SHIROMANI GURDWARA PRABANDHAK COMMITTEE Vs. SEHAJDHARI SIKH FEDN
LAWS(SC)-2016-9-102
SUPREME COURT OF INDIA
Decided on September 15,2016

Shiromani Gurdwara Prabandhak Committee Appellant
VERSUS
Sehajdhari Sikh Fedn Respondents

JUDGEMENT

- (1.) These appeals arises out of an order dated 20.12.2011 passed by a Full Bench of High Court of Punjab and Haryana at Chandigarh, whereby Civil Writ Petition No.17771 of 2003 filed by respondent No.1 - Federation has been allowed and a notification dated 08.10.2003 issued by the Government of India, Ministry of Home Affairs quashed leaving it open to the competent legislature to decide whether or not any amendment to Sections 45 and 92 or any other provision of the Sikh Gurdwaras Act, 1925 (for short, "1925 Act") needs to be carried out. The High Court has, while saying so, left other issues open, in the following words:- "{123} In the light of the conclusions summed up above:- (i) the writ petition is allowed; (ii) the notification dated 8th October, 2003 is, hereby, quashed leaving it for the appropriate and competent Legislature to decide as to whether or not any amendment in Sections 45 and 92 or other provisions of the Sikh Gurdwara Act, 1925 is to be carried out; (iii) The directions given herein above are subject to the clarification that we have not expressed any views, directly or indirectly, as to who constitutes a 'Sikh' and/or whether a 'Sehajdhari Sikh' who trims or shaves his beard can also be a 'Sikh' nor does this order hold that for professing 'Sikh' religion, a 'Sehajdhari Sikh' is not required to be 'Keshadari'. Similarly, we have not held that any particular class or category of 'Sikhs' has a birth-right to participate in the election for the members of the Board or the Committees constituted under the Sikh Gurdwaras Act, 1925; (iv) we clarify that the issues raised or decided by us are purely legal in nature based upon the interpretation of a few provisions of the Constitution, the Punjab Re-organization Act, 1966 and of the Sikh Gurdwaras Act, 1925."
(2.) In the light of the subsequent developments and the order that we propose to make in the present appeals, we do not consider it to be necessary to elaborately set out the factual matrix in which the writ petition came to be placed before the High Court. All that we need say is that in terms of notification dated 08.10.2003 impugned in the writ petition, the Government of India had in purported exercise of its powers under sub-Section (1) read with Section (2) and (3) of Section 72 of the Punjab Re-organization Act, 1996 (for short, 1996 Act) directed that the 1925 Act shall have effect from the date of the issue of the said notification subject to the modifications set out in the said notification. The modifications set out in the notification were in the following words:- "In the Sikh Gurdwaras Act, 1925 (Punjab Act VIII of 1925) (i) in Section 49, for the proviso, the following proviso shall be substituted, namely:- "Provided that no person shall be registered as an elector who - a) trims or shaves his beard or keshas; b) smokes; and c) takes alcoholic drinks." (ii) in section 92 for the proviso, the following proviso shall be substituted namely:- "Provided that no person shall be registered as an elector who - a) trims or shaves his beard or keshas; b) smokes; and c) takes alcoholic drinks." (F.No.1702/3/2001-IS-VI) LC Goyal Jt. Secy."
(3.) The validity of the above notification was, as noticed earlier, challenged before the High Court who has after an elaborate consideration of the issues arrived at the following conclusions:- "{122} In the light of what has been held above with reference to the four broad groups comprising the points in issue formulated in para 58 of this order, we sum up our conclusions as follows :- (i) The Parliamentary power to enact a re-organization law under Articles 3&4 is plenary and unfettered by Article 246 of the Constitution. The law enacted under Articles 3 and 4 of the Constitution is assigned a special status to the extent that it is immune from challenge on the ground of legislative competence though like any other legislation, such a law is also assailable if it violates other provisions of the Constitution. On the other hand, the laws enacted by Parliament under Articles 245, 246 or 248 etc. of the Constitution can be put to judicial scrutiny on both counts. (ii) The supplemental, incidental and consequential provisions contained in a re-organization law within the meaning of Article 4(1) of the Constitution include the provisions for admission, establishment or formation of a State conforming to the democratic pattern conceived by our Constitution, however, the Parliamentary power to incorporate such provisions does not include the power to override the Constitutional scheme and framework. (iii) In continuation of our observation at (i) above, it is held that a re-organization law is also justiciable, if challenged on the plea that it abrogates the Constitution. (iv) For the reasons drawn in para 70 of this order, it is held that the notification, order or a direction issued by a delegate under the Re-organization Act neither acquires the status of Constitutional provision nor of a Parliamentary legislation. Such a decision, even if categorized as legislative or administrative or quasi judicial, can be quizzed on any of the grounds on which a plenary legislation is assailed, in addition to the plea that such a decision also runs counter to the Statute under which it is made or that it is per se arbitrary, unreasonable, violative of the law of the land or has been issued in colourable exercise of power. (v) We hold that Section 72 of the 1966 Act empowers the Central Government to issue directions pertaining to the 'functioning' and 'operation' of an inter-State body corporate in the areas where it was functioning and operating immediately before the appointed day. These directions may include that the 'law' governing the affairs of the body corporate before it became an inter-State body corporate, shall continue to apply to it for the purpose of its 'functioning' or 'operation' in those areas which have gone out of jurisdictional control of the State under whose law such body-corporate was constituted. (vi) The power exercisable by the Central Government under sub-Section (2) of Section 72 of the 1966 Act to 'modify' the Central Act, State Act or Provincial Act does not include the power to 'amend' such Acts. The power to 'modify' a Statute delegated under Section 72 does not authorise to change any essential legislative features or the policy built into such Statute. The Parliament while empowering the Central Government to 'modify' an Act under Section 72(2) neither intended nor could it delegate the power to 'repeal' or 'amend' an Act, for such a power under the Constitutional scheme is exercisable by the Legislature alone. The delegated legislative power cannot run parallel to the principal legislation and must exercise its power within the framework of the Statute. (vii) Section 72 of the 1966 Act is an enabling provision and the power to cause 'exception' or 'modification' in a Central Act, State Act or Provincial Act is not unguided, unfettered or unbridled and is subject to the inherent limitations to be read into the phrase that the "body- corporate shall continue to function and operate in those areas in respect of which it was functioning and operating immediately before the appointed day". (viii) The directions issued by the Central Government under Section 72 though shall amount to 'law' within the meaning of Article 13(3)(a) of the Constitution but they do not partake the character of a Parliamentary legislation. (ix) In view of the observations made in paras 73, 82 to 87 read with paras 93 to 96 of this order and coupled with the fact that the subject notification does not throw any light on the legal necessity for its issuance, namely, the 'functioning' or 'operation' of the Board as an inter-State body corporate in the areas of its operation immediate before 1st November, 1966, we hold that the impugned Notification does not satisfy the ingredients of Section 72 of the Punjab Re-organization Act, 1966. (x) In view of the findings returned by us in paras 109, 111 and 117 of this order, it is held that right to vote conferred on a class or category of people subject to their possessing the qualifications laid down in Sections 49 and 92, is an integral part of the legislative policy of the 1925 Act and it being a valuable legal right, cannot be taken away except by the competent Legislature itself. A delegate has no authority to take a decision in this regard, contrary to the essential legislative policy of the Statute. (xi) In view of what has been held and observed in paras 118 to 121 of this order, we find it difficult to hold from the deliberations or discussions referred to in the office notes of the original record that the impugned Notification meets that degree of diligence or application of mind as is expected from the Executive while taking a policy decision of far-reaching consequences." ;


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