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Sikhs In Search Of Justice
Through Article 25 and 26
of Constitution of India
India is a secular democratic republic, having one of the lengthiest written constitutions in the world, which guarantees not only freedom of conscience and religion to all citizens, but also gives them the freedom to exhibit their beliefs and ideas in such overt acts as are enjoined by their religion. The Constitution further gives freedom to all citizens to propagate their religious views and ideas for the edification of others, subject, of course, to the restrictions as contained in Article 25 and 26. Freedom of religion is complete and is comparable to that, as contained in the Constitutions of other democratic countries of the world. But, law, as is commonly known, is not logic or philosophy, but experience. Law is what law does to the people, so the important question is : How is the glow of this freedom of conscience and religion experienced and enjoyed by the different communities of India ? And not how finely the same is defined in the Constitution of the land.
In this short paper, attempt is confined to the experience of the Sikhs and the Sikh community under Article 25 and 26 of the Constitution of India. The scope of Article 25 is confined to the religious rights of the individual and that of Article 26 is concerned with the rights of the whole religious community. Both these Articles are subject to the restrictions imposed by the State for the maintenance of public order, morality and health. Before any comment is made on the working of these Articles, qua the Sikhs, it would be better to have a look at the language of Article 25, which reads as under :
“25, Freedom of conscience and free profession,
practice and propagation of religion :
1) ... Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
2) ... Nothing in this Article shall affect the operation of any existing law or prevent the state from making any law :
a) ... regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice;
b) ... providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I :
The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II :
In sub-clause (b) Clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina, or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.”
The reading of this Article shows that it not only gives freedom of conscience and religion, but further guarantees the right to practise and propagate matters of faith or belief and also things which are regarded as integral part of religion by the followers of the faith. No complaint can be made by the Sikhs as far as the ambit and scope of this freedom of religion and conscience are concerned, as these are the same for all other religious communities in India. The Supreme Court of India and the High Courts have clearly defined and extended the scope of these Articles to include all possible meanings, but it is important to mention that no case regarding the Sikh religion has gone to the Supreme Court of India. The distinctive features of Sikhism and the Sikhs have been recognised in these Articles, and Explanation I and II added to Article 25 make reference to the Sikhs and their religion. Explanation I gives constitutional recognition to the right of the followers of the Sikh religion to wear and carry on their person kirpans as emblem of their religion. But, this Explanation is not properly worded, as the non-description of the shape and size of the kirpans to be carried by the Sikhs creates problems for them at so many places and situations. Even the Indian Airlines have issued instructions not to allow the Sikhs wearing and carrying kirpans on its flights. In the name of security, the Sikhs are harassed and ordered to remove their kirpans before entering those places, where security restrictions are imposed. It is a historical fact that Guru Gobind Singh had ordained the Sikhs to wear ‘always five K’s — kesh, kanga, kirpan, kachh and kara’ — as emblems of their religion. What should Sikhs do, when they are asked or directed to remove the emblems of their religion, i.e., kirpan at public places ? Should they follow the command of their Guru, or the order of executive authorities, when their right to carry kirpan finds clear recognition in the Constitution itself ? This matter needs consideration by the Sikh leadership and religious bodies to save the Sikhs from un-necessary harassment, non-observance of their religious practice and inconvenience.
Explanation II is also open to criticism and controversy, as in this Explanation, the Sikhs have been included in the connotation of the word Hindu. The identity of Sikhism as a separate religion has been clouded, and put to doubt in this Explanation. The Sikhs were agitating since long before Independence that their religion is independent and separate from Hinduism, but in the Constitution, and particularly in this Article, the originality of Sikhism is denied, rather the attempt is to show Sikhism as a part of Hinduism. Sikhism is known and recognised throughout the world as a separate religion, with distinct identity of its own. It is because of such deliberate lapses that the Sikhs had reservations regarding the drafting of the Constitution from the very beginning and their representatives in the Constituent Assembly made a protest, and two of them refused to append their signatures on the draft Constitution as a mark of protest. The record shows that the Sikh leadership felt dis-illusioned and cheated. They said that the promises made to them before Independence, on the basis of their contributions to the freedom struggle, were not kept and fulfilled. No serious attempt was made to fill the gap of distrust, and the objective of promoting fraternity among various sections of the society remained a distant dream. The history of the Sikhs during the last 50 years shows that there is a wide gap between theory and practise, as far as the implementation of Article 25 is concerned. It needs a little research to show how these Articles have worked for the Sikhs in different situations.
The incidents of 1984 proved for the Sikhs that these constitutional protections are very weak, as in spite of Article 21, which promises to protect life and liberty of all citizens, thousands and thousands of Sikhs, were massacred in broad day-light in the streets of Delhi, the capital of India. Their only crime was that they happened to be Sikhs, having a distinctive identity. In such situations of the country, Article 25 comes much later, as when life is treated in such manner, every right given in the Constitution becomes meaningless. It needs serious and deep thinking by the Sikhs for the preservation of their religion and to avoid repetition of the happenings of their recent history. They have to learn that the time of personal valour is gone, and instead of the art of sword, the art of using modern weaponry like judicial process and psychological warfare have to be learnt by them. In a civilized society, court battles are the only battles left open to protect one’s right and that of one’s community. But, the pages of legal reports show that the Sikhs have not made much use of the judicial process for the protection of their rights. It seems that they have not properly understood its power in modern times, as till today, only four cases under Article 25, 26 and 29 have gone to the courts, although violations of the rights of Sikhs have happened on a large scale. It would not be out of place to mention that out of these four cases, two cases were recently filed by me in the Punjab and Haryana High Court under these Articles. The violations of these Articles have been going on since 1971, when school history books were published with distorted version of Sikh history and Sikhism by the Government of India and its agencies.
The first case : “Rex - versus - Dhyan Singh” (AIR 1952 Allahabad, 53) arose under the provisions of U.P. Arms Act in 1948, and was decided by the Allahabad High Court in 1952. Dhyan Singh had been convicted under the Arms Act for wearing and carrying more than one kirpan without licence. When the Appeal came to the High Court, the Constitution of India had come into operation, giving right to the Sikhs to wear and carry kirpans under Article 25. The question to be decided before the High Court was : Whether a Sikh can wear and carry more than one kirpan as the plural word kirpans has been used in Explanation I of the Article 25. After referring to the religious literature of the Sikhs, the High Court had held that a Sikh is entitled to wear and carry only one kirpan, as Guru Gobind Singh had ordained the Sikhs to wear always five K’s, i.e., kesh, kangha, kirpan, kachh and kara, which indicates only one of these signs. So a Sikh cannot be allowed to wear and carry more than one kirpan on their person as being a part of their religion and religious practice, and the same is so protected under Article 25 of the Constitution of India.
There is no other case in the Law Reports, except the cases which have been recently filed under these Articles regarding objectionable remarks against Guru Gobind Singh and other Gurus. The matter of distortion of Sikh history, religion and culture, is of grave concern, as the opposite party involved in violating the Fundamental Rights of the Sikhs, happens to be the Government of India and its agencies. It needs no saying that it is the primary duty of the Government of India and its agencies to help the citizens of India in protecting their Fundamental Rights, but in the recent cases, the Government of India has changed its role and is persisting in violating the rights of the Sikhs under Article 25 and 29 of the Constitution. The vehemence with which the case has been contested by the opposite party, leaves no doubt in anybody’s mind that the intention to distort Sikh history, culture and traditions, was a deliberate one, and not the result of any inadvertence on the part of the author alone. Every conceivable objection was raised to get the Writ Petition dismissed, in spite of the suggestion from the Hon’ble Bench to delete the objectionable portion on their own and make a statement, saving the court from writing judgement in such a serious matter concerning the feeling and sentiments of a large section of the Indian society. The Government of India and its agencies did not relent and ultimately, the Division Bench delivered the judgement in April, 1996; ordering the deletion of the objectionable remarks against Guru Gobind Singh and the Sikhs. The Court held, a writing which projected the Guru of a religious community as an employee of the Mughal Emperor, cannot be allowed to remain a part of the syllabus of history in the school book. It was further suggested by the Bench that in future editions of the book in other languages, such remarks should not be printed. But in the Hindi edition, brought out by the NCERT in February, 1997, the same objectionable remarks were re-printed without any change. This shows the attitude of the Government in protecting the Fundamental Rights of the Sikhs under Article 25 and 29 of the Constitution.
The other case regarding the objectionable remarks against Sikh Gurus in another school history book meant for 10+1 was filed in July, 1997 in the Punjab and Haryana High Court. This case is of more serious dimensions, as the Sikh Gurus have been projected as politicians, because they raised the conflict with the Mughal Emperors on the basis of political and personal matters, and not religious ones. It is further written in the same history book that Guru Tegh Bahadur joined hands with one Pathan Hafiz Ahmed to create disturbances in Punjab, and the reasons of Guru Tegh Bahadur’s execution are not clear. In such a situation, how should Sikhs protect their Fundamental Rights under Article 25 and 26 ? The only door that seems open is that of the Supreme Court of India and the High Courts. As mentioned earlier, the High Court of Punjab and Haryana was approached and the result has been good. The Hon’ble High Court has issued directions to the Government of India and its agencies to take a decision regarding distortion of Sikh history, as pointed out in the Writ Petition, within a period of three months. That time period is likely to get over, and no decision so far has been taken by the Government in such a serious matter concerning the Sikhs, in the light of the earlier decision in the case of Master Aman Preet Singh Versus Union of India and others, Reported in AIR, 1996 P & H page 284, under the same Articles of the Constitution of India. The rights of the Sikhs under Article 26 are not in much dispute and they are managing their religious affairs within the framework of the Constitution.
In conclusion, it is only to be said that in spite of the Fundamental Right to Freedom of Religion being there in the Constitution, the Sikhs have to be much more vigilant in protecting their Fundamental Rights under Articles 25 and 29 of the Constitution, as these have started to be very seriously violated in school history books and other effective media. Active vigilance would be the price, Sikhs would have to pay for the preservation of these rights, as so far, the Sikh leadership has shown indifference in such matters. There is no doubt that the legal machinery and responsive judicial apparatus exists in India, but what is required is determination and will to operate the levers of that system. There can be no other effective alternative in a democratic set-up, and it is only through the proper use of judicial process that the rights of Sikhs and their glorious history can be saved