# Court in Khair Mohammad Khan v. M st. J annat (1)

- **Citation:** [1959] Supp. 2 S.C.R. 499
- **Court:** Supreme Court of India
- **Decided:** 1958-11-16
- **Bench:** S. R. Das, N. H. Bhagwa'L'I, s. K. DAS, P. B. Gajendragadkar, K. N. Wanchoo
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/court-in-khair-mohammad-khan-v-m-st-j-annat-1-1693
- **Pages:** 18

## Headnote

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, r925
(Punjab 8 of r925), as amended by Punjab Act I of r959, ss. 43,
43A, r48B-Constitution of India, Art. 26(b}, (d).
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 1959, a Board had been constituted, called the Sikh
(1) (1940) I.L.R. 22 Lah. 22,
'959
April I.
500
SUPREME COURT REPORTS [1959] Supp.
1959
Gurdwara Prabandhak Committee, to act as the committee
of management in respect of some of the principal Sikh GurdSardar
\Varas and in addition to exercise control, direction and general
Sarup Singh
superintendence over all committees appointed under the prov.
visions of the Act; the Board consisted of three categories of
State of Punjab 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. r48B was added to the main Act, which provided : " (r) 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. r48B 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
(2) S.C.R.
SUPREME COURT REPORTS

## Text

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(2) S.C.R. SUPREME COURT REPORTS
499
as well as that of the Full Bench of the Punjab High
'959
Court in Khair Mohammad Khan v. M st. J annat (1)
8 lk . h
h
d
,
,
h
h
h
a ris na
support t e respon ents content10n t at w ere t e savalram Pujari
impugned act amounts to ouster there is no scope for
& others
the application of s. 23 of the Limitation Act.
We
v.
are therefore satisfied that there is no substance in Shree Dnyaneshwar
'
'
M h
. S
th
the appellants' contention that s. 23 helps to save' a ara;
ans an
I. 't t'
.!.'
h ·
·
&- Others
im1 a ion 1or t e1r smts.
The result no doubt is unfortunate. The appellantscajendragadkar J.
have succeeded in both the courts below in proving
their rights as hereditary worshippers; but their claim
must be rejected on the ground that they have filed
their suits beyond time. In this court an attempt was
made by the parties to see if this long drawn out
litigation could be brought to an end on reasonable
terms agreed to by them, but it did not succeed. In
the result the appeals fail and are dismissed. We
would, however, direct that the parties should bear
their own costs throughout.
Appeals dismissed.
SARDAR SARUP SINGH & OTHERS
v.
THE STATE OF PUNJAB & OTHERS
(S. R. DAS, c. J., N. H. BHAGWA'L'I, s. K. DAS,
P. B. GAJENDRAGADKAR and K. N. WANCHOO, JJ.)
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, r925
(Punjab 8 of r925), as amended by Punjab Act I of r959, ss. 43,
43A, r48B-Constitution of India, Art. 26(b}, (d).
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 1959, a Board had been constituted, called the Sikh
(1) (1940) I.L.R. 22 Lah. 22,
'959
April I.
500
SUPREME COURT REPORTS [1959] Supp.
1959
Gurdwara Prabandhak Committee, to act as the committee
of management in respect of some of the principal Sikh GurdSardar
\Varas and in addition to exercise control, direction and general
Sarup Singh
superintendence over all committees appointed under the prov.
visions of the Act; the Board consisted of three categories of
State of Punjab 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. r48B was added to the main Act, which provided : " (r) 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. r48B 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
(2) S.C.R.
SUPREME COURT REPORTS
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 ;
·
(z) 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. 148B of the Act did not affect "mat~ers. of
religion" within the meaning of Art. z6(b) of the Const1tut10n
and consequently did not contravene the fundamental right
under that Article.
The Commissioner, Hindu. Religious Endowments, Madras v.
Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, [1954)
S.C.R. l005 and Sri Venkataramana Devaru v. The State of Mysore,
[1958] S.C.R. 895, referred to.
ORIGINAL JURISDICTION:
Petition No. 13 of 1959.
Petit.ion under Article 32 of the Constitution of
India for enforcement of .B'undamental Rights.
Harnam Singh and Sadhu Singh, for the petitioners.
S. M. Silcri, Advocate-General for the State of Punjab,
Gopal Singh and D. Gupta, for respondent No. I.
1959.
April 1.
The Judgment of the Court was
delivered by
L959
Sardar
Sarup Singh
v,
State of Punjab
S. K. D.As, J.-This is a petition under Art. 32 of s. K. Das J.
the Constitution in which the petitioners challenge the
constitutional validity of s. 148-B of the Sikh Gurdwara8 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 i8 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 denomin~tion, " to,
1959
Sarda,
Sarup Singh
v.
State of Punjab
S. ](. Das J.
502
SUPREME COURT REPORTS [1959] Supp.
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. I only, namely, the State of Punjab, on
the ground thats. 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 ifs. 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 settle-.
ment 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
(2) S.C.R. SUPREME COURT REPORTS
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 cl. (1) of Art. 371 of the
Constitution. The regional committees dealt with the
Bill i:i.nd 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 Prabandhak 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 tbat
originally the amending Bill did not contain provisions like those later embodied ins. 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. I 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
cl. (b) of sub-s. (1) of s. 148-B was completed.
I959
Sard~r
Sarup Singh
v.
State of Punjab
S. K. Das].
I959
Sard'1r
Sarup Singh
v.
State of Punjab
S. K. Das].
504
SUPRE:r.m COURT REPORTS [1959] Supp.
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 en.1mring
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 head 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 ands. 43 of the principal Act was
amended.
The
amended
section
was m 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, HyderabadDeccan; 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 (i)
and (ii).
(2) ............ ,,
It would thus appear that after the passing of Punjab
(2) s.c.R.
StJPR~M:E COUR1:1 R:EPORTS
t505
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 i.n 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
I959
Sardar
Sarup Singh
v.
State of Punjab
S. K. Das].
1959
Sardar
Sarup Singh
v.
State of P11njab
S. K. Das},
506
SUPREME COURT REPORTS [1959] Supp.
(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 l st Dec em her, 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 are 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 w horn
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
(2) S.C.R.
SUPREME COURT REPORTS
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 petitfoners' fundamental right under Art. 26 (b) of the Constitution?
Learned counsel for the pet.itioners 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
pa.ssed, 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 bearing 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
r959
Sardar
Sarup Singh
v.
State of Punjab
S. J(, Das].
1959
Sardar
Sarup Singh
v.
State of Punjab
S. J(. Das].
508
SUPREME COURT l'tEPORTS [1959] Supp.
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;
(2) S.C.R. SUPREME COURT REPORTS
509
(c) ......................... ..
(d) to administer such property in accordance
with law."
The distinction between els. (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 cl. (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 on
a different footing from the right to manage its own
affairs in matters 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
Shirur Mutt (') and Sri V enkataramana Devaru v. The
State of Mysore (2), and it was held 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
mat.ter 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,
(r) (r954] S.C.R. roo5, 1023, ro26,
(2) [r958] S.C.R. 895.
1959
Sardar
Sarup Singh
v.
State of Punjab
S. !{, Das ].
1959
Sardar
Sarup Singh
v.
Stale of Punjab
S. ]{. Das ].
510
SUPREME COURT REPORTS
[1959] Supp.
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 gurd wara
or gurd war as it mana.ges 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. 'rhe 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 pa•s any resolution or order upon, any other
matter."
Ifs. 129 is read subject to s. 125 as the learned Ad vocate-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
(2) S.C.R.
SUPREME COURT REPORTS
511
hardly any reference to ' matters of religion '.
Section 133 states generally the powers of Committees,
and one of the powers is ' 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 '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 '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 provisions of the principal Act affect matters of
religion ; nor do we think it necessary to decide that
larger question in the present case.
vVe 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
I959
~ardar
Sarup Si;,gh
v.
Stale of Punjab
S. R. Das ].
'959
Sardar
Sarup Singh
v.
State of Punjab
S. K. Das ].
512
SUPREME COtJRT REPORTS tl95i)) Supp.
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 i8, by a
limited Sikh electorate, the members of which electorate are in their turn elected by Sikhs as well as nonSikhs. 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 th us 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 election, 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 clircct
(2) S.C.R.
SUPREME COURT REPORTS
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 co-option of some members which has not
been challenged by the p<;l.titioners 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 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 tive 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
I959
Sardar
Sarup Singh
v.
State of Punjab
S. K. Das j.
I959
Sardar
Sat'up Singh
v.
State of Punjab
S. K. Das J.
514
SUPREME COURT REPORTS [1959] Supp.
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 th!J 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 unfortuuate, but is not
a relevant consideration for determining the question
before us, namely, whether there has been interference
with freedom ofreligion.
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. (I) 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 IO, 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 Boatd, Patiala, has ceased to function, and under s. 148-B(l)(a) the members
of the Interim Board, Patiala, have become members
(2) S.C.R.
SUPREME COURT REPORTS
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 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.
VVe
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.
Unle~s one proceeds mechanically on mere
abstract considerations, there is no real basis for the
I959
Sardar
Sarup Singh
v.
State of Punjab
S. J{, Das ].
I959
Sardar
Sarup Singh
v.
State of Punjab
S. J(. Das j.
1959
April I.
516
SUP HEME COUB,T REPORTS [1959] Supp.
contention that non-Sikhs can in any way influence the
Board. We do not agree that Sikh Sarpanches and
N aya 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.
OM
Pl~ABHA JAIN
v.
GIAN CHAND & ANOTHER
(JAFER IMAM, A. K. SARKAR and K. SuBBA RAO, JJ.)
Election Dispute-Deposit for security for costs-Dismissal of
Election Petition for non-compliance with rules therefor-AppealMaintainability-" Trial··. meaning of-Recitals in deposit receipt
-"On whose behalf", meaning of-Representation of the People
Act, r95r (5r of r9sr), ss. 90(3), 98, 99, rr6-A, rr7.
Section II7 of the Representation of the People Act, r95r,
provided: "The petitioner shall enclose with the petition a
Government Treasury receipt showing that a deposit of one
thousand rupees has been made by him ......