Full Judgment Text
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PETITIONER:
SARDAR SARUP SINGH & OTHERS
Vs.
RESPONDENT:
THE STATE OF PUNJAB & OTHERS
DATE OF JUDGMENT:
01/04/1959
BENCH:
DAS, S.K.
BENCH:
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 therefor, 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 Gurd-
waras 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, S- 148B 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
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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 thirty-
five 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.
JUDGMENT:
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.
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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. 148- B 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 Com-
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mittee 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
fulfilment 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).............."
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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
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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 co-
opted, 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. 43- A;
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
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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 con-
stitutes 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 con-
cerned, 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.
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(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 fulfilment 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 Advocate-
General 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 office-
holder 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
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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. 148-
B. 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
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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 co-
option 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 thereunder 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
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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
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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
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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
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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 co-
opted 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
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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.