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Implications Of Hindu Law
Vis-A-Vis Sikh Identity
Bachittar Singh Giani
To understand the implications of Hindu Law and its effects on Sikh identity, it is necessary to go into the history of Hindu Law, Schools of Hindu Law, Personal Law and its changes, and Hindu Law and the Constitution of India. In the words of M.N. Srinivasan, an author of Hindu Law, the history of Hindu Law falls in four epochs — (i) from the earliest time down to the writing of Mitakshara (1300 BC - 1150 AD), (ii) from the Mitakshara to the establishment of British rule (1150 AD - 1772 AD), (iii) from the date 1772 AD onwards, which marks its modern development by statutory provisions of courts (1772 AD - 1956 AD) and (iv) 1955 onwards when the four Acts, namely; Hindu Marriage and Divorce Act; Hindu Succession Act; Hindu Adoption and Maintenance Act and Hindu Minority and Guardianship Act were placed on the Statute Book, introducing great changes in the structure of the ages old Hindu Law.
The real history of modern development in Hindu law begins from 1773 when the Regulating Act was passed under the regime of East India Company. It declared the supremacy of Bengal over the other presidencies, and confirmed the appointment of Governor-General of the Company’s territories. It reserved to the Crown the power of establishing a Supreme Court of Judicature at Fort William, which was constituted by a Chapter dated 26th March, 1774, till its supersession by the establishment of the High Court in 1861. It conferred plenary jurisdiction on the Supreme Court over all the inhabitants of Calcutta “provided that their inheritance and succession to lands, rents, and goods, and all matters of contract and dealing between party and party shall be determined in the case of Mohammedans by the laws and usages of Mohammedans, and in the case of Gentus, by the laws and usages of Gentus, and where only one of the parties shall be a Mohammedan or Gentus, by the laws and usages of the Defendant.” This was, however, a mere legislative expression of Warren Hastings’ plan for determination of justice proposed and adopted by the Company in 1772 , which provided that “Maulvis or Brahmins” should, respectively, attend the courts to expound the law, and assist in passing the decrees. Subsequently, when Parliament invested the Governor-General in Council with the power of making regulations, the exact words of Warren Hasting’s plan were incorporated into the first regulation enacted by the Bengal Government on the 17th April, 1780.
No sooner were the provisions mentioned in Art. 196 placed on the Statute Book than Sir William Jones, then a Judge of the Supreme Court, felt the necessity of digests and authentic translations. In 1796, Jaganath Pandit composed Vivad Bhanaranva under Colebrooke’s direction, who translated it in the same year into English. Sir Thomas Strange, Chief Justice of Madras, devoted his retirement from judicial office in compiling two volumes of Hindu Law, published in 1825, in which he essayed the task of stating the leading principles of law in his own language, departing from the conventional garb of commentaries and digests. Sir William Hay MacNaughten came to India as a Cavalry cadet, and used his leisure time in acquiring knowledge of the Persian and other Oriental languages. While serving as Registrar of the Sudder Divani, he published in 1829 his “Considerations of Hindu Law” and “Principles and Precedents of Hindu Law”. But the next year, he was transferred to political service, in which his distinguished career was cut short by his assassination by the Afghans in December, 1841. Many of the topics dealt with in the works of these two authors have since been superseded by the Statutory Law.
Another work on Hindu Law made its appearance in 1878. It followed the historical method of presentation of law which loaded this work with a great deal of obsolete matter. However, it set the standard for other writers to follow. But all of them have since receded into the shade of oblivion.
Numerous attempts were thus made by Anglo-Indian writers to codify Hindu Law, but they all failed, because instead of restating the principles in an independent code, using precise and technical language, the so-called codes were merely an assortment of old aphorisms, collected from various sources, which contained all the defects of imperfect and loose expressions used therein. But the law stands codified now, after about 80 years.
Application of Hindu Law
Hindu law which was in ancient times synonymous with Hindu Dharam, applied to the Hindus in a limited way. The application of Hindu Law was limited both as regards the subject-matter as well as in respect of the persons to be governed thereby. The courts in India applied Hindu Law to the Hindus in some matters only on the basis of the following principles :
a) in matters of succession, inheritance, marriage and religious usage and institutions, the pure Hindu law has been applied to the Hindus except as altered by statutes;
b) in some matters, for example, adoption, guardianship, family relations, will, gift, and partition, Hindu law has been applied to the Hindus primarily on the basis of the principles of justice, equity and good conscience as altered by express legislative enactments;
c) since ancient times, Hindu law has been substantially modified by statutes. Articles 372 of the Constitution of India authorised the Indian courts to apply the existing Hindu Law to the Hindus. During the British rule, the Hindu Law was applied to the Hindus by statute of British Parliament, and thereafter by virtue of Sec. 392 of the Government of India Act, 1935. Prior to 1955, the Hindu Law had been modified by statutes like Caste Disabilities Removal Act, 1850, the Hindu Widows Remarriage Act, 1856, the Special Marriage Act, 1872, the Hindu Inheritance (Removal of Disabilities) Act, 1928, the Child Marriage Restraint Act, 1929, etc., etc. As stated above, since 1955, Hindu law has been fundamentally modified by very important statutes like Hindu Marriage Act 1955, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956, and Hindu Adoption and Maintenance Act, 1956.
Hindu Law, therefore, is now based more on statutes than on customs and religion. The statutes have been passed to bring about uniformity in the application of Hindu law among Hindus and to abrogate customs. Statutes must be applied wherever available, in spite of religious texts or customs or a precedent to the contrary.
Before going into the Hindu Laws regarding marriage, succession, minority, adoption and maintenance, etc., it is necessary to discuss who are Hindus and what are the broad features of Hindu religion.
The historical genesis of the word “Hindu” has given rise to a controversy amongst Indologists; but the view generally accepted by scholars appears to be that the word “Indus” is derived from the river Sindhu, otherwise known as Indus, which flows through the Punjab. “That part of the great Aryan race,” says Monier Williams, “which immigrated from Central Asia through the mountain passes into India, first settled in the districts near the river Sindhu (now called the Indus). The Persian pronounced this word Hindu and named their Aryan brethren Hindus. The Greeks, who probably gained their first ideas of India from the Persians, dropped the hard aspirate, and called the Hindus ‘Indoi’.”
The Encyclopaedia of Religion and Ethics, Vol. VI has described ‘Hinduism’ as the title applied to that form of religion which prevails among the vast majority of the present population of the Indian empire (page 686). As Dr Radhakrishanan has observed :
“The Hindu civilization is so called, since its original founders or earliest followers occupied the territory drained by the Sindhu (the Indus) river system corresponding to the North West Frontier Province and the Punjab. This is recorded in the Rig Veda, the oldest of the Vedas, the Hindu scriptures which give their name to this period of Indian history. The people on the Indian side of the Sindhu were called Hindu by the Persians and the later Western invaders. That is the genesis of the word ‘Hindu’.
“When we think of the Hindu religion, we find it difficult, if not impossible, to define Hindu religion or even adequately describe it. Unlike other religions in the world, the Hindu religion does not claim any one prophet; it does not worship one God; it does not believe in any one philosophic concept; and it does not follow any one set of religious rites or performance. In fact, it does not appear to satisfy the specific traditional features of any religion or creed. It may be broadly described as a way of life and nothing more.”
The term ‘Hindu’ according to Dr Radhakrishanan had originally a territorial and not a creedal significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savages and half civilised people, the cultured Dravidians and the Vedic Aryans, were all Hindus, as they were the sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women dwelling in India belonged to different communities, worshipped different gods, and practised different rites (Kurma Purana).
The observations of Monier Williams about Hinduism are worth mentioning, which are as follows :
“It must be borne in mind that Hinduism is far more than a mere form of the ism resting on Brahminism. It presents for our investigation a complex congeries of creeds and doctrines which in their gradual accumulation may be compared to the gathering together of mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spreading itself over an ever increasing area of country, and finally resolving itself into an intricate delta of tortuous streams and jungly marshes.
... ... ... The Hindu religion is a reflection of the composite character of the Hindus, who are not one people but many. It is based on the idea of universal receptivity. It has ever aimed at accommodating itself to circumstances, and has carried on the process of adaptation through more than three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated something from all creeds.”
As far as Sikh Religion is concerned, there was no separate law except Anand Karaj Act, 1909 and Sikh Gurdwara Act, 1925, now applicable to the historical Gurdwaras situated in Punjab, Himachal Pradesh, Haryana and the Union Territory, Chandigarh. After the partition of India, the Acts regarding succession, inheritance, marriage, minority and guardianship passed by the Parliament were made applicable to the Sikhs also, apart from Buddhists and Jains. Section 2 of Hindu Marriage Act, 1955 says : (1) This act applies :
a) To any person who is Hindu by religion in any of its forms or developments including a virashaiva, a langayat or followers of the Brahmo Samaj, Prarathana or Arya Samaj;
b) To any person who is Buddhist, Jain or Sikh by religion; and
c) To any other person domiciled in the territories to which the Act extends, who is not a Muslim, Christian or Parsi by religion, unless it is proved that any such person would not have been governed by the Hindu Law or by any customs or usages as part of that law in respect of any of the matters dealt with herein if this act have not been passed.
The application of the Act has been described almost in the same way in other Acts also, namely, the Hindu Adoption and Maintenance Act, 1956, Hindu Succession Act, 1956, Hindu Minority and Guardianship Act, 1956.
In the Acts mentioned above, the said Section in which the person who is Buddhist, Jain or Sikh by religion, is significant. The Sikhs would be governed in the matter of succession, inheritance, marriage, adoption and maintenance, minority and guardianship by the Acts known as Hindu law, but distinction has been made about the application of the Act relating to the Sikhs who are by religion Sikh.
The difficulty arises when the cases are filed in the courts describing the plaintiff / defendant, who is a Sikh as Hindu by the lawyers while drafting the plaints and written statements. Generally, the Sikhs are described not as Sikhs as plaintiff and defendant, but as Hindus. This is the problem which requires attention of Sikh legal luminaries, threat on assimilation of Sikhs in Hindus and this type of tyranny of the Hindu majority has to stop, if the gifted Sikh minority governed by Hindu Law is to flower. The Hindu Law has been fundamentally modified by the statutes, more based on statutes than on custom or religion. In the words of Bertrand Russell, “There is always a tendency in highly organised societies for the activities of the minorities to be unduly hampered, but on the other hand, if the community exercises no control, the feelings amongst the minority can be disastrous.”
In Section 7 of the Hindu Marriage Act, liberty has been given that a Hindu Marriage may be solemnised in accordance with the customary rites and ceremonies of either party. Anand Karaj solemnised in the presence of Holy Aad Guru Granth Sahib with four lavans, the couple circling around with recitation of every lavan, is a valid marriage performed according to Reht Maryada made and approved by the Shiromani Gurdwara Prabandhak Committee, Amritsar. Many cases have come to notice that the bridegroom being a Sikh and the bride a Hindu, parents of the couple agreed to solemnise the marriage first in the presence of Holy Aad Guru Granth Sahib reciting the four lavans, and on the next occasion according to Hindu rites. The solemnisation of marriage in such a manner can have effect both ways.
Sikh Personal Law
The law of every country is the outcome and result of the economic and social conditions of that country as well as the expression of its intellectual capacity for dealing with these conditions. When new relations between men arise, or when old relations begin to pass into new forms, the law is called in to adjust them.
The question of the law applicable to Sikhs, being primarily one of personal as distinguished from geographical custom, is of first importance to the origin of the family.
After the advent of Sikhism, a Sikh family carries its personal law and language with it wherever migrated and settled. Sikhs at present, settled all over the world, solemnise marriages according to Gur Maryada in the presence of Aad Guru Granth Sahib by reciting four lavans. Sikhs have not abandoned this Maryada and the language they speak. Section 7 of the Hindu Marriage Act has recognised the solemnisation of marriage according to Sikh rites and ceremonies. Other countries also recognise the marriage solemnised according to Maryada adopted by S.G.P.C. The Marriage between a Sikh boy or girl coming from foreign country to India cannot be registered by the Registrar of Marriages unless certified by the President or Secretary of local gurdwara verifying the solemnisation of marriage according to Sikh rites and ceremonies. Then and then only a certificate of marriage is issued to the spouse migrating and settling abroad. Marriage solemnised according to accepted Sikh rites and ceremonies is also recognised by courts of the countries where Sikhs have settled, though Sikhs are facing difficulties in Arab countries.
Article 25 and 26 of the Constitution
At the time of the founding of the Khalsa Panth, five kakars were made compulsory for an amritdhari Sikh. Carrying of kirpan has, therefore, been recognised as emblem of Sikh Religion.
In Explanation I-Article 25 of the Constitution of India, “Freedom of conscience and free profession, practice and propagation of religion”, the words, “The wearing and carrying of kirpans shall be deemed to be included in the profession of Sikh Religion”, carry much significance.
In a judgement passed by the Allahabad High Court reported as AIR 1952 All 53 (Pr. 13), a kirpan has been defined as under :
“A kirpan means a sword and its size and shape has not been prescribed by the Sikh Religion, it may be sword of any size and shape.”
The High Court further held in paras 16 and 18 of the judgement :
“That the use of the plural ‘kirpans’ in the explanation does not in view of the fact that a kirpan is only intended to be carried as an emblem of religion, indicate that more than one kirpan can be carried without licence.”
The High Court further held that “Ordinarily the absence of express exemption, the possession of kirpan under the Arms Act, requires a licence, but by reason of Explanation I, a constitutional right to carry one kirpan as a religious emblem is conferred on every Sikh, and there are also corresponding rules under the Arms Act, permitting the carrying of kirpan by the Sikhs as a religious emblem. Rule 17 of the UP Arms and Order 1935 also exempts from the operation of the Arms Act, kirpans carried or possessed by Sikhs as a religious emblem.”
It would have been better if Akali leader, Sardar Simaranjit Singh Mann, had not insisted to carry with himself a three-feet kirpan in the Parliament, and on refusal of permission did not attend a single session of the Lok Sabha. As Sikh M.P.s are allowed to enter with small a kirpan in the gatra in the Lok Sabha, Sardar Mann should have entered with a small kirpan in the gatra and then read out Explanation I-Article 25 in which no size of kirpan has been prescribed, thus making the restriction unsustainable.
Kirpan as a religious emblem of a Sikh is part of his personal law applicable to him in countries where he migrated and settled. Under the American Constitution, as decided by the Supreme Court, reported as (1994) 322 US78 (87) : 88 Law Edition, 1148, the constitutional rights of religious freedom means “the equal treatment of all religions by state without preference being shown to any one religion or religious denomination.” The Sikhs in America and England have won court cases for carrying of kirpan being a religious emblem.
Turban also comes under the religious emblems of Sikhs. They have been battling forcefully for it, and have succeeded in many cases, in English and American courts.
I am for freedom of religion and against all maneuvers to bring about a legal ascendancy of one sect over another.
Since the general civilization of mankind I believe there are more instances of the abridgment of the freedom of the people by gradual and silent encroachments of those in power than by violent and sudden usurpations.