The Union Home Ministry on Friday wrote to the Haryana government, asking it to request Governor Jagannath Pahadia to withdraw his assent to the Bill aimed at creating a separate Sikh Gurdwara Prabandhak Committee to manage the affairs of the gurdwaras in the state.
In his letter to Haryana Chief Secretary S C Choudhary, Union Home Secretary Anil Goswami said the Haryana Sikh Gurdwaras (Management) Bill, 2014 passed by the Assembly on July 11 and which received the Governor’s assent on July 14 has “no legal effect” and hence it should be withdrawn.
However, in a clear indication of how the state government intends to deal with the letter, the Haryana Chief Secretary termed the letter “funny”, adding, “I am amused at what the Union Home Secretary has written.”
The Centre’s move comes after it received the opinion of Attorney General Mukul Rohatgi, who termed the passage of the Bill and the subsequent assent null and void. The AG was of the view that since the subject on which the Assembly passed the Bill is dealt under a subject in List I of the Seventh Schedule of the Constitution of India (Central List) and since there is already an Act of Parliament — Sikh Gurdwaras Act, 1925 — which deals with this subject, the Governor should not have given assent to the Bill.
Instead of granting assent on his own, the AG is learnt to have said, the Governor should have used his power under Article 200 of the Constitution to reserve the Bill passed by the legislature for consideration of the President.
The Centre had sought the AG’s legal opinion after a delegation of the Punjab government led by Chief Minister Parkash Singh Badal met Union ministers Rajnath Singh, Arun Jaitley and M Venkaiah Naidu seeking the Centre’s intervention to annul the Haryana government’s move to form a separate gurdwara panel for Haryana.
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In his letter to the Haryana government, Goswami said, “The state legislature had no legislative competence and the Bill passed is void and of no legal effect”.
“The stand or understanding of the Haryana Vidhan Sabha/ Haryana Government seems to be that it has the power and jurisdiction to pass this Bill by virtue of Entry 32 in List II of Schedule VI of the Constitution of India. The said Entry provides for incorporation, regulation and winding up of corporation, other than those specified in List-I… Entry 44 List-I talks about incorporation, regulation and winding up of corporations whether trading or not but with objections not confined to one State. It is obvious that the erstwhile Board under the 1925 Act which has become a corporation by virtue of Section 72(3) of the Reorganisation Act, 1966 has objects which are not confined to one state but are presently agreed beyond the State of Punjab to the States of Haryana and Himachal Pradesh and Union Territory of Chandigarh. It is therefore clear that 1925 Act falls within Entry 44 of List-I,” Goswami’s letter said.
He told the state government, “On its own terms, thus, Entry 32 of List-II is excluded. The State Legislature, is therefore, denuded of any jurisdiction to pass any Bill in respect of which only Parliament has exclusive power to enact law. The law is already in place since 1925 and there is no justification for the Haryana State Legislature to have passed a law on the same subject matter, taking away the jurisdiction of the Board/ corporation on the basis of 1925 Act. In fact, by virtue of Section 54, the Haryana Legislature has declared that the provisions of the Sikh Gurdwaras Act, 1925 shall not apply within the territory of Haryana. Accordingly, the State government of Haryana may bring the above facts to the kind notice of the Governor and request the Governor to withdraw the assent given by him to the Bill, in view of the fact, that the State Legislature had no legislative competence and the Bill passed is void and of no legal effect before any or further conclusions now.”
However, legal experts questioned the Centre’s directive, pointing out the absence of a clause in the Constitution that allows the Governor to withdraw his assent to a Bill.
“All that the Governor can do now is to ask the state government not to notify the new law and put the commencement clause on hold. However, this action is the prerogative of the Governor that he can exercise only if he feels any clause in the new law is unconstitutional and needs a re-look. In the alternative, an aggrieved party, including the SGPC, can approach the court to challenge the vires of the new law,” said a senior Supreme Court lawyer.
Another senior lawyer told The Indian Express that the Centre can also request the President to make a Presidential reference to the Supreme Court to seek its view on whether the law is valid and in line with the Constitution.
When contacted, Choudhary said, “How can the Union Home Secretary question the competence of state legislature or for that matter the Governor’s? There is no provision in the Constitution to withdraw a law. The only remedy available is that it is challenged in the court or the state legislature itself repeals it or make an amendment and again send it to the Governor for his assent. There is no other option available. Even the Karnataka High Court’s judgment is clear that once a law is enacted, it cannot be withdrawn like the way Union Home Secretary is asking us to do.”