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United by Dharma, divided by law

With Jains becoming India's sixth religious minority, the debate over Sikh, Jain & Buddhist personal laws could be reignited

Rajat Ghai 

Rajat Ghai

On January 20, the government of India met a long-standing demand of the Jain community and officially declared them as India’s sixth religious minority community after Muslims, Christians, Sikhs, Buddhists and Zoroastrians.

As a minority, would get a share in central funds earmarked for welfare programmes and scholarships for religious They can also manage and administer their own educational institutions.

While the development is not expected to change the existing socio-economic standing of in Indian society as they already are a very prosperous community, it is nevertheless very important. Not only does it address Jain concerns of ‘eroding’ identity and culture, but also could very well re-ignite the debate over separate personal laws for Sikhs, and Buddhists in India.

For long, Hindu society has looked upon these three religious groups as their own. From theologians to laymen, the refrain that is commonly heard is: They (Sikhs, Jains and Buddhists) are part of

Nothing could be farther from the truth. For though Buddhism, Jainism and Sikhism, like Hinduism, have been born in the Indian Subcontinent and have ‘Dharma’ (‘law’ or ‘duty’) as the cornerstone of their beliefs – with the result that the four faiths are called ‘Dharmic’ or Indian religions – their theological concepts vary vastly from each other.

It is therefore a cause of great heartburn for Buddhists, Jains and Sikhs that Explanation II of Article 25 (freedom of conscience and free profession, practice and propagation of religion) of the classifies them as ‘Hindus’, subject to Hindu personal laws. The explanation has been challenged legally many times, but still has not been altered. It reads as follows:

"...The reference Hindus shall be construed as including a reference to persons professing Sikh, Jaina or Buddhist religion and the reference to Hindu religious institutions shall be construed accordingly.”

But now, with Jains getting minority status, albeit because of the Congress’ lust for political gains, could those who want Explanation II of Article 25 done away with, hope for some action there as well? Even more so, is it time that India has separate personal laws for Sikhs, Jains and Buddhists?

The Republic of India recognizes the personal laws of five communities: Hindus (including Sikhs, Jains and Buddhists), Muslims, Christians, Jews and Zoroastrians.

Hindu Personal Law, also known as Modern Hindu Law has its origins in Anglo-Hindu Law, which was formulated in 1772 in colonial India, under the then Governor General, Warren Hastings. It, in turn, has its origins in Classical Hindu Law, which is based on the teachings of the Shrutis (Vedas), Smritis (Puranas and Itihasa or the Epics) and Achara (the community norms and standards of a particular social group).

After independence, the Indian government completed what the British had started: complete codification of Hindu personal laws with the passage of four ‘Hindu Code Bills’, namely the (1955), (1956), (1956) and (1956).

These code bills mainly deal with marriage, inheritance, custody of children and child adoption.

So the question is: Should Buddhists, Jains and Sikhs have personal laws of their own?

For the moment, only Sikhs have a separate marriage act of their own. In 2012, both houses of the Indian Parliament cleared the Anand Marriage Amendment Bill 2012. The bill paved the way for the validation of Sikh traditional marriages, amending the Anand Marriage Act of 1909, thus providing for compulsory registration of "Anand Karaj" marriages. But there is still no provision for divorce, which exists in the though.

In Maharashtra, Buddhist scholar and state minister, Nitin Raut has been campaigning tirelessly for a separate Buddhist Marriage and Succession Act.

But, the issue is, if separate personal laws are indeed to become a reality for the three communities, what would be on offer?

Those who are against separate Buddhist, Jain and Sikh personal laws, argue that traditionally, these three communities had no codified jurisprudence and shared customary laws as applicable to Hindus. According to them, the Buddha, Mahavira and Guru Nanak 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.

They also argue that there is hardly anything in the four which is basically and essentially shastric or Hindu. Rather, these code bills are secular laws having no religious or spiritual overtones. They are Hindu only in name and not in substance.

There is also the issue of the numerous controversies that would arise if the formulation of personal laws of Sikhs, Buddhists and Jains is set in motion. A good example to understand this is the Sikh Nanakshahi Calendar.

Conceptualised by Canadian Sikh Pal Singh Purewal, the Nanakshahi Calendar was formed in the first place because many Sikhs felt that as a separate community, they needed to have a separate calendar of their own, like the Hindus and Muslims. Since Sikhism’s birth, Hindus and Sikhs in the Punjab have been using the Vikrami Calender (Vikram Samvat) like most of North India.

The adoption of the Nanakshahi Calender has not been smooth though, as not all sections of Sikh society have accepted it. Opposition has come from influential sects like the Nihangs and the Damdami Taksal seminary, who want to revert to the old calendar.

The example of the Nanakshahi Calender shows that formulation of separate personal laws would be no smooth matter, given conflicting views of the people concerned.

However, on the other side of the debate, proponents of separate personal laws feel (and rightly so) that the application of Hindu law to them gives an impression that their religions are not independent and are merely off-shoots of Hinduism. They take it as an attempt to denigrate and subordinate their respective religions.

What can be the solution then?

One option could be to rename the four Hindu Code Bills, removing the term ‘Hindu’ from them, thus making it more acceptable to the people of the other three communities.

The other option would be to formulate personal laws. It is a universal principle of law that a community should have exclusive right to evolve its personal law, or reform it, because the laws are its exclusive concern. Having said that, it must also be noted that such a process must only be conducted under the guidance of the best legal luminaries India and the world can offer.

For such a process to begin, the first step would be to do away with Explanation II of Article 25. It is in the best interests of democracy and secularism in India.

But in a country where competitive identity politics are the norm, can all this be done? My guess is as good as yours in this.

First Published: Tue, January 21 2014. 12:35 IST