAINTIA HILLS AUTONOMOUS DISTRICT
COUNCIL, JOWAI

NOTICE
F

DATED JOWAI, THE 4TH SEPT. 2001

This is Public Notice that the Executive Committee, Jaintia Hills
Autonomous District Council, Jowai after thorough investigation and G
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
I. Pasubon 2. Rngad 3. Lipon
4. Nikhla 5. War 6. Pakyntein H
504 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 7. Leinphoh 8. Singphoh 9. Niangphoh
10. Kathphoh 11. Kynjing 12. Lakiang
13. Blein 14. Lanong 15. Lywait
16. Kma 17. Lytan-Mutyen 18. Paw et
19. Nangbah 20. Siangbood 21. Syngkon bad
B 22. Langodh.

"'B" From the Clan Le-Ky/lung

I. Rymbai 2. Najiar 3. Toi
c ''("' From the Clan Talang-Lato

I. 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
D Niamtre (Non Christians) who will practice the indigenous religion
within the Raij Jowai.

Sd/- E.M . Lyngdoh
Secretary, Executive Committee
E 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 impugned Section
F 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
G 14, 15 and 16 of the Constitution of India, and therefore, void.
(iii) Section 3 which provides for the Elect10n 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
H fundamental rights of a citizen must be held to be invalid.
EWANLANGKI-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, J.] 505

On the other hand learned counsel apjlearing for the respondents A
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 Oolloi. It is further submitted that indeed the provisions only B
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 of Articles 14 to
16 of the Constitution, on the contrary, they enjoy the protection of Article
29 of the Constitution of India.
c
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 Oolloi in Elaka Jowai is required to
perform both administrative and the religious functions as prevalent by custom D
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 E
into Christianity 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 F
Autonomous District (Appointment and Succession of Chiefs and Headmen)
Act, 1959 (Act No.I I 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 servic'es rendered. "Puja land" was revenue free G
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 H
506 SUPREME COURT REPORTS [2006] 3 S.C.R.

A as well as religious duties. There was no customs to appoint two Dollois-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 :-

B ''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
C Dollois one performing the administrative functions and the other
performing the religious functions. Under the Act, 1959 there can be
only one Dolloi perfonning both administrative as well as religious
functions".

An argument was advanced before the High Court, which was not
D 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 ofDolloiship
E 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 v. The State of Assam and Ors., (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
F a breach of any of the fundamental rights guaranteed under Part Ill 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
G so the High Court also noticed Articles 25 and 26 of the Constitution 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.

H The appellants in these appeals have challenged the correctness of the
-
EWANLANGKl-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL (BP. SINGH, J.] 507

decision of the High Court. A
Shri P.K. Goswami, learned senior counsel appearing on behalf of the
District Council (respondents I 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 B
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 C
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 Dolloi was required to perform. It is submitted that
under Articles I 4, 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 D
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 E
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 p
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 G
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 H
508 SUPREME COURT REPORTS [2006) 3 S.C.R.

A 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.
B 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( I) 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
C 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
D perform. It was a core aspect of the tribal culture that Dolloi must perform
administrative functions as well as religious functions which involve
perform"ance 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 Artie le 29 must prevail
E 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
F 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,
G 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.
H
EWANLANGKI-E-RYMBAI '" JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, J] 509

Article 16 also embodies the rule against discrimination, but is limited A
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 Artitle 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 :- B
"(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 C
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 D
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. v. P.B. Vijayakumar and Anr., [ 1995] 4 SCC 520 and in Cazula Dasaratha
Rama Rao v. State of Andhra Pradesh and Ors., AIR (1961) SC 564.

Counsel for the appellants submitted that prohibition against contesting E
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 ofreligion 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-cannot be eligible for the post F.
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.
G
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
perfotm- both the administrative and religious functions of his office. The
High Court has exhaustively considered the evidence on record and considered
H
510 SUPREME COURT REPORTS [2006] 3 S.C.R.

A 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
B 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,
C 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.
D 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
E 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 good reason, since
F 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.

G Counsel for, the appellants relied upon the decision of this Court in
John Vallamattom and Anr. v. Union of India, (2003] 6 SCC 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.
H It found that even the classification of the Christians as a class by themselves
EWANLANGKl-E-RYMBAI v. JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, 1.) 511

was neither based on any intelligible differentia nor had any nexus with the A
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 B
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 (I) of Article 15 being
only on a "citizen", the same is an individual right by way of a C
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 (I) of Article 15 of the Constitution of D
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 respondents,
so far as challenge based on Article 15 is concerned. E
The appellants next relied on the decision of this Court in Madhu
Kishwar and Ors. v. State of Bihar and Ors., [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 F
of Scheduled Trib,e 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 G
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
H
512 SUPREME COURT REPORTS [2006) 3 S.C.R.

A 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
B 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
C Kera/a and Anr. v. 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 Christianity one does not cease to be a Scheduled Tribe if despite convei"sion
he continues to follow the tribal traits and customs. No such question arose
in this case.

D 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
E 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
F 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
G of India. In this connection they have relied upon a decision of this Court
in Air India v. Nergesh Meerza and Ors., [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
H
EWANLANGKI-E-RYMBAI v. JAINTIA HILLS DISTRICTCOUNCIL[BP. SINGH, J.J 513

sex. These articles of the Constitution do not prohibit the State from A
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 Ors. v. Union of India, [2001] 4 SCC 325 the
challenge to Section 213 and 57 of the Succession Act, 1925 was considered B
and repelled. No doubt this Court held that the basis of the challenge, namely
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
c
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 D
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 E
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 F
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 v. Union of India and Ors., [1994] Supp. 1 SCC 324
reservation of one seat for the Sangha in the Sikkim Assembly was challenged. G
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 H
514 SUPREME COURT REPORTS (2006] 3 S.C.R.

A favour of the Sangha is one purely based on religious considerations and,
therefore, violative of Articles 15( I) 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
B 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
c to sustain the conclu~ion 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
D 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
E 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 religious considerations for election of a member of
that religious group on the basis of a separate electorate, that would,
F 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
G 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
H reasons why such an exclusion was made and we have also held that the
reasons therefor are neither arbitrary nor unreasonable. We, therefore, conclude
EWANLANGKl-E-R YMBAI v. JAINTIA HILLS DISTRICT COUNCIL [B.P. SINGH, l] 5 J5

agreeing with the High Court that Section 3( I) of the Act of 1959 as also the A
Notifications i~pugned 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 B
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 C
of India.

Before us also, Mr. Goswami, learned counsel appearing for the
respondents urged submissions based on Articles 25 and 26 of the Constitution
oflndia. 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 D
tribal population in the aJJtonomous 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 E
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.
F
V.S.S. Appeals dismissed.