Simranjit Sinh Mann MP

President Shrimoni Akali Dal

11/3/90

 

Shri Rabi Ray

Speaker

Lok Sabha

New Delhi

 

Dear Shri Ray

 

Waheguru Ji Ka Khalsa

Waheguru Ji Ki Fateh

 

I am writing this to draw your attention to an important matter relating to restrictions put on the entry to Parliament of Sikh Members of Parliament, for taking oath and participating in the

proceedings of Parliament.

Ever since Operation Blue Star there has been a lot of controversy regarding Sikhs and their constitutional rights. I am addressing this letter to you to make our stand constitutionally and legally clear regarding the rights of the Sikhs to wear and carry kirpans.

Among the Fundamental Rights in the Constitution, is the right to freedom of Religion under Article 25 of the Constitution. It states “25 (1) Subject to public order, morality and health and to other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Explanation 1. – The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion”.

In this connection I have to draw your attention to two things – (1) This is the only right which the Constitution guarantees to the Sikhs and it has been included in the Constitution taking in view the long drawn out struggle of the Sikhs to assert their right to carry and wear kirpans. Even under the Indian Arms Act 1878 only the Sikhs had the right to wear and carry kirpans and this right was incorporated in Constitution when it was framed. This right was acknowledged by the Nehru committee (1928) as well as the Sapru Committee (1945) para 363. and ultimately it culminated as a Fundamental Right of the Sikhs in the Constitution.

A plain reading of Article 25 shows that it is not in the words practise and propogate that this right of the Sikhs is mentioned but significantly it is mentioned that wearing and carrying of kirpans is deemed to be included in the ‘profession’ of the Sikh religion. The word emphasized here is ‘profess’ and ‘profession’. The dictionary meaning of the word ‘profess’ and ‘ profession’ has to be noted in this context.

Collins Dictionary: Profess to affirm or announce (something such as faith): acknowledge. Profession of faith. a declaration of faith in a religion especially as made on entering the Church of that religion or an order of that religion. (b) the faith or the religion that is the subject of such a declaration; from Medieval Latin, Profession, the taking of vows upon entering a religious order.

Webster Dictionary: Profession. To affirm or declare one’s faith in, allegiance to a religious principle, God, Saint etc.; the act of fact of professing the declaration. Promise or vow made on entering a religious order, the profession of religion; the declaration of or belief in the obedience to religion or a religion; hence, the faith or religion which one professes.

From the above one thing is very clear that the words used in the Constitution “Profession of the Sikh religion” are of great significance and of much deeper concept that the other two words viz. practise and propagate used in this article.

No restrictions can be put on profession of a religion wheras the other two words may come under restrictions. The State, in the name of imposing restrictions in the interest of society cannot deprive the individual of the substance of this religious freedom. The first Amendment to the US Constitution runs as follows:

“Congress shall make no law respecting an establishment of religion of prohibiting the free exercise thereof.

Explaining the first Amendment, the American Supreme Court thus observed.

“The Amendment embraces two concepts, the freedom to believe and the freedom to act. The First is absolute but in the nature of things the second cannot be”.

My first assertion therefore is that the Fundamental Right of the Sikhs to wear and carry kirpans is absolute.

Even if it be admitted for the sake of argument that the State can restrict this Right, it can be done only through a Statute. According to H.M. Seervai in the Constitutional Law of India, 12.33 (P0916) ” any law which prohibited Sikhs from wearing or carrying kirpans would be void unless such law was justified as necessary to public order. Though not defined in the Constitution. Kirpan being a sword and its size or shape has not been prescribed by the Sikh religion; it may, therefore, be a sword of any size or shape. The right of the Sikhs to wear and carry kirpans in this case is subject to only one restriction i.e. public order, peace; safety and tranquality and is to be distinguished from the popular concept of law and order. Public order implies absence of violence.

Since wearing and carrying of kirpans by Sikhs being a Fundamental Right, it is imalieanable and cannot be taken away by executive instructions much less by an enactment unless the Fundamental Right

is itself amended. I again emphasise that any restriction on Fundamental Right of the Sikhs can only be imposed by a Statute. The restriction if any, under public order can only be imposed by any of the authorities who are included in the definition of ‘state’ in Article 12, who are competent to make laws. The restriction under ‘Subject to public order’ can only be imposed by

law and such law must be a valid law. There is no provision under any law under which this Fundamental Right of the Sikhs can be restricted or curtailed.

I understand there is nothing in the ‘Rules or Procedure and Conduct of Business in Parliament’ imposing any such restriction on the wearing and carrying of kirpans by Sikh Members of Parliament within Parliament. Even if there had been, it would have been unconstitutional and ultra vires the Constitution. I also understand it is the watch and ward staff of the Parliament who, under some instructions of the Speaker or some Security Officer, do not allow Sikh M.P.s. wearing and carrying kirpans to enter Parliament. You must agree that as held by numerous legal authorities, you cannot take away a Fundamental Right indirectly what you cannot do directly. Great sanctity is attached to Fundamental Rights in our Constitution. But the way this Fundamental Right of the Sikhs is being snatched under one pretext or the other would greatly hurt the Sikh feelings. No Sikh is going to believe that any authority under the garb of security can deprive them from wearing and carrying kirpans. Our tenth Guru has enjoined upon every Sikh to wear kirpans. The Sikhs cherish this right and would feel greatly agitated if this Fundamental Right is taken away from them directly or indirectly. This wearing and carrying of kirpans is the very basis and foundation of Sikh psyche and ethos and in fact goes much deeper than what appears to the naked eye.

Historically the Sikhs have already asserted this right as an inalieable right of the divine]y5oydained Order of the Khalsa.

Some of them languished for as many as fourteen years in British Indian prisons to secure it. On at least three different occasions, the British Indian Government formally accorded recognition to it. On June 25, 1914 it excluded the Sikh kirpan from the ambit of Indian arms regulations. On May 19, 1917 it permitted the wearing of kirpan throughout India, no length was specified. After the First World War even the Sikh army men were allowed to wear the kirpan vide letter No. 6221 dated Simla, October 9, 1920 of J.P. Thomson, Chief Secretary to Secretary Government of India (cf. Josh, Sohan Singh, Akali Morchian da Itihas (pbi) Arsi Publishers, Delhi 1977 (2nd Edn) pp250-255).

The right to be armed is an universally recognized right of freeman. The following words taken from an official document of the Swiss Government, “How Switzerland is Governed.” by Hans Huher asserts, “Citizens go wearing daggers to the assemblies in those Cantons where direct democracy is practised, in order to assert their status of freemen” demonstrates this. This is the position of all significant cultures.

I, as President of Shiromani Akali Dal have a great responsibility cast upon me to defend this Fundamental Right of the Sikhs. We Sikhs cannot conveive of a situation where Fundamental Right is taken away in any direct or indirect way. The Legislative power being subject to the Fundamental rights even the Legislature cannot directly take away or arbridge the Fundamental right, which it cannot do directly.

Parliament is not the only place where this is happening, it is happening in many other places as well and I fear in due course of time it may happen everywhere under one pretext or the other.

Barring the Sikh Members of Parliament from wearing and carrying kirpans in Parliament would have much wider repercussions than is being realized. I fail to understand under what provisions of law this Fundamental Right of the Sikhs is being restricted.

I know you have great regard for Sikh feelings. I intend taking oath in Parliament. I always wear and carry my three foot long kirpan wherever I go. While going to Parliament to take oath I will be caring this.

I shall be grateful if you make all concerned aware of this Fundamental right of mine and other Sikh Members of Parliament, particularly the watch and ward staff and ensure that no unpleasantness is caused when I come to take the oath.

 

With regards.

Yours sincerely.

(Simranjit Singh Mann)