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What is Personal Law ?
As commonly understood, Personal Law means legislation governing matters of personal nature. However, as a look at some of the current Personal Laws would show, it does not cover the entire gamut of personal relations. On the other hand, it may include matters which are strictly not personal. Examples are religious endowments of Hindus and waqfs of Muslims. In the scope of Personal Law, Cheshire includes essential validity of marriage; mutual rights and obligations of husband and wife, parents and child, guardian and ward; the effect of marriage on property; divorce, annulment of marriage, legitimation and adoption; certain aspects of capacity and testamentary as well as intestate succession to moveables. The Supreme Court of India has endorsed this list and added succession to immoveables also. Personal Law may thus be summed up in the words of Mulla as “the laws and customs as to succession and family relations”.
An important and essential feature of a Personal Law is that it applies to a person as a votary of a particular religion or ethnicity, wherever he goes, in contrast to lex loci or territorial legislation which applies to all in a geographical area.
Present Position in India
There is no single uniform Personal Law in India applicable to all its citizens. In fact, this is not possible, since India is a multinational, multireligious, multicultural and multiethnic sub-continent. Personal Law for each community has of necessity to be different, to reflect its own distinct religious and ethnic values. Muslims, Christians, and even the small community of Parsis with a population less than 2 lakhs, have their own Personal Laws on the Indian statute. So do the Hindus which constitute an overwhelming majority of the Indian population.
Unfortunately, no separate Personal Law exists for Sikhs. They, along with Buddhists and Jains have been clubbed with Hindus, so that Hindu Personal Law is applicable to them under the following legislations :
- Hindu Marriage Act 1955
- Hindu Succession Act 1956
- Hindu Minority and Guardianship Act, 1956, along with the Indian Majority Act 1875 and Wards Act 1890
- Hindu Adoption and Maintenance Act 1956
A clause has been provided in each of these Acts to the effect that these also apply to “any person who is Buddhist, Jain or Sikh by religion.” These Acts have also an overriding effect on any previous legislation on the subject.
As a result, the Anand Marriage Act 1909, which was the only piece of legislation applicable exclusively to Sikhs, has become superfluous and redundant. All these Acts which have been passed without consulting the Sikhs, certainly strike at the independent status of the Sikh religion.
Demand for Sikh Personal Law
When the British Cabinet Mission came to India to negotiate Indian Independence in 1945, three parties were recognised on the Indian side, viz., Muslims, Sikhs and others. As a result, Muslims succeeded in creating Pakistan. Sikhs, however, chose to throw in their lot with Hindus on the assurances from the Congress leaders for a federal structure with an autonomous state in which Sikhs could enjoy ‘a glow of freedom’. It was also promised that no constitution would be adopted, unless it was acceptable to Sikhs. Unfortunately, the assurances were forgotten, as perhaps they were meant to be, and the Constituent Assembly adopted a Constitution with all authority vesting in the Union Government. The Sikh members refused to sign the draft. But their protests were ignored, and the Constitution was adopted in 1950, when India became a republic.
During reorganisation of states in 1956, while homogenous states were created for all major Indian languages, Sikhs were told that creation of a Punjabi Suba would not be considered, ‘whatever the merit of the case’, presumably because Sikhs could form a majority in such an area. It was only after a prolonged agitation that the present truncated state of Punjab was created in 1966, with very much reduced powers in comparison to other states. Control over river waters and power, enjoyed by all other states under the Indian Constitution, was retained by the Centre. Even its capital Chandigarh was annexed as a Union Territory.
Beside territory and control of natural resources, Sikhs even lost their identity and name in independent India. Under Article 25 of the Constitution, the Sikhs were clubbed with Hindus and deemed as such like Buddhists and Jains. Again when Personal Laws were enacted for Hindus in 1955 and 1956, these were made applicable to Sikhs also without consulting them.
Sikhs continued to protest against this. The Shiromani Akal Dal demanded withdrawal of Article 25 of the Constitution in 1983. The present Chief Minister of Punjab defied restrictions on Akali agitation and reached New Delhi in disguise to burn Article 25 in front of Gurdwara Rakab Ganj, close to the Parliament House, to demonstrate the indignation of the Sikhs over the application of Hindu Laws to them. The Akali Dal even appointed a Committee under Dr Gurnam Singh Tir to draft a Sikh Personal Law. Unfortunately, Tir died and Sikhs remained engaged in one struggle or the other, so that the demand for a separate Personal Law for Sikhs could not be pursued in a concerted manner. More serious concerns regarding survival engaged the attention of the community.
Case for Sikh Personal Law
Sikhism is an independent religious system founded by Guru Nanak Dev, based on his revelation over five hundred years ago. This religion was preached by his nine successor Gurus. The last among them, Guru Gobind Singh, vested the authority as Guru in the holy scripture, Guru Granth Sahib, or the Word of the Lord, thus ending the line of personal Guruship. The Sikh concept of God, nature of the Ultimate Reality, goal of life, mode of worship, world-view, etc., are distinct and cannot be confused with any other religion, much less with Hinduism. With its emphasis on unity of God; equality of all human beings regardless of caste, colour, gender or creed; justice, love and service of mankind; and its positive approach to life and active participation in its activities, it is a major departure from Hindu tradition. The latter believed in caste system and untouchability, polytheism, idolatry, etc. Personal salvation was the goal, and asceticism the method prescribed to achieve it. The distinctive character of Sikhs is evident not only from their philosophy and their way of life (Reht Maryada), but also, and even more so, from their history. It was the Sikhs who faced the ire of the Mughal rulers in India and their order to kill “the followers of Guru Nanak wherever and whenever seen”. Hindus were not covered by this policy of genocide. As a result, at one point of time in the early 18th century, the population of Sikhs was reduced to only a couple of thousands. In fact, according to the Government of the day, Sikhs had been completely eliminated. It was the Sikhs alone who, inspired by the lofty ideals given to them by their Great Gurus, continued to fight against tyranny and injustice perpetrated by the alien rulers who had entered India as hordes of marauders for loot and destruction and established an empire. It was the Sikhs who reversed the tide of invasions from the north-west that had plagued India for almost a thousand years, and established an independent and sovereign state in the north-west of the Indian sub-continent. It was due to the struggle of the Sikhs that India experienced emancipation from foreign rule after almost a thousand years of slavery.
This history should be enough to establish the distinct and independent status of the Sikh religion. But if there is still some doubt, one may look at what happened as recently as 1984 in the streets of Delhi, as well as all other major towns in India, when thousand of Sikhs were massacred — burnt alive, dishonoured, children liquidated and their properties looted and destroyed. The Government watched with satisfaction, for ‘the earth must shake when a big tree falls’. Strangely, however, only that part of earth shook, which was under the Sikhs’ feet. The Indian part of the earth knows when to shake and when not to shake, for it did not shake in 1948, when a much bigger tree had fallen.
If, in the face of these facts, somebody still insists that the boundaries of the Sikh religion are blurred, it is sheer pertinacity.
Sikhs are a Nation
This is not a new idea or a recent claim by S.A.D. or the S.G.P.C. It is a historical fact. Even before Guru Gobind Singh gave distinctive symbols to the Khalsa, Sikhs had emerged as a distinct community with their own institutions, scripture, and places of pilgrimage. The subsequent developments and the prolonged struggle for survival during the 18th century confirmed the Sikhs as a separate nation. The establishment of the Sarkar-i-Khalsa later in their homeland provided the ultimate requirement of nationality — a nation state. With loss of authority over the Sikh homeland in the Anglo-Sikh wars, Sikhs did not lose their nation status any more than the Germans or Japanese did their nationality after their defeat in the Second World War.
Later in 1946 when the British were winding up in India, the Shiromani Akali Dal was negotiating with the Government, and representing the Sikh nation, passed a resolution demanding an independent sovereign state of Sikhistan. The Communist party also endorsed this view, and G. Adhikari advocated an autonomous homeland for Sikhs in the central Punjab on the basis of their established nationality. The question of Sikhs being a nation has been discussed in detail by Dr Gopal Singh* (Abstracts of Sikh Studies, July 1995, pp. 45-63). He concludes : “Therefore, I am of the view that Sikhs today are a nationality like any other nationality in India. I would be happy, if some one comes out with a definition of nationality which Sikhs do not fit into.”
Sikhs have distinct religious, cultural and ethnic values which demand a separate Personal Law for expression. In fact, it is the right of the Sikhs to have their own Personal Law, like the Muslims, the Christians and the Parsis, besides the Hindus.
While there is an overwhelming support for a separate Personal Law for Sikhs, some reservations have also been expressed. It is argued that the Gurus did not prescribe any personal law in Guru Granth Sahib, and that, therefore, there should be no separate laws for Sikhs. The argument is not tenable, since laws have always been and will ever be necessary to govern man’s relationship with family and society. The very fact that Hindu Personal Laws have been extended to Sikhs shows this. The Gurus have nowhere said that no personal law is necessary for Sikhs. They have, in their wisdom, carefully avoided prescribing any laws which are valid in scope over limited time and space. However, the basic principles of jurisprudence, which should never be violated by laws framed by man, are clearly laid down in Guru Granth Sahib. These values are truthfulness; justice; equality; right to life, food, work, property, and equitable distribution; etc. Discrimination on the basis of caste, colour, gender, creed, etc., has been condemned. The case of women and the oppressed low castes has received special emphasis. Further, the Gurus have pointed out that the whole universe is running under the Hukm or the Supreme Law of the Lord and that no man-made law should violate it. All human laws should promote the establishment of universal brotherhood of man based on love and service.
Opposition to Sikh Personal Law
Opposition comes only from a section of the Indian population unwilling to concede Sikh identity. They continue to hold to the view that Sikhs are Hindus, for ulterior motives. Their real intention is to deny to the Sikhs their rights as a nation and to absorb them into the fold of Hinduism, as has happened to Buddhists, Jains, etc.
To illustrate the point we may refer to the secret report of D. Petri, Assistant Director of Criminal Intelligence. Summing up the section Development of Sikh Politics (1901-1911) he says :
“Hinduism has always been hostile to Sikhism, whose Gurus powerfully and successfully attacked the principle of the caste system, which is the foundation on which the whole fabric of Brahminism has been reared. The activities of the Hindus have therefore been constantly directed to undermining of Sikhism both by preventing the children of Sikh fathers from taking pahul and by reducing professed Sikhs from their allegiance to their faith. Hinduism has strangled Buddhism, once a formidable rival to it, and it has already made serious inroads into the domain of Sikhism.”*
Again, in 1915, the Punjab Hindu Sabha which represented the Hindu thought of the period, held a conference attended by M.K. Gandhi, Madan Mohan Malviya, Raja Narendra Nath, Lajpat Rai, Gokal Chand Narang, Ganpat Rai and other prominent persons. “Its aim was conceived to be the consolidation and proliferation of the Hindu identity, particularly in the Punjab with a view to safeguarding Hindu electoral interests. It gave new definition of Hinduism by including Jains, Buddhists and Sikhs within it. That it was not a stray thought, is apparent from the fact that the same provision was incorporated in Article 25 of the Constitution of free India in 1950.”*
The demand for, as well as the opposition to, a separate Personal Law for Sikhs, and the widespread ignorance of the subject among the masses, called for a discussion at academic level. Accordingly, a Seminar was arranged by the Institute of Sikh Studies on the 19th October, 1997, at Chandigarh. Since the exercise was expected to yield results in the form of recommendations on the contents of a Sikh Personal Law as well as follow-up action, all major political parties, legislators, as well as the Government, were invited. Sardar Parkash Singh Badal, Chief Minister Punjab and President of the Shiromani Akali Dal, inaugurated the Seminar. Justice Kuldip Singh (Retd) of the Supreme Court of India delivered an extempore keynote address and stressed the need for a separate Sikh Personal Law. He hoped that the participants would evolve suitable recommendations for the contemplated legislation. As many as ten speakers presented papers in the presence of a distinguished gathering which included leading jurists and authorities on law and Sikh religion, besides scholars drawn from all walks of life.
Article 25 of the Constitution of India was the special target under which the Hindu Personal Law was made applicable to Sikhs, along with Buddhists and Jains.
Sardar Harbinder Pal Singh of the Allahabad High Court felt that imposition of Article 25 as well as 44 on Sikhs was an expression of the Hindus’ numerical superiority and hegemony. He listed several reasons for the enactment of a separate Personal Law for Sikhs. Sikhism being a prophetic and monotheistic religion cannot be governed by the Hindu Personal Law based on the Vedas, etc., as it does not reflect Sikh values as enshrined in Guru Granth Sahib, the institution of Gurmatta, sangat or the Panth, and the Reht Maryada. He attacked Article 25 for not having any provision for consulting Sikhs on legislation pertaining to them. It is also violative of Article 29 (i) of the Constitution, which defies cultural imposition of minorities. Culture is a comprehensive term and includes Personal Law. Hindu Personal Law is also vulnerable, because it lacks provision to penalise apostasy which is a serious religious offence in Sikh religion. Sardar Harbinder Pal Singh refuted the view that withdrawal of Article 25 would deprive the Sikhs of the Income Tax benefits available to Hindu undivided families. He explained that the apprehension was imaginary, since the traditional Customary Laws which will continue to apply, also provide for joint family with attending benefits. Pending a full-fledged independent Personal Law for Sikhs, he advocated suitable amendment to Article 25, as also additions to the Anand Marriage Act.
Sardar Gurdev Singh shared the above criticism and added that because of the application of Hindu Personal Law, the Anand Marriage Act, which was the only piece of legislation exclusively applicable to Sikhs, had been rendered irrelevant, superfluous and redundant. He said that if at all a Common Civil Code or Personal Law is considered, it should have separate provisions for Sikhs as well as other communities.
Dr M.S. Rahi pointed out that Article 25 gives freedom of conscience and religion, and 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. This also recognises the distinctive character of the Sikh faith. However, he felt that explanations I and II added to this are not properly worded. Non-description of shape and size of kirpan creates problems. While Sikhs are required to wear a kirpan with no restriction of size, etc., the authorities do not allow it. “Should Sikhs follow the command of the Guru or the order of the authorities ?”, Rahi asks. Incidentally, he also pointed out the large scale distortion of Sikh history in school text books and called for legal battles in which he himself is engaged.
Sardar Har Iqbal Singh Sara’s detailed paper supports the case for a Sikh Personal Law. He has himself summarised it as follows :
“This paper concerns a proposed code or compilation of ascertained universal rules or usages applicable to Sikhs in matters of their inter-personal, social and domestic relations. The Sikh Personal Law could well extend to the questions of property holding, distribution, succession, inheritance, marriage, maintenance, adoption, equality of spouses’ rights to property, rights on termination or dissolution of marriage, prohibitions of conduct in inter-personal relations, and interdictions against specified modes of conduct. Guru Granth Sahib is the eternal source of this law.
“The paper indicates that the only attempt in the past at such codification of separate Sikh laws succeeded only during the British rule of India, as evidenced by the Anand Marriage Act, 1909, a Central Act, and the Gurdwaras Act 1925, a provincial statute.
“The process of distinct Sikh laws was reversed by the policy adopted through Explanation II to Article 25 (2) of the Indian Constitution. This provision ensured that Sikhs are ensnared into the definition of Hindu. Several Statutes of the Union government thereafter were passed to end any separateness of Sikhs and bring them under the regulation of Hindu laws. Sikhs are now pinned under the weight and application of the Hindu Marriage Act 1955, the Hindu Minority and Guardianship Act, 1956, the Hindu Adoption and Maintenance Act, 1956, and the Hindu Succession Act, 1956. These Acts must be amended to exclude a Sikh from the definition of “Hindu.” Otherwise, the damage will remain permanent. The application of these Acts at present affects Sikhs living in foreign countries also, and they are forced to comply or have international law decide against them.
“A draft or proof code of Sikh Personal Law should be developed through a Sikh study group of academe, jurists and the Sikh public and Sikh clergy, keeping in mind the historical perspective. On the analogy of the Customary Law of Punjab, or un-legislated Muslim Law, such code of Sikh Personal Law could be judicially enforced in all relevant transactions when parties are Sikhs.”
Sardar Bachittar Singh Giani, Advocate, Punjab and Haryana High Court, as well as Maj. General (Retd) Dr Jaswant Singh, also supported the move for a separate Sikh Personal Law.
Sardar Bhagwant Singh Dalawari said, “I have definite faith that Sikh Personal Law based on our Guru’s divine word, our Gurus’ lives and deeds and our Gurus’ dictates on the Sikh Way of Life, can give us not only a trouble-free life in material terms, but also make us spiritually strong to defeat all evil designs and devious onslaught on our freedom.” He complained, however, that while Article 25 proclaimed that Sikhism is a distinct religion through the right to carry a kirpan, we have ourselves thrown away this right by not wearing it, “I wonder whether we should fault anyone, but ourselves.” He concludes :
“...the only personal law we need to follow now is the law of our Gurus, and we do not have to cringe before others to make laws for us. We are a free independent people, capable of looking after ourselves, only if we adhere to Guru Granth Sahib’s dictate and live in day-to-day life the discipline of the Khalsa and display, without and within, the roop, the Khaas roop of Guru Gobind Singh and prove his word : Khalsa mera roop hai khas; Khalsa mein hown karon niwas.”
Dr Kashmir Singh traced the history of Personal Law in India and pointed out that because of their origin, Sikhs and Hindus were invariably governed by the same Personal Laws even during the British Rule. He further pointed out that the present Hindu Personal Laws were virtual copies of the English Law and that there is hardly anything ‘Hindu’ in the Legislation. He felt that most of the provisions were progressive and did not go against Sikh values. He concluded, however, that the title is objectionable, and that Sikhs cannot accept a personal law under the Hindu label.
The three lady participants supported the move for a separate Personal Law for Sikhs. They stressed that the proposed law must ensure gender equality, which so far has eluded legislation. Dr Birendra Kaur pointed out some genuine practical problems. For example, share in parents’ property does not benefit the daughter in practice because of her status and prevailing social values. It is strange that while all her rights are supposed to be in her parents house, she owes them no obligations or duties which exclusively belong to her in-laws. The male counterpart, on the other hand, has no responsibilities or duties towards his wife’s parents. Thus, instead of being concerned with women’s rights alone, stress should be on defining the duties of a husband towards his in-laws.
The real test of gender equality would be whether parents rejoice over the birth of a daughter as much as over that of a son. This would be possible only if side by side with legislation, an educational campaign aimed at radical change in social values is also undertaken.
Dr Birendra Kaur also objected to the prevailing custom of kanyadaan or ‘giving away of the daughter’ in marriage, since it treats woman as a commodity and violates the Guru’s principle of gender equality.
Dr Neelu Kang felt that most of the current Personal Laws are gender-biased and not fair to women. She wanted adequate safeguards against dowry, bigamy, adultery, and apostasy in the new legislation.
Dr Gurnam Kaur also pleaded for gender equality, but felt that reservation in services or legislatures would not benefit either society or women themselves. On the other hand, it could give the fair sex a feeling of inferiority, which is against the Sikh concept of gender equality. Guru Nanak asks, “How can one who gives birth to even kings, be considered inferior ?” It is necessary to create an awareness and realisation of this equality.
After listening to the views of speakers and discussion, the following resolution was unanimously adopted. :
“Since times immemorial, practices, usages, customs and laws evolved / developed were enacted to regulate socio-economic intercourse among various types of people inhabiting the globe. In India, different communities, viz., Hindus, Muslims, Christians, Sikhs, Jains, Buddhists, and Parsis have their respective modes of social intercourse and specific norms, practices, and usages governing them. But with the application of the Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Adoptions and Maintenance Act 1956, and the Hindu Minority and Guardianship Act 1956, to the Sikhs, Jains and Buddhists (these Acts are not applicable to Muslims, Christians and Parsis), these people are declared / deemed Hindus, and are subjected to the Hindu Code Law based on abstruse and outdated concepts which are irrelevant to Sikhs. All this is not just and fair to the Sikhs whose personal laws, derived from the catholic precepts of Guru Granth Sahib, Gurmatta, Reht Maryada (Code of Conduct), customs and usage, have been obliterated through legislative ingenuity. Having considered various aspects of Sikh Personal Law and issues related thereto discussed in detail in different papers and speeches in the Seminar on Sikh Personal Law held on October 19, 1997 at Chandigarh, it is resolved that a Committee comprising of five members, i.e., Justice Kuldip Singh (Retd.) as Chairman with Sardar Gurdev Singh I.A.S. (Retd.); Dr M.S. Rahi, Advocate; Sardar Harbinder Pal Singh, Advocate, Allahabad and Brig. Gurdip Singh as members, be constituted to prepare a draft of Sikh Personal Law to replace the existing legislation. This Committee is authorised to co-opt more members, if necessary.
“This gathering also calls upon the S.G.P.C., the S.A.D. and the Government(s) concerned to take such steps as may be necessary for speedy implementation of the recommendations of this Committee.”