HISTORICAL PERSPECTIVE OF THE SIKKIM JUDICIARY

[yogesh saxena]

HISTORICAL PERSPECTIVE OF THE SIKKIM JUDICIARY
Sikkim has a past history of its own. Prior to its merger
with the Union of India in the year 1975 by the Constitution (Thirty
Sixth Amendment) Act, 1975, the erstwhile Sikkim was under a monarchy.
The King who was popularly known as “the Chogyal” was the fountainhead
of justice. Kings words were the laws. Under the then administrative
set up there was no place for an independent judiciary. The judicial
procedure being followed then was very simple and free from legal
technicalities. The Courts were dispensing substantive justice based
on the principle of justice, equity and good conscience. Lawyers were
not allowed to appear in Court.
The available records do not throw much light into the
remote past. It can, however, be gathered from these records that the
administration of justice in Sikkim in the last century was being
carried out by the Feudal Landlords (Adda Courts), Jongpons (District
Officers). Pipons (Headmen) and Mandals with the Chogyal at the top.
In 1909, Kazis, Thikadars and Lamas were invested with
judicial powers by a State Council resolution. They could try civil
suits up to the valuation of Rs. 500/-.
In 1916, an Appellate Courts by the designation of Chief
Court was created with jurisdiction to try important original suits
and also to hear appeals against the decisions of the Adda Courts.
This Court also exercised supervisory and appellate jurisdiction over
the Adda Courts. The Chief Court was not the final Court. The appeal
against the decision of the Chief Court would lie to the Supreme Court
of His Highness, the Maharaja. The Court of the Maharaja was the
final Court of appeal in the State. It has no original
jurisdiction. A Board on the lines of the Judicial Committee of the
Privy Council in England, would hear the parties and scrutinize the
evidence regarding merit of the case and then tender its opinion to
the Maharaja.
In 1949, the Adda Courts were abolished on the
recommendation of the Judicial Proposal Committee. The State was
divided into 4 (four) revenue Districts and Magistrates were appointed
in District with original and appellate jurisdiction on the criminal
and civil side. The Courts of the Assistant Magistrate and the Court
of Tahsildars were created. In the lowest rung, a few Honorary Courts
of Magistrates were created to dispose of petty criminal and civil
cases. The Chief Magistrate had both original and appellate
jurisdiction on civil and criminal sides. He had unlimited powers.
From the available records it appears that in 1953, a Judge
of the High Court of Sikkim was appointed but in 1955, High Court of
Judicature (Jurisdiction and Powers) Proclamation, 1955 was issued
establishing a High Court in Sikkim. The High Court thus established
was made the final Court in all judicial matters, civil or criminal,
subject to the exercise of prerogative by the Maharaja to grant mercy,
pardon, remission, commutation and reduction of sentence in case of
conviction. The Maharaja had also retained his prerogative to set up
a Special Tribunal for the review of any case, civil or criminal.
Upon merger, Sikkim became the 22nd State of India. Under
Clause (i) of Article 371F, the High Court functioning immediately
prior to the date of merger became the High Court for the State of
Sikkim under the Constitution like any other High Court in the
country. Under Clause (i) of the same Article all Courts of Civil,
Criminal and Revenue Jurisdiction, all Authorities and all Officers,
Judicial, Executive and Ministerial throughout Sikkim were to continue
to exercise their respective powers subject to the provisions of the
Constitution and under Clause (k) all laws in force immediately before
the appointed day in Sikkim were to continue to be in force until
amended or repealed by a competent legislature or other competent
authority.
The Government of Sikkim Act, 1974, which came to be passed
in the Sikkim Assembly (which received the assent of the Chogyal on
4th July, 1974) in pursuance of the historical agreement of 8th May,
1973, between the Chogyal, the leaders of the political parties
representing the people of Sikkim and Government of India, provided
that all Judges in Sikkim shall be independent in excercise of their
judicial function. In keeping with the ideal and the set goal, the
process of separation of judiciary from the executive started soon
after the merger. In 1978, Sikkim Civil Courts Act was passed with a
view to consolidate the laws relating to the Constitution of Civil
Courts subordinate to the High Court and other relevant matters. The
Sikkim State Judicial Service Rules 1975 and the Sikkim Superior
Judicial Service Rules 1980 were framed providing for the mode of
recruitment and service of judicial officers, thereby creating a
separate cadre of judicial officers in the State. Besides, the Code of
Criminal Procedure 1973, which provided for separation of judiciary
from thee executive was extended and enforced in the State of Sikkim
in the year 1994.
With the commencement of the Constitution and under the new
democratic set up the restriction placed earlier on lawyers to appear
in Courts came to be ignored. Thus institution of lawyers as it
exists today came into existence.
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Courtesy
Hon’ble Shri Justice A.P. Subba,
Judge,
High Court of Sikkim,
Gangtok.