Supreme Court Erred in the Haryana-SGPC case: Here’s why?

KBS Sidhu, ex-IAS (Substack)
8 min readMay 26, 2023

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Supreme Court of India: Pic by author

The verdict of 20th September, 2022 pronounced by the Supreme Court of India[1], upholding the constitutional validity of the Haryana Sikh Gurdwaras (Management) Act, 2014[2], is not only erroneous and patently unconstitutional but also undermines, to a very significant extent, the series of unparalleled sacrifices made by the Sikhs during the British-era in the process getting enacted the Sikh Gurdwaras Act, 1925[3] (hereinafter the SGPC Act) enacted. The State of Haryana had legislated this law in 2014, creating a statutory body of its own to manage the historical Sikh Gurdwaras, situated in Haryana State, thereby effectively amending the SGPC Act and truncating the territorial jurisdiction of the SGPC.

Punjab and Haryana Vidhan Sabha Complex, Chandigarh. Pic by author

Although practically modeled on the lines of the SGPC Act, 1925, the Haryana law was mired with litigation and this law could not be implemented, till very recently. The brief chronology of events may be summarized as under:

July 11, 2014: The Haryana Assembly passes the Bill to form the HSGPC

July 14, 2014: The Governor gives consent to the Bill, making it an Act

Aug 7, 2014: The Apex Court orders maintaining the status quo

Sept 20, 2022: The Supreme Court upholds the constitutional validity of the Act

On 20th September, 2022, a Division Bench of the Supreme Court, comprising, Justice Hemant Gupta[4] and Justice Vikram Nath, through a 58-page judgment dismissed the petition, and upheld the constitutional validity of the Haryana Law (Harbhajan Singh vs State of Haryana and others[5]).

In the light of arguments addressed and submissions made, the Apex Court had framed the following four legal/ constitutional question for consideration and adjudication:

(i) Whether any fundamental rights of the petitioners under Articles 25 and 26 of the Constitution of India are violated, so as to entitle the petitioners to invoke the jurisdiction of this Court under Article 32 of the Constitution?

(ii) 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 creation of separate States?

(iii) Whether the impugned enactment (Haryana Act) falls within the legislative competence of the Haryana State Legislature or does it fall under Entry 44 of List I of the Seventh Schedule of the Constitution?

(iv) Whether the Impugned Act falls in List-III (Concurrent List) of Schedule VII, which required the assent of the President of India as per Article 254(2) of the Constitution of India, and in the absence of such assent, void?

Supreme Court of India: Modern representation of Justice. Pic by author

A more serious reader may peruse the entire judgement but we cull out some of the pivot arguments and findings of the Supreme Court.

· “Since the affairs of the Sikh minority in the state are to be managed by the Sikhs alone, it cannot be said to be violative of any of the fundamental rights conferred under Articles 25 and 26 of the Constitution.”

· The Court rejected arguments that Parliament had the exclusive power to enact law on the issue and Haryana had none.

· The Court held “a competent State legislature is not deprived of its power to legislate on the subjects falling within its jurisdiction in terms of List II of the Seventh Schedule. The 1966 Act does not bar the State Legislature to legislate on the fields of its legislative competence falling under List II of the Seventh Schedule or even in List III of the Seventh Schedule, subject to the limitations as are prescribed in the Constitution”.

Rashtrapati Bhawan, New Delhi. No Bill of Parliament can become law without the assent of the President. Pic by the author.

The review petition(s) against the aforesaid judgement of 20th September, 2022 was also dismissed on 4th February, 2023 by a Division Bench of the Supreme Court comprising Justice B R Gavai and Justice Vikram Nath stating: “We have gone through the review petitions and we do not find any error, much less apparent, in the order impugned, warranting its reconsideration. The review petitions stand dismissed.”

The entire logic of the Supreme Court’s judgement is that SGPC, much like Panjab University and the Beas-Bhakra Management Board (BBMB), is an inter-state corporation/ body, under the Punjab Reorganisation Act, 1966[6], especially since there is a specific reference thereto in section 72(3)[7] thereof.

To this extent it was perhaps justifiable but to further opine and hold that Parliament alone did not have the exclusive powers to enact laws on these inter-state matters and bodies is, in our humble opinion, a little questionable. Furthermore, to hold that the Haryana State Legislature, merely with the approval of the Governor, and sans the assent of the President of India, could legislate on such issues is patently erroneous. This amounts to granting the State of Haryana extra-territorial jurisdiction qua inter-state bodies, since their contentious law operates to truncate and attenuate the powers and jurisdiction of the SGPC in respect of other states like Punjab, Himachal Pradesh and the Union Territory of Chandigarh.

Other legal arguments that can be arrayed in favour of our opinion are:

1. The Sikh Gurdwaras Act, 1925 (Punjab Act of 8 of 1925) had been originally enacted in the British-Raj only with the previous sanction of the Governor-General (equivalent to President now).

2. A number of amendments in the Sikh Gurdwaras Act, 1925 have been effected after the reorganisation of Punjab on 1st November, 1966, but only with Parliamentary approval (which automatically includes the assent of the President of India). This includes the Sikh Gurdwaras (Amendment) Act, 2016 which retrospectively (w.e.f. 8th October, 2003) took away the voting rights of “Sahjdhari Sikhs”. It received the Presidential assent on 5th May, 2016, after the Bill was passed by both the Houses of the Parliament.

3. The Chief Commissioner of the Sikh Gurdwara Election Commission is appointed by the Government of India.

4. If the SGPC is to be regarded as an inter-state “corporation” under section 72 of the Punjab Reorganisation Act, 1966, then it would exclusively be in the competence of the Parliament to effect any changes/ amendments in its governing stature, since subject dealing with companies and corporation lies in the “Central List”, and not any “partner” state.

Golden Temple/ Sri Darbar Sahib, Amritsar. Pics by the author

Apart from these legalistic arguments, the judgement of the Supreme Court sets a dangerous precedent, and gives supreme judicial sanction to, some potentially very controversial actions that the States of Punjab, Haryana and Himachal Pradesh, including enactments, that could take, disturbing not only the delicate inter-state balance betwixt these partner states, but also vis-à-vis the Sikhs, as a minority community, with regard to their relationship with the Union of India.

For example, hypothetically speaking:

a) Himachal Pradesh could pass a law taking over the management of Bhakra Dam, divesting it out of the control of BBMB.

b) Punjab could pass a law taking over the management of Nangal Dam, divesting it out of the control of BBMB.

c) Punjab Legislature could potentially tinker with the definition of “Sikhs” as contained in the SGPCS Act, 1925.

d) Punjab Legislature could potentially, restore the voting rights of “Sahjdhari Sikhs” by amending the SGPC Act, 1925.

e) Punjab Legislature could potentially prescribe the terms and conditions regarding the appointment and removal of “Jathedar Akal Takht”.

f) In the extreme case, the Punjab Legislature could introduce provisions for an “Administrator” appointed by it take over the powers and functions of the Executive Committee of the SGPC, once the term of the General House of the SGPC expired, till the fresh elections were held.

While such an eventuality is neither imminent nor politically feasible, the idea in enumerating such possibilities, howsoever remote, was merely to drive home the point that it would be best to leave the amendments in the SGPC Act, 1925 to the supreme and sovereign parliamentary wisdom, that would be exercised only after reaching a consensus with the Sikh leadership, including but not limited to the SGPC.

What is the way forward from here on? I am of the considered opinion the the Government of India must start an active consultation with all the stakeholders and bring about a consensus to amend the SGPC Act, 1925, to restore on legal entity as before. However, to reflect the urges and aspirations of the Sikhs residing in Haryana, provisions could be introduced that subject to the overall plenary direction, superintendence and control of the SGPC, the day-to-day management of the historical Gurdwaras in Haryana should be left to local committees comprising members of SGPC elected from the territorial constituencies of Haryana.

Fountain near Parliament House, New Delhi. Pic by author

If this consensus is not possible, the SGPC and/ or the Punjab Government should file a curative petition in the Supreme Court of India, or a petition under Article 142 of the Constitution of India to undo the aforesaid 2-Judge Bench judgement of the Apex Court. The Chief Justice of India shall do well to constitute a 5-Judge Constitutional Bench to hear and decide this matter as expeditiously as possible.

The issues outlined above should not be regarded as trivial and brushed under the carpet. These ought to be addressed proactively by the all the stakeholders, including Central Government, Punjab and Haryana Governments as well as the SGPC and all political parties and Sikh organizations. Allowing them to linger on can lead to serious consequences, sometimes decades later. The country cannot afford to risk Punjab, a sensitive border state, being pushed into turmoil. Early resolution of this seemingly innocuous issue is in the interest of our Nation. The country also owes it to the Sikhs to come out with a solution that is acceptable to all the stakeholders.

[1] https://main.sci.gov.in/supremecourt/2014/25389/25389_2014_7_1501_38393_Judgement_20-Sep-2022.pdf

[2]

https://www.indiacode.nic.in/bitstream/123456789/18406/1/the_haryana_sikh_gurdwaras_%28management%29_act%2C_2014%2822_of_2014%29-home%5B1%5D.pdf

[3] https://www.mha.gov.in/sites/default/files/2022-10/Sikh_Gurrdwara_Act1925_1%5B1%5D.pdf

[4] Justice Hemant Gupta retired on 16th October, 2022. He was appointed as the Chairperson of the New Delhi International Arbitration Centre by the Union Government, on 22nd December, 2022.

[5] https://main.sci.gov.in/supremecourt/2014/25389/25389_2014_7_1501_38393_Judgement_20-Sep-2022.pdf

[6] https://www.indiacode.nic.in/bitstream/123456789/1645/1/196631.pdf

[7] 72 (3) For the removal of doubt it is hereby declared that the provisions of this section shall apply also to the Punjab University constituted under the Punjab University Act, 1947 (East Punjab Act 7 of 1947), the Punjab Agricultural University constituted under the Punjab Agricultural University Act, 1961 (Punjab Act 32 of 1961), and the Board constituted under the provisions of Part III of the Sikh Gurdwaras Act, 1925 (Punjab Act 8 of 1925).

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KBS Sidhu. The Author is an IAS officer of 1984 Batch of Punjab cadre, and retired from service in July 2021, as Special Chief Secretary, Punjab, after 37 years of service.

He can be reached on kbs.sidhu@gmail.com or @kbssidhu1961 or https://www.facebook.com/kbs.sidhu

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