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 Or 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
and adoption; certain aspects of capacity and testamentary as well
as interstate 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 the loci or teritorial 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
In fact, this is not possible, since India is a multinational, multi-religious,
multicultural and multiethnic sub-continent. Personal Law for
each community has
of necessity to be dilierent, 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 Marriagc 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 Maintenancc 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 Cabinct 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 vested 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.
Besides 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 Punjah (Parkash Singh Badal) 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 Gohind 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 (Rehat
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 tor 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 ttrom foreign r ule 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 Sikh 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 recont 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 theil 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 far 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 Guru us have pointed out
that the whole universe is running under the Akal purukh 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 (now made public by government of India).
Summing up the section Development of State 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 heen 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."
Gurtej Singh: Sikh Identity in the Context of Modern Resurgent India,
ABSTRACTS OF SIKH STUDIES, January-March 1996. p 72.
Again, in 1915, the Punjah 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. 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. "Gurtej Singh: Sikh Identity in the
Context of Modern Resurgent India, ABSTRACTS OF
SIKH STUDIES, January-March 1996. p 77.
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 ArLicle 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 far 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 Punth, 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
ottence 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 Pcrsonal 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
interpersonal, 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 Iule 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 concluded that Sikhs are inclusive
into the definition of Hindu. Several Statutes of the Union
government thereafter werc passed to end any Separateness of
Sikhs and bring them under the regulation ot Hindu laws. Sikhs are
now pinned under the weight and application of the Hindu Marriage
Act 1955 the Hindu Minority and Guardianship Aet 1956 the Hindu
Adoption and Maintenance Act 1956 and the Hindu Succession Act 56.
These Acts must be amended to exclude a Sikh Qom 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
a distinct faith that has a 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. It can give us not only a
trouble-free life in absolute 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
of 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 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 with out and with in
the roop of the Khalas roop of Guru Gobind Singh and prove his
word: Khalsa mera ruup hai khas; Khalse 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
wore invariably governed by the same Personal Laws even during
the British Rule. He fulther 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 for
has eluded Iegislation. Dr Birendra Kaur pointed out
some genuine practical problems. For example, share in
parents property does not henciit 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 counterparts 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 fad 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 communiticss 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 Guardionship Act 1956, to the Sikss, Jains and
Buddhists (these Acts arc 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."
Edited by Dr. Kharak Singh
Published by Institute of Sikh Studies, Chandigarh 1998
Pblgs 110, Prics . Rs. 75/