THE NEW LAW
The Haryana Legislative Assembly at its session held on July 11 passed the Haryana Sikh Gurdwara Management Bill, 2014. Upon receiving the assent of the Governor of Haryana on July 14 and on notification in the Official Gazette, it led to the formation of a separate Haryana Sikh Gurdwara Prabandhak Committee under the Haryana Sikh Gurdwara (Management) Act, 2014 (HSGMA) for administration of Sikh Gurdwaras in the State of Haryana. Reportedly, control and management of 25 big Sikh shrines amongst a total of 72 of them in Haryana, with an estimated average annual income of about Rs.30 Crores, are involved in this process. Prior to this, the existing Shiromani Gurdwara Prabandhak Committee (SGPC) constituted under the Sikh Gurdwaras Act, 1925 managed and administered these religious shrines both in States of Punjab and Haryana. Questions being raised about the constitutional validity of the HSGMA and competence of the State of Haryana to enact this new law, the matter requires introspection from the legal perspective.
THE OLD LAW
The Sikh Gurdwaras Act, 1925, (SGA) which was enacted by the Punjab Legislative Council to provide for better administration of Sikh Gurdwaras and for enquiries into matters as also settlement of disputes connected therewith, came into force on November 1, 1925 with the previous sanction of the Governor General. Upon amendment in 1959, it came into force in the “extended territories” to which the Amending Act extended upon notification. Accordingly, it came to be extended to territories which immediately before November 1, 1956 were comprised in the State of Punjab and Patiala and East Punjab States Union. “Extended territories” finds specific definition in the Act. The SGA as a wholesome composite law running into 161 Sections prescribes in Section 41 that the management of every notified Sikh Gurdwara shall be administered by the Committee constituted thereof, the Board and the Commission in accordance with the SGA whose Schedule I contains a list of 415 Sikh Shrines located in the States of Punjab and Haryana. Detailed provisions for constitution, powers and duties as also management of finances of “The Board”, “Committee of Gurdwaras” and “the Judicial Commission” finds mention in Chapters VI to XII in Part III of the SGA. Under Section 42 of the SGA, the Board shall be a body corporate and shall have a perpetual succession and a common seal, which under section 85 SGA, shall be the “Committee of management” for the Gurdwaras. Under Section 94-A, SGA, “every Committee shall be a body corporate by the name of the Committee of Management of the Gurdwara or Gurdwaras under its management and shall have perpetual succession and a common seal and shall sue and be sued in its corporate name.” Under Section 146 SGA, the Central Government is empowered to make rules to carry out the purposes of the Act and under Section 148-F SGA, the Central Government may by order do anything if any difficulty arises in giving effect to the provisions of this Act in the extended territories. Amendments to SGA itself are within the domain of Parliament. Undoubtedly, SGPC, as of today, manning controls over the Sikh shrines, is often called the “mini- Parliament of the Sikhs.”
POWER OF ENACTMENT OF THE SGA
The Government of India Act, 1919 (GOI) was passed by the British Parliament to increase participation of Indians in the then Government of India and provided a “dyarchy” i.e. a dual form of government for the provinces existing at that time. Matters of administration were first divided between the Centre and the Provinces, whereafter the provincial subjects were further bifurcated into transferred and reserved subjects for appropriate administration. The transferred subjects including religion and charitable endowments were to be administered by the Governor with the help of Ministers responsible to the Legislative Council composed mainly of elected members. The reserved subjects relating to other matters were to remain the responsibility of the Governor and his Executive Council which was not responsible to the Legislature. Hence, the SGA which was enacted under the GOI, made the SGPC a “body corporate” with a perpetual succession and a common seal.
THE REORGANISATION ACT
The Punjab Reorganisation Act, 1966 (PRA), enacted by Parliament, was an Act to provide for the re-orgranisation of the then undivided State of Punjab in 1966, which led to the formation of State of Haryana, Union Territory of Chandigarh and present State of Himachal Pradesh. Under Section 72 of the PRA, any “body corporate” constituted under a Central, State or Provincial Act for the existing State of Punjab or any part thereof serving the needs of successor States or which is a “inter-State body corporate”, then, the body corporate shall continue to function and operate in those areas in which it was functioning, subject to such directions as may issued by the Central Government. Section 72 PRA further stipulates that any direction issued by the Central Government in respect of any such body corporate may include a direction that any law by which the said body corporate is governed shall have effect. Hence, the SGPC, as an inter-State body corporate under Section 72 PRA, is said to be exercising jurisdiction beyond Punjab as the Board and Committees of Gurdwaras are exercising control, powers and duties as per the provisions of the SGA. This situation prevailed from November 01, 1966 onwards after PRA came into force. However, now, with the enactment of the HSGMA, the issue now needs constitutional interpretation as to the status of the existing SGPC.
CURRENT CONSTITUTIONAL POSITION
Article 246 of the Constitution stipulates that Parliament has exclusive power to make laws with respect to matters in the Union list, State Legislatures have exclusive powers to make laws for the State in the State list and both Parliament and State Legislatures have powers to make laws in the Concurrent list. Presuming, that HSGMA was enacted by the Haryana State Legislature under entry number 32 in the State List, inter-alia, relating to “unincorporated trading, literacy, scientific, religious and other societies”, the proposition may fall in a questionable area. The SGPC constituted under the SGA, by virtue of Section 72 PRA, as a “inter-State body Corporate” is serving the needs of the successor State. It is not an unincorporated body. Therefore, it may be difficult to justify reliance on entry 32 in the State list or entry 28 in the Concurrent List. Furthermore, if reliance is sought to be justified under any other entry in the Concurrent or the State List, it will need to be suitably corroborated.
INCONSISTENCY OF LAWS MADE BY PARLIAMENT & STATE LEGISLATURES
Article 254 of the Constitution stipulates that if any provision law made by the Legislature of a State is repugnant to any provision of law made by Parliament or to any provision of an existing law, the law made by Parliament shall prevail to the extent of repugnancy and the law so made by the Legislature of such State shall, if it has been reserved for the consideration of the President and has received his assent, prevail in that State. In the present case, the HSGMA, has not received the consideration of the President and his assent under Article 254. Therefore, it may be said that the law may be in a quandary. Questions are being raised on its legality, inconsistentcy and repugnancy with the SGA. They must be answered. In such a dilemma, Article 143 of the Constitution provides the most wholesome solution. Under Article 143, if the facts and circumstances so warrant, and if at any time, it appears to the President that a question of law of fact has arisen which is of such a nature and of such public importance that it is expedient to obtain the opinion of the Supreme Court upon it, the President may refer the question to the Supreme Court for consideration whereupon, a report may be given to the President. In the current scenario of the present case, to put the controversy of the constitutional validity of the HSGMA at rest, it may be expedient in the interest of public that the crisis is efficaciously resolved by this just and appropriate resolution. A Presidential reference is warranted. The matter should not linger. It must be immediately resolved. An appropriate intervention is called for. Any further conflict must be averted.
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