Supreme Court’s Verdict: The verdict of 20th September, 2022 pronounced by the Supreme Court of India, upholding the constitutional validity of the Haryana Sikh Gurdwaras (Management) Act, 2014, in our opinion, is not only erroneous and unconstitutionally incorrect but also significantly undermines the unparalleled sacrifices made by the Sikhs during the British-era in their struggle to achieve the enactment the historic Sikh Gurdwaras Act, 1925 (hereinafter the SGPC Act). The State of Haryana had legislated this law in 2014, creating a statutory body to manage the historical Sikh Gurdwaras, situated in Haryana State, thereby effectively amending the SGPC Act and truncating the territorial jurisdiction of the SGPC.
Haryana Gurdwaras Law: Although practically modelled on the lines of the SGPC Act, 1925, the Haryana law was mired in litigation from day one and this law could not be implemented, till very recently. The brief chronology of events may be summarized as under:
July 11, 2014: The Haryana Assembly passes the Bill to form the HSGPC
July 14, 2014: The Governor gives consent to the Bill, making it an Act
Aug 7, 2014: The Apex Court orders maintaining the status quo
Sept 20, 2022: The Supreme Court upholds the constitutional validity of the Act
On 20th September, 2022, a Division Bench of the Supreme Court, comprising, Justice Hemant Gupta and Justice Vikram Nath, through a 58-page judgment, dismissed the various petitions, and upheld the constitutional validity of the Haryana law (Harbhajan Singh vs State of Haryana and others).
Issues before the Supreme Court: In the light of arguments addressed and submissions made, the Apex Court had framed the following four legal/ constitutional question for consideration and adjudication:
(i) Whether any fundamental rights of the petitioners under Articles 25 and 26 of the Constitution of India are violated, so as to entitle the petitioners to invoke the jurisdiction of this Court under Article 32 of the Constitution?
(ii) Whether Section 72 of the Punjab Reorganisation Act, 1966 and Sections 3 and 4 of the Inter-State Corporation Act, 1957 were transitional provisions to meet the immediate requirement of the issues arising out of creation of separate States?
(iii) Whether the impugned enactment (Haryana Act) falls within the legislative competence of the Haryana State Legislature or does it fall under Entry 44 of List I of the Seventh Schedule of the Constitution?
(iv) Whether the Impugned Act falls in List-III (Concurrent List) of Schedule VII, which required the assent of the President of India as per Article 254(2) of the Constitution of India, and in the absence of such assent, void?
A more serious reader may peruse the entire judgement but we cull out below some of the pivotal arguments and findings of the Supreme Court.
“Since the affairs of the Sikh minority in the state (Haryana) are to be managed by the Sikhs alone, it cannot be said to be violative of any of the fundamental rights conferred under Articles 25 and 26 of the Constitution.”
The Court rejected arguments that Parliament had the exclusive power to enact law on the issue and that Haryana had none.
The Court held “a competent State legislature is not deprived of its power to legislate on the subjects falling within its jurisdiction in terms of List II of the Seventh Schedule. The 1966 Act does not bar the State Legislature to legislate on the fields of its legislative competence falling under List II of the Seventh Schedule or even in List III of the Seventh Schedule, subject to the limitations as are prescribed in the Constitution”.
Review Petitions Dismissed: The review petition(s) against the aforesaid judgement of 20th September, 2022 were also dismissed on 4th February, 2023 by a Division Bench of the Supreme Court comprising Justice B R Gavai and Justice Vikram Nath stating: “We have gone through the review petitions and we do not find any error, much less apparent, in the order impugned, warranting its reconsideration. The review petitions stand dismissed.”
The underlying logic behind the verdict: The entire logic of the Supreme Court’s judgement is that SGPC, much like Panjab University and the Beas-Bhakra Management Board (BBMB), is an inter-state corporation/ body, under the Punjab Reorganisation Act, 1966, especially since there is a specific reference thereto in section 72(3) thereof.
To this extent it was perhaps justifiable but to further opine and hold that Parliament alone did not have the exclusive powers to enact laws on these inter-state matters and bodies is, in our humble opinion, a little questionable. Furthermore, to hold that the Haryana State Legislature, merely with the approval of the Governor, and sans the assent of the President of India, could legislate on such issues is patently erroneous. This amounts to granting the State of Haryana extra-territorial jurisdiction qua inter-state bodies, since their contentious law operates to truncate and attenuate the powers and jurisdiction of the SGPC in respect of other states like Punjab, Himachal Pradesh and the Union Territory of Chandigarh.
Other legal arguments that can be arrayed in favour of our opinion are:
1. The Sikh Gurdwaras Act, 1925 (Punjab Act of 8 of 1925) had been originally enacted in the British-Raj only with the previous sanction of the Governor-General (equivalent to President now).
2. A number of amendments in the Sikh Gurdwaras Act, 1925 have been effected after the reorganisation of Punjab on 1st November, 1966, but only with Parliamentary approval (which automatically includes the assent of the President of India). This includes the Sikh Gurdwaras (Amendment) Act, 2016 which retrospectively took away the voting rights of “Sahjdhari Sikhs” (w.e.f. 8th October, 2003). It received the Presidential assent on 5th May, 2016, after the Bill was passed by both the Houses of the Parliament.
3. The Chief Commissioner of the Sikh Gurdwara Election Commission is appointed by the Government of India.
4. If the SGPC is to be regarded as an inter-state “corporation” under section 72 of the Punjab Reorganisation Act, 1966, then it would exclusively be in the competence of the Parliament to effect any changes/ amendments in its governing statute, since subject dealing with companies and corporation lies in the “Central List”, and not exclusively with any “partner” state.
Dangerous Precedent: Apart from these legalistic arguments, the judgement of the Supreme Court sets a dangerous precedent, and gives a “supreme” judicial sanction to, some potentially very “bold” legislative action that the States of Punjab, Haryana and Himachal Pradesh could take, disturbing not only the delicate inter-state balance betwixt these partner states, but also vis-à-vis the Sikhs, as a minority community, with regard to their relationship with the Union of India.
For example, hypothetically speaking:
a) Himachal Pradesh could pass a law taking over the management of Bhakra Dam, divesting it from the control of BBMB.
b) Punjab could pass a law taking over the management of Nangal Dam, divesting it from the control of BBMB.
c) Punjab Legislature could potentially tinker with the definition of “Sikhs” as contained in the SGPC Act, 1925.
d) Punjab Legislature could potentially, restore the voting rights of “Sahjdhari Sikhs” by amending the SGPC Act, 1925.
e) Punjab Legislature could potentially prescribe the terms and conditions regarding the appointment and removal of “Jathedar Akal Takht”.
f) In the extreme case, the Punjab Legislature could introduce provisions for an “Administrator” appointed by it take over the powers and functions of the Executive Committee of the SGPC, once the term of the General House of the SGPC expires, till the fresh elections were held.
Parliament is the proper forum: While such an eventuality is neither imminent nor politically feasible, the idea in “provocatively” enumerating such hypothetical possibilities, howsoever remote, was merely to drive home the point that it would be best to leave the amendments in the SGPC Act, 1925 to the supreme and sovereign wisdom of the Parliament, that should ordinarily be exercised only after reaching a consensus with the Sikh leadership, including but not limited to the SGPC.
Way forward through consensus: What is the way forward from here on? I am of the considered opinion that the Government of India must start a process of active consultation with all the stakeholders and bring about a consensus to amend the SGPC Act, 1925, to restore status quo ante qua the SGPC as legal entity. However, to reflect the urges and aspirations of the Sikhs residing in Haryana, provisions could be introduced that, subject to the overall plenary direction, superintendence and control of the SGPC, the day-to-day management of the historical Gurdwaras situate in Haryana could be left to local committees comprising members of the SGPC elected from the territorial constituencies of Haryana.
Invoke Article 142 of the Constitution: If this consensus is not possible, the SGPC and/ or the Punjab Government should file a curative petition in the Supreme Court of India, or a petition under Article 142 of the Constitution of India to undo the aforesaid 2-Judge Bench judgement of the Apex Court. The Chief Justice of India will be well-advised to constitute a 5-Judge Constitutional Bench to hear and decide this matter as expeditiously as possible.
The issues outlined above should not be regarded as trivial and casually brushed under the carpet. These ought to be addressed proactively by the all the parties, including Central Government, Punjab and Haryana Governments as well as the SGPC and all political parties and Sikh organizations. Allowing these to linger on can lead to serious consequences, even if decades later. The country cannot afford to risk Punjab, a sensitive border state, being pushed into turmoil once again. Early resolution of this seemingly innocuous issue is in the interest of our Nation. The country also owes it to the Sikhs to come out with a solution that is acceptable to all the stakeholders— and as soon as possible.
KBS Sidhu. The Author is an IAS officer of 1984 Batch of Punjab cadre, and retired from service in July 2021, as Special Chief Secretary, Punjab, after 37 years of service.
Disclaimer : The opinions expressed within this article are the personal opinions of the writer/author. The facts and opinions appearing in the article do not reflect the views of Babushahi.com or Tirchhi Nazar Media. Babushahi.com or Tirchhi Nazar Media does not assume any responsibility or liability for the same.