HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH **** CWP No.17771 of 2003 (O&M) Date of Decision: December 20, 2011 **** Sehajdhari Sikh Federation . . . . Petitioner versus Union of India & Ors. . . . . Respondents **** CORAM: HON’BLE MR. JUSTICE SURYA KANT HON’BLE MR. JUSTICE M. JEYAPAUL HON’BLE MR. JUSTICE M.M.S. BEDI **** 1. Whether Reporters of local papers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in the Digest? **** Present: Mr. Ashwani K. Chopra, Senior Advocate; Mr. MS Khaira, Senior Advocate; Messrs. Sanjeev Sharma; Mansur Ali; HS Deol; Vikas Singh; Harminder Singh; GS Sullar; BS Sewak; Dharminder Singh; RS Khaira; Harinder Singh & Sandeep Khunger, Advocates, for the PETITIONER(s) Dr. Anmol Rattan Sidhu, Assistant Solicitor General with Messrs. OS Batalvi; SS Swaich; Brijeshwar Kanwar; IPS Doabia; and Ms. KK Kahlon, Central Government Standing Counsel for UNION OF INDIA. Mr. Ashok Aggarwal, Advocate General, Punjab with Mr. Amol Rattan Singh, Addl. AG Punjab Mr. AK Ganguli, Senior Advocate; Mr. RS Suri, Senior Advocate; with Messrs. Gurminder Singh and Saruesh Bisaria, Advocates for respondent SGPC Mr. Hawa Singh Hooda, Advocate General, Haryana with Mr. Gagandeep Singh Wasu, Sr. DAG Haryana Mr. Sanjay Kaushal, Sr. Standing Counsel, UT Chandigarh **** CWP No17771 of 2003.doc - 2 - Surya Kant, J. {1}This order of ours shall dispose of CWP Nos.17771 of 2003; 14179 of 2010; 18160 of 2011 as the issues involved therein are either interlinked or inter-dependent. Before extracting the facts in extenso from CWP No.17771 of 2003, it being the oldest, we deem it appropriate to tersely refer to some of the orders passed by different Division Benches, resulting into placement of these cases before a larger Bench even in the absence of a formal reference order. CWP No.17771 of 2003 {2}Sehajdhari Sikh Federation – a registered Political Party has preferred this writ petition statedly in public interest, seeking quashing of the Notification dated 8th October, 2003 issued by the Central Government purportedly in exercise of its powers under Section 72 of the Punjab Re-organization Act, 1966 (in short, ‘the 1966 Act’) whereby Sections 49 and 92 of the Sikh Gurdwara Act, 1925 (in short, ‘the 1925 Act’) have been ‘amended’ to the extent of denying the Sehajdhari Sikhs their right to vote in the elections of Sikh Gurdwara Prabandhak Committee (SGPC) i.e. the Board and other statutory Committees constituted under the said Act. The afore-stated writ petition, owing to the public importance of the issue involved, was directed to be posted for hearing along with CWP No.13282 of 2008 (Gurleen Kaur & Ors. vs. State of Punjab & Ors.) CWP No17771 of 2003.doc - 3 - which had already been referred to and listed before a Full Bench comprising three Judges of this Court. {3}The Full Bench while deciding Gurleen Kaur and others v. State of Punjab & Ors. 2009(3) RCR (Civil) 324 on 30.05.2009 segregated this case by a separate order observing that the controversy raised in the instant writ petition is separate and distinct from the one raised in Gurleen Kaur and other’s case. {4}The petitioner-Federation while claiming itself to be the representative of a large chunk of Sikh Sangat who practice ‘Sikh- Religion’ and is keenly interested in the proper management and upkeep of Sikh Gurdwaras/Shrines has distinctly defined ‘Amritdhari Sikhs’, ‘Sehajdhari Sikhs’ and a ‘Patit’. While ‘Amritdhari Sikhs’ are stated to be baptized after partaking Amrit and abide by the strict code of Sikhism like wearing the “5 Kakars” i.e. Kesh, Kara, Kirpan, Kachha and Kangha; the ‘Sehajdhari Sikhs’ abide by the Sikh tenets but they are not Baptised Sikhs. The ‘Sehajdhari Sikhs’ were said to be formally ‘defined’ vide Punjab Act No.1 of 1959 by adding Section 2(10-A) in the 1925 Act realizing that ‘Sehajdhari Sikhs’ need to participate in the election of Members of the Board and the Committees. It is claimed that ‘Sehajdhari Sikhs’ are an integral part of ‘The Sikhs’ who are followers of the 10 Gurus and Sri Guru Granth Sahib though without partaking Amrit i.e. CWP No17771 of 2003.doc - 4 - Baptism or following the “5 Kakars” but they do not follow any other religion except Sikhism. {5}The petitioner has further asserted that ‘Patit’ is a person who despite being a ‘Keshadari Sikh’, trims or shaves his beard or Keshas and/or even after partaking Amrit commits any one of the four Kurahits (transgressions), namely (i) dishonours hair; (ii) eats meat of a slaughtered animal; (iii) co-habits with a person other than one’s spouse; (iv) consumes tobacco, and for committing any of these sins, he/she is considered an outcaste i.e. thrown out of religion. {6}The petitioner-Federation perceives ‘Amritdhari’ as a true and unrivaled Sikh while a ‘Sehajdhari Sikh’ is a person who believes and professes ‘Sikhism’ and transforms oneself into becoming a ‘Keshadhari’ or an ‘Amritdhari’ Sikh while a ‘Patit’ is one who used to be an Amritdhari or a Keshadhari Sikh but has been thrown out of the religion for committing a ‘sin’. It is averred, on this premise, that the legislative wisdom behind conferring right of franchise on ‘Sehajdhari Sikhs’ is unquestionable and is a conscious policy decision which has held the field for about past 60 years and as such could not be transgressed into or set at naught by the Central Government in exercise of its powers under Section 72 of the 1966 Act. The petitioner-Federation alleges that the impugned Notification ultra vires the provisions of 1925 Act and is beyond the scope of delegated legislative powers conferred upon the Central CWP No17771 of 2003.doc - 5 - Government under Section 72 of the 1966 Act. The precise case of the petitioner(s) is that deletion of the words “except in case of Sehajdhari Sikh” which amounts to amendment in the existing provisions, could be undertaken by the competent Legislature alone and not by the Executive. {7}The Union of India, on the other hand, defends its action urging that Section 72(3) of the 1966 Act expressly authorizes it to make any amendment or modification in Part-III of the 1925 Act and the said power has been invoked for umpteen times in the past including the one inserting Section 47-A in the said Act vide Notification dated 03.02.1978 constituting the ‘Gurdwara Election Commission’ or for the appointment of Chief Commissioner for the Gurdwara elections. It is averred that the Sikh Gurdwara Prabandhak Committee (SGPC) vide its Resolution No.9 dated 30th November, 2000 recommended amendment of certain provisions of the 1925 Act and thereafter forwarded subsequent resolutions including Resolution No.300 dated March 7, 2002 demanding that ‘Sehajdhari Sikhs’ should not have a right to vote under the 1925 Act and that the election of SGPC be conducted only after the words “except in the case of Sehajdhari Sikhs” are deleted from Sections 49 and 92 of the 1925 Act. It is maintained that the Parliament by incorporating Section 72 in the 1966 Act has empowered the Central Government “to issue amendments under the provisions of Part-III of the Sikh CWP No17771 of 2003.doc - 6 - Gurdwara Act, 1925” and thus, the impugned Notification has been lawfully issued. {8}A separate reply/affidavit has been filed by the Gurdwara Election Commission highlighting tenets of the ‘Sikh religion and rites’ so as to urge that ‘Sehajdhari Sikhs’ have no right to cast vote and/or participate in the management of Sikh Gurdwaras. The religious history has also been briefly highlighted to justify the withdrawal of right to vote given to the ‘Sehajdhari Sikhs’ earlier. {9}Sikh Gurdwara Prabandhak Committee (SGPC) – respondent No.4 has also filed its reply/affidavit justifying its resolutions, it being the genuine representative body of ‘Sikhs’ who is concerned about the ‘Sikh faith’ and ‘Sikh religion’. The reply highlights as to how the process of election to the Boards/Committees constituted under the 1925 Act has been diluted and polluted due to the involvement of those who do not follow and/or adhere to the code of conduct to be observed by true ‘Sikhs’. CWP No.14179 of 2010 {10}This writ petition seeks quashing of the Notification dated 8th October, 2003 issued by the Central Government under Section 72 of the Punjab Re-organization Act, 1966 besides seeking a declaration that Sections 49 & 92 of the Sikh Gurdwara Act, 1925 as amended vide the above-mentioned Notification, ultra vires Articles 14, 21 & CWP No17771 of 2003.doc - 7 - 25 of the Constitution of India. The petitioner also seeks quashing of the Circulars issued by Sikh Gurdwara Election Commission for preparation of the electoral rolls and/or for processing the election of SGPC and other Boards/Committees constituted under the Act. {11}The petitioner who claims to be a Sehajdhari Sikh has referred to various provisions of 1925 Act especially Sections 2(9), (10-A) & (11) to stress upon the definition of a ‘Sikh’, a ‘Sehajdhari Sikh’ and a ‘Patit’ to say that before issuance of the subject notification, the ‘Sehajdhari Sikhs’ used to cast their votes subject to the qualifications prescribed in Sections 49 and 92 of the 1925 Act. The impugned notification has, however, taken away their valuable right to franchise. The petitioner relies upon the religious philosophy spelt out by various Sikh Gurus to profess that ‘Sikhism’ is a progressive stream of religion bereft of superficial ritualism and is an embodiment of humanity, harmony, compassion and justice originating from the inner upliftment of a human being instead of just polishing his external demeanor. {12}The State of Punjab in its short reply/affidavit has maintained that the issues raised by the petitioner do not pertain to it hence no detailed reply is required on its behalf. {13}The SGPC has filed its detailed reply/affidavit emphasizing that in view of the Full Bench decision of this Court in Gurleen Kaur and CWP No17771 of 2003.doc - 8 - other’s case, the ‘Sehajdhari Sikhs’ who trim or shave their beard/hair cannot be termed as ‘Sikhs’ for the grant of electoral rights, hence the Notification issued by the Union of India under Section 1966 Act calls for no interference. The above-stated plea has been taken in addition to what has already been pleaded by the SGPC in its reply to the first case (CWP No.17771 of 2003). {14}Respondent No.3 – Chief Commissioner, Gurdwara Election Commission has also filed a separate reply and while relying upon the Full Bench decision in Gurleen Kaur and other’s case has reiterated the same plea as taken in the first case. {15}A Division Bench vide order dated 28.09.2010 directed this matter to be listed before a Full Bench on 10.12.2010 along with CWP No.11841 of 2010 and when the matters were taken up for hearing by the Full Bench on March 10, 2011, it was pointed out by counsel for the parties that the first case i.e. CWP No.17771 of 2003 listed before a Division Bench was also required to be heard by the Full Bench along with these cases. The Division Bench on the request made by counsel for the parties directed the listing of CWP No.17771 of 2003 also before a Full Bench along with CWP No.14179 of 2010. CWP No.18160 of 2011 {16}The petitioner in this case also seeks quashing of the Government of India Notification dated 8th October, 2003 modifying Sections 49 & CWP No17771 of 2003.doc - 9 - 92 of the Sikh Gurdwara Act, 1925. The petitioner claims to have contributed towards restoration of peace and harmony in the State of Punjab during the period when it was infested with terrorism. The petitioner has given a brief religious and legal history of ‘Sikhs’ and ‘Sikhism’ and maintains that a true Sikh is the one who believes in ten Gurus and Sri Guru Granth Sahib and does not profess any other religion. The petitioner has broadly replicated the pleas already taken up by the other writ-petitioners. It is in this backdrop that the respondents have rightly chosen not to file any separate reply/affidavit in this case in view of the pleadings being complete in the connected matters. {17}It may be clarified here that there was one more case bearing CWP No.11841 of 2010 seeking declaration that Section 44 of the Sikh Gurdwara Act, 1925 ultra vires the Constitution of India; a writ of mandamus was sought to amend the Electoral Registration Form to bring it in consistence with Rule 3 of the Sikh Gurdwaras Board Election Rules, 1959; besides quashing of the Central Government notification dated 17.09.2009 introducing rotation of constituencies reserved for the Scheduled Castes and the women and a host of other directions. The aforesaid case was also clubbed and heard along with the above-mentioned cases till it was withdrawn by the petitioner on 18.10.2011. The said case occasioned the presence and assistance of learned Advocate Generals of Punjab and Haryana CWP No17771 of 2003.doc - 10 - though none appeared on behalf of the State of Himachal Pradesh despite service. {18}This is how that these cases have been placed before a larger Bench for hearing which commenced on 22.09.2011, almost on a day-to-day basis till its conclusion on 19.10.2011. The records including the original record produced by the Union of India comprising the Noting-files culminating into the issuance of the impugned Notification dated 08th October, 2003 have also been gone into by us with the assistance of counsel for the parties. {19}A brief legal history of the Sikh Gurdwara Act, 1925 (Punjab Act No.8 of 1925) reveals that it has been enacted to provide for the better administration of ‘Sikh Gurdwaras’ and for inquiries into matters and settlement of disputes connected therewith. The Act lays down legal procedure by which Sikh Gurdwaras and Shrines regarded by Sikhs as essentially places of their worship, have been brought effectively under the permanent control of the Sikhs. The Act provides for a Scheme of purely Sikh management secured by statutory and legal sanction; for places of worship which are identified either by the Legislature or the Tribunal set up under the Act or Civil Court. {20}We clarify in no uncertain terms that the pure religious issues like who is a true ‘Sikh’ or what is preached by ‘Sikhism’ do not arise, CWP No17771 of 2003.doc - 11 - directly or indirectly, for our consideration. Nevertheless to understand the 1925 Act in a more meaningful manner, it is noticed with exquisite brevity that Sikhs believe in 10 Gurus, the first of whom and the founder of the ‘Sikh religion’, Guru Nanak Dev ji preached moral and spiritual values to the mankind for a righteous and selfless living which acknowledges equality amongst all human beings. The last Sikh Guru was Shri Guru Gobind Singh ji. The Sikhs believe that there is no other Guru thereafter and consider Shri Guru Granth Sahib as their ‘Guru’. Shri Guru Granth Sahib is a visible form of invisible Guru. It gives message of unity and universal brotherhood, namely, “one father, we, the children of one God” (Ek Pita, Ekas Ke Ham Balak), is the clarion call which runs through the 1430 golden pages of Shri Guru Granth Sahib. ‘Sikhism’ is a deep synthesis of divine virtues, ceaseless, remembrance, relentless service of mankind, equality of man, and ephemeral nature of the world besides defiance of tyranny and fighting for righteousness. Sikhs do not subscribe to idol worship or polytheism nor do they have any Samadhi in their Gurdwaras or Shrines. {21}The control and management of Gurdwaras after the death of Guru Gobind Singh ji came under the local sangat (congregation) which led to intrusion of mahants who took control of Sikh Gurdwaras though some of them were not even ‘Sikhs’. With the death of Maharaja Ranjit Singh, the power of the Sikhs waned and they were dis-organized which encouraged the mahants to assert their control CWP No17771 of 2003.doc - 12 - over Gurdwaras denying such rights to the Panth or Sangat. The resentment led to several violent and non-violent movements for the restoration of Sikh control over Gurdwaras and Shrines prompting the erstwhile Provincial Legislature to enact the Sikh Gurdwaras and Shrines Act, 1922 which was very soon repealed by the 1925 Act as it failed to satisfy the aspirations of the Sikhs for various reasons. {22}Since the issues involved in these cases and the legal submissions made at the bar gyrates around provisions of the two Statutes, namely, the Sikh Gurdwara Act, 1925 and the Punjab Re- organization Act, 1966, we deem it appropriate to reproduce some of their relevant provisions (including ‘amended’ and ‘unamended’ provisions of the 1925 Act in a tabulated form) :- THE SIKH GURDWARA ACT, 1925 Overview of the (original and amended) provisions of Sikh Gurdwara Act from 1925 onwards Sikh Gurdwara Act, 1925 (No.8 of 1925) (original) As amended vide Punjab Act No.III of 1930 As amended vide Punjab Act No.11 of 1944 (vide which different clauses of Section 2 were also re-numbered) As amended vide Punjab Act No.1 of 1959 As it exits after 8th October, 2003 CWP No17771 of 2003.doc - 13 - Sec-2(9) defines Sikh Sikh - "Sikh" means a person who professes the Sikh religion. If any question arises as to whether any person is or is not a Sikh, he shall be deemed respectively to be or not to be a Sikh according as he makes or refuses to make in such manner as the Local Government may prescribe the following declaration:- 'I solemnly affirm that I am a Sikh, that 'I believe in the Guru Granth Sahib, that 'I believe in the Ten Gurus and that I have no other religion.' “Sikh” means a person who professes the Sikh religion, or, in the case of a deceased person, who professed the Sikh religion or was known to be a Sikh during his lifetime. If any question arises as to whether any living person is or is not a Sikh, he shall be deemed, respectively to be or not to be a Sikh according as he makes or refuses to make in such manner as the Local Government may prescribe the following declaration:- 'I solemnly affirm that I am a Sikh, that I believe in the Guru Granth Sahib, that I believe in the Ten Gurus, and that I have no other religion.'" No change No change “Sikh” means a person who professes the Sikh religion or, in the case of a deceased person, who professed the Sikh religion or was known to be a Sikh during his lifetime. If any question arises as to whether any living person is or is not a Sikh, he shall be deemed, respectively to be or not to be a Sikh according as he makes or refuses to make in such manner as the [State] Government may prescribe the following declaration:- 'I solemnly affirm that I am a Sikh, that I believe in the Guru Granth Sahib, that I believe in the Ten Gurus, and that I have no other religion.'" Sec2(10) defines Amrit- dhari Sikhs - No change ‘Amritdhari Sikh’ means and includes every person who has taken khande- ka- amrit or khanda pahul prepared and administered according to the tenets of Sikh religion and rites, at the hands of five pyaras or ‘beloved ones’ No change ‘Amritdhari Sikh’ means and includes every person who has taken khande- ka- amrit or khanda pahul prepared and administered according to the tenets of Sikh religion and rites, at the hands of five pyaras or ‘beloved ones’ 2(10-A) defines Sehaj- dhari Sikhs Non-existent Non-existent Non-existent Sahjdhari Sikh' means a person - (i) who performs ceremonies according to Sikh rites; (ii) who does not use tobacco or Kutha (Halal Meat) in any form; (iii) who is not a Patit; and (iv) who can recite Mul Manter" Sahjdhari Sikh' means a person - (i) who performs ceremonies according to Sikh rites; (ii) who does not use tobacco or Kutha (Halal Meat) in any form; (iii) who is not a Patit; and (iv) who can recite Mul Manter" Sec2(11) defines Patit - No change “Patit” means a person who being a keshadhari Sikh trims or shaves his beard or keshas or who after taking amrit commits any one or more of the four kurahits. No change “Patit” means a person who being a keshadhari Sikh trims or shaves his beard or keshas or who after taking amrit commits any one or more of the four kurahits CWP No17771 of 2003.doc - 14 - Sec-42 defines the Board Name of Board – (1) The Board shall be known by such name as may be decided upon at a general meeting of the first Board constituted under the provisions of this Act, provided that not less than three-fifths of the members present at the meeting have voted in favour of the name selected, and that such name has been approved by the Local Government. (2) If the Board fails to select a name in accordance with the provisions of sub- section (1) or the name selected is not approved by the Local Government, the Board shall be designated the Central Board. (3) The Board shall by such name be a body corporate and shall have a perpetual succession and a common seal and shall by such name sue and be sued. No change No Change No change Name of Board – (1) The Board shall be known by such name as may be decided upon at a general meeting of the first Board constituted under the provisions of this Act provided that not less than three-fifths of the members, present at the meeting have voted in favour of the name selected, and that such name has been approved by the [State] Government. (2) If the Board fails to select a name in accordance with the provisions of sub- section (1) or the name selected is not approved by the [State] Government the Board shall be designated the Central Board. (3) The Board shall by such name be a body corporate and shall have a perpetual succession and a common seal and shall by such name sue and be sued. CWP No17771 of 2003.doc - 15 - Sec-43 defines Com- position and consti- tution of Board Composition and constitution of the Board - (1) The Board shall consist of - (i) one hundred and twenty elected members; (ii) the head ministers of the Darbar Sahib, Amritsar and the following four Sikh Takhts, namely - the Sri Akal Takht Sahib, Amritsar, the Sri Takht Kesgarh Sahib, Anandpur, the Sri Takht Patna Sahib, Patna and the Sri Takht Hazur Sahib, Hyderabad, Dekkan; (iii) twelve members nominated by the Darbars of the Indian States specified in sub- section (2); (iv) fourteen members resident in India, of whom not more than five shall be residents in the Punjab, co-opted by the members of the Board as described in clause (i), (ii) and (iii). (2) The Local Government shall invite the Darbars of the Indian States specified in the list following to nominate the number of members stated therein against their respective names:- Patiala - 4 Nabha - 2 Faridkot - 2 Kapurthala - 2 Jind - 1 Kalsia – 1. (3) If the Darbar of any Indian State fails to nominate a member in response to an invitation by the Local Government, the Board shall be deemed to be duly constituted notwithstanding such failure. (4) The Local Government shall, as soon as may be, call a meeting of the members of the Board described in No change In sub-section (1) of Section 43 – (a) in clause (i), for the word “twenty”, the words, “thirty- two” shall be substituted; and (b) in clause (iv) for the word “fourteen”, the word “seventeen” and for the word “five” the word “four” shall be substituted. No change Composition and constitution of the Board - (1) The Board shall consist of - (i) one hundred and thirty- two elected members; (ii) the head ministers of the Darbar Sahib, Amritsar and the following four Sikh Takhats, namely - the Sri Akal Takhat Sahib, Amritsar, the