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Sikh Personal Law
Har Iqbal Singh Sara
The genesis of the need for a Sikh Personal Law can possibly be traced best in the comments of Max Arthur Macauliffe in the Introduction to his celebrated work, published at the turn of the century. In his The Sikh Religion — Its Gurus, Sacred Writings and Authors, the Herodotus of Sikhism, thus reveals his perceptions :
"Now there is here presented a religion totally unaffected by Semitic or Christian influences. Based on the concept of unity of God, it rejected Hindu formularies and adopted an independent ethical system, ritual and standards which were totally opposed to the theological beliefs of Guru Nanak’s age and country. As we shall see hereafter, it would be difficult to point to a religion of greater originality or to a more comprehensive ethical system.”1
Surely then, this momentous testimony portends a search for the fundamental mores of conduct and rules of regulation of domestic and social intercourse, and penalties that visit the breach of such rules, amongst Sikhs.
This search would be augmented by a recourse to and analysis of the events involving a routine administration of the internal affairs of the subscribers to the faith, and the precepts handed down by the Gurus themselves.
The Present Position
The concept of a Sikh Personal Law is relatively new. It had to await the awakening of a new and defined consciousness of personal conduct that Guru Nanak offered to mankind over five hundred years ago. In contrast, there has been in existence the much older caste-protective code of Manu and the later treatises on Hindu Law prevailing in India, which includes both the popular Mitakshara school and, mostly in Bengal, the Dayabhaga school. Since the advent of Islam in India around the 11th century, Muslim rules of Shariat have also been introduced and comprise the current Muslim or Mohammedan Law.
Besides, many Asian nomadic invaders including Jats, Gujars and others in more recent centuries, have come to be governed by custom in their personal and domestic inter-relations. Thus, the Punjab Customary Law has always been an independent source of regulation of domestic and family relations for such tribes, regardless of religion. In this respect, these late-comers to India have remained immune to the shackles of Hindu Dharma or the Muslim regimen originating with the Prophet of Arabia.
There is no existing code of Sikh Personal Law. Such a law, of course, would be directed to regulate domestic or family relations and possibly succession and inheritance also. The penal or criminal law is uniformly applied in respect of the Criminal Code since the establishment of the British rule in India. This system, as a matter of fact, is working quite satisfactorily and has a harmonizing aspect for all communities, be they Hindus, Muslims, Sikhs or Christians. A uniform criminal law is best.
The only code of conduct amongst Sikhs has emerged following the baptism of the Khalsa from the times of the Tenth Guru Sahib. Therefore, we find evidence in several Rahitnamas or commentaries on personal discipline of baptised Singhs. To be noted is also Reht Maryada (1978) published by the S.G.P.C., Amritsar, India.
The Sikh Scripture, though the most authentic source of a code of Sikh Personal Law, is generally too abstruse for understanding by common people.
Only during the British times have there been some fruitful attempts at codification of Sikh laws or usages. This includes the Anand Marriage Act enacted by the Central Government of India in 1909, and the 1925 Gurdwaras Act passed in the Punjab.
Since Independence of India, Sikhs have faced a retrograde situation with regard to any hope of codification of a Sikh Personal Law.
On the contrary, the ominous new Constitution of India since 1949 has been a setback for the Sikh position in India. The new masters of India have, through the Constitution, neutralized any separateness of Sikhs by including them in the definition of “Hindu.”
This brings us to Articles 25 and 26 of the Constitution of India. Paradoxically, Article 25 is listed under a heading — Right to Freedom of Religion, though, as we shall see from the contents, Article 25 (2) is aimed specifically at vanquishing any separateness of Sikhs, Jains or Buddhists. Article 25 (2) reads as follows :
Nothing in this Article shall affect the operation of any existing law or prevent the State from making any law —
a) regulating or restricting any economic, financial, political or other secular activity, which may be associated with religious practice;2
b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I : The wearing and carrying of kirpans shall be deemed to be included in profession of the Sikh religion.
Explanation II : In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu institutions shall be construed accordingly.”
Explanation II, thus, has laid the foundation of constitutionality for liquidating the separateness of Sikhs in the practice of their customary religious institutions. This includes the institutions of “Deg, Teg, Fateh;” “miri-piri” and the doctrine of numenism.
As a sequel to this constitutional foundation laid in Explanation II of Art. 25 (2), the State has enacted a number of other enactments removing any separateness of Sikhs and enforcing their inclusion in the “Hindu,” and subjecting them to the plan of un-codified, pre-existing Hindu law.
These enactments have roped-in Sikhs in their application, notwithstanding the fact that they are titled Hindu Acts. These Indian Statutes binding Sikhs, are :
1. The Hindu Marriage Act, 1955
2. The Hindu Minority & Guardianship Act, 1956
3. The Hindu Adoption and Maintenance Act, 1956
4. The Hindu Succession Act, 1956
By this modern and “civilized” scheme of legislation, India has successfully used the Arthasastra of Kautilya (Chanakya) or a Machiavellian methodology to overcome any threat or apprehension attributable to Sikhs in India.
In the rules of private international law the validity of an adoption or marriage hinges on the lex loci celebrations or lex loci contractus, or in other words, the observance of local customary ceremonies in India. So, if an adoption fails on any account of details of the Hindu Adoption Act, such as “giving and taking in adoption of the child,” the adoption will not be recognised by governments overseas such as USA or Canada or UK. Thus, the impact of these Indian statutes extends far beyond the territorial jurisdiction of India and pursues Sikhs, even abroad, because they are “Hindu.”
This situation poses a real hardship for Sikhs living abroad. They are forced by legislation to comply with the Hindu plan, or find their domestic transactions nullified by regulatory authorities overseas. No Prithvi missile could attain such a disastrous and permanent effect.
It is submitted that this grave suppression of Human Rights of Sikhs should be laid before international forums. This would include the Human Rights Development Agency in Montreal, the United Nations Assembly, and individual governments of sympathetic western countries, including Canada and United States. It is not a question of intervention in the internal affairs of India. It is a question of fairness in dealings with the international community. It is also a matter of recognition and implementation of human rights of an important international segment of world population — the Sikhs.
In the context of Sikh Penal Law and role of Sri Akal Takht, or Takht Akal Bunga, this edifice stands across and opposite to the Golden Temple, in the historic complex at Amritsar, Punjab, India. Its foundation was laid by Sri Guru Har Gobind, the sixth Guru, on Monday, the fifth day of the light half of the month of Har (summer) in the Sambat year 1663. After accession to Guruship at a very young age, Guru Har Gobind took his seat in it. It was built of solid masonry. To Bhai Buddha, the revered guardian during the Guruship period, Guru Har Gobind exclaimed, “It is through Thine intercession I obtained birth; and it is in fulfilment of Thy blessing I wear two swords as emblems of spiritual and temporal authority. In the Guru’s house, religion and worldly enjoyment shall be combined — the cauldron to supply the poor and needy and the scimitar to smite oppressors.”3
The role of this historic institution, the Akal Takht (Eternal throne), in the subsequent Sikh history is interesting and pronounced indeed. It served as the focus of ultimate authority in Sikh polity. In the Sikh period, especially during the reign of the Lion of Punjab, Maharaja (cf. “Mega Rex”) Ranjit Singh, Akal Takht as the venue of holding political trials or disciplinary proceedings involving public personalities may well be compared to the Westminster Hall. While Charles the first, Mary Queen of Scots, Warren Hastings, Robert Clive and others, all had their fates decided in English history on the floor of Westminster, the Sikh sovereign Ranjit Singh himself, in the 19th century, and, in the current period, Zail Singh, a President of the Union of India, and Surjit Singh Barnala, a former Chief Minister and Governor of a State of India, found themselves arraigned before the Akal Takht. As in England, so in Punjab, these Sikhs of history were meted out their just punishment by the highest sovereign tribunal of Sikhs, Sri Akal Takht at Amritsar.
“History,” says anthropologist Bronowski, “is not just people remembering; it is people acting and living their past in the present.” Which, of course, explains that in June, 1984, when Indian State forces, by the orders of the since assassinated Prime Minister Indira Gandhi, attacked this historic edifice of Sikhs, in operation Bluestar, it was defended by a relatively small garrison of Singhs, led by a retired army General, to the last man.
But penal law in contemporary society has gained new proportions. Any personal law of Sikhs, and a form of codification of it, probably will address their civil matters. As it is, the Indian penal code is a uniform law, applicable throughout India to all citizens of India regardless of their religion.
As commented earlier, any previous attempt by Sikhs to codify their personal laws has been evidenced only during the British rule in India. This past attempt resulted in legislation clearly identifying the laws applicable to Sikhs and their affairs. But there the process seems to have stalled. In fact, after Independence, the process has been set in reverse, as stated earlier, by the Union Government enacting statutes specifically neutralizing any sense of separateness distinguishing Sikhs. After half a century of Indian rule, this process must be revised and dismantled. The four or five Acts, mentioned before, must be amended; the definition sections therein must exclude any reference to a person of the “Sikh” faith. The Sikh Members of Parliament like, Mr. Harinder Singh Khalsa, who was recently visiting Vancouver, could very well raise this question in the Lok Sabha, and with the Indian Prime Minister and the Law Minister.
It is absolutely crucial that Sikhs must first exert themselves to be un-shackled from the application of the Indian statutes passed in 1955 and 1956 as mentioned above, which define a Sikh as a Hindu, and subject Sikhs to the Hindu rules mentioned in those Acts. Legislation is a source of the law. Sikh Personal Law cannot make sense until adverse and contrary legislation is first repealed. Before expatiating on the relevance of the Sikh Scripture as the natural source of a Sikh Personal Law, it should be noted that all authority on the science of jurisprudence acknowledges the following to be the sources or main springs of law — apart from Statutes or Law Reports. These are : a) Religion, 2) Custom, 3) Scientific discussion, 4) Adjudication, 5) Equity, and finally 6) Legislation.
Religion has played an important part in the development of law throughout the ages. Historical researches as to the origin of law clearly establish the religious basis of almost all ancient systems of law. Hindu Law is still believed to be of religious origin. This is also the case with Mahomedan Law. A similar claim at one time was made for Roman Law. Early law was inextricably bound up with religious beliefs of people. The influence of pontiffs in Rome, of the priestly class in India, and of the ecclesiastics in England, over secular laws is very well-known.
It is only very recently that the province of law has been separated from that of religion; but the separation can hardly be said to be complete, at least in India.
Custom is the precursor of the state-enforced law. According to Hindu Law, custom is ‘transcendental law.’ Though the importance of custom is not so well recognized in Mahomedan Law, still in many cases, custom is allowed to override the written law. “Custom is the embodiment of those principles which have commended themselves to natural conscience as principles of truth, justice and public utility” (Salmond). Customs are (including customs of Sikhs), therefore, rules of conduct or practices of the people which are generally followed, because they are true, just and beneficial to society.
Sikhs might well first attempt to set down the areas or subjects upon which a Sikh Personal Law would apply. This should not be difficult. All areas of civil activity would come under such a list, such as property, marriage,4 family obligations, dissolution and separation and remarriage, alimony and sharing of assets between spouses, succession, wills, inheritance, death and gifts, parentage, adoption, guardianship, and so forth.
Then, a search should be made into the Scripture and writings of Sikhs to glean over the hints or directions touching upon those subjects mentioned above. These might be the possible “sources” of a Sikh Personal Law. These could include the Gospel of Guru Granth Sahib itself. Then there are the Vars of Bhai Gurdas. There is other literature of honoured reputation and legitimacy that Sikhs rely on. All those could very well provide such sources of the law.
For comparison, there are four sources of Mahomedan Law, 1) The Koran; 2) Hadis, i.e., precepts, actions and sayings of Prophet Mahomed, not written down during his lifetime, but preserved by tradition and handed down by authorized persons; 3) Ijmaa, that is, a concurrence of opinion of the companions of Mahomed and his disciples; and finally 4) Kiyas, being analogical deductions derived from a comparison of the first three sources when they did not apply to the particular case. In other words, Kiyas is reasoning by analogy.
In the Punjab, Sikh position should be further checked in the light of the existing legislation, because it is enacted by the Punjab Law Act IV of 1872, Sections 5 and 6, as follows :
“5. In questions regarding succession, special property of females, betrothal, marriage, bastardy, family relations, wills, legacies, gifts, partitions or any religious usage or institution, the rule of decision shall be —
(1) any custom applicable to the parties concerned which is not contrary to justice, equity or good conscience, and has not been, by this or any other enactment, altered or abolished, and has not been declared to be void by any competent authority;
(2) the Mahomedan law, in cases where the parties are Mahomedans........ except in so far as such law has been altered or abolished by legislative enactment, or is opposed to the provisions of the Act, or has been modified by any such custom as is above referred to.”
“6. In case not otherwise specially provided for, the Judges shall decide according to justice, equity and good conscience.”
An analysis of application of the Punjab Laws Act IV of 1872 and the Constitution of India, Article 25 (2), Explanation II, together with subsequent enactments, namely,
(1) Hindu Marriage Act, 1955
(2) Hindu Minority and Guardianship Act, 1956
(3) Hindu Adoption and Maintenance Act, 1956
(4) Hindu Succession Act, 1956
A comparison of the above referred to legislation would seem to indicate that customary rules or law with respect to Sikh agriculturist parties in the Punjab has been superseded by the new Union enactments, relating to the matters with which those enactments deal, such as marriage, maintenance, minority, guardianship, adoption, succession, etc., even though, prior to the new enactments in 1955 and 1956, Sikh agriculturist tribes of Punjab came under the application of custom as legislated in the Punjab Laws Act IV of 1872. Now they are subjected to Hindu law, as enacted through the above Acts.
This new situation created by the Union Government has thus put an end to the autonomy of Sikh (and other) agriculturist tribal law of custom. Sikhs, like Hindus, are now subject to the new legislation above enumerated. Their old law, or customary rules, are no longer recognised or enforced by courts in reference to the previously applicable legislation, that is, the Punjab Law Act IV of 1872, which is now useless, particularly for Sikhs.
The impact of the new Acts of government of India, enacted in 1955 and 1956, is distinctly directed at Sikhs. The Muslims do not come under the operation of those Acts. Only Hindus, Sikhs, Jainas, and Buddhists are huddled together under the operation of the new Indian legislation. This is the gravest possible menace to the existence of Sikhs, per se. They have lost their own internal regulation.
Gurbani as Basis of Sikh Jurisprudence
Like the common law of England and the Customary Law of the Punjab, Gurbani is a perennial source of Sikh rules of conduct, uniformly applicable to all believing Sikhs. The authority of this source is extra-territorial, and extends wherever Sikhs might be.
It can well present the road-base upon which the highway of a Sikh code is to be laid.
A close look at the contents of Guru Granth Sahib indeed brings out remarkable foundations of a Sikh personal code, regulatory of Sikh common affairs.
For instance, it is well understood that Sikhism stands for a regular, normal development and living of our adult life, as married men or women, supporting a family and contributing our share to the good of society. Any deviation from this healthy, normal social intercourse, and adopting modes of life at odds with natural urges, is not countenanced by Gurbani.5
Therefore, this admonition of Guru Granth Sahib will be carried over into any new code of Sikh law, somewhat like this : (example) —
Family Relations :
a) A Sikh, given all capacity as to health and ability, will (be expected to) marry (a person of the opposite sex), at suitable age.
b) A Sikh will not, barring extraordinary or unavoidable circumstances, repudiate or renounce his or her married partner (spouse).
c) A Sikh man or woman shall not indulge in extra-marital activity.
Idem :
Upon complaint to Akal Takht in writing, a Sikh, prima facie in breach of these covenants, shall, if found to be so in breach without just cause, be liable to a fine or penalty which may amount to a maximum sum of Rs. . Upon notification from the Akal Takht, the defendant or respondent shall remit the amount of the penalty within 30 days.
Idem :
All amounts or sums of money paid as such penalty shall be deposited to the credit of the Akal Takht in an account to be designated as “General Revenue Fund”.
Idem :
The said “General Revenue Fund” shall be appropriated for the general administration or other promulgation of the policies or programmes of the Akal Takht, on behalf of the Sikh nation, in practise of Sikh faith.
Then again, Guru Granth Sahib encourages Sikhs to abstain from certain other offences. These offences embrace a cross section of civil law. The offences against right to property include stealing, embezzlement, fraud, cheating in money, appropriating others’ money. Offences against marriage or marital rights are also frowned upon in Guru Granth Sahib. Similarly, offences against character or reputation are treated as a tort or reprehensible conduct.6 (Par Dhan, Par Dara, Par Ninda, In sio preet nivar).
Translated into a Sikh code, it will read like this :
Laws as to property : (Offence) (Par Dhan)
a) A Sikh shall not usurp or appropriate any property which belongs to others.
Property includes both real and personal, moveable or immoveable.
Protection of conjugal rights : (Par Dara)
a) A Sikh shall not seduce, corrupt or otherwise entice the wife / husband of another.
Protection of character and reputation : (Par Ninda)
a) A Sikh shall not slander, libel or defame another person.
Sikhism indeed is the beacon light for the civilization of the world. Not only in terms of standards of individual civilized behaviour, but also for inspiring some of the best known English poetic experience. Guru Granth Sahib’s Bhagat Kabir (who lived around A.D. 1450)7 was the first to give expression to a beautiful perception and image that duplicated in the poem, three hundred years later, of Thomas Gray (1716-1771) : Elegy, written in a country church yard.8
Toward the object of preparing a code of Sikh Personal Law, a civil code can be envisaged. The heads of subjects, such as property, distribution, succession, inter-personal conduct, marriage and family relations and transactions arising thereunder, and other matters should first be identified and ascertained. Then under each such subject, research should be directed into existing codifications or sources, such as, for instance, the Customary Law practised in Punjab, particularly by Sikh society. Scholars can also extract from perusal of Guru Granth Sahib other clear injunctions or interdictions pertaining to a Sikh’s lifestyle and conduct. A study group should be formed comprising our clergy, academe, justices and jurists. All should be invited to pool their knowledge and research and papers they can produce, as would be relevant and conducive for compilation of a code. Such a code might well be comprehensive enough to pronounce upon matters of property division or succession amongst Sikh families, the rights of females to inherit and equal status, the obligations of husband or wife to support each other and the family, and the question of any pre-nuptial mutual agreements between Sikh prospective couples. Once a rough format of a code has been assembled, it should be circulated for consultation of Sikh groups and general Sikh public. Their comments should be recorded and considered by a study group.
If the draft Sikh code can thus become a visible reality, the next question might arise about its application. Would it be a personal or private code; or would it have the force of a legislative enactment ? Would that enactment be State enactment or a Central Act ? Many aspects of Muslim Law are not enforced by legislative enactments. Similar was the position with regard to Hindu Law, until the Union Government began codifying and improvising principles of Hindu Law through various enactments, such as the Hindu Marriage Act and other Acts mentioned before in this paper. The Sikhs should first at least ascertain and establish what are the distinct customs and usages and precepts that Sikhs are willing to put down on paper and declare that these are the set of rules or principles of regulation that we are agreed upon and that should govern Sikhs in the various areas of inter-personal relations and property.
References
1. Macauliffe, The Sikh Religion, Vol. I, pp. liv-lv, Oxford University Press, 1963, reprint.; See also, Sara, Har Iqbal Singh, The Super Occidental Nature of Sikh Religion, Journal of Sikh Studies, (1983), Vol. X, No. 2, August 1983, Guru Nanak Dev University, Amritsar, India.
2. It is submitted that this provision is specifically aimed at controlling the miri-piri concept of the practice of Sikh religion.
The words in the main, preceding part, or Art. 25 (2), “existing law,” it is submitted, would include the application of the prevailing “Punjab Customary Law.” Therefore, adoptions, maintenance and other domestic relations, incidents involving Punjab’s agriculturist classes, such as Jats, Gujars, etc., irrespective of their religion tag, should be interpreted judicially, as exempt from the application of Art. 25 (2)/
3. Macauliffe, op. cit., Vol. IV, p. 4.
4. See, Dr R.S. Bhalla, Crisis in Personal Law, Abstracts of Sikh Studies, Oct. - Dec. 1996 (p. 48), wherein he points out well, “Marriage is a part of the structure of society and is based on moral codes. Its codes are its identification marks... reflected through personal laws.”
5. Guru Granth Sahib, Maru, page 1013 :
jkE ewzvb ekgVhnk wB fsq;Bk T[gih Gkoh ..
fJ;sqh sfi efo ekfw ftnkfgnk fus[ bkfJnk goBkoh ..
“Begging-bowl in hand, man may wear garb of rags,
Yet in his mind may be aroused fierce desire.
His wife has he discarded, yet lust in him has arisen —
To other’s womenfolk his heart attached.”
6. Guru Granth Sahib, Rag Asa, V, page 379 :
go XB go dkok go fBzdk
fJB f;T[ gqhs fBtkfo ..
“Deliver me from greed for others’ wealth, lust for others’
Womenfolk and others’ slander.”
7. Guru Granth Sahib, Gauri, Kabir, page 336 :
fiU T[fdnkB e[;w goc[fbs feBfj B xqkT[ bfJU .
s?;/ Gqws nB/e i'fB wfj fco fco ekb jfJU ..
“As of flowers in forests blooming, none smells the fragrance —
So, the self wandering in innumerable births
Is by death again and again gripped.”
8. “Fully many a flow’r is born to blush unseen,
And waste its sweetness on the desert air.” (Gray, Elegy)
Note : This verse is identical in meaning to Kabir’s first line above.
~~~
Laws too gentle are seldom obeyed;
Too severe, seldom excecuted.
— Franklin
