Sikh Scholar Challenges Indian Government’s Definition of “Hindu”

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. [The court] chose to issue notices to the Union Government as well as the Attorney General to respond within six weeks.

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.

Sikhism discarded ritualism and priestcraft. No wonder Sikh gurus simplified marriage procedure. The Anand Karaj as Sikh wedding is called, might appear revolutionary. An Anand Karaj Act, 1909 was passed during British time. An amendment to the Act was [finally] 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 problem with separating Sikhs from Hindus under the law, for example, would mean that Sikhs] will not be able to use the Hindu Undivided Family provision under the Income Tax Act to claims tax exemptions. 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.