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Preventing ‘Bluestar’ like Operation under Gurdwara Act

by Gurmit Singh

[Advocate, Punjab & Haryana High Court, Chandigarh; Article reproduced from On Gurdwara Legislation, 1998, Institute of Sikh Studies, Chandigarh; ISBN 81-85815-08-9]

Akal Takht means the “Throne of the Almighty.” Besides, according to Sikh polity, it is the supreme seat of the Sikh nation, because, as per Sikh concept, a secular state can control all worldly activity, but it has no authority to control the minds of human beings. It is only the Almighty who reigns supreme, and, therefore, the true loyalty of human beings is towards this Supreme Sovereign, the Almighty, and not earthly rulers. A Sikh, therefore, does not recognise the exclusive claim of the secular state to govern not only the bodies, but also the minds of people. Akal Takht Sahib is the supreme seat of authority of the Sikh nation to which all Sikhs owe their total and unconditional loyalty. It was established in 1606.

The structural location of Akal Takht in front of and near Darbar Sahib is also significant. Darbar Sahib means the “Court where Justice is Administered.” The Almighty supervises this Court from His Throne and, thus, the Court and the Throne complement each other. This Court and the Throne are situated in a city now called Amritsar, which was founded by Guru Ram Das, the Fourth Guru in 1577 as a sovereign region.

According to Archer (The Sikhs, p. 174), Guru Hargobind Sahib held his court at Akal Takht Sahib and administered justice in temporal cases too. Instead of going to the Mughal courts, Sikhs presented their petitions before Guru Sahib. Thus, Guru Hargobind Sahib, the Sixth Guru, combined headship in religious affairs (piri) and worldly affairs (miri) in his person and Sikhism. And he made Akal Takht the centre and seat of this combined authority.

The Sikhs, even while under political subjugation, have never abandoned or compromised the position that the Golden Temple and its adjuncts are the hub of the Sikh world, not as a matter of concession by any worldly power, but residing in them as an inherent right of the Sikh people, sue generis and inalienable. All important decisions, with respect to Sikhs are taken at this place and are considered to be binding on all Sikhs.

Any entry by soldiers or policemen in the Golden Temple and its adjuncts, such as Akal Takht, is treated as a violation of Sikh suzerainty, and is resisted with full force by the Sikhs. History stands witness to the fact that anybody attacking or defiling these shrines has never been left unpunished by the Sikhs.

Only two instances from history are being mentioned here on this point.

(i) Massa Ranghad, who in the eighteenth century had defiled the sacred shrine of Darbar Sahib in several ways, was assassinated by two Sikhs, Mehtab Singh and Sukha Singh, on the premises of the shrine.

(ii) Ahmad Shah Abdali blew up Darbar Sahib with gunpowder in 1762 to destroy the Sikh power. Sikhs held a Sarbat Khalsa (a representative gathering) at Akal Takht and decided to take revenge. On hearing this decision of the Sikhs, Ahmad Shah Abdali fled back to Afghanistan to save himself from the fury of the Sikhs. He even offered vice royalty of Punjab to the Sikhs, but they rejected the offer with contempt, as they claimed Punjab as their legitimate patrimony.

Amritsar was the religious capital of the Sikhs where all questions involving the general interests of the community were decided. As all the Sikh sardars held Amritsar in high esteem, the decisions taken there had a moral and religious binding on them. No Sikh, howsoever influential or powerful, could afford to go against the decisions taken at Akal Takht.

When the British occupied Punjab after defeating the Sikhs in 1846, they decided to demilitarise Punjab. Public proclamations where issued demanding the surrender of arms. But Sardar Ganga Singh, a Nihang, with some of his associates, refused to surrender their arms and took position in Akal Bunga, i.e., Akal Takht, and resisted the entry of the British soldiers with their shoes on. A subedar of the British army was killed while the Commandant of the Corps and some soldiers were wounded. Ultimately, Ganga Singh was arrested along with his associates by a British reinforcement dispatched from Lahore. Ganga Singh and two of his associates were hanged and six of them were sentenced to seven years imprisonment with labour. Sir John Lawrence, officiating Resident at Lahore, wrote on 19th February, 1848, to the Secretary Government of India, Foreign Department, Fort William (Calcutta), that these Nihang Sikhs (then called Akalees) had won the admiration of the Sikh masses and “as these Akalees are looked up to with respect and even reverence by the Sikh population of the Punjab, it is not impossible that the six prisoners, noted above (Bhag Singh, Kharg Singh, Mustan Singh, Heera Singh, Hookum Singh, and Jawanhar Singh), who have been sentenced to seven years imprisonment may hereafter make their escape with the connivance of their guards. I, therefore, beg to recommend that the Right Honourable, the Governor General-in-Council may be pleased to direct the issue of a warrant, allowing them to be confined for the period for which they have been sentenced in one of the jails in the Regulation Provinces.”

Although the above prisoners were ordered to be confined in the jail at Bareilly, vide order dated 10th March, 1848, the British authorities issued an order prohibiting the molestation of Sikhs and directing British subjects to show due respect to the sanctity of the Akal Takht. An earlier order dated March 24th, 1847, issued by H.M. Lawrence, Resident of Lahore, Reads as under :

“The priests of Amritsar having complained of annoyances, this is made known to all concerned, that by order of the Governor General, British subjects are forbidden to enter the temple (called the durbar) or its precincts at Amritsar, or indeed any temple, with their shoes. Nor are the Sikhs to be molested, or in any way to be interfered with. Shoes are to be taken off at the bunga at the corner of the tank and no person is to walk round the tank with his shoes on.

H.M. Lawrence, Resident

Lahore, March 24th, 1847

After 1849, when Punjab was annexed by the British, they tried to control the Akal Takht by proxy without offending the Sikh sentiments. The British Deputy Commissioner of Amritsar was empowered by the Government to supervise and patronise the then hereditary manager of the Akal Takht, who was then called Sarbarah. In 1900, the Viceroy of British India visited Amritsar. He was taken around Darbar Sahib and Akal Takht Sahib. He was shown the ceremony of amrit and a Sikh was formally initiated in his presence. The objective was to show that the British were not against the Sikhs and that the Sikh missionaries were free to carry on their activities.

In 1920, the Sikh reformist regained full control of Akal Takht. With the passage of the Sikh Gurdwaras Act in 1925, governmental interference in Sikh shrines ceased. Not even a single case of police or army entry in the Golden Temple Complex occurred during the British rule, till they freed India on the 15th of August, 1947.

But after Independence, the situation underwent a big change. Governmental attacks on the Golden Temple Complex increased. Master Tara Singh was to hold a Sikh conference at Delhi on 19th February 1949, but he was arrested on his way to Delhi. Sikhs decided to observe March 3, 1949, as “Protest Day.” In this connection, Sikhs went to Akal Takht to offer prayers. Jathedar Mohan Singh Nagoke, a Congressite, who was then caretaker of Akal Takht prevented Sikhs from entering the Akal Takht. To lend him support the police entered the Akal Takht.

Thereafter, again, in 1955, when Sikhs were carrying on their struggle for the formation of a Punjabi-speaking state, by offering arrests in a peaceful manner, shouting “Punjabi Suba Zindabad,” on 4th July, 1955, the Government of India ordered police to enter Akal Takht and the Golden Temple Complex. Jathedar Achchhar Singh, Jathedar of Akal Takht, along with many others were arrested. The Police used tear-gas and firing in the premises. Instances of government high-handedness and interference continued increasing.

On 7th April, 1959 Master Tara Singh declared his intention to undertake a fast unto death from 16th April, 1959 at New Delhi. He issued on 7th April, 1959, a statement titled “To all men of good conscience” which reads :

“The Prime Minister by his letter of April 4, has closed on me all doors of mediation, enquiry, arbitration and negotiation. Hence there is no other way now open to me, but to undertake a fast unto death not only to focus the nation’s attention on the grievous injuries being inflicted on the Sikhs every now and then by direct and indirect interference in their religious affairs, but also to vindicate my stand on the Gurdwaras Amendment Act, recently passed into law.

“I will start my fast on April 16, at New Delhi. But before I do so, I owe it to the people to lay bare before them my heart to remove even the slightest chance of misunderstanding in any quarter.”

Indecent Haste

Master Tara Singh said that there was no question of his not being the President of the Shiromani Gurdwara Prabandhak Committee. This matter was raised by the Prime Minister and his advisers in order to confuse the issue.

“My only contention is that with indecent haste and within only one week (December 22 to December 31, 1958) the Punjab Congress Party, by issuing a party whip, has rushed through a wholly religious measure in order to increase its political strength in a religious body. If this is not interference, what else is it ?

“Before we shed tears over Tibet’s loss of religious autonomy, we must sweep our own doors at Amritsar. This is my appeal to all men of good conscience.”

Text of Official Communique

Jawahar Lal Nehru as Prime Minister of India, through a letter dated 8th April, 1959 invited Master Tara Singh to tea on 12th April, 1959 at 5 pm to discuss the charges of Government’s interference in gurdwara affairs. The ground for the meeting was already prepared by intermediaries, Giani Gurmukh Singh Musaffir and Chaudhri Ram Narain, to evolve an acceptable formula for discussion at the meeting. At the end of the talks which lasted 85 minutes, an agreement was reached between Master Tara Singh and Pandit Jawahar Lal Nehru, which is known as Nehru-Tara Singh Pact. The official communique, issued by the Prime Minister’s Secretariat at the end of the meeting, contained the text of this Nehru-Tara Singh Pact, which reads as under :

“At the request of the Prime Minister, Master Tara Singh came to see him at his house, this afternoon. As a result of their talk, the following statement was agreed upon :

1. It is common ground among all concerned that there should be no Government interference in religious affairs. Nevertheless, complaints have arisen of such interference in the past in regard to gurdwara management and amendments made in the Gurdwara Act.

2. Some machinery should be devised to ensure the implementation of the policy of non-interference in gurdwara management and to consider any complaints of such interference. It is suggested that a committee should be constituted for this purpose. This committee will consist of two persons nominated by the Punjab Government and two persons nominated by Master Tara Singh, President of the Shiromani Akali Dal. This committee will consider allegations of interference and will suggest remedial action wherever possible. Where there is disagreement among the members of the committee, the matter may be referred to the Governor of Punjab.

3. Any amendments in the Gurdwaras Act should only be undertaken after obtaining the approval of the General Committee of the S.G.P.C. A convention may be established that such approval may be by two third majority of the S.G.P.C.

4. The General Elections for the S.G.P.C. should be held as early as feasible.

5. If any difficulty arises in the implementation of the above proposals, Jawaharlal Nehru will be glad to help.”

The strategy of the Government of India vis-a-vis Sikhs has always been to frustrate the agreement it has entered into with them. As soon as some compromise is reached, the Government through its henchmen starts criticism of it. Sikh psyche is always more receptive to criticism and the Sikh intellectuals have always been playing a passive role and they never come up with alternatives. Consequently, the agreement soon dies its own death. The press and media, too, are biased against the Sikhs, being controlled by the Hindus, it also played an active part in speeding up this process.

The same thing happened in the case of Nehru-Tara Singh Pact. Prem Singh Lalpura, who was then elected president of the S.G.P.C. with the active support of the Congress Government, which had enacted an amendment in the Sikh Gurdwaras Act by extending it to the area of the former Pepsu State, in order to weaken Master Tara Singh’s position, and his General Secretary, Sardar Amar Singh Dosanjh, immediately criticised Master Tara Singh, by describing the machinery proposed to be set up under the pact, as “an open, unequivocal and naked interference by the Government in Gurdwara affairs.” Such an agreement, they said, is opposed to the basic principles and traditions of the Sikh religion, according to which all controversial religious matters are to be referred to the verdict of five Piaras sitting under the auspices of the holy Akal Takht. Consequently, the Nehru-Tara Singh Pact was never implemented by the Government, and no committee, as envisaged in the Pact, was ever constituted to hear complaints regarding governmental interference in Sikh religious affairs.

But now that Akalis enjoy absolute majority in the Punjab Assembly as well as in the S.G.P.C., they should enact a law to give effect to the spirit of the Nehru-Tara Singh Pact. As the Gurdwara Act is now applicable to the three states, i.e., Punjab, Haryana and Himachal Pradesh, an amendment in the existing Gurdwara Act, may require the consent of Haryana and Himachal Pradesh also to be effective, which may not be easily forthcoming.

The alternative open to the Akali Government, therefore, is to enact another legislation for regulating the management of gurdwaras situated in Punjab, which enjoy special status on account of their historical importance and religious sanctity. Section 85 of the Sikh Gurdwaras Act recognises such distinctive status of gurdwaras known as Sri Akal Takht Sahib, Amritsar and Sri Takht Keshgarh Sahib. Similarly, sub-section 2 of Section 85, classifies Sri Darbar Sahib, Amritsar, Baba Atal Sahib and all other notified Sikh gurdwaras situated within the municipal boundaries of Amritsar other than Sri Akal Takht Sahib as a separate class of gurdwaras.

It has been held by the Hon’ble Supreme Court of India in the case Tilkayat Shri Govindlal ji vs. State of Rajasthan (A.I.R. 1963 SC-1638) that a State legislature is competent to enact a special legislation even for a single shrine, if that place enjoys special sanctity in the eyes of devotees.

In this case, the Supreme Court held the Act passed by the state of Rajasthan with respect to the temple of Nathdwara as constitutionally valid. The attack on this Act under Article 14 was repelled by observing that the temple of Nathdwara had an unique position amongst the Hindu shrines in the State of Rajasthan, and that no temple could be regarded as comparable with it.

The view was reaffirmed by a constitutional Bench of the Hon’ble Supreme Court of India in Raja Bira Kishore Deb vs. The State of Orissa (A.I.R. 1964 S.C. 1501) wherein it was held :

“Shri Jagannath Temple Act 1954, ii) of 1955, cannot be struck down under Art. 14, because the Temple of Lord Jagannath at Puri holds a unique position amongst the Hindu temples in the State of Orissa, and no other temple can be regarded as comparable with it.

“There can be no doubt that the Temple occupies a unique position in the State of Orissa and is a temple of national importance, and no other temple in the state can compare with it. It stands in a class by itself, and, considering the fact that it attracts pilgrims from all over India in large number, it must be a subject of special consideration by the Government, and, therefore, requires special treatment.”

Therefore, the Punjab Legislature is competent to enact a special Act, [say, Golden Temple Complex (Preservation of sanctity) Act] to guarantee the sanctity of the Golden Temple Complex, which includes Sri Akal Takht Sahib. This will be in accordance with the existing provisions of Section 144 of the Gurdwaras Act. In the aims and objects of this new legislation, it can be stated that the State of Punjab recognises the special position of the Holy Golden Temple Complex as the holiest of the Shrines of the State revered by great majority of the residents of the State; and, in order to uphold its traditional sanctity, deems it necessary to enact a law to avoid any future conflict between the custodians of this shrine and the Government, as the policy of the Government is not to interfere in religious affairs.

Section 144 of the Sikh Gurdwaras Act reads :

“Section 144 Government not to interfere with Gurdwaras except as provided by this Act or any other Act :

Save as provided in this or any other Act, it shall not be lawful for the State Government or for any executive officer of the State Government in his official capacity to undertake or assume the superintendence of any land or other property granted for the support of or otherwise belonging to, any notified Sikh Gurdwara, to take any part in the management or appropriation of any endowment made for its maintenance, or to nominate or appoint any office-holder of, or to be concerned in any way with such gurdwara.”

A bare reading of the above section shows that by using the words, “except as provided by this Act or any other Act,” the door has been left open for Government interference while making a solemn promise of non-interference in the Sikh Gurdwaras. The new legislation must fill this gap by making suitable provision.

A suitable machinery (let us call it Reconciliation Committee) as envisaged under clause 2 of the Nehru-Tara Singh Pact should be set up with suitable modifications in the mode of choosing its members to avoid complaints of governmental interference. Instead of two representatives of the Government and two of the Akali Dal, all the four members may be elected by the S.G.P.C. on the basis of proportional representation, so that all parties and groups represented in the General House of the S.G.P.C. get a chance to be chosen on that Committee. In case these members fail to reach a unanimous decision on any matter referred to them, the Jathedar of the Akal Takht whose decision will be accepted not only by all the Sikhs, but also by the Central as well as State Governments to maintain cordial relations between the Sikhs and the State. Moreover, a convention should be established that the Jathedar of Akal Takht should be a respectable religious-minded Sikh, preferably from amongst ex-serviceman, who has the guts to resist pressure from politicians as well as the Government. He should relinquish his claim to pension and other benefits enjoyed as ex-serviceman immediately after appointment as Jathedar.

A machinery should be set up which should deal with any situation that may arise in future similar to the situation which developed before operation Bluestar. For example, Section 130 of the Criminal Procedure Code, which deals with the use of armed forces to disperse an unlawful assembly, provides :

130. Use of armed forces to disperse assembly : (i) If any such assembly (unlawful assembly) cannot be otherwise dispersed, and if it is necessary for the public security that it should be dispersed, the Executive Magistrate of the highest rank, who is present may cause it to be dispersed by the armed forces.

2) Such Magistrate may require any officer in command of any group of persons belonging to the armed forces to disperse the assembly with the help of armed forces under his command, and to arrest and confine such persons forming part of it as the Magistrate may direct, as it may be necessary to arrest and confine in order to disperse the assembly or to have them punished according to law.

3) Every such officer of the armed forces shall obey such requisition in such manner as he thinks fit, but in so doing he shall use as little force and do as little injury to person and property as may be consistent with dispersing the assembly and arresting and detaining such persons.

Through the Code of Criminal Procedure (Punjab Amendment) Act, it can be provided that in case of the Golden Temple Complex, the Executive Magistrate shall not seek assistance of armed forces except on the written request of the General House of the S.G.P.C., and where it is not possible for the General House to assemble, then with the written consent of the Reconciliation Committee.

A somewhat similar provision can be made under Section 146 of the Sikh Gurdwaras Act which empowers the State Government to make rules to carry out all or any of the purposes of the Act. As the purpose of section 144 of the Sikh Gurdwaras Act is to stop governmental interference in the Sikh Gurdwaras, to ensure the achievement of this objective, Punjab Government is competent to issue notification under section 146 on the pattern of the orders dated 24th March, 1847, by Mr. H.M. Lawrence, the then British Resident at Lahore, prohibiting the soldiers from entering the Akal Takht and molesting the Sikhs.

The Criminal Procedure Code (Punjab Amendment) should start with the words “Notwithstanding anything contained in any act or law.” It will exclude the provisions under other central acts. At the time of Operation Bluestar, the armed forces in Punjab were called by the Governor in aid of the Civil Administration, and the armed forces had acted under the Armed Forces (Punjab and Chandigarh) Special Powers Act 1983.

This action on the part of the Armed Forces was illegal and unconstitutional, as it violated the Fundamental Right of the Sikhs under Articles 25 and 26 of the Constitution of India. This law point had come up for decision before the Madras High Court in the case of K.T. Alagappa Chettiar vs. The Collector Tiru Vannamalai and others (A.I.R. 1990 Madras 181) wherein it was held that invasion of Nattukotai Naguratha Dya Madam, a temple in Tiruvannamalai, by 400 policemen was violative of Article 25 and 26 of the Constitution.

A point may arise here that a State legislation cannot overrule a Central Act; but, as gurdwaras and law and order are state subjects, the State Act will have preference. Even otherwise, a special legislation will have an overriding effect on general provisions. In any case, the courts, while interpreting the law, will adopt harmonious interpretation.

Article 26 of the Constitution, guarantees to every religious denomination the right to manage its own affairs in matters of religion. The words “matters of religion” include not only matters of faith and doctrine but also practices of faith, religious observances and religious traditions. As is clear from the past history of the Sikhs, they have a tradition not to allow any soldier in uniform to enter the Golden Temple Complex except as an humble devotee. It is the duty of the State Government to help maintain this religious tradition of the people. The Governor of Punjab acted illegally and in clear violation of Section 144 of the Sikh Gurdwaras Act, which provides that it shall not be lawful for the State Government or any of its executive officer in his official capacity to be concerned in any way with any gurdwara. The Governor being executive head of the State acted illegally in calling in the armed forces for operation in the Golden Temple. The state of Punjab is within its right to prosecute the then Governor for this illegal action in flagrant violation of the express statutory provision.

The new legislation Golden Temple Complex (Preservation of Sanctity) Act, should define Golden Temple complex liberally so as to include the road intervening between Teja Singh Samundri Hall and its adjoining buildings and Manji Sahib as part of the Golden Temple Complex. The periphery around these gurdwaras and shrines should be included therein.

Reht Maryada of Akal Takht and of Golden Temple as framed by the Damdami Taksal and passed by the S.G.P.C. by two-thirds majority should be made part of this new legislation and a provision should be made in the Act that the State Legislature shall have no power to amend this Act except on the proposal submitted by the S.G.P.C. passed by a two-thirds majority of its total members.

The Act should provide for the maintenance of a Sanctity Preservation Force (S.P.F.) under the Akal Takht Jathedar. Recruitment and service regulations of this force should be provided under this Act. The personnel of this force will hold employment on the pleasure of the Jathedar of Akal Takht. But before giving appointment the Jathedar will get antecedents of the incumbent verified from the police.

Violation of the sanctity of this holiest shrine should be made impossible by making suitable provisions in the Act which should be framed after consulting all Sikh societies and organizations in the State of Punjab.

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