2011 Supreme(P&H) 2171

2012(1) LAW HERALD (P&H) (FB) 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
[FULL BENCH]
Before
The Hon’ble Mr. Justice Surya Kant
The Hon’ble Mr. Justice M. Jeyapaul
The Hon’ble Mr. Justice M.M.S. Bedi
CWP No.17771 of 2003 (O&M)
Sehajdhari Sikh Federation
v.
Union of India & Ors.
{Decided on 20/12/2011}

Headnote:Sikh Gurudwaras--Notification issued by Central Government denying the Sehajdhari Sikhs their right to vote in the elections of Sikh Gurudwara Prabandhak Committee--Constitutionally invalid--Quashed.

       (A) Sikh Gurudwaras Act, 1925, S.49 & 92--Punjab Re-organization Act, 1966, S.72--Constitution of India, 1950, Art.3 & 4, 245 & 246--Notification issued by Central Government denying the Sehajdhari Sikhs their right to vote in the elections of Sikh Gurudwara Prabandhak Committee--Constitutionally invalid--Quashed--Held;(i) Appropriate and competent Legislature to decide as to whether or not any amendment in Sections 45 & 92 or other provisions of the Sikh Gurdwara Act, 1925 is to be carried out. (ii) No views expressed 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’. (Para 127)

       Reasons for rendering Impugned notification constitutionally invalid--

       (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 & 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) A re-organization law is also justiciable, if challenged on the plea that it abrogates the Constitution.

       (iv) 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. (Para 70)

       (v) 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 authorize 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) Paras 73, 82 to 87 & 93 to 96 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, impugned Notification does not satisfy the ingredients of Section 72 of the Punjab Re-organization Act, 1966. (Paras 73, 82, 87 93 to 96)

       (x) Right to vote conferred on a class or category of people subject to their possessing the qualifications laid down in Sections 49 & 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. (Paras 109, 111 & 117)

       (xi) 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. (Paras 118 to 121)

       (B) Punjab Re-organization Act, 1966--Constitution of India, 1950, Art.3 & 4--Formation of New State--Held;

        a. the Parliament has got plenary legislative power to alter the boundaries of any State, to diminish its area and also the power to admit, establish or form new States;

        b. the law-making power under Articles 3&4 is paramount and is not subjected to nor fettered by Article 246 or the Seventh Schedule of the Constitution;

        c. the re-organization law enacted under Articles 2, 3 & 4 of the Constitution may alter or amend the First and the Fourth Schedules which set out the names of the States, description of their territories and allocation of seats in the Parliament etc.;

        d. the Re-organization law may also have supplemental, incidental and consequential provisions to establish Legislative, Executive and Judicial organs of the State, expenditure and distribution of revenue, apportionment of assets and liabilities etc. etc.;

        e. the newly-formed State under a Re-organization law must conform to the democratic pattern ingrained in the Constitution;

        f. the Parliamentary power to admit, establish or form a State is not meant to override the Constitutional scheme, hence no State can be formed or admitted by law which has no Legislative, Executive and Judicial organs;

        g. the Constitutional validity of law made under Articles 3&4 though cannot be questioned on the ground of lack of legislative competence yet can be assailed if it violates the Constitutional provisions;

        h. a re-organization law though effectuates alterations in First and Fourth Schedules of the Constitution but such changes do not amount to ‘amendment’ of the Constitution within the meaning of Article 368 nor such a law can be equated with the Constitution;

        i. a re-organization law is perpetually operative and is not a ‘temporary Act’ and powers thereunder may be exercised any time save as it is abated by express or implied repeal; (Para 73)

       © Punjab Re-organization Act, 1966, S.72--Scope of--The nature, scope and sweep of the power entrusted to the Central Government to cause ‘exception’ or ‘modification’ in a Central Act, State Act or Provincial Act resembles the power exercisable by it under Section 67(2) and is subject to the same limitations--Any attempt, if made to widen the scope of Section 72(2) beyond that, will not only be violent to the elementary principles of statutory interpretation, but will also amount to transcending the delegated legislative powers. (Para 87)

       (D) Punjab Re-organization Act, 1966, S.72--Scope of--No direction can be issued by the Central Government under Section 72(2) unless it pertains to the ‘law’ applicable to the body corporate on the appointed day when it acquired the legal character of an inter-State body corporate.

        The scope of the directions issueable under sub-Section (2) of Section 72 is restricted to the applicability of the ‘law’ governing the body corporate, hence the aforesaid direction must relate to the ‘functioning’ or ‘operation’ of such body corporate--It has to be held, as a necessary corollary thereto, that no direction can be issued by the Central Government under Section 72(2) unless it pertains to the ‘law’ applicable to the body corporate on the appointed day when it acquired the legal character of an inter-State body corporate--The wordage of sub-Section (2) especially the word ‘may’ leaves no room to doubt that it is an enabling provision only and nowhere does it expect the Central Government to issue directions, even if not so required. (Para 88)

       (E) Interpretation of Statutes--Word ‘Exception’--’Exception’ is a rule of exclusion or a provision exempting persons or conduct from a Statute’s operation--There can be a variety of exceptions in a Statute like a proviso or a non obstante clause etc--The object of an ‘exception’ is to limit or restrict the operation of the principal provision. (Para 88)

       (F) Interpretation of Statutes--Word ‘Modification’--Meaning ‘’to adjust’, adapt and make the enactment suitable and for carrying it into operation’’ and that it does not include ‘a change in any essential feature of the enactment or the legislative policy built into it. (Para 89)

       (G) Interpretation of Statutes--A word which occurs mote than once in the same Act should be given the same meaning throughout the Act, unless the context shows that the Legislature has used the word in a different sense. (Para 85)

       (H) Interpretation of Statutes--’Modification’--Wherever the phrase ‘modification’ finds mention in a Legislative enactment to confer the power of ‘modification’ of the same or any other Statute, such power shall be subject to the settled proposition that it does not, and can not, authorize the delegate to change the essential features of the enactment or the legislative policy built into it--The same interpretation, however, may not be true when the phrase ‘modification’ is rooted in a provision of the Constitution. (Para 94)

       (I) Constitution of India, 1950, Art.245--Delegation of Power--Such delegation cannot be uncanalised or unguided--Held;

        a. essential legislative function comprising determination of the legislative policy and its formulation as a binding rule of conduct must be retained by the Legislature itself;

        b. the Legislature may entrust ancillary and subordinate legislative powers to an authority but such entrustment cannot be unbridled or absolute;

        c. the essential legislative policy and the guidelines to be kept in view by the delegate must be laid down by the Legislature itself;

        d. the Parliament or State Legislature cannot abdicate their legislative functions to the delegate;

        e. the excessive, uncontrolled or unguided delegation of powers is abhorrent to the theory of separation of powers under our Constitution as the Legislature can neither create a parallel Legislature nor destroy its Legislative power. (Para 98)

       (J) Constitution of India, 1950, Art.245--Delegation of Power--Is Subject to observance of binding principles of follows:-

        a. the authority exercising delegated power may modify a law but not the essential features of its declared legislative policy;

        b. it is exercisable to implement and achieve the object(s) of a Statute within the framework of the legislative policy;

        c. every delegate is subject to the authority and control of the principal and exercise of delegated power can always be directed, corrected or cancelled by such principal;

        d. the delegate in the garb of making rules etc. cannot legislate on the field covered by the Act;

        e. the power of ‘modification’ entrusted to a delegate does not include any change of policy and is restricted to alteration of such a character which keeps the legislative policy of the Act intact and introduces such changes as are appropriate to local conditions. (Para 99)