Hindu laws cover Sikhs, Jains and Buddhists

Sikh Scholar Birendra Kaur has dragged the judiciary and Government of India into a Constitutional and legal dispute over the scope of the word ‘Hindu’. She objects to the use of the word in the Constitution of India and jurisprudence as covering Hindus, Sikhs, Buddhists and Jains. She feels it is a denial of identity to the last three minor religious groups.

Earlier the Punjab & Haryana High Court in Chandigarh had dismissed her petition. But a division bench of the Supreme Court led by Chief Justice Altamas Kabir has discovered merit in her contention. It is surprising because ‘Hindu Laws’ have been a valid entity in Indian courts of law since British times. They have been applied on Sikhs, Jains and Buddhists etc. The Constitution of India actually came much later. So the Apex Court already had the best answer. But it chose to issue notices to the Union Government as well as the Attorney General to respond within six weeks.

The petition prima facie appears rhetorical. It stems from identity politics but lacks legal ballast. It has not grappled with the question from the point of jurisprudence. The makers of the Constitution were not dimwits, nor were they Hindu supremacists. Dr BR Ambedkar, Chairman of the Drafting Committee of the Constitution, was a fine legal brain and his views about Hinduism were not exactly flattering. Then why did he include Sikhs, Buddhists, and Jains etc under the appellation ‘Hindu’ in the Constitution (vide Article 25)? And how did it pass muster at the Constituent Assembly that was representative of the whole of India?

The religious practices of the Sikhs, Jains and Buddhists may vary from those of the Hindus. But what is the position as far as jurisprudence is concerned? Traditionally, they had no codified jurisprudence except what was derived from Brahmanical sources like Dharmasutras, Smritis and Nibandhs. And they shared customary laws as applicable to their Hindu neighbours. This put them on an entirely different footing than Muslims, Christians, Jews and Parsis who came to India with their own laws. The founders of Sikhism, Jainism and Buddhism were spiritual leaders who guided people on how to live an ethical life and attain salvation. They never tried to amend the laws of marriage, adoption, inheritance and succession and left them to the usages of the period and region.

Juristic texts like those by Manu, Yajnavalka, Vishnu, Narada etc were composed by adherents of Vedic tradition. The followers of Buddhism, Jainism or Sikhism are not known for writing any juristic texts or pressing for any legal reform. Buddha spent upwards of 40 years, post-enlightenment at Bodhgaya, devising minutest laws of conduct (Vinaya) for his monastic order. But he laid down no laws for laymen. Nor did he agitate for reformation of the Hindu penal code, where punishment was caste-specific. Historically Buddhism has been in the monastic domain and has left society largely unreformed.

Guru Nanak prohibited asceticism and enjoined the householder’s life upon his followers. But he did not devise a different set of laws. He appeared at a time when Punjab had passed under Muslim rule and Sharia was the official law, at least in principle. Public space for Hinduism had actually shrunk.

It is no coincidence that Guru Nanak did not fashion a ‘Sikh identity’. His whole discourse was anti-identity. It was against breaking up humanity into religions, castes, nationalities etc. The Khalsa was created by the 10th guru Guru Govind Singh. But his innovations also had no bearing on matrimonial, adoption, and succession laws of the Hindus prevalent in those days.

Sikhism discarded ritualism and priestcraft. No wonder Sikh gurus simplified marriage procedure. The Anand Karaj as Sikh wedding is called, might appear revolutionary. But it did not challenge the law of Hindu marriage. Marriage continued to be a sacrament (not a contract unlike in Islam), polygamy was tolerated and there was no provision for divorce. A Sikh cannot marry a Muslim (Sikh gurus did not know about other non-Hindus like Christians and Jews). An Anand Karaj Act, 1909 was passed during British time. An amendment to the Act was carried out earlier in 2012 to facilitate registration of such marriages (like under Hindu Marriage Act, 1955). But there is still no provision for divorce (a handicap removed for the Hindus through Hindu Marriage Act, 1955).

The British devised the Indian Penal Code, 1860 asserting equality before law. Yet they took cognizance of personal law, which they codified. But even they did not feel the necessity for separate Sikh personal laws, though Sikhs had been in their good books since 1857. Completely separate personal laws for Sikhs, Jains and Buddhists may be counterproductive. They, for example, will not be able to use the Hindu Undivided Family provision under the Income Tax Act to claims tax exemptions.

Traditionally in Punjab marriages were on caste lines, where Hindu or Sikh identities were redundant. It entailed no religious ‘conversion’ for the married woman. It has been a tradition amongst Punjabi Hindu families to groom their eldest son as Kesardhari Sikh. It never affected the succession/inheritance question in the family. The eldest son could solemnize the last rites of his parents, claim share in the property and succeed the father as the family head. But it was entirely different story if a Hindu had converted to Christianity or Islam. He would be forsaken by the family and wife; and his legal relationship would come to an end.

Those demanding separate personal laws should first have to identify those personal laws as entirely different from those of the Hindus. But curiously they want the Government to do it for them. The response of the Government to the Supreme Court notice should be keenly watched. It is a subject the current 20th Law Commission can deliberate upon.