BACK TO CONTENTS PAGE
Sikh Personal Law
Harbinder Pal Singh
Alexander, the Great, conquered the world to spread Hellenism, which included Grecian thought, culture and laws. Rome subjugated Europe in more than one way by its valour, thought and culture, and by its laws. The Arab conquerors of Middle East and North Africa implanted their culture, language, religion and, above all, Shariat laws on their vanquished subjects. The British also tried to do the same thing in India after its conquest. In 1835, Lord Macaulay wrote, “a single shelf of a good European library was worth the whole literature of India and Arabia.” As such, they tried to inculcate a feeling of inferiority among their Indian subjects, and imposed on them the British Laws with certain modifications suitable to their own needs and convenience.
After August, 1947, the Hindus, as the majority community, succeeded the British as custodians and arbiters of the destiny of the people of post-partition India. As an expression of their numerical superiority and hegemony, they incorporated two provisions in the Indian Constitution, namely, Article 25 and Article 44, for imposing laws of their choice on minorities in the guise of uniform or common Civil Code.
Article 25 of the Constitution grants power to the State for making any law providing for social welfare and reform, or throwing open the Hindu religious institutions of public character to all the classes and sections of Hindus. The word “Hindu“ appearing in the provisions has not been defined in the Constitution. But, in Explanation II to Article 25, it has been laid down that in sub-clause (b) of Clause 2, the reference to “Hindus” shall be construed as including a reference to persons professing the Sikh, the Jaina or the Buddhist religions and the reference to Hindu religious institutions shall be construed accordingly.
The application of comprehensive definition of term ‘Hindu’ as including ‘Sikhs, Jains and Buddhists’ has two-fold effect. It implies that if the State endeavours to make any legislation of social welfare and reform in respect of personal law of Hindus, the same will also automatically extend to Sikhs, Jains and Buddhists, who are presumed to be Hindus. It is evident that the aforesaid provision envisages a Common Civil Code or Personal Law for Hindus and other minorities such as Jain, Buddhist and Sikh people, without any provision for their consultation. Secondly, it will enable the State to make laws regarding Sikh religious places of worship, such as gurdwaras of public character, to ensure that these places are thrown open to all classes or sections of Sikh faith. Consequently, in the exercise of power vested in the Government of India under the Constitutional provisions of Explanation II to Article 25, various Hindu Personal Law Acts, namely, the Hindu Marriage Act, 1956, the Hindu Minority and Guardianship Act, 1956, Hindu Adoption and Maintenance Act, 1956, and Hindu Succession Act, 1956 have extended the application of these Acts to all the persons who can be construed or assumed to be Hindus, namely, Sikhs, Jains and Buddhists. Section 2 of the Hindu Marriage Act 1956 for instance, provides that this Act applies —
a) to any person who is Hindu by religion in any form or development, including a Vira-Shaiva or a Lingayat or a follower of Brahma Prarthana or Arya Samaj;
b) to any person who is Buddhist, Jain or Sikh by religion;
c) to any other person domiciled in the territories to which this Act extends, who is not a Muslim, a Christian or a Jew by religion.
It may be added that exactly the same provision has been incorporated in the other three Hindu Personal Laws Acts of 1956 to which we have referred.
It is evident from provisions of Explanation II to Article 25 of the Constitution that it is arbitrary, unreasonable and against the principles of natural justice. It does not provide for any scope for right of prior consultation of representatives of the Sikh, the Jain or the Buddhist communities before the amendment in their Personal Law, and carries an assumed postulate that they will be construed as Hindus. As such, these communities have been denied even the right of consultation in the change of their Personal Law, as if it is the sole prerogative of the majority community to initiate and amend their Personal Law, which will automatically be made applicable to the Sikh people, who are construed as “Hindus” in terms of Explanation II to Article 25 of the Constitution.
Therefore, this Constitutional provision reduces the Sikhs to the humiliating position of a subservient adjunct or appendage of majority community who have been empowered to frame any amendment in Sikh Personal Law without prior consultation or verification, whether it is in accordance with their religious texts and scripture or not. In fact, at the time of Partition in 1947, it was demanded in various memoranda submitted by the said minorities that no change should be made in the Law and Customs governing the minorities without consent of a three-fourth majority of that community.
Secondly, the moot point is whether it is possible under the Constitutional concept of equality, as enshrined in the Preamble, read with Article 14 of the Constitution, to have an unequal and arbitrary provision of Explanation II to Article 25 (ibid.) which grants unlimited, autocratic and absolute power of amendment of Personal Law of specified minorities, in the garb of reform, to the majority community. In fact, it is also in total conflict with religious freedom and Constitutional provision of conservation of culture of minorities, which includes Personal Laws of Minorities as guaranteed in Article 29(1) of the Constitution. Moreover, it is violative of the Constitutional Concept of Equality as enshrined in its Preamble read with Article 14 and, accordingly, it is ultra vires of the Constitution.
Amusingly, the demand for deletion or removal of “Sikhs” from the Explanation II to Article 25 has become a crazy obsession, or a “bee in the bonnet” of the majority community members, as if giving up or relinquishing the privilege of amending Sikh Personal Law will result in a great loss in their constitutional powers as well as hegemony, and in this endeavour, they are advancing all sorts of uncalled for arguments to counter it.
In a recent article under the caption Badal’s victory — a jolt to Sikhs abroad published in Northern India Patrika dated 06th November, 1996, Mr. Kuldeep Nayar has stated, “I wonder what the amendment will entail. They might lose the concessions they enjoy under the Hindu law. The HUF (i.e., Hindu Undivided Family) has certain income tax concessions which cost the exchequer Rs. 500 crores in a year in terms of tax. Muslims, Christian and members of other religions have not been allowed this leeway, but only Sikhs have been.” In this connection, it may be argued that deletion of Sikhs from provisions of Explanation II to Article 25 will only absolve them from application of statutory Hindu Personal Law Acts of 1956. But they will continue to be governed by their traditional customary personal laws which include laws relating to joint family, partition, and religious and charitable endowment. Obviously, they will continue to be legally entitled to the concession of Hindu Undivided Family even after obliteration of “Sikhs” from Explanation II to Article 25 of the Constitution, because of their traditional customary laws.
It is pertinent to mention that the word ‘person’ was defined in Income Tax Act, 1922 in Clause 9 of Section 2, and it read “a person includes Hindu un-divided family and local authority”. In fact, Sikhs were enjoying the tax advantage envisaged therein up to 25th January, 1950, even before promulgation of the Constitution of India by virtue of provisions of the Income Tax Act, 1922. Moreover, Sikhs have also acquired prescriptive right to it and will continue to enjoy the same even after the proposed amendment in Explanation II to Article 25 of the Constitution.”
Again, it is contended by some chauvinists that amendment of the Constitution for deletion of “Sikhs” from Explanation II to Article 25 will tarnish the Constitution, and they propose that the Sikh People may strive for amendment of the applicability clause of various Hindu Personal Law Acts of 1956 which provide for their application “to any person, who is Buddhist, Jain or Sikh by religion.”
It is affirmed that India, being a federation, derives its existence from the instrument of the Constitution which is all-pervading supreme law of the land. Article 13(2) of the Constitution prohibits the State to make any law which takes away or abridges the Fundamental Rights specified in Part II of the Constitution, and Laws made in contravention of aforesaid provisions will be void.
Obviously, the Freedom of Religion guaranteed under Article 25 of the Constitution stands curtailed and abridged in respect of certain specified minorities, namely Sikhs, Jains and Buddhists, by means of Explanation II to Article 25, as they are construed as Hindus. Of course, by virtue of this power, the relevant applicability provisions of various Hindu Personal Laws Act, 1956 could be enacted by Pandit Nehru.
Therefore, unless the aforesaid Explanation II to Article 25 of the Constitution is suitably amended to exclude “Sikh” from its purview, this arbitrary power will continue to hang like the sword of Damocles over their head, which can be used for imposing any Hindu Personal Law legislation (in the garb of reform) on the Sikh people.
Again, it is affirmed that if the Indian Constitution could not lose its lustre or shine by earlier eighty amendments enacted for the benefit of the majority community, then certainly it will not lose it by a solitary amendment carried out to safeguard and conserve the Law and Customs of the miniscule minorities like Sikhs, Jains and Buddhists.
The science of religion categorises or classifies all the world religions into the category of Prophetic Religions and Mystic Religions. Sikhism is not a mystic, but a prophetic religion. A mystic religion is primarily concerned with establishing direct communion with God; whereas a prophetic religion enjoins complete submission to the Will of God, as revealed in the proclamation made by His Messengers and Gurus. The term ‘Guru’ in Sikhism means Enlightener. Thus, Guru is the messenger of God sent by Him to enlighten men and women in this world. He is one, who has, by his inspiration, realised God. Blessed by Divine Grace, he becomes perfect and capable of guiding mortals on the path to God. Therefore, Sikhism has an independent religious code of life with its validity inhering in its revelations and proclamations of Guru Granth Sahib. Law is the command of Almighty God as incorporated in Guru Granth Sahib, and people having complete faith in Sikhism are bound to accord complete submission to the Will of God as revealed in the sacred texts : Hukam razai chalna Nanak likhya nal.
Thus, Guru Nanak ordains that all followers must abide by God’s Commands (vide canto No. 1 Japji Sahib of Guru Granth Sahib). Obviously, the Arabic words hukam (command) and raza (will) have been used in Guru Granth Sahib to emphasise the obligatory and mandatory characteristic of Divine Law, i.e., Hukam of the Almighty God. Therefore, the first postulate of Sikh jurisprudence is the doctrine of Monotheism which means complete faith in Ekomkar or one God and acknowledgement of His Authority over all human actions.
The opening verses of Guru Granth Sahib give us the attributes of God. “There is but one God. He is Truth incarnate. He is the Creator. He fears none. Nor does He nurse ill will towards any one. He is Immortal. Neither is He born nor does He die. He is attained by the Guru’s grace.”
From the aforesaid symbols of Divine Power, it is evident that He is the Supreme Controller of the world. God is Omnipotent, Omniscient and Omnipresent. His Law (Hukam) is, therefore, universal and eternal, from the beginning of the world to eternity (Aad sach, jugad sach, hai bhi sach, Nanak hosi bhi sach). He is in existence since the beginning and has remained in existence in all the ages, including present and future. It will be appropriate to quote Prof. Litten Court, a renowned American scholar, who observes “that only two religions have been completely and strictly monotheistic from the very start, first, Islam and second Sikhism; all other religions have at least flirted with Polytheism.”
Sirdar Kapur Singh, scholar and member of Indian Civil Service, emphatically states; “The religions taking their birth or originating in the Middle East such as Judaism, Christianity and Islam, are prophetic religions, while those arising in India such as Buddhism, Jainism and Hinduism are mystic and speculative religions. Sikhism is the only prophetic religion that ever arose in the East, i.e., India. Therefore, the question of its subordinate character or status, as sect of any other Indian religion such as Hinduism or Buddhism, does not arise.” Obviously, the concept of construing Sikhs as “Hindus” for the purpose of grant of freedom of religion in terms of Explanation II to Article 25 of the Indian Constitution is wholly inconsistent with the fundamental concepts and basic principles of the two religions.
The second postulate of Sikh Jurisprudence is the doctrine of last prophethood or Guruship, which means that Guru Nanak and his nine successors were the messengers of God. As such, Guru Gobind Singh was the last messenger of God, through whom His commands (Hukams) were communicated for guidance of Sikh people. Thereafter, the institution of Guruship (live Guru) ended and Granth Sahib, the sacred book, was installed as Guru. Henceforth, the commands contained in Guru Granth Sahib were to guide the people.
The third postulate is that Sikhism is essentially a Book religion, and Guru Granth, being the Eternal Guru, is the principal source of Sikh Law. It contains commands of Almighty God for guidance, the right path, and is the final authority for affording legal sanction to all Sikh Institutions.
Prof. Toynbee, a great historian of modern times, observes, “Of all the known religious scriptures, this book is most venerated. It means more to Sikhs than Quran to Muslims, the Bible to Christians and Torah to Jews. The Adi Granth is to the Sikhs their perpetual Guru or spiritual Guide.”
The fourth postulate of Sikh Jurisprudence is the doctrine of Gur Maryada, or Guru’s way of life. It is an ideal model life depicting the precepts, sayings and deeds of the Gurus, which are to be emulated by the Sikhs. It provides the basic structure of framework of Reht Maryada or Sikh code of conduct.
The fifth essential characteristic of Sikh jurisprudence is doctrine of Gurmatta, or concordance of sangat, which means that in case of any doubt about the Sikh law, the matter may be settled by general concordance or consensus of Sikh sangat and Sikh Jurists who are learned in the principles of Sikh religion and Sikh Law.
It may be added that Guru Gobind Singh had ordained, “Where there are five, there I am; when the five meet, they are the holiest of the holy.” Therefore, last Guru, the messenger of Divine Law, has delegated the power to lay down laws required for benefit of the Sikh community to the Sikh sangat and Sikh Jurists, who are competent for this purpose. The laws so framed are presumed to be what God intended, and thus, cover the definition of Law as the Command of God.
Sikh Personal Law
Thus, monotheism is the first commandment of the Guru. The Sikh scripture starts with the word Ekomkar.
Lokmanya Tilak, a great Hindu scholar, defines Hindu as a person who professes, believes, and advocates :
“Acceptance of the Vedas with reverence, recognition of the fact that means or ways of salvation are diverse, and realisation of truth that the number of gods to be worshipped is large, that indeed is the distinguishing feature of Hinduism.”
It is evident from the aforesaid definition that Hinduism is a polytheistic religion, whereas Sikhism is essentially a monotheistic religion with complete and absolute faith in one God.
Second Commandment is total equality of all human beings, “Manas ki jaat sub ekai Pehchanbo” — which ordains us to treat all human beings as equal. This commandment is at variance with the Brahminical doctrine of divisions on the basis of castes as propounded in the code of Manu or Manuvad. This concept of equality is also in contravention of Islamic doctrine of momin or faithful and kafir or infidel, who have been allotted unequal status in Islamic Jurisprudence.
Third commandment is regarding absolute equality of sexes. Sikh Gurus advocate equal status for men and women. Guru Nanak said, “Why to denounce her, the one from whom even kings are born ?” In fact, Sikhs rejected the Hindu concept of celibacy and renunciation of the world, and advocated family life which brought woman at par with man. Guru Nanak saith, “Living within family life, one obtaineth salvation.”
Fourth Commandment is the maintenance of unshorn hair and wearing of the turban. There is scriptural injunction in Guru Granth Sahib (p. 1084) which states “Sabat Soorat Dastar Sira”, and thus it ordains Sikh people to maintain “a whole, unshorn, unaltered and pure original form with turban (i.e., dastar).” Moreover, they must keep kachchh (short trousers), kara (steel band), kirpan (sword), and kangha (comb) as integral to kesh (unshorn hair).
Fifth commandment is regarding Sikh dietary code, which prohibits consumption and use of intoxicants, drugs, tobacco, and halal meat, which involves the cutting of the jugular vein of the animal or bird and thus letting the blood drain out completely.
Reasons for Implementation of Sikh Personal Law
Firstly, it is a universally accepted principle of law that a community should have exclusive right to evolve its own personal law or to reform it, because these laws are its exclusive concern. But ironically, Sikhs have been denied this right of a separate personal law.
Secondly, India, being a multi-religious and multi-racial plural state, is inhabited by persons professing various religions, namely, Hindus, Muslims, Christians, Parsis, Zoroastrians, Jews and Sikhs. Hindus are governed by their own traditional Personal Hindu Law as well as by various statutory Hindu Code Acts, 1955-56, namely Hindu Marriage Act, 1955, Hindu Adoption and Maintenance Act, 1956, Hindu Minority and Gurdianship Act, 1956, and Hindu Widow Remarriage Act, 1856, etc.
Muslims are administered by Muslim Laws based on Holy Quran, Hadith or Tradition of Prophet Muhammad, as well as Statutory laws such as Muslim Personal Law (Shariat) Application Act, 1937; The Dissolution of Muslim Marriage Act, 1939 and Muslim Women’s (Protection of Right on Divorce) Act, 1986.
Christians are governed by Indian Christian Marriage Act, 1872 and Indian Divorce Act, 1869, and these Acts constitute laws relating to their family relations like marriage, divorce and matrimonial cases.
Parsis, a small community of about one lakh population, has got a separate statutory Personal Law for administration of family relations, namely, the Parsi Marriage and Divorce Act, 1936. But no separate Personal law for Sikhs with two crore population has been allowed to be framed by certain vested interests, and they are yoked with and subjected to various Hindu Code Acts, 1955-56, as an expression of Hindu hegemony and domination.
Thirdly, Explanation II to Article 25 of the Constitution of India grants unlimited and arbitrary powers to the State to impose Personal Laws enacted for social welfare and benefit of Hindus on Sikhs by construing them as Hindus. Astonishingly, the Constitution does not contain any provision for consultation and concurrence of Sikhs before imposition of those laws. Obviously, it is against the principles of natural justice as well as the doctrine of equality as incorporated in Preamble and Article 14 of the Constitution of India.
Fourthly, Sikhs being highly monotheistic and egalitarian in belief, it is against their religious concepts to be administered by Hindu religious laws based on polytheistic and caste-conscious Manuvadi doctrines propounded for maintaining Brahminical supremacy and hegemony. As such, it will not be proper to impose such laws full of idolatrous and polytheistic concepts, which are alien and adverse to the faith of Sikhs, by yoking them with Personal Law of Hindus.
Fifthly, apostasy or change of faith or conversion to another religion is a misdeed, which is penalised by forfeiture of civil rights, and results in social ostracism or ex-communication under Personal Laws of various religions. Thus, under Muslim Law, the apostasy of Muslim husband from Islam operates as immediate and complete dissolution of marriage. However, as regards Muslim wife’s apostasy, it has been laid down in Section 4 of Dissolution of Muslim Marriage Act, 1939 that renunciation of Islam by married Muslim women or her conversion to a faith other than Islam shall not operate by itself to dissolve her marriage, but she is entitled to seek divorce from her husband. Similarly, Section 32 (J) of Parsi Marriage and Divorce Act, 1936 provides that apostate spouse can be divorced on the ground of change of religion by non-apostate spouse.
Under ancient Hindu Law, conversion by itself did not ipso facto or ipso jure operate for dissolution of Hindu Marriage, because concept of divorce was unknown to ancient Hindu Law. But despite his secular pretensions, Mr. Jawahar Lal Nehru incorporated provisions penalising apostasy in various Hindu Law Acts, 1955-56. Hindus were accorded with a powerful device to prevent apostasy amongst the followers of their religion. Ironically, no such provision to check apostasy amongst Sikhs was incorporated in these Hindu Law Acts, 1955-56, although these very Acts were also made applicable to Sikhs in addition to Hindus. For instance, Section 13 (ii) of Hindu Marriage Act, 1955, has made conversions to another religion an absolute and unqualified ground for dissolution of marriage. The party remaining Hindu can get the marriage dissolved on the ground that other party has ceased to be a Hindu by conversion to other religion. Similarly, Section 18(2) of Hindu Adoption and Maintenance Act, 1956, provides that Hindu wife shall be entitled to live separately without forfeiting right of maintenance, “if he has ceased to be Hindu by conversion to another religion.” On the other hand, nothing has been mentioned in aforesaid Hindu Law Acts, 1955-56, about apostasy or heresy of Sikh, who deviates from essential ingredients of his religion. Obviously, no such provisions have been incorporated to check apostasy amongst Sikhs. Thus, it amounts to discrimination of Sikhs even under Statutory Laws of Hindus. Therefore, it will not be proper for Sikhs to continue to be administered by such discriminatory Hindu Laws which have been framed to safeguard the interests of Hindus rather than Sikhs.
Sixthly, regarding sources of Sikh Laws, it may be pointed out that Guru Granth Sahib is the principal source of Sikh Personal Law. It contains the commands of Almighty God for guidance on the right path and is the final authority for according legal sanction to all the Sikh Institutions. Other sources of Sikh Personal Law are precepts of the Gurus, Gur Maryada or the Guru’s way of life; Reht Maryada or the Sikh Code of Conduct as ordained by the tenth Guru, Guru Gobind Singh, and Gurmatta or concordance of Sikh sangat. The aforesaid sources are entirely different from sources of Hindu Laws, namely, Srutis or Vedas, Smritis or commentaries by various writers such as Manu, Yagayvalka, etc., which were framed thousands of years back. It will be inappropriate to impose these age old and outdated concepts embodied in the form of Hindu Personal Law on Sikhs.
It is added that the statutory Hindu Personal Law Acts of 1956 also do not contain anything pertaining to ceremonies and religious concepts of Sikh people such as Anand Karaj ceremony enjoined under Anand Marriage Act, 1909. On the other hand, these Acts are overloaded with ideologies and concepts of Sapinda and Saptpadi which are not applicable to Sikh people.
Obviously, these laws have been enacted by virtue of powers conferred under Explanation II of Article 25 of Indian Constitution for the imposition of Hindu religious and cultural concepts on the Sikhs, and as such, are violative of the express provisions of Article 29 (i) of the Constitution, which upholds the conservation of culture of minorities.
It may be added that culture is a comprehensive term and must include protection and conservation of Personal Laws of minorities. Accordingly, Article 29 (i) of the Constitution defies any such cultural imposition on the minorities by means of Hindu Personal Law Acts of 1955-56.
Therefore, it is imperative that Explanation II to Article 25 of the Constitution must be suitably amended in recognition of religious and cultural identity of the Sikhs as expressed in Sikh Personal Law, and also for grant of equal status to them in comparison to other minorities, namely Christians, Muslims and Jews, as well as for upholding the concept of equality enshrined in the Preamble of the Constitution of India.
In the end, it is proposed that pending enactment of an independent Sikh Personal Law, at least the following amendment may be made in Explanation II of Article 25 of the Constitution to make it more equitable and just by providing for the right of prior consultation of the representatives of the Sikh, Jaina and Buddhist communities before undertaking any amendment in their Personal Laws. The proposed amendment is shown in Italics.
“Explanation II, in sub-clause (b) of clause (2), the reference to Hindu shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion and reference to Hindu religious institutions shall be construed accordingly. Moreover, they will also be consulted before making any such law providing for social welfare and reform.”
In addition, it is suggested that the Anand Marriage Act, 1909 may be suitably amended to make it more comprehensive, effective, adequate, and agreeable to Sikh way of life. Firstly, in the applicability clause the term Sikh may be defined as a person who professes the Sikh religion and believes in and follows the teachings of Guru Granth Sahib and the ten Gurus only, keeps unshorn hair, and does not profess allegiance to any other religion.
Secondly, essential ingredients of the Anand Marriage Ceremony may be described. It includes invocation before God the Almighty by reciting Anand Karaj hymns or Shabads from Guru Granth Sahib and performing of four lawans which implies going round Guru Granth Sahib four times by the bride and groom. The Priest or Granthi conducting the marriage ceremony should issue a certificate of marriage signed by the Priest or Granthi and the bride as well as groom. In addition to the grounds of divorce mentioned in Section 13 of the Hindu Marriage Act, 1955, apostasy of Sikh by conversion to another religion may be added as ground for dissolution of Sikh marriage performed under the Anand Marriage Act. Essential ceremonies involved in reconversion of an apostate to Sikh religion and its legal effects may also be incorporated in the Acts.
The aforesaid amendments, if carried out will pave the way for equal legal status to the Anand Marriage ceremony as has been granted to Hindu Marriage Laws by Indian polity. Moreover, it will also be in consonance with the egalitarian provisions of the Indian Constitution.