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Whether inclusion of Sikhs, Jains, Buddhists under exclusive Hindu Code enactments violate Freedom of Religion: SCI

November 13, 2012 | By

New Delhi/Ludhiana, India/Punjab (November 13, 2012): According to media reports the Supreme Court of India (SCI) has entertained the petition, that may be called “the Sikh identity” petition as it seeks judicial intervention against clubbing of Sikh identity with Hindus through provisions of Indian Constitution and definition of Hindu in Hindu Personal Law code.

It is learnt that a constitutional bench of SCI comprising Justice Altamas Kabir, J. SS Nijjar and J. Chelameswar wanted to know whether inclusion of persons professing Sikh, Jain and Buddhist faith under the common enactment relating “exclusively” to Hindus amounted to violation of their fundamental right to preach and profess religion that is said to be protected under Article 25 of the Constitution.

According to petitioners Birendra Kaur and Rohit Garg, the Anand Marriage (Amendment) Act 2012, notified in June had “solved” only the problem of registration of marriages by Sikhs, Jains and Buddhists. Earlier, they had to register their marriages under the Hindu Marriage Act 1955.

For other matters relating to succession, adoption, divorce and maintenance, people professing these three faiths still had to resort to the Hindu Succession Act, 1956, the Hindu Adoptions and Maintenance Act, 1956 and the Hindu Minority and Guardianship Act 1956, they had contended.

According to ‘The Pioneer’: “the petition filed by a professor Birendra Kaur and a lawyer Rohit Garg said, [M]aking a law applicable to all religions is one thing. Calling all religions by the name of a single religion for the purpose of that law, quite another. Herein lies the discrimination.”

This point was, however, not accepted by the Punjab and Haryana High Court.

According to Times of India (TOI): The Supreme Court asked before issuing notice to the Centre and attorney general G E Vahanvati that “[I]f Sikhism, Jainism and Buddhism are separate and distinct religions, can followers of these faiths be bracketed as Hindus under the Constitution and be governed by Hindu personal law,”.

“Petitioner Birendra Kaur in her petition questioned the constitutional and past legislative attempts to obliterate identities of separate faiths by recognizing them under the broad religious connotation of Hindus. She said this negated the constitutional guarantee to each individual to practise and propagate the religion of his/her choice” TOI report adds.

The petitioners had reportedly approached the Punjab and Haryana High Court with their plea on September 30, 2011, but the court dismissed it three days later, prompting them to move the SC.

But appeal has been entertained by the Supreme Court of India and the court has also framed the question for adjudication.

“This petition is seeking to express and make clear the frustration and disappointment of a large part of the Sikh community which feels its identity as Sikh is undermined by certain clauses and titles of certain statutes which club Sikhs under the definition of Hindu,” senior advocate Colin Gonsalves reported argued before the Supreme Court of India.

The Supreme Court reportedly said, “Issue notice on the question as to whether the inclusion of people professing the Sikh, Jain or Buddhist faiths could be included in the enactments relating exclusively to persons professing the Hindu religion, within the ambit of Explanation II to Article 25(2) of the Constitution. Let notice be issued separately to the AG also, to be served both through the ministry of minority affairs as also through the central agency, returnable six weeks hence”.

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