Needless Brouhaha

The Supreme Court on September 20 dismissed petitions which challenged the constitutional validity of the Haryana Sikh Gurdwara (Management) Act, 2014. The Act had created a separate juristic entity for the management of historical gurdwaras in Haryana mentioned in Schedule I; gurdwaras having income of more than Rs 20 lakh in Schedule II and those having an income of less than Rs 20 lakh in Schedule III.

The Haryana Sikh Gurdwara Management Bill, 2014, says that it is an earnest effort to provide a legal procedure by which the gurdwaras may be brought effectively and permanently under the exclusive control of Sikhs of Haryana for their proper use, administration, control and financial management reforms. It was pointed out that the Sikh gurdwaras in the state were being governed by the provisions of the Sikh Gurdwaras Act, 1925, and the rules and regulations made thereunder. However, due to demands of Sikhs in Haryana, which were examined by two committees, it was decided to introduce the Bill in terms of powers conferred under Article 246 read with Schedule VII, List II, Entry 32 of the Constitution, as also in pursuance of Section 72 of the Punjab Reorganisation Act, 1966. Thereafter, the Haryana Act was enacted and came into force on July 14, 2014.   

In 2014, a petition was filed in the Supreme Court by Harbhajan Singh, a member of the Shiromani Gurdwara Parbhandak Committee (SGPC). The SGPC also filed a writ petition in 2019, challenging the same Act. The grounds  for the challenge was that the Haryana Act was against the statutory provisions of the 1966 Act and was divisive in its intention to create dissentions among the followers of the Sikh religion. The writ petition was subsequently amended to challenge the Haryana Act on the ground of infringement of fundamental rights conferred on the petitioner under Part III of the Constitution. The second petition was by the SGPC challenging the Haryana Act on almost similar grounds.

In the light of arguments addressed, the bench of Justice Hemant Gupta and Justice Vikram Nath found the following questions arising for consideration:  Whether Section 72 of the Punjab Reorganisation Act, 1966, and Sections 3 and 4 of the Inter-state Corporation Act, 1957, were transitional provisions to meet the immediate requirement of the issues arising out of the creation of separate states.   

For this, the Court observed that the 1957 Act was a statute to empower the centre to issue directions from time to time due to the creation of separate states. It defines “inter-State corporation” as any corporate constituted under any of the Acts specified in the Schedule and functioning in two or more states by virtue of Section 109 of the 1956 Act. 

The 1925 Act was inserted in the Schedule in 1972. Therefore, in respect of such inter-state corporations, the central government could issue directions in terms of the 1957 Act only to give effect to the reorganisation of states so that the inter-state entity could function and discharge the statutory mandate so constituted. Such directions were transitional in nature so that the functioning of inter-state corporations was not obstructed or curtailed on account of the reorganisation. Neither the 1956 Act nor the 1966 Act nor the 1957 Act has taken away the legislative competence of the states to legislate on subjects which find mention in List II of the Seventh Schedule and/or in respect of matters falling in List III of the Seventh Schedule in the manner prescribed.

“The 1956 Act or the 1966 Act empowers the Central Government to issue directions to make the inter-state entity functional, but the Central Government has not been empowered to legislate in respect of such inter-State bodies which came to be operational in one or more States due to the reorganisation of the States,” the Bench further observed.

So does the impugned enactment (Haryana Act) fall within the legislative competence of the Haryana State Legislature or within Entry 44 of List I of the Seventh Schedule of the Constitution, the Court wondered.

The Court noted that the 1966 Act as well as the 1957 Act confer power on the central government for smooth transition of new states coming into existence as a consequence of the reorganisation. There is no provision in the 1966 Act which confers legislative power on the Parliament in respect of the subjects over which the state has legislative competence in terms of List II. “Therefore, the transitional provisions i.e., the 1966 Act or the 1957 Act do not impinge upon the legislative competence of the State legislature to enact a law on the subjects mentioned in the List II.”

So does the impugned Act fall in List-III (Concurrent List) Schedule VII, which requires the assent of the president as per Article 254(2) of the Constitution, and in the absence of such assent, is it void? The said question does not arise for consideration as the Court noted that the impugned Haryana Act does not fall in Entry 28 of List III of the Seventh Schedule which relates to charities and charitable institutions, charitable and religious endowments and religious institutions.

In view of such Entry being in the Concurrent List, the Court noted that the state can legislate in respect of charities, charitable institutions, charitable and religious endowments and religious institutions. The assent of the president would be necessary if there is an existing statute and the state law is contrary to some of the provisions of the central law. 

The Haryana Committee is the incorporation of a juristic entity which more appropriately falls within the domain of Entry 32 of List II. Though the Haryana Committee is in respect of religious purpose, the prime intention is of an incorporation of a juristic entity to manage the affairs of the Sikhs in the state. Thus, Entry 32 is wide enough to include incorporation of such statutory entity, the Court held.

The Court said that alternatively, even if it is assumed that the Haryana Act is in furtherance of Entry 28 of List III, the same cannot be said to be void for the reason that it has not been kept reserved for the assent of the president. Such an argument is based on the reason that the 1925 Act is an inter-state legislation. Therefore, the assent of the president is necessary. 

As stated before, the 1925 Act was originally an intra-state legislation. It subsequently became an inter-state body only by virtue of the 1966 Act. Since the power to legislate conferred on the state legislature has not been affected in any manner, the state will have power to legislate both under Entry 28 of List III or Entry 32 of List II for the reason that the 1925 Act is not an inter-state body corporate. Therefore, the bench does not find any merit in the said argument, it said.

So are any fundamental rights of the petitioners under Articles 25 and 26 violated so as to entitle them to invoke the jurisdiction of this Court under Article 32? The Supreme Court further observed that it is not disputed that the Haryana Act is similar to the 1925 Act having similar provisions of constituting a committee to manage the affairs under the Act. The Haryana Committee was constituted under Section 3 of the Haryana Act for the management and control of gurdwaras and gurdwara properties within Haryana. The gurdwara property relates to all movable and immovable properties of a gurdwara or any institution which, immediately before the appointed day, vested or was kept in deposit in the name of any board, trust, committee or gurdwara management or was being regulated under the provisions of the 1925 Act. The members of the Committee have to be elected from the eligible voters who are Amritdhari Sikhs and who are 18 years of age, but not a Patit Sikh and not an insolvent, mentally retarded or insane person. The co-option is from the members of the community alone. 

“Therefore, the affairs of the religious minority in the State i.e., Sikhs is left in the hands of the Sikhs alone in the same manner as was under the 1925 Act. The Haryana Act also provides for Haryana Sikh Gurdwara Judicial Commission in the same manner as is provided under the 1925 Act. The affairs of the Gurdwara are again required to be managed by local Gurdwara Committee. Since the affairs of the Sikh minority in the State are to be managed by the Sikhs alone, therefore, it cannot be said to be violative of any of the fundamental rights conferred under Articles 25 and 26 of the Constitution”, the Court held.

—By Shivam Sharma and India Legal Bureau

The post Needless Brouhaha appeared first on India Legal.

from India Legal https://ift.tt/K4Pjk6d