Punjab’s anti-sacrilege law faces test of constitutionality

Punjab’s Jaagat Jot Sri Guru Granth Sahib Satkar (Amendment) Act, 2026, prescribes enhanced punishment for sacrilege -- a prison term not less than seven years, which may extend to 20 years, and a fine of not less than Rs 2 lakh, which may extend to Rs 10 lakh.

Before the constitutionality of the Act was challenged in the Punjab and Haryana High Court in Simranjeet Singh v. State of Punjab, an article by Justice RS Sodhi (retd), "The Guru's Word is Beyond Law" (The Tribune, March 24), gave an interesting early response to the legislation. Justice Sodhi wrote that the living embodiment of the Guru ought not to be subjected to juridical regulation and that the existing legal framework is sufficient to address such offences. While rooted in a religious perspective, the critique raises legitimate concerns regarding the Act's constitutional validity.

Article 245 read with Article 246 of the Constitution distributes legislative powers between the Union and the States through the three lists in the Seventh Schedule. List I enumerates subjects on which Parliament may legislate, List II those reserved for State Legislatures and List III includes those on which both may legislate concurrently. For present purposes, the relevant entries are Entry 1 of List II, relating to "public order", and Entries 1 and 2 of List III, relating to criminal law and criminal procedure, respectively.

The issue of legislative competence must be determined by applying the doctrine of pith and substance, which examines the true nature, object and effect of the legislation. As recognised by the Supreme Court in Kartar Singh v. State of Punjab (1994), the classification of legislation depends on its substance rather than its form.

The original enactment was confined to regulating the supply and handling of birs of Guru Granth Sahib, a subject traceable to "public order" under Entry 1 of List II. However, the Act, by introducing and punishing the offence of sacrilege, travels into the field of criminal law under Entries 1 and 2 of List III. The use of a "public order" legislation as a vehicle to introduce a distinct criminal offence indicates that the Act is colourable in nature, seeking to achieve indirectly what the previous legislative attempts could not achieve directly.

Article 254 of the Constitution provides that in the event of repugnancy between a State law and a parliamentary enactment on a Concurrent List subject, the latter shall prevail, rendering the State law inoperative to the extent of the inconsistency, unless the State law has received Presidential assent. This position was recently affirmed by the Supreme Court in Innoventive Industries Ltd. v. ICICI Bank (2018).

In the present case, the definition of “sacrilege” under Section 3(bb), read with the punishment prescribed under Section 5 of the Act, is in direct conflict with provisions of the Bharatiya Nyaya Sanhita (BNS), 2023, including Sections 298, 299, and 302, which already criminalise acts injuring or defiling places of worship and outraging religious feelings. This overlap indicates that the field is already occupied by Central legislation, thereby giving rise to repugnancy under Article 254. In such a situation, the provisions of the BNS would prevail.

The definition of sacrilege under the Act may be divided into two parts: a wilful and deliberate act of damaging, tearing, burning or defacing saroops of Guru Granth Sahib; conduct by visible representation, spoken or written words, or through electronic means of such a nature as to hurt religious feelings.

The second strand bears a close resemblance to Section 66A of the Information Technology Act, 2000, which penalises the dissemination of information of an offensive or grossly menacing character. The Supreme Court, in Shreya Singhal v. Union of India (2015), struck down that provision on the ground of being violative of Articles 14 and 19 of the Constitution, holding that such language is vague and fails to provide any reasonable standard of application. It was further observed that in criminal law, the conduct sought to be criminalised must be certain and clearly defined.

Similarly, the Act contains no definition of the term “hurt to religious feelings.” Thus, even far-fetched or scholarly expression that bears no proximate connection to the mischief sought to be addressed could fall within the sweep of the provision. Therefore, the definition of "sacrilege" in the Act is arbitrary and violative of Articles 14 and 19.

In Vikram Singh v. Union of India (2014), the constitutionality of Section 364A of the Indian Penal Code (IPC) was challenged on the ground of being unreasonable, which prescribes punishment of death or life imprisonment with fine. The Supreme Court upheld the provision on the ground that it was brought into force due to the increasing incidence of ransom and kidnapping, not only by ordinary criminals, but also by terrorist organisations which have the potential of destabilising the country. It was further held that the prescription of punishment is a function of the legislature, which is best suited to assess the needs of the people, and that courts cannot interfere merely because the punishment is perceived to be excessive.

Applying the same principle to Punjab and considering its history, there may be cases where incidents of sacrilege have been funded or plotted with the intent to disrupt the sovereignty and security of the nation. Moreover, the legislature has prescribed the punishment with respect to the increased incidence of sacrilege over the past few years. Furthermore, in the present scenario too, the courts have the discretion to award imprisonment in accordance with the gravity of the crime.

The amendment Act, though aimed at curbing sacrilege in Punjab, raises concerns regarding its constitutionality. The law, in pith and substance, falls within the domain of criminal law under Entries 1 and 2 of List III, a field occupied by the BNS, which criminalises act of injuring/defiling places of worship and outraging religious feelings, thereby giving rise to repugnancy under Article 254 of the Constitution. Further, the definition of “sacrilege” is vague and prone to being misused. Although the prescribed punishment falls under the domain of the legislature, it becomes disproportionate when coupled with such a vague definition.

The writer is a Supreme Court advocate