SETTLING A RELIGIOUS LAW



This Article is authored by Advocate Anil Malhotra.


THE NEW LAW


Haryana Legislative Assembly at its session held in 2014 had passed the Haryana Sikh Gurdwara Management Bill, 2014. Upon receiving assent of Governor of Haryana and on notification in Official Gazette, led to formation of separate Haryana Sikh Gurdwara Management Committee (HSGMC) under the Haryana Sikh Gurdwara (Management) Act, 2014 (HSGMA) for administration of Sikh Gurdwaras in 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, existing Shiromani Gurdwara Prabandhak Committee (SGPC) constituted under Sikh Gurdwaras Act, 1925 managed and administered these religious shrines both in States of Punjab and Haryana. Questions raised about the constitutional validity of the HSGMA and competence of the State of Haryana to enact this new law have been set at rest. Supreme Court has upheld validity of HSGMA freeing Gurudwaras in Haryana from control of SGPC.


THE OLD LAW


Sikh Gurdwaras Act, 1925, (SGA) which was enacted by 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 previous sanction of Governor General. Upon amendment in 1959, it came into force in “extended territories” to which Amending Act extended upon notification. Accordingly, it came to be extended to territories which immediately before November 1, 1956 were comprised in States of Punjab and Patiala and East Punjab States Union. “Extended territories” finds specific definition in SGA which as a wholesome composite law running into 161 Sections. It prescribes in Section 41 that management of every notified Sikh Gurdwara shall be administered by Committee constituted thereof, by 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 SGA. Under Section 42 of 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 “Committee of management” for Gurdwaras. Under Section 94-A, SGA, “every Committee shall be a body corporate by name of Committee of Management of 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, Central Government is empowered to make rules to carry out the purposes of SGA and under Section 148-F SGA, Central Government may by order do anything, if any difficulty arises in giving effect to provisions of this Act in extended territories. Amendments to SGA itself are within domain of Parliament. Undoubtedly, SGPC, as of today, manning controls over Sikh shrines, is often called the “mini- Parliament of Sikhs.”



POWER OF ENACTMENT OF THE SGA


Government of India Act, 1919 (GOI) was passed by 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 provinces existing at that time. Matters of administration were first divided between Centre and Provinces, whereafter provincial subjects were further bifurcated into transferred and reserved subjects for appropriate administration. Transferred subjects, including religion and charitable endowments, were to be administered by Governor with the help of Ministers responsible to Legislative Council composed mainly of elected members. Reserved subjects relating to other matters were to remain responsibility of Governor and his Executive Council which was not responsible to 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


Punjab Reorganisation Act, 1966 (PRA), enacted by Parliament, was an Act to provide for re-orgranisation of then undivided State of Punjab in 1966, which led to 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 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 Central Government. Section 72 PRA further stipulates that any direction issued by Central Government in respect of any such body corporate may include a direction that any law by which said body corporate is governed shall have effect. Hence, SGPC, as an inter-State body corporate under Section 72 PRA, is said to be exercising jurisdiction beyond Punjab as Board and Committees of Gurdwaras are exercising control, powers and duties as per the provisions of SGA. This situation prevailed from November 01, 1966 onwards after PRA came into force. However, now, with enactment of HSGMA, HSGMC will now manage Gurudwaras in Haryana independently from control of SGPC.


CURRENT CONSTITUTIONAL POSITION


Article 246 of Constitution stipulates that Parliament has exclusive power to make laws with respect to matters in 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 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”, matter now stand settled by Supreme Court. This is regardless of the fact that SGPC constituted under SGA, by virtue of Section 72 PRA, as a “inter-State body Corporate” is serving needs of successor State. Haryana has found a new identity as a State in its independent rights to manage Gurdwaras in Haryana free from SGPC.