C.W.P No.14859 of 2008 :1: In the High Court of Punjab and Haryana, Chandigarh. C.W.P No.14859 of 2008 Date of Decision: 30.05.2009 Gurleen Kaur and others. ....Petitioners. Versus State of Punjab and others ....Respondents. Coram:- Hon'ble Mr.Justice J.S. Khehar Hon'ble Mr. Justice Jasbir Singh Hon'ble Mr. Justice Ajay Kumar Mittal. ... Present: Mr. Rajiv Atma Ram, Sr. Advocate with Mr. G.S. Mann, Advocate for the petitioners. Mr. KTS Tulsi, Sr. Advocate with Mr. RTPS Tulsi, Advocate Mr. H.S. Phoolka, Sr. Advocate with Mr.D.S. Patwalia, Advocate. Mr. Anupam Gupta, Senior Standing Counsel Mr. Ashish Rawal, Advocate for the Chandigarh Administration. Mr. Chetan Mittal, Addl. A.G., Punjab for the State of Punjab. Mr. Surinder K. Bishnoi, DAG, Haryana for the State of Haryana. Mr.B.B. Sharma, Advocate for the State of Himachal Pardesh. Mr. Gurminder Singh, Advocate. Dr. M.S. Rahi, Advocate Mr. Deepak Sibal, Advocate with Mr. Saurav Verma, Advocate Mr. Navkiran Singh, Advocate Mr. Onkar Singh Batalvi, Advocate Mr. Sanjeev Sharma, Advocate Ms. J.J. Kaur, Advocate. for the respondents. ... C.W.P No.14859 of 2008 :2: Index Sr.No. Description Paragraphs 1. Introduction 01 – 02 2. Case set up by the petitioners 03 – 07 3. Claim of the respondents 08 – 10 4. Important orders passed during motion hearing 11 – 12 5. Issues raised by the petitioners 13 – 17 6. Preliminary objections pertaining to maintainability 18 - 24 of the present petition. 7. Whether it is in the domain of this Court to examine 25 - 27 the tenets of a religion ? 8. Minority rights 28 9. Whether maintaining hair unshorn is an important 29 - 128 tenet under the Sikh religion ? --Historical background, and Legislative enactments involving the Sikh religion 30 - 54 --The “Sikh rehat-maryada” 55- 57 --The “Sikh ardas” 58 - 60 --Views expressed by scholars of Sikhism 61 - 67 --The Guru Granth Sahib 68 - 74 --Views expressed by interveners 75 - 126 Shri Gurtej Singh 75 - 84 Shri Pavit Singh Mattewal, Advocate 85 - 98 Shri Atinder Pal Singh 99 - 107 Prof. Lal Singh 108 - 120 Giani Harinder Pal Singh 121 - 126 --Conclusion 127 – 128 10. Findings on contentions advanced on behalf of the 129 - 151 petitioners --Whether the provisions of the Gurdwara Act of 129 - 138 1925 are binding on the management and administration of Sri Guru Ram Das Charitable Hospital Trust, Amritsar ? --Whether the status of the petitioners as Sikhs must 139 - 141 be determined only with reference to Section 2(9) of the Gurdwara Act of 1925 ? --Whether the petitioners have a right to admission 142 - 144 under the Sikh minority community quota under C.W.P No.14859 of 2008 :3: the notification dated 3.4.2001 ? --Whether the petitioners who are all minors can be 145 - 147 made to suffer the consequence of trimming their hair or plucking hair of their eyebrows ? --Whether it is valid to limit admissions under the 148 - 149 Sikh minority community quota only to those who maintain “Sikhi swarup” ? --Whether the petitioners are entitled to admission 150 - 151 on the basis of their higher merit, in terms of the decision rendered by the Supreme Court in Islamic Academy of Education Vs. State of Karnataka, JT 2003(7) SC 1? 11. Concluding remarks. 152 – 154. J.S. Khehar, J. 1. Hearing this petition, has been an experience of sorts. Sentiments and emotions were on a high. We were under an international scanner. Letters were addressed to the members of the bench individually, as well as, collectively. A lot of these letters came from overseas. Some of the communications were addressed to the Chief Justice of this Court, and were forwarded to us for our consideration. The media covered the hearings from day to day, and in doing so, reported the issues canvassed, as it perceived them. The issue under the scanner was an aspect of a religious belief i.e. whether maintaining hair unshorn is an essential/important tenet of the Sikh religion. Based on media projections, individual sentimentalities were aroused. Depending on what was reported, reaction of readers, who thronged the court, varied from day to day. Intellectuals, Sikh scholars, and preachers of the Sikh religion, attended court proceeding, to have a first hand account of what was going on. While not agreeing with what one or the other side was canvassing, repeated requests were made by those attending the proceedings, that they too should be given an opportunity of hearing. C.W.P No.14859 of 2008 :4: 2. Religion is an issue which moderates or non-believers do not understand fully. Although, I am proud to be born in a Sikh family, I must confess my ignorance to the finer ramifications of the Sikh religion. For one of us, it was a first-time experience into the customs and usages of the Sikh religion. In order to ensure that we had been sufficiently informed about the issue being canvassed, we breached the unwritten norms. We read all the mail received by us, hoping to know and learn more about the controversy. We also heard those who regularly attended hearings of the case, and were emphatic that they had a point of view which should be taken into consideration. The analysis of the controversy at our hands may not be an amalgam of the thoughts projected, but all that was read and heard, must most necessarily have influenced our thoughts. We have, therefore, recorded all the submissions made during the course of hearing. We have recorded our reasons for not taking into consideration some of the submissions made during the course of hearing. We have not incorporated in our order/judgement the names of individuals whom we allowed a hearing, except those who moved express applications and were allowed to intervene. Some of those heard by us entertained diagonally opposite views, from what others had to say. We have tried to reproduce the views of those who appeared before us exactly as we understood them. But then religion is a sensitive issue, a word here and there, may make all the difference. We hope that those whose views have been extracted herein, will find them to their satisfaction. We also wish to place on record our appreciation of the assistance rendered to us, by all the learned counsel, as also, the participation and interest shown by the interveners and others. Our gratitude for the effort put in by Mr. Anupam Gupta, Senior Standing C.W.P No.14859 of 2008 :5: Counsel for the U.T., Chandigarh, however, needs a special mention. He must have had to first understand the tenets of the Sikh religion, and then, to painstakingly convey them to us; despite the fact that he did not represent either of the contesting parties, and has nothing to do with the Sikh religion. He undoubtedly made our enormous task easier, than what it otherwise would have been. 3. The petitioners in the instant writ petition claim admission to the MBBS course at the Sri Guru Ram Das Institute of Medical Sciences and Research, Amritsar (hereinafter referred to as the Medical College). The petitioners had applied for admission to the said course for the academic session 2008-09. It would be pertinent to mention, that a prospectus-cum-application form was issued by the Association of Unaided Sikh Minority Medical and Dental Institutions, Amritsar, for filling up, inter-alia, 100 seats of the MBBS course, at the Medical College. Out of the aforesaid 100 seats, 50% i.e. 50 seats were reserved for candidates belonging to the Sikh minority community. The prospectus also contained a “notice” relevant for admissions to the seats reserved for the Sikh minority community. Candidates were informed through the “notice”, that the process of admission for the reserved seats would be in terms of the orders passed by the Supreme Court in TMA Pai’s case. And also that, directions issued by the Supreme Court in Islamic Academy's case, as well as, P.A. Inamdar’s case (dated 31.10.2002 and 12.8.2005), would be followed. It was also sought to be clarified, that future orders issued by the Supreme Court, in respect of admissions to the course under reference, would also be binding on all the parties. 4. In so far as, eligibility for the seats reserved for the Sikh C.W.P No.14859 of 2008 :6: minority community is concerned, the same was delineated in Part-B of the prospectus. Since the eligibility of the petitioners, under the Sikh minority community quota is the primary issue, arising for adjudication in the instant writ petition, the eligibility criterion depicted in the prospectus is being extracted hereunder: - “Eligibility and qualification to appear in the entrance test. The test will be open to a candidate who- (i) is resident of India and belongs to Sikh Community; (ii) has completed, or shall be completing, by 31.12.2008 the age of 17 years; (iii) has passed in the subjects of Physics, Chemistry, Biology and English individually and has obtained a minimum of 50% marks taken together in Physics, Chemistry & Biology at Senior Secondary Part II Examination(class 12 of 10+2 stream), or an equivalent examination from the recognized statutory Board/ University. (The candidate should have passed this examination in the annual examination held in March/April 2008 or earlier. Those who are placed in compartment in the annual examination 2008 or who are already in compartment and fail to clear the same in the annual examination 2008 shall not be eligible). Notes: (1) A candidate will be considered Sikh/belonging to Sikh Community if he practices the Sikh faith, and maintains Sikh appearance, i.e. he/she does not cut or trim hair and wears turban(in case of male candidates) and has the word “Singh/Kaur” with his/her name, has faith in the Ten Sikh Gurus and Sri Guru Granth Sahib only, and does not owe allegiance to any other sect or religion. (2) A male Sikh candidate who does not presently bear the suffix “Singh” and a female Sikh candidate the word “Kaur” with his/her name, may get it added legally(that is through an affidavit plus notice in a newspaper regarding change of name) before submission of his/her application by the last date. (3) Such a candidate can also appear in the Entrance Examination who has appeared in the qualifying examination in the annual examination held in March/April 2008, but his result is awaited. However, his candidature will be considered only if he passes the qualifying examination in the subjects of Physics, C.W.P No.14859 of 2008 :7: Chemistry, Biology and English individually and obtains a minimum of 50% marks taken together in Physics, Chemistry & Biology as mentioned in clause(iii) above, before the date of first counselling.” Note (1) extracted hereinabove, is pointedly the subject matter of consideration in the present case. 5. It would be pertinent to mention, that all the petitioners while applying for admission to the MBBS course, under the Sikh minority community quota, submitted their photographs and filed affidavits in the prescribed format. The prescribed format of the affidavit for male and female candidates (enclosed with the prospectus as Appendix D1 and D2, respectively) are being extracted hereunder: - “AFFIDAVIT (For male candidates). I___________________, son of ____________________________ resident of __________________________________________________ _____, do hereby solemnly affirm and state as under: (1) That I am Sikh and belong to the Sikh Community. (2) That I pratice the Sikh Faith; (3) That I maintain Sikh appearance and do not cut or trim my hair; (4) That I have the word “Singh” affixed to my name; (5) That I have faith only in the Ten Sikh Gurus and Sri Guru Granth Sahib; (6) That I do not owe allegiance to any other sect or religion. DEPONENT VERIFICATION I, the above named deponent, further affirm and declare that the above averment by me is true and correct and that nothing has been concealed by me. DEPONENT AFFIDAVIT (For female candidates) I __________________________, daughter of __________________________ resident of C.W.P No.14859 of 2008 :8: ______________________________________, do hereby solemnly affirm and state as under: (1) That I am Sikh and belong to the Sikh Community; (2) That I practice the Sikh Faith; (3) That I maintain Sikh appearance and do not cut or trim my hair, including hair on my eyebrows; (4) That I have the word “Kaur” affixed to my name; (5) That I have faith only in the Ten Sikh Gurus and Sri Guru Granth Sahib; (6) That I do not owe allegiance to any other sect or religion. DEPONENT VERIFICATION I, the above named deponent, further affirm and declare that the above averment by me is true and correct and that nothing has been concealed by me. DEPONENT” The pleadings of the instant writ petition also reveal, that all the petitioners were born in Sikh families. All the petitioners claim that they satisfy all the norms stipulated in the affidavit, and accordingly assert, that they fulfil the conditions of eligibility prescribed for the Sikh minority community. 6. Having passed the 10+2 examination with Physics, Chemistry and Biology, the petitioners asserted their eligibility to participate in the entrance test conducted by the Medical College. They were permitted to take the entrance test. Having taken the test conducted on 18.7.2008, the result whereof was declared on the same day (i.e. 18.7.2008 itself), the petitioners claim their absolute right for admission, to the seats under the Sikh minority community quota, on the basis of their position in the merit list. The inter-se merit of the petitioners viz. those who have been allowed admission, has been placed on the record of this case as Annexure P-3. The Medical College has granted admission to a candidate placed at merit rank No.67 in the entrance test, whereas the position of the petitioners in the merit list is at serial Nos.7, 9, 40, 40 (petitioners No.3 and 4 were clubbed C.W.P No.14859 of 2008 :9: at merit rank No.40) and 49, respectively. 7. The petitioners have impleaded as respondents, all those who have been admitted to the MBBS course under the Sikh minority community quota, but were below the merit position of one or the other of the petitioners, as they would be adversely affected, in case of success of the present writ petition. The claim of the petitioners superiority, within the Sikh minority quota, over the private respondents, is based on the decision rendered by the Supreme Court in Islamic Academy of Education Vs. State of Karnataka, JT 2003(7) SC 1, wherein the Apex Court declared the legal position on the subject under reference in the following words : - “It must be clarified that a minority professional college can admit, in their management quota, a student of their own community/language in preference to a student of another community even though that other student is more meritorious. However, whilst selecting/admitting students of their community/language the inter-se merit of those students cannot be ignored. In other words whilst selecting/admitting students of their own community/language they cannot ignore the inter-se merit amongst students of their community/language. Admission, even of members of their community/language, must strictly be on the basis of merit except that in case of their own students it has to be merit inter- se those students only. Further if the seats cannot be filled up from members of their community/language, then the other students can be admitted only on the basis of merit based on a common entrance test conducted by government agencies.” 8. The claim of the petitioners is vehemently opposed by the Medical College. In the written statement filed on behalf of the Medical College, it is asserted, that while applying for admission to the MBBS course the petitioners had submitted affidavits, that they do not cut or trim their hair. In addition to the aforesaid, it is alleged that in the affidavit filed by female candidates, it was asserted that they do not pluck hair from their eyebrows. The veracity of the aforesaid affidavits, was considered at the C.W.P No.14859 of 2008 :10: time of counseling on 25.7.2008. The affidavits filed by the petitioners were found to be false. The counseling committee which arrived at the conclusion that the affidavits filed by the petitioners were false, was comprised of senior and responsible members. It was headed by Shri Avtar Singh Makkar, President of the SGPC and Chairman of the Sri Guru Ram Das Charitable Hospital Trust, Amritsar. The counseling committee, amongst others, also comprised of the Principal of the Sri Guru Ram Das Institute of Medical Science and Research, Amritsar, as well as, the Principal of the Sri Guru Ram Das Institute of Dental Sciences and Research, Amritsar. The counseling committee was assisted by male and female doctors. The responsibility assigned to the doctors associated with the counseling committee was, to determine whether students seeking admission under the Sikh minority community quota, were eligible for the same. We were informed that the responsibility of the doctors associated with the counseling committee was to determine whether the candidates in the merit list had maintained “Sikhi swarup” (Sikh appearance). Only such candidates, who had maintained their hair unshorn, were to be accepted as having maintained “Sikhi swarup”. 9. The doctors who examined the petitioners at the time of counseling, arrived at the conclusion that they were indulging in trimming their hair in case of male students, and plucking hair of their eyebrows in case of female students. They were, therefore, declared ineligible. It is expressly asserted in the written statement filed by the Medical College, that the entire process of counseling and checking was videographed (for the sake of transparency). During the course of hearing, learned counsel representing the Medical College, offered to make the said videographs C.W.P No.14859 of 2008 :11: available to this Court, in case of any ambiguity/doubt, about the factual assertions (on the issue of trimming of hair/plucking hair of eyebrows). It would, however, be pertinent to mention, that learned counsel representing the petitioners did not contest the veracity of the factual position noticed in the written statement filed on behalf of the Medical College. As such, there was no occasion for us to doubt the correctness of the factual position relating to trimming of hair/plucking hair of eyebrows, by the petitioners. We therefore, did not require the Medical College to present the video- clippings. 10. It is the contention of the Medical College, that the petitioners were not eligible to be considered under the Sikh minority community quota as they had not maintained “Sikhi swarup”, and were accordingly denied admission under the said quota. It is also asserted on behalf of the Medical College, that the affidavits filed by the petitioners in the prescribed format (extracted hereinabove), were false, and as such, could not be accepted as a valid/genuine basis for their admission to the MBBS course. 11. When the instant writ petition came up for hearing for the first time on 29.7.2008, a Division Bench of this court passed the following order: - “The petitioners applied for admission to the MBBS course in the State of Punjab for the Session 2008-09. The petitioners applied in the Sikh Minority quota. They have been denied admission on the ground that they have trimmed their beard or plucked their eye-brows. Learned counsel submits that the quota fixed is for the members of Sikh community and it does not make any distinction whether a student belongs to Amritdhari, Sahajdhari, Keshadhari or any other category of Sikhs. It is contended that all the petitioners are from Sikh community, therefore, they had to be considered in the 50% quota in the order of merit as laid down by the Hon'ble Supreme Court in Islamic Academy of Education vs. State of Karnataka and others, reported as JT 2003 (7) SC 1, wherein it C.W.P No.14859 of 2008 :12: has been held that even in the minority quota, admissions have to be made strictly in accordance with the merit. Notice of motion for 11.8.2008. Process dasti. The questions regarding the grant of any interim order shall be considered on the next date of hearing.” 12. During the course of motion hearing, by an order dated 4.9.2008, this Court permitted the petitioners to implead the State of Haryana, the State of Himachal Pradesh, the Union of India and the Union Territory of Chandigarh, as party respondents. On 10.9.2008, while admitting the writ petition for regular hearing, this court at the suggestion of the learned counsel representing the petitioners, formulated seven questions of law, which according to the petitioners, required determination at the hands of this court. This Court also permitted the learned counsel representing the respondents to suggest additional questions, which may require determination during the course of the adjudication of the instant writ petition. The seven questions of law framed at the behest of the learned counsel for the petitioners (in the order passed by the Division Bench on 10.9.2008) are being extracted hereunder: - “i) Whether the S.G.P.C. is a statutory Board in terms of section 40 of the Sikh Gurudwara Act, 1925 ? ii) Whether a person who trims, shaves, plucks etc. or otherwise removes or reduces/shortens his/her bodily hair is not a Sikh ? iii) Whether a person who does not include a word 'Singh' (in case of male) and 'Kaur' (in case of female) in his/her name is not a Sikh? iv) Whether all Amritdhari Sikhs, Sehajdhari Sikhs, Keshadhari Sikhs and Patits are within the larger definition of Sikh as contained in section 2 (9) of Sikh Gurudwara Act, 1925, if not, whether the division of Sikhs into Amritdhari Sikhs, Sehajdhari Sikhs, Keshadhari Sikhs and Patits in section 2(10), 2(10A) 2(11) respectively of the Sikh Gurudwara Act, 1925 is ultra vires the provisions of section 2(9) of the said C.W.P No.14859 of 2008 :13: Act? and whether the classification of Sikhs in 4 categories is a valid classification? v) Whether reservation of 50 percent seats of Sikh minority quota is available for institutions run by S.G.P.C. only in terms of Government Notification (Annexure P-5)? vi) Whether the petitioners who are higher in merit than the private respondents can be denied admission on the ground that they cut their hair, trim their beard and remove facial and/or other hair and whether clause 3 note (1), clause 9 and Appendix D-1 and D-2 of the prospectus are illegal and ultra vires the provisions of the The Sikh Gurudwara Act, 1925? vii) Can a minor student be refused admission if he/she trims, shaves, plucks etc. or otherwise removes or reduces/shortens his/her bodily hair ?” 13. The first submission raised on behalf of the petitioners, can be summarised as follows. Firstly, according to the petitioners, the Shiromani Gurdwara Parbandhak Committee (hereinafter referred to as the SGPC) is a Board created under the Sikh Gurdwaras Act, 1925 (hereinafter referred to as the Gurdwara Act of 1925). The SGPC, in terms of the mandate of section 42 of the Gurdwara Act of 1925, is a body corporate, having perpetual succession and a common seal. The aforestated provision also mandates, that the SGPC can be sued in its name, and likewise, it can sue others. Under section 106 of the Gurdwara Act of 1925, the funds collected from “Sikh gurdwaras” can be used by the SGPC, inter-alia, for educational purposes. Secondly, it has been urged by the learned counsel for the petitioners, that the SGPC has set up, and is running the respondent – Medical College, out of the aforesaid funds. It is also pointed out, that the management and control of the respondent – Medical College is also in the hands of the SGPC. On the basis of the cumulative effect of the first and the second submissions noticed hereinabove, it is sought to be asserted, that the provisions of the Gurdwara Act of 1925 are binding on the respondent – Medical College. According to the learned counsel for the petitioners, the C.W.P No.14859 of 2008 :14: fact whether or not the petitioners are Sikhs, will have to be determined on the basis of the provisions of the Gurdwara Act of 1925. Accordingly it is submitted, that the