RELIGION, POLITICS & LAW
Sukhbir is right – Panth Khatre Vich Hai. Even man who has been dragging the Akali Dal in courts says so
- S Pal
Sukhbir is right – Panth Khatre Vich Hai. Even man who has been dragging the Akali Dal in courts says so



THIS TIME, THE PANTH IS REALLY IN DANGER. Shiromani Akali Dal is out of power, and by most accounts, the Congress regime is divesting it of any real chance to cling on to the minor spoils that local bodies’ elections may offer. Pushed to the margins, Akali Dal president Sukhbir Singh Badal had his first real brush with people’s politics when he sat for a night-long dharna at Harike-Pattan.
 
Snuggled in a blanket, the turban a little out of shape, mingling with the Akali workers, a chapatti on his hands, this is how leaders are made. Ironically, Akali Dal workers across Punjab felt they were in a resurgence mode when the regime was really running ramrod against the party.

Such are the moments when epiphanies strike great men. 

In any people’s history of the Shiromani Akali Dal, the night at Harike Pattan will be recorded as the moment when Sukhbir Singh Badal decided to return to the Panth, always a source of power. Nimaniya Da Maan, Nitaniya Da Taan, Nioatiyan Di Aut.

If schemes such as the Adarsh Schools or Meritorious Schools had really taken Punjab by a storm and a great reading culture had revolutionised the reading habits of village folk and Akali workers, Sukhbir Singh Badal’s job would have become easier, because Akali workers would have honed their skills on Rowling’s Harry Puttar and mauled Amarinder Singh’s marauders with secular spells like Alarte Ascendare, Alohomora, Anteoculatia, Aparecium, Arania Exumai and Arresto Momentum. In anger, even Avada Kedavra.

But alas, even special schools for meritorious students have not produced too many panthic varieties of Hermione Granger or Harry Puttar. But does not mean that the Akali Dal, a party of history, does not have some time-tested spells. 

Most students of politics in Punjab know that when the blue turbaned hordes find themselves stuck against a wall, they utter a magic Khul Ja Sim Sim kind of mantra which opens the doors to resurgence, confidence, rejuvenation and eventually, power. What do you think Harry Puttar was fighting for?

At the Diwan Hall of Sri Manji Sahib in Amritsar, Sukhbir Singh Badal finally uttered that mantra: Panth is in danger; it is time to go back to the panth. Now, that’s some Avada Kedavra, frankly.
 
Only, there is one minor problem. The Shiromani Akali Dal has submitted it in writing to the Election Commission of India that it is a secular party. It did so at the pain of facing de-recognition. Right now, it is fighting cases in Indian courts to defend its position that it is a secular political party. In one case, it is up against a lawyer called Prashant Bhushan – not an opponent you would wish for in any court.

As the SAD convened its 97th anniversary function at a religious shrine, it stepped into another pitfall. Social and political activist Balwant Khera, an old man with hardly any resources, sworn socialist leanings and tons of enthusiasm, has been breathing down its neck, dragging the Akali Dal to the courts, adamant at exposing the two faces of the party — one meant for the panth, the other for the Election Commission. 

A day before the Akali Dal announced its return to the panthic turf, Khera went to town, holding a press conference in Jalandhar on December 13 and claiming vindication. With the Badals’ not so secret plan of returning to the panthic issues, the problematic issue of the Akali Dal virtually having two Constitutions is also back on the scene.

On its 97th anniversary, Sukhbir Singh Badal, responding to a question about whether Akali Dal was a panthic party or a secular one, snapped, "What kind of a question is this? The SAD is a party of both Punjabis and the Sikh community.”
 

Sadly, this is not what his party has been stating on oath in courts and to the Election Commission of India.
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On its 97th anniversary, Sukhbir Singh Badal, responding to a question about whether Akali Dal was a panthic party or a secular one, snapped, "What kind of a question is this? The SAD is a party of both Punjabis and the Sikh community.” Sadly, this is not what his party has been stating on oath in courts and to the Election Commission of India.
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The party is actually facing a scenario in which the panth could be in danger, at least that version of the panth which the Akali Dal claims virtual ownership of. And the threat looms from the law of the land.

Here’s how the story goes:

The Shiromani Akali Dal (SAD) wanted to be recognised as a legitimate political party by the Election Commission of India, and therefore it was mandatory for it to declare itself a secular party. But it also did not want to let go of its right to contest the elections to the cash-rich gurdwara management body, the Shiromani Gurdwara Prabandhak Committee (SGPC). The problem was that only a Sikh body could contest elections to the SGPC. 

How did the Shiromani Akali Dal solve this problem?

Well, by sheer ingenuity.

When it became mandatory to submit to the Election Commission of India the Constitution of the Party, required under sub-section (5) of Section 29A of the Representation of the People Act, 1951, that must clearly state that the Akali Dal "shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy”, and when it was mandatory that the copy of the party Constitution be duly authenticated on each page by the President of the party along with the party seal, the Shiromani Akali Dal wrote a Constitution, a brand new secular Constitution, did not tell a single soul about it, and merrily submitted it to the Election Commission of India, thus declaring itself to be a secular party.

But it still had to resolve the problem of remaining a Sikh party in order to fight the elections to the SGPC. So, what it did was to submit its older Constitution, duly signed and stamped by the party president, to the Gurdwara Election Commission.

Since it had a problem, the Shiromani Akali Dal thought it can solve it by conveniently having two Constitutions!

But then, the party landed in a soup. A high-profile challenge to this fraudulent ingenuity came to stare it in the face in the form of a Civil Writ Petition in the Delhi High Court, argued by none other than the high-profile Constitutional lawyer, Prashant Bhushan.

The petition, filed by the public spirited activist, Balwant Singh Khera, demanded that the Election Commission de-recognize and de-register the Shiromani Akali Dal as a political party, quash the party’s right to fight the SGPC elections and end Akali Dal’s "public alignment with the Sikh gurdwaras”. 

Apart from this challenge in the Delhi High Court, the Shiromani Akali Dal also faces a criminal case in the district courts in Hoshiarpur for fraudulently submitting to the Election Commission a Constitution different than the one it submitted to the Gurdwara Election Commission. Summons were issued to Secretary of the Akali Dal, and at one stage even warrants went out for Daljeet Singh Cheema, the secretary of the party.
 

But what is the issue about?

The Akali Dal is the second oldest political party in the country with a glorious history of standing up to the British, leading the gurdwara reform movement, participating in the freedom struggle, fighting for the Punjabi Suba, resisting the repression of Emergency era, and consistently proclaiming itself to stand for the interests of Sikhs and Punjab.
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The SAD’s problems arose when the Representatives of People Act, 1951 made specific provisions under Part IVA-Section 29A for Registration of Political Parties.
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Till 1989, the SAD had no problem in hogging the two pedestals: it claimed a secular pedestal when it came to appeasing the broadspectrum of the people in Punjab or the country, but projected itself as the "Sole Spokesman” of the Sikhs (Sorry, Ayesha Jalal – Ed.) when fighting elections to the SGPC.

The SAD’s problems arose when the Representatives of People Act, 1951 made specific provisions under Part IVA-Section 29A for Registration of Political Parties. These provisions required that a political party must give an undertaking that it would bear allegiance to the Constitution of India and to the principles of, among others, Secularism. No registration of any political party is permissible without this compliance of S29A of RPA, 1951. This section was inserted on June 15, 1989 in the Representation of People Act, 1951. Promptly, the SAD sent an application on October 14, 1989 providing the required undertaking.

In 1994 came further underlining of the importance of adherence to the principle of secularism when the Supreme Court upheld the S 29A of the RP Act, 1951 in a nine-judge Constitution Bench in SR Bommai v. Union of India case, holding it the mandatory duty of every political party to uphold secularism. The judgement also detailed how a political party is positively enjoined to maintain neutrality in religious beliefs. It said that the introduction of religion into politics is not merely in negation of Constitutional mandate but also a positive violation of the constitutional obligation and positive prescription or prohibition specifically enjoined by the RP Act, 1951.

When the Akali Dal decided to become a Punjabi party and much political commentary about the momentous change at the Moga Convention of the party went on in the media, there was little attention paid to the fact that the Akali Dal was making a virtue out of a legal necessity. 

It had to become a Punjabi party from a Sikh party after the 1989 change in the RP Act, 1951, and had no other choice after the Constitutional Bench’s pronouncement in the Bommai case.

Thus, the SAD remained on the right side of the law, at least on paper, by re-submitting a secular Constitution, but it had to remain a Sikh outfit to contest the SGPC elections. It is here that the Akali Dal tried to be clever by half, submitting the older 1974 Constitution of the party, and submitting it once again in 2003.

The two Constitutions of the SAD are as different as chalk and cheese, though the party preferred at the time to call the latter one as "new, amended” document. A simple reading of the two statutes gives away the game.

In the Shiromani Akali Dal’s 1974 Constitution, the copy of which was signed in Punjabi by none other than "Parkash Singh Badal, President, Shiromani Akali Dal” (See facsimile) and in possession of Punjab Today, the "Mukh Mantav” (Main Objectives) for the existence of the party have been listed right at the beginning. How secular are these objectives will be clear from a cursory reading. While the first objective is to make efforts to spread "Gurmat and Rehat Maryada” and reform Gurdwara management and "sewa sambhal”, the second is even more interesting. A verbatim reproduction will be apt:

"Sikhan vich addri panthak hasti da ehsaas qayam rakhna ate ajeha desh-kaal gharrna, jis vich Sikh panth de qaumi jazbe te Quomiyat da pragtao pooran taur te moortimaan ho sake.” While authorised translation was not available from documents or Akali Dal’s office, any of the party’s district offices either, here is a rough translation:
"To sustain the feeling among ‘Singhs’ of a separate panthic existence and to set up such a desh-kaal (nation-time, space-time, roughly nation state) in which Sikh panth’s national feelings and nationality be fully realised.” 

As for who can become members of such a political party called Shiromani Akali Dal, the 1974 Constitution is explicit in the matter. Under the title "Bharti” (Recruitment), it says, "Shiromani Akali Dal Sikh panth di samuchi marzi da ikko-ik pragtao hai ate Khalsa panth di pratinidhta karan da pooran adhikar rakhda hai.” Translation: "Shiromani Akali Dal is the only expression of the entire collective will of the Sikh Panth and has the complete right of representation of the Khalsa Panth.”

The 1974 Constitution then answers clearly about who can be its members: "Har ikk balag Singh and Singhni”. Translation: Every adult Singh (he) and Singhni (she), meaning baptised Sikhs. Quod Erat Demonstrandum. 

In any case, the Akali Dal also has some kind of a self-proclaimed right to brand any organisation as anti-panthic. This is a right it officially claimed in its 1974 Constitution, that stands submitted to the Gurdwara Election Commission even now, and is the only Constitution that the GEC can refer to and consider in any matter whatsoever. This Constitution of the Shiromani Akali Dal states that no one can become a member of the SAD who is a member of any party which has been declared by the Shiromani Akali Dal as "Panth Virodhi Jamaat”. So, when Sukhbir Singh Badal termed the Congress an anti-panthic party, it is not just political rhetoric or a polemical stance; it is a Constitutional averment as per a right the Akali Dal has proclaimed under a legally submitted Constitution.

But since this could not have passed mustered the slightly more finicky Election Commission of India which may have found the membership being open to only "Singh and Singhni” a little bit less than any secular principle, the Akali Dal sent in a brand new Constitution.

All was well till Balwant Singh Khera came along and threatened to spoil the game. The danger was initially perceived to be a lesser one since Khera had limited resources and except for his doggedness and determination, lacked everything else, including  funds, manpower, party machinery, media savvyness, computer literacy, and, given his age and ailments, even physical strength. "Mera phone zara halka hai, agle saal shayad main smart phone lavan,” he told Punjab Today on the day Badals turned towards the panth at Diwan Hall of Sri Manji Sahib.

But with Prashant Bhushan as his lawyer in the Delhi High Court, Balwant Singh Khera is an army to reckon with, and has been making Akali Dal’s legal eagles run helter skelter.
 
When the matter was still not much in the public eye, the Akali Dal’s paper work was pretty shoddy. For example, the Shiromani Akali Dal, while at pains to prove its secular credentials, was merrily informing the Election Commission of India, that too in writing, that its meetings and elections were held at Teja Singh Samundari Hall, Amritsar, the headquarters of the SGPC. No wonder, Prashant Bhushan quoted this as one more example of party’s lack of secular credentials even as Akalis squirmed.

The fact that the Shiromani Akali Dal contests Assembly elections in Punjab as well as the last SGPC elections only helped those challenging its secular character. If the SAD does not use its symbol of "Scales” allocated by the EC in the SGPC elections, it is only because it cannot do so under the law. The Akali Dal is granted the symbol of "tractor” by the Gurdwara Election Commission as a party. 

Balwant Singh Khera’s petition in the Delhi High Court termed the functioning of the SAD as "an obvious and gross illegality, unconstitutionality and violation of fundamental rights” of the citizenry.

As Khera’s lawyer, Prashant Bhushan contended in the petition that the Shiromani Akali Dal "has always been regarded as a religio-political party.”

"The very meaning of the word ‘Akali’ is Nihang or devotee Sikh, while ‘Shiromani’ means apex and ‘Dal’ means Sikh army,” Bhushan argued, and annexed with the petition notes on Shiromani Akali Dal from a source no other than the SAD’s own website. 

"By ... participating in the management and functioning of the apex religious body of the Sikhs, a political party is inextricably mixing religion in politics. Instead of refraining from non-secular activities, the SAD (Badal) openly favours one religion, the Sikh religion,” the petition stated.

Bhushan’s contention was that "the SGPC is a religious body constituted under the Sikh Gurdwaras Act, 1925, subsequently reconstituted after partition, under the provisions of India (Adaptation of Existing Indian Laws) Order 1947. It is the apex religious committee of the Sikhs that has been specially constituted to manage Sikh gurudwaras under Sikh control in consistence with the religious views of that community.”

Before knocking at the doors of the Delhi High Court, Balwant Singh Khera relentlessly pursued the Election Commission of India. In 2005, he wrote a series of letters and even sent a petition to the Election Commission of India, pointing out "the illegality, unconstitutionality and violation of fundamental rights” by the Akali Dal and sought its de-recognition by the EC as a political party. 


Prashant Bhushan’s arguments heavily depended upon the well-established Bommai judgment. Arguing that "Political manifesto & methods of influencing electorate should be constitutional,” Bhushan narrated para 126 of the Bommai judgment that holds: "For a political party or an organization that seeks to influence the electorate to promote or accomplish success of an election for governance of Parliamentary form of Government, the principles are those embedded in the Directive Principles of the Constitution vis-â-vis the fundamental rights and the fundamental duties in Part IV(A) and should abide by the Constitution and promote tolerance, harmony and the spirit of commonness amongst all the people of lndia, transcending religious, linguistic, regional or sectional diversities and to preserve the rich heritage of our composite culture, to develop humanism, spirit of reformation and to abstain violence. Therefore, the manifesto of a political party should be consistent with these fundamental and basic features of the Constitution, secularism, socio-economic and political justice, fraternity, unity and national integrity.” The exclusive membership to the "Singh and Singhnis” may not qualify, neither may a self-arrogated right to represent the "entire collective will of the Sikh panth” for SGPC elections.

By holding the Akali Dal’s meetings at Teja Singh Samundari Hall, the headquarters of the SGPC, a purely religious body, and by constantly using the gurdwaras, as exemplified by the recent party conclave at Sri Manji Sahib Diwan Hall, the Shiromani Akali Dal, that certified itself to be a secular party through a brand new Constitution signed by its president Parkash Singh Badal, may have fallen somewhat short of the Para 128 of Bommai judgment that is now the law of the land. Bhushan quoted this paragraph while representing Khera in his petition, and with deadly effect:

"Para 128 from Bommai holds (that) Article 25 inhibits the Government to patronize a particular religion as State religion overtly or covertly. A political party is therefore positively enjoined to maintain neutrality in religious beliefs and prohibit practices derogatory to the Constitution and the laws. Introduction of religion into politics is not merely in negation of the Constitutional mandates but also positive violation of the Constitutional obligation, duty, responsibility and positive prescription or prohibition specifically enjoined in the Constitution and R.P. Act....Appeal on grounds of religion offends Secular Democracy.”

But even more pertinent are the words in Para 243 of the 1994 Bommai judgment that lit up the path for the country’s politics. 

A political party that is non-secular has no right to function as such. 

Para 243 holds that ‘...Political parties are formed and exist to capture or share State power. That is their aim. They may be associations of individuals but one cannot ignore their functional relevance. An association of individuals may be devoted to propagation of religion; it would be a religious body. Another may be devoted to promotion of cultures; it would be a cultural organization. They are not aimed at acquiring State power, whereas a political party does. That is one of its main objectives. This is what we mean by saying ‘functional relevance’. One cannot conceive of a democratic form of government without the political parties. They are part of the political system and the constitutional scheme. Nay, they are integral to the governance of a democratic society. If the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well.
 
The Constitution does not recognize, it does not permit mixing religion and state power. Both must be kept apart. That is the constitutional injunction. None can say otherwise, so long as this Constitution governs the country. Introducing religion into politics is to in introduce an impermissible element into body politic and an imbalance in our constitutional system. If a political party espousing a particular religion comes to power, that religion tends to become, in practice, the official religion. All other religions come to acquire a secondary status, at any rate, a less favourable position. That would be plainly antithetical to Arts. 14-16, 25 and the entire Constitutional scheme adumbrated hereinabove. Under our Constitution, no party can simultaneously be a political and religious party. It has to be either. Same would be the position, if a party or organization acts and / or behaves by word of mouth, print or in any other manner to bring about the said effect, it would equally be guilty of an act of unconstitutionality. lt would have no right to function as a political party...(Emphasis added).
 
Thus, it is clear, and Prashant Bhushan rightly argued on behalf of Balwant Singh Khera that while a Secular State does not reject the reality or relevance of religion, it also cannot identify itself with or be controlled by any religion. No religion can be accorded special privileges in national life. Bommai judgment’s para 25 makes it clear that no person should suffer any form of disability or discrimination because of his religion but all should be free to share to the fullest degree in common life. No political party or state can patronize or endow any particular religion in preference to others. (Bommai, Para 28). Programmes or principles evolved by political parties based on religions amounts to recognizing religion as part of the political governance, which the Constitution expressly prohibits. (Bommai, para 187).

Balwant Singh Khera has thus sought to prove that the Shiromani Akali Dal has not just inextricably mingled its political agenda with religious affairs, has not just violated the constitutional provisions of secularism, has not just violated an undertaking given to the Election Commission of India but has sought to defraud the Election Commission by submitting to it a Constitution different than the one it has submitted to the Gurdwara Election Commission.

Arguing Khera’s petition, Prashant Bhushan went so far as to even contend that no political party in India can have the word ‘Akali’ in its name "since it has strong religious connotations and violates the above-mentioned mandate” as the word ‘Akali’ is Nihang or devotee Sikh.

The proceedings in the court pushed the SAD to make public the record of proceedings of such meetings of the office bearers of the party, the record of minutes of the meeting of office bearers, the ratification of those minutes by the general house of the Akali Dal or the passage of the new Constitution of the Akali Dal by the General House and the minutes of the proceedings of such a General House, the publication of the new Constitution, and the attempts to make the party men aware of the provisions of the new Constitution if it indeed changed its Constitution in 1989. 

Also, it was forced to explain how it can then continue to fight the SGPC elections under the old Constitution. It must also explain why it submitted its old Constitution to the Gurdwara Election Commission, and also when it plans to submit its new Constitution to the Gurdwara Election Commission and how will it remain eligible for contesting the SGPC elections under the new Constitution as per which the membership of the party is not open to only those who are "Singh and Singhni”.

The Congress in Punjab sees little political advantage in taking up the cudgels on this one as the Akalis can turn it around to paint it as an anti-Sikh party. 

That the change of its Constitution was surreptitious was confirmed by even Manjit Singh Calcutta, who was a key functionary in the Shiromani Akali Dal and the SGPC before parting ways with Parkash Singh Badal’s party. He confirmed that the SAD indeed submitted separate constitutions to the Gurdwara Election Commission and the Election Commission of India, and even sent a missive to the Chief Gurdwara Election Commissioner in this regard.

Calcutta at one stage asked the GEC that "It must be cleared now whether Akali Dal (led by Parkash Singh Badal-Sukhbir Singh Badal) is a religious/panthic party or a secular party because the latter, which includes people of different denominations, cannot be allowed to contest election of a particular religious group.” 

A similar complaint about the SAD was submitted to the Gurdwara Commission by Dal Khalsa president H.S. Dhami.

Meanwhile, in the Delhi High Court, a Division Bench led by the Chief Justice, has now asked Prashant Bhushan to file a revised petition since the earlier petition had become too bulky, and has assured that the bench will ensure that all the time spent earlier in hearing the matter does not go waste. Khera is now ready with this new petition to be filed in the Delhi High Court.
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With Prashant Bhushan as his lawyer in the Delhi High Court, Balwant Singh Khera is an army to reckon with, and has been making Akali Dal’s legal eagles run helter skelter.
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On December 6 this year, just a week before Akali Dal held its 97th Foundation Day Celebrations at Manji Sahib Diwan Hall in the Golden Temple Complex, Balwant Singh Khera was back at the Hoshiarpur court, recording his statement in the ongoing case. A day before the Manji Sahib function of the SAD, Khera was holding a press conference at the Jalandhar Press Club.
 

Everytime, he has an anecdote to tell, which he does with a chuckle and a toothless laughter. "You know Sukhbir Singh Badal wrote to the Under Secretary of the Election Commission of India on January 19, 2008 that they have indeed amended the Constitution, but also submitted documents that showed that the ijlaas in which these amendments were carried out was convened at Teja Singh Samundri Hall on January 31, 2008,” he said, and then laughed with a loud guffaw.

"Who helps you with so much documentation?” I asked Khera. "The Shiromani Akali Dal,” he said, matter of fact. And then laughed. "Most of our facts and pieces of evidence and documents have come from the documents submitted by the Akali Dal’s lawyers and representatives to the courts,” he said.

"Ikk gall dasan main tuhanu?” he asks me, conspiratorially. Excited, I turn my ear towards him, forgetting momentarily that he is hard of hearing, not me, when he says loudly into my ear, "Panth khatre vich hai!” As we both laugh, the irony of his words escapes me but for a moment — that both Khera and Sukhbir Singh Badal are saying the same thing on the same day, unlike the two Constitutions of the party.
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 Click https://goo.gl/NJza8Y to read The Akali Dal's Defence 

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 For a profile of Balwant Singh Khera, click https://goo.gl/ZNeqZb


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