Sardar Sarup Singh & Ors Vs. The
State of Punjab & Ors [1959] INSC 31 (1 April 1959)
DAS, S.K.
DAS, SUDHI RANJAN (CJ) BHAGWATI, NATWARLAL H.
GAJENDRAGADKAR, P.B.
WANCHOO, K.N.
CITATION: 1959 AIR 860 1959 SCR Supl. (2) 499
ACT:
Fundamental rights, violation of Sikh
Gurdwaras-Election of Gurdwara Board-Statutory Provision there for, when
affects religion-Direct election by entire Sikh Community, if essential
"Matters of religion," Meaning of-Sikh Gurdwaras Act, 1925 (Punjab 8
Of 1925), as amended by Punjab Act 1 of 1959, ss. 43, 43A, 148B-Constitution of
India, Art. 26(b), (d).
HEADNOTE:
In 1925 the Sikh Gurdwaras Act, 1925, was
passed, inter alia, for the better administration of certain Sikh Gurdwaras,
and after the merger of the erstwhile State of Patiala and the East Punjab
States Union, called Pepsu, with the State of Punjab, the Act was amended by
the Sikh Gurdwaras (Amendment) Act, 1959, in order to extend the Act to the
area which was formerly within Pepsu. Under s. 43 of the Act, before it was
amended in 959, a Board had been constituted, called the Sikh (1) (1940) I.L.R.
22 Lah. 22.
500 Gurdwara Prabandhak Committee, to act as
the committee of management in respect of some of the principal Sikh Gurdwaras and
in addition to exercise control, direction and general superintendence over all
committees appointed under the provisions of the Act ; the Board consisted of three
categories of members, namely (1) elected members, (2) certain designated members,
and (3) co-opted members, which included persons residing in Pepsu and other parts
of India.
By the Amending Act of 1959, S148B was added to
the main Act, which provided: " (1) As from the commencement of the Amending
Act, in addition to the members of the Board constituted under S. 43 (a) every person
in the extended territories who immediately before the commencement of the Amending
Act, is a member of the Interim Gurdwara Board, Patiala, constituted by Punjab Government
shall be deemed to be a member of the Board, constituted under s. 43 ; and (b) thirty-five
Sikhs including six Sikhs belonging to the Scheduled Castes residents in the extended
territories who shall be elected by the persons specified in sub-s. (2) in accordance
with the rules made in this behalf by the State Government, shall become the members
of the Board.......".
The petitioners who profess and practice the Sikh
faith filed a petition under Art. 32 Of the Constitution challenging the constitutional
validity of s. 148B on the ground that the section violated the fundamental right
granted under Art. 26(b) of the Constitution to every religious denomination or
any section thereof including the Sikh denomination " to manage its own affairs
in matters of religion". They contended, inter alia, (1) that the amending
Act of 1959 was passed with a view that a particular group of Sikhs might not regain
the majority it had lost on November 16, 1958, when the annual election of the Sikh
Gurdwara Prabandhak Committee was held; (2) that the members of the Interim Board,
Patiala, who under s. 148B(1)(a) are deemed to be members of the Board constituted
under s. 43, were appointed under a Punjab Government notification, and being merely
nominees of Government did not represent the Sikh Community; that under s. 148B
thirtyfive Sikhs from the extended area were introduced into the Board by means
of an indirect method, that is, by a limited Sikh electorate, the members of which
electorate were in their turn elected by Sikhs as well as non-Sikhs ; that the right
guaranteed under Art. 26(b) was given to all members of the Sikh denomination to
manage Sikh Gurdwaras, that the right must be exercised by all Sikhs who alone must
elect their representatives and that the introduction of new members into the Board
in respect of the extended territories in the manner envisaged by S. 148B, violated
by itself the right of the Sikhs in a matter of religion and constituted an infringement
of their fundamental right under Art. 26(b).
Held : (1) that in considering the question as
to whether a 501 provision of law is constitutionally valid, the court cannot be
called upon to embark on an enquiry into public policy or investigate into questions
of political wisdom or even to pronounce upon motives of the legislature in enacting
a law which it is otherwise competent to make ;
(2) that a direct election by the entire Sikh
Community in the management of Gurdwaras is not part of the Sikh religion; and,
(3) that the method of representation for the extended areas under s. 148B of the
Act was an arrangement dictated merely by considerations of convenience and expediency,
and did not involve any principle of religion.
Accordingly, s. I48B of the Act (-lid not affect
" matters of religion " within the meaning of Art. 26(b) of the Constitution
and consequently did not contravene the fundamental right under that Article.
The Commissioner, Hindu, Religious Endowments,
Madyas v Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954] S.C.R. 1005
and Sri Venkataramana Devaru v. The State of Mysore; [1958] S.C.R. 895, referred
to.
ORIGINAL JURISDICTION: Petition No. 13 of 1959.
Petition under Article 32 of the Constitution
of India for enforcement of Fundamental Rights.
Harnam Singh and Sadhu Singh, for the petitioners.
S. M. Sikri, Advocate-Gencral for the State of
Punjab, Gopal Singh and D. Gupta, for respondent No. 1.
1959, April 1. The judgment-of the Court was delivered
by S. K. DAS, J.-This is a petition under Art. 32 of the Constitution in which the
petitioners challenge the constitutional validity of s. 148-B of the Sikh Gurdwaras
Act, 1925 (Punjab VIII of 1925), hereinafter called the principal Act, the said
section having been added to the principal Act by the Sikh Gurdwaras (Amendment)
Act, 1959, hereinafter called the amending Act of 1959. The petitioners profess
and practice the Sikh faith and they allege that they are interested in the maintenance
and management of Sikh Gurdwaras, scheduled and notified under the principal Act.
Their main contention is that s. 148-B violates the fundamental right granted under
Art. 26(b) of the Constitution to every religious denomination or any section thereof
including the Sikh denomination, " to 502 manage its own affairs in matters
of religion ". The respondents to the petition are, firstly, the State of Punjab
and, secondly,, President and twelve members of the Interim Gurdwara Board, Patiala,
who under cl. (a) of sub-s. (1) of s. 148-B shall be deemed to be members of the
Board constituted under s. 43 of the principal Act. That Board is now known by the
name of the Sikh Gurdwara Prabandhak Committee. The application has been contested
before us by respondent No. 1 only, namely, the State of Punjab, on the ground that
s. 148-B does not, in any way, violate the fundamental right granted to the petitioners
or other members of the Sikh denomination under Art. 26(b) of the Constitution.
Therefore, the only question for consideration before us is if S. 148-B of the principal
Act does or does not contravene the fundamental right granted to the Sikhs under
Art. 26(b) of the Constitution.
We shall presently set out the provisions of s.
148B and also of some other relevant sections of the principal Act.
But before we do that, it is necessary to state
a few facts with regard to the passing of the amending Act of 1959. It has been
stated before us that in or about the year 1919 there was considerable unrest amongst
the Sikhs in the Punjab in respect of the management of their gurdwaras and shrines,
and in 1922 an Act called the Sikh Gurdwaras and Shrines Act was passed; this did
not satisfy the Sikhs and in 1925 the principal Act was passed, as its preamble
states, " for the better administration of certain Sikh gurdwaras and for enquiries
into matters and settlement of disputes connected therewith ". The principal
Act was amended from time to time. On November 1, 1956, there was merger of the
erstwhile State of Patiala and the East Punjab States Union (hereafter called Pepsu
in brief) with the State of Punjab. Sometime in February 1957 the Government of
the State of Punjab appointed an advisory committee to report as to whether the
principal Act should be extended to the area which was formerly within Pepsu. In
September 1957 the committee recommended in favour of such extension. On April 8,
1958, a bill called the Sikh 503 Gurdwaras (Amendment) Bill, 1958, was introduced
in the Punjab Vidhan Sabha and the Bill was sent to the regional committees constituted
by an order of the President called the Punjab Regional Committees Order, 1957,
made under el.
(1) of Art. 371 of the Constitution. The regional
committees dealt with the Bill and made certain recommendations. For the purposes
of the application before us, it is unnecessary to go into details of the proceedings
before the regional committees. Sometime in November 1958 there was a meeting of
the Sikh Gurdwara Prabandbak Committee for the purpose of the annual election. Learned
counsel for the petitioners has stated before us that at this meeting there was
a majority by a very small margin (three votes only) in favour of a particular group
of Sikhs and against another group known as the " Shiromoni Akali Dal".
Within one week, however, a notice was given for calling a meeting to consider the
provisions of the amending Bill; this meeting could not, however, be held as an
order of stay was obtained from the Judicial Commission constituted under the principal
Act. In December 1958 a special session of the Vidhan Sabha was summoned to consider
the amending Bill. It has been stated that originally the amending Bill did not
contain provisions like those later embodied in s. 148-B. The Bill was accordingly
sent back to the regional committees and on December 27, 1958, the regional committees
submitted a final report and recommended the addition of provisions which subsequently
became the provisions of s. 148-B of the principal Act. It may be here stated that
even in the regional committees there was some opposition to the provisions in question.
On December 31, 1958, the Bill was passed by the Vidhan Sabha, and on January 3,
1959, it was passed by the Legislative Council.
On January 8, 1959, it received the assent of
the Governor and became Punjab Act No. 1 of 1959, which is the Amending Act of 1959.
It came into force at once and some rules under the Act were made a few days after.
On February 2, 1959, the present petition was filed and on February 14, 1959, the
election of 35 Sikhs contemplated under el. (b) of sub-s. (1) of s. 148-B was completed.
504 It is necessary at this stage to refer to
some of the old provisions of the principal Act as also the new provisions added
by the amending Act of 1959. The Board which is known as the Sikh Gurdwara Prabandhak
Committee acts as the committee of management in respect of some of the principal
Sikh gurdwaras; in addition, it also has the duty of ensuring that every committee
of management deals with the property and -income of the gurdwara or gurdwaras managed
by it in accordance with the provisions of the Act and for the fulfillment of this
duty it exercises control, direction and general superintendence over all committees
appointed under the provisions of the principal Act (see s. 125). The Board is constituted
under s. 43 of the principal Act. Previous to the passing of Punjab Act No. 44 of
1953, s. 43 said that the Board shall consist of (i) 84 elected members, (ii) the
bead ministers of certain well-known Sikh gurdwaras, (iii) 12 members nominated
by the Rajpramukh of Pepsu and (iv) 17 members resident in India of whom not more
than four shall be residents in Punjab, co-opted by the members of the Board as
described in (i), (ii) and (iii) above. In 1953 was passed Punjab Act No. 44 of
1953 and s. 43 of the principal Act was amended. The amended section was in these
terms:" S. 43. (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 Takhts, namely,the Sri Akali Takht Sahib, Amritsar, the Sri
Takht Kesgarh Sahib, Anandpur, the Sri Takht Patna Sahib, Patna, and the Sri Takht
Nazur Sahib, Hyderabad Deccan ; and (iii)twenty-five members resident in India of
whom at least twelve shall be residents of Pepsu, at least nine of other parts of
India than Punjab and Pepsu and not more than four of Punjab, co-opted by the members
of the Board as described in clauses (1) and (ii).
(2).............." It would thus appear that
after the passing of Punjab 505 Act No. 44 of 1953 the Board consisted of only three
categories of members, namely, (1) elected members, (2) certain designated members
and (3) 25 co-opted members.
Now, we come to s. 148-B which was added by the
amending Act of 1959. That section in so far as it is material for our purpose is
in these terms :" S. 148-B. (1) As from the commencement of the Amending Act,
in addition to the members of the Board constituted under section 43 and till the
next election of the new Board under section 43-A(a)every person in the extended
territories who, immediately before the commencement of the Amending Act, is a member
of the Interim Gurdwara Board, Patiala, constituted by Punjab Government, Home Department,
Notification No. 18-Gurdwaras, dated the 10th January, 1958, shall be deemed to
be a member of the Board, constituted under section 43; and (b)thirty-five Sikhs
including six Sikhs belonging to the Scheduled Castes residents in the extended
territories, to be divided among different districts thereof in proportion to the
Sikh population of each district in the prescribed manner, who shall, within forty
days of the commencement of the Amending Act, be elected by the persons specified
in subsection (2) in accordance with the rules made in this behalf by the State
Government, shall become the members of the Board from the date specified in subsection
(3).
(2) The thirty-five persons referred to in clause
(b) of sub-section (1) shall be elected by(i) the persons who are deemed to be the
members of the Board under clause (a) of-sub-section (1) ;
(ii) the twelve members of the Board being residents
of Pepsu as are referred to in clause (iii) of sub-section (1) of section 43;
(iii) the sitting Sikh members of Parliament and
the two Houses of State Legislature returned from any constituency or part thereof
from the extended territories;
(iv) the Sikh members of Municipal Committees
in the extended territories;
64 506 (v)the Presidents or Chairmen of such Singh
Sabhas and the Managers or Secretaries of such Sikh educational institutions or
Sikh religious organisations as are registered on or before the 1st December, 1958,
in the extended territories; and (vi) the Sikh Sarpanches and Sikh Nayay Pardhans
of Nagar Panchayats and Panchayati Adalats, respectively:
Provided that the electors under clauses (iii),
(iv), (v) and (vi) are not disqualified under the proviso to section 49 of the Act.
(3) ........................
(4) ........................
(5) ........................" It is worthy
of note here that s. 148-B occurs in chapter XII-A and the heading of the chapter
is " Temporary and Transitional Provisions " which indicates clearly enough
that the provisions in sections 148-B to 148-F ate temporary and transitional provisions.
It has been stated at the Bar that in about a year, a fresh election of the Board
is due under s. 43-A, and the temporary and transitional provisions in chapter XII-A
are to be in force only for the intervening period. Section 43-A which was also
added by the amending Act of 1959 says "S. 43-A. (1) Whenever a new Board within
the meaning of section 51 is constituted, it shall consist of(i) one hundred and
forty elected members;
(ii) the Head Ministers of the Darbar Sahib, Amritsar,
and the following four Takhats, namely :the Sri Takhat Sahib, Amritsar, the Sri
Takhat Keshgarh Sahib, Anandpur, the Sri Takhat Patna Sahib, Patna, and the Sri
Takhat Hazur Sahib, Nanded; and (iii) fifteen members resident in India, of whom
not more than five shall be residents of Punjab, coopted by the members of the Board
as described in clauses (i) and (ii).
(2) The State Government shall, as soon as may
be, call a meeting of the members of the Board described in clauses (i) and (ii)
of sub-section (1) for the 507 purpose of co-opting the members described in clause
(iii) of that sub-section, and after the members have been coopted, the State Government
shall notify the fact of the Board having been duly constituted and the date of
the publication of the notification shall be deemed to be the date of the constitution
of the Board." Thus, the new or permanent Board which will be constituted under
s. 43-A will consist of (1) one hundred and forty elected members, (2) five designated
members, and (3) fifteen co-opted members, and there will be no room for any nominated
members therein. The petitioners have raised no objections to the constitution of
the Board under s. 43A;
all their objections are confined to the constitution
of the Board under s. 148-B, even though it is a transient provision for the transitional
period only.
What then are these objections, in so far as they
bear on the alleged violation of the petitioners' fundamental right under Art. 26
(b) of the Constitution ? Learned counsel for the petitioners has first commented
on what he has characterised as undue haste in passing the amending Act of 1959.
He has submitted that the Pepsu area came within the State of Punjab in November,
1956, and for about two years, the Punjab Government evinced no serious anxiety
to extend the principal Act to that area; but from November 16, 1958, when the annual
election of the Sikh Gurdwara Prabandhak Committee was held, up to January, 1959,
when the amending Act of 1959 was passed, hurried proceedings were taken to enact
the amending law in question and so constitute the Board that a particular group
of Sikhs might not regain the majority it had lost on November 16, 1958. In our
opinion these submissions (we do not say whether they are right or wrong) have no
hearing on the question at issue before us. The petitioners have not specifically
alleged in their petition that the State Government has acted in any mala fide manner;
and whatever justification some people may feel in their criticisms of the political
wisdom of a particular legislative or executive action, this Court cannot be called
508 upon to embark on an enquiry into -public policy or investigate into questions
of political wisdom or even -to pronounce upon motives of the legislature in enacting
a law which it is otherwise competent to make. We do not say that in pronouncing
on the rights of the parties before it, this Court must always stand aloof on the
chill and distant heights of abstract logic and pay no heed to the great tides and
currents which move society and men. If and when the occasion demands, for example,
when there is violation of a fundamental right guaranteed by the Constitution, it
will never hesitate to act. But it is well to remember that a fundamental right,
such as freedom of religion, is of an enduring character and must stand beyond the
sweep of changing and deflecting forces of current opinion. Our limited function
in this case, therefore, is to examine the constitutionality of s. 148-B, and to
that task we must now confine our attention.
The main argument of learned counsel for the petitioners
is that Art. 26(b) gives to every religious denomination, or any section thereof,
the right " to manage its own affairs in matters of religion " and the
right is subject only to public order, morality and health. In this case, according
to him, the right is given to all members of the Sikh denomination and not to any
particular members thereof, to manage Sikh gurdwaras ; therefore, the right must
be exercised by all Sikhs, and they alone must elect their representatives to manage
Sikh gurdwaras; and to the extent that s. 148-B departs from the aforesaid principle,
it constitutes an infringement of the right guaranteed to the petitioners under
Art. 26(b) of the Constitution.
We are unable to accept this argument as correct.
Article 26 of the Constitution, so far as it is relevant for our purpose, says"
Art. 26. Subject to public order, morality and health, every religious denomination
or any section thereof shall have the right (a)...........................
(b) to manage its own affairs in matters of religion
509 (d) to administer such property in accordance with law.
The distinction between cls. (b) and (d) strikes
one at once. So far as administration of its property is concerned, the right of
a religious denomination is to be exercised in " accordance with law ",
but there is no such qualification in el. (b). In The COmmissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1), this
distinction was pointed out by this Court and it was there observed: " The
administration of its property by a religious denomination has thus been placed
OD a different footing from the right to manage its own affairs in matter of religion.
The latter is a fundamental right which no legislature can take away, whereas the
former can be regulated by laws which the legislature can validly impose ".
Secondly, the expression used in cl. (b) is 'in matters of religion'. In what sense
has the word 'religion ' been used ? This was considered in two decisions of this
Court: The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha
Swamiar of Sri Shiru Mutt (1) and Sri Venkataramana Devaru v. The State of Mysore
(2), and it was hold that freedom of religion in our Constitution is not confined
to religious beliefs only, but extends to essential religious practices as well
subject to the restrictions which the Constitution has laid down. In The Commissioner,
Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur
Mutt (1) it was observed at p. 1026 that under Art.
26(b), a religious denomination or Organisation
enjoys complete autonomy in the matter of deciding as to what rites and ceremonies
are essential according to the tenets of the religion they hold (we emphasise here
the word 'essential').
The same emphasis was laid in the later decision
of Sri Venkataramana Devaru v. The State of Mysore (2), where it was said that matters
of religion in Art. 26(b) include practices which are regarded by the community
as part of its religion. Two questions, therefore, (1) [1954] S.C.R. 1005,1023,
1026.
(2) [1958] S.C.R. 895.
510 arise in connection with the argument of learned
counsel for the petitioners: (1) does s. 148-B added to the principal Act by the
amending Act of 1959 have reference only to administration of property of Sikh gurdwaras
and, therefore, must be judged by cl. (d) of Art. 26 or (2) does it affect ' matters
of religion' within the meaning of cl. (b) of the said Article ? The argument on
behalf of the petitioners is that the principal Act to which s. 148_B has been added
relates not merely to administration of properties of Sikh gurdwaras but also to
matters of religion and in so far as s. 148-B brings in new members into the Board,
it affects Sikhs in their religious affairs. The argument on behalf of the respondent
State is that matters of religion in the sense of essential beliefs and practices
of the Sikh faith are left untouched by s. 148-B, and even other relevant sections
of the principal Act do not interfere with Sikh religion. In this connection, our
attention has been drawn to the provisions in Ch. X which deal with the powers and
duties of the Board and to those in Ch. XI which deal with powers and duties of
Committees. Section 125, to which we have already referred, states that the duty
of the Board is to ensure that every Committee deals with the property and income
of the gurdwara or gurdwaras it manages in accordance with the provisions of the
Act and in fulfillment of that duty, the Board has vested in it control, direction
and general superintendence over all committees appointed under the provisions of
the Act.
Section 129 states" S. 129. The Board in
any meeting may consider and discuss any matter with which it has power under this
Act to deal and any matter directly connected with the Sikh religion, but shall
not consider or discuss, or pass any resolution or order upon, any other matter.
" If s. 129 is read subject to s. 125 as the learned AdvocateGeneral for the
State contends it should be read, then the powers and duties of the Board, in substance
and effect, relate to administration of gurdwara properties and matters ancillary
thereto. They have 511 hardly any reference to ' matters of religion '. Section
133 states generally the powers of Committees, and one of the powers is I enforcing
the proper observance of all ceremonies and religious observances in connexion with
such gurdwara or gurdwaras and of taking all such measures as may be necessary to
ensure the proper management of the gurdwara or gurdwaras and the efficient administration
of the property, income and endowments thereof.' Learned counsel for the petitioners
has emphasised that part of the section which relates to I proper observance of
all ceremonies and religious observances' and has contended that as the Board is
the committee in respect of some of the principal gurdwaras, it has a duty to ensure
proper observance of all essential religious ceremonies of the Sikh faith, which
according to him is a I matter of religion'. Under s. 134, the -Committee has power
inter alia to dismiss an officeholder or minister, if he fails in the performance
of 'any rituals and ceremonies in accordance with the teachings Of Sri Guru Granth
Sahib ' or has ceased to be a Sikh ; it is contended that this power also relates
to a 'matter of religion' within the meaning of Art. 26(b).
Without a fuller and more detailed examination
of the provisions of the principal Act we hesitate to pronounce finally on the larger
question if any of the other provisions of the principal Act affect matters of religion
;
nor do we think it necessary to decide that larger
question in the present case. We are of the view that the present petition can be
decided on a shorter ground, even if we proceed on the assumption that some of the
provisions of the principal Act relate to matters of religion and the Board, either
acting in exercise of its power of control, direction and superintendence over other
committees or in its capacity as the committee for certain gurdwaras, can pass orders
about matters of religion. We may point out, however, that the preamble of the principal
Act indicates that it is mainly a law to provide for the better administration of
certain Sikh gurdwaras and it is admitted that in so far as the powers of the Board
relate to mere administration of gurdwara properties in either 512 of its two capacities,
such administration must be in accordance with law, and the appropriate legislature
can lay down what the law should be. The question which is decisive of the present
petition is-does s. 148-B interfere in matters of religion ? Sections 133 and 134
of the principal Act are not impugned before us; what is impugned is s. 148B. That
section has not in any way affected whatever powers the Board or Committee has under
ss. 133 and 134 of the principal Act. The gravamen of the objections urged on behalf
of the petitioners is that s. 148-B introduces even though as a temporary measure,
some more designated Sikh Members into the Board by cl. (a) of sub.s. (1) thereof
and further introduces the election of thirty-five Sikhs (from the Pepsu area) into
the Board by means of an indirect method, that is, by a limited Sikh electorate,
the members of which electorate are in their turn elected by Sikhs as well as non
Sikhs. In order to establish their case, the petitioners must prove not merely that
some provisions Of the principal Act refer to matters of religion, but that the
introduction of new members into the Board in respect of the extended territories
of the Pepsu area, in the manner envisaged by s. 148-B, violates by itself the right
of the Sikhs in a matter of religion. Learned counsel for the petitioners is thus
forced to take up the stand that a direct election of the members of the Board by
the entire Sikh community is itself a matter of the Sikh religion and, therefore,
part of the content of the right Guaranteed under Art. 26(b). We do not think that
such a stand is correct or justified by Art. 26 of the Constitution: nor has any
authoritative text been placed before us to show that a direct election by the entire
Sikh community in the management of gurdwaras is part of the Sikh religion. The
principal Act, as it stood before the amending, Act of 1959, does not support any
such contention. However great our respect may be for the democratic principle of
direct elections we do not think that having regard to the provisions of' the principal
Act and the circumstances in which s. 148-B came to be added thereto, the principle
of direct 513 election on universal denominational suffrage can be raised to the
pedestal of religion within the meaning of Art. 26(b) of the Constitution. If it
were so raised, then the cooption of some members which has not been challenged
by the petitioners would also be violative of their fundamental right; so also any
restrictions which the principal Act or the rules made there under may impose in
the matter of election or the exercise of the vote, such as, restrictions with regard
to the age of the voter, etc. Obviously, these are not matters of religion and we
say without meaning any offence to anybody that to treat these as matters of religion
is tantamount to confusing religion with current politics.
It is to be remembered that the principal Act
constituted a Board representative of the Sikhs both inside Punjab and outside it;
that is why in the constitution of the Board there was provision for election, nomination,
designation of the head ministers of certain principal Sikh gurdwaras, and also
co-option. The purpose obviously was to make the Board as representative as possible,
and because an Act passed by the Punjab legislature could not contain provisions
for the election of members from constituencies outside the Punjab, there arose
the necessity for nomination, designation and co-option. The designation of the
head ministers of the five principal Sikh shrines may be also attributed to the
reason that they were important functionaries who should be on the Board. In 1953,
nomination was done away with and the number of co-opted members was increased to
twentyfive, of whom at least twelve were to be residents of Pepsu. This was even
before the principal Act was extended to the Pepsu area. When the amending Act of
1959 extended the principal Act to the Pepsu area, the problem at once arose as
to how to give some representation to the Sikhs in the extended areas, for the intervening
period before the next election of the Board, and also as a permanent measure: s.
148-B gives representation to those areas as an interim measure and s. 43-A as a
permanent measure. Considering s. 148-B in the light of these circumstances, we
65 514 are unable to hold that it violates the fundamental right of the Sikhs under
Art. 26(b) of the Constitution. The method of representation for the extended areas
during the interim period appears to us to be an arrangement dictated merely by
considerations of convenience and expediency, and does not involve any principle
of religion. The question before us is not whether a more satisfactory arrangement
could have been made even for the interim period ; perhaps, it could have been.
Learned counsel for the petitioners has pointed out that many Sikhs of influence
and standing in the Pepsu area will have no vote for the interim period. That may
be unfortunate, but is not a relevant consideration for determining the question
before us, namely, whether there has been interference with freedom of religion.
We now proceed to consider the specific grievances
which the petitioners have made in respect of the persons who come into the Board
under s. 148-B. As to the members of the Interim Board, Patiala, who under cl. (a)
of sub-s. (1) of s. 148-B are deemed to be members of the Board constituted under
s. 43, it is argued that they were appointed under a Punjab Government notification
dated January 10, 1958, and though they are Sikhs, they do not represent the Sikh
community and are mere nominees of Government; furthermore, they are not subject
to the disqualifications mentioned in ss. 45 and 46 of the Act in respect of elected
and co-opted members respectively. We have pointed out earlier that the principal
Act contained a provision before 1953 for nomination of 12 members by the Rajpramukh
of Pepsu; and after 1953, the co-opted members included twelve residents of Pepsu.
By an order of the Maharaja of Patiala, the Interim Gurdwara Board, Patiala, was
constituted to look after certain gurdwaras of the Pepsu area, and after merger
the appointment was made by the Governor of the Punjab.
Under s. 148-A which was also added to the principal
Act by the amending Act of 1959, the Interim Gurdwara Board, Patiala, has ceased
to function, and under s. 148-B(1)(a) the members of the Interim Board, Patiala,
have become members 515 of the Board constituted under s. 43. We are unable to hold
that the designation of such members, as an interim measure, to represent those
gurdwaras in the Pepsu area which they were actually managing is violative of any
fundamental right; nor do we think that the non-application of the disqualifications
stated in ss. 45 and 46 of the Act to these members advances the case of the petitioners
any further. The principal Act did not contain any provisions as to disqualification
of designated members; it contained provisions for disqualification of elected,
nominated or coopted members and after nomination had ceased in 1953, of elected
or co-opted members only. It is permissible to presume that the legislature knows
that the members it is designating do not suffer from any disqualifications furthermore,
the petitioners have not even suggested in their petition that the members of the
Interim Board, Patiala, suffer from any Of the disqualifications stated in s. 45
or s. 46.
With regard to the thirty-five Sikhs to be elected
under cl.
(b) of sub-s. (1) of s. 148-B, there is a threefold
contention. It has been submitted that (1) the electorate detailed in sub-s. (2)
of s. 148-B is not representative of all the Sikhs ; (2) some of the members of
the electorate like Sikh members of Parliament and Municipal Committees are in their
turn elected by joint constituencies of Sikhs and non-Sikhs; and (3) some of the
members of the electorate like Sikh Sarpanches and Sikh Naya Pradhans are in the
service, and under the influence of Government. We do not agree that these considerations
are determinative of the problem before us. We have already said that the method
of representation to the Board for the extended areas as an interim measure is not
a matter of religion. The circumstance that some members of the electorate are in
their turn elected by constituencies consisting of Sikhs and non-Sikhs is far too
remote and indirect to constitute an infringement of freedom of religion. The members
of the electorate itself are all Sikhs and they have to elect thirty-five Sikhs.
Unless one proceeds mechanically on mere abstract considerations, there is no real
basis for the 516 contention that non-Sikhs can in any way influence the Board.
We do not agree that Sikh Sarpanches and Naya Pradhans are in the service of Government
or that their inclusion as members of the electorate violates the right of the Sikhs
under Art. 26 (b) of the Constitution. It may not be quite irrelevant to point out
here that the twelve members of the Interim Gurdwara Board, Patiala, plus thirty
five elected Sikhs from the Pepsu area will be a minority as against 132 elected
members and twenty-five co-opted members of the Board.
For the reasons given above, we hold that the
petitioners have failed to make out a case of violation of their fundamental right.
Accordingly, the petition fails and is dismissed with costs.
Petition dismissed.
Back
