Sikh Jurisprudence, Part 2: Trials, Duties, and The Rule of Law
An attempt to extract legal principles from the Sikh texts of old
In Part 1 of this work, an outline of crimes and their enforcement in Sikh Misl territories was presented in light of contemporary rationales for criminal punishment. Following a comparative analysis to the classical and modern theories of justice, it ended with a promise to flesh out possible principles for a Sikh legal philosophy. Part 2 attempts to continue this process, utilizing the extant Sikh literature where relevant as well as Gurbani and other sources. However, in writing this, at every turn there are more questions that arise as to what a Sikh legal doctrine looks like for certain matters, as the literature can lean either way. Where such bends arrive, they are presented for the reader to ponder themselves, and think of what the answer could be.
The Search for the Truth
Prem Sumarag (the Path of Love), hereafter PS, is an anonymous text whose exact dating has long eluded scholars. The late Professor J. S. Grewal in Master of the White Hawk (2019) tentatively posits that it may have been the work of a poet of Guru Gobind Singh’s Anandpur Court, while W. H. McLeod, publishing his translation under the title The Testimonies of a Sanatan Sikh (2006), puts it in the mid-18th century. Others believe it may have been written during the time of Maharaja Ranjit Singh or shortly after. No matter the date, it contains extensive guidance for the spiritual, domestic, and political life of the author’s ideal Sikh. Although controversial for its references to Indic mythology and explicit subject matter, it provides an insight into the point of view of a writer in close proximity to the early Khalsa culture.
In its section on the administration of justice, PS guides the reader in legal matters of what could be classified as property, tort, family, financial, labor, contract, and criminal disputes. A full treatment would require more articles, but for now we will note a few themes.
In several provisions, PS notes how a legal proceeding would ideally be conducted. The goal would be to ascertain the truth (perhaps more similar to the inquisitorial legal systems of continental Europe). For example, to bring a case of battery, an accuser must produce a witness. If the accused answers the charges satisfactorily, the accuser must produce five more witnesses to win a case. PS also mentions an interesting parallel to witness sequestration,
“In the interest of justice, the witnesses should be kept apart and not permitted to mingle. Question them separately. When their stories are different, punish both the witnesses and the person who has lodged the complaint.”
Rule 615 of the Federal Rules of Evidence similarly provides that when either party in a case requests that witnesses be sequestered, the judge must grant such request, or if they choose to, can decide to order sequestration even when such request has not been made. The Advisory Committee’s note gives the reasoning that,
“The efficacy of excluding or sequestering witnesses has long been recognized as a means of discouraging and exposing fabrication, inaccuracy, and collusion.”
In another section regarding the selling of children into indentured servitude for a fixed period of time, PS informs the reader that such an act must be “properly witnessed” and the parents must sign their written permission. In resolving disputes over animal ownership, it is again advised that witnesses be called, and
“If two witnesses from the same side tell lies and there is a wide discrepancy in what they say, then those witnesses should be punished and mounted on a donkey. A witness’s untruth cannot flourish. Together with [the untruthful witness], untruth [itself] is punished.”
An emphasis on truth-telling, beset with the procedural sureties of witness sequestration and punishment for perjury, is no surprise for a system built upon Gurmat. Gurbani is filled with the merits of speaking the truth, and the curses that the liar and slanderer brings upon themselves. In a Sikh legal system then, one could perhaps expect evidentiary rules that ensure the truth of the contents (indeed PS itself makes many recommendations on how to ensure documents are legitimate). Implicit also is the starting point that one is not guilty simply because he is accused. Rather, the burden is on the accuser to produce witnesses to prove his assertion.
The Rehitnama of Bhai Chaupa Singh, hereafter RBCS, is another document shrouded both in mystery and controversy. McLeod, in his 1987 translation, makes note that the only surviving copy from the 18th century was destroyed during the Indian Army’s 1984 attack on the Darbar Sahib complex, during which the Sikh Reference Library was extensively damaged. But the 1769 Bansavalinama by Bhai Kesar Singh Chibber (a relative of the author), makes note of both Chaupa Singh and his rehitnama, said to be created at the behest of Sikhs of Anandpur seeking clarification on the Sikh code of conduct, or rehat. McLeod references other historical evidence that Chaupa Singh was killed in 1723, so it is possible this rehitnama was written prior to that year. The point of this work is not to litigate the date or more controversial religious doctrines of this text, but instead to explore what it has to say on issues of justice within the nascent Khalsa Panth.
Within RBCS are several admonitions regarding the testimony of a Sikh. Presumably written prior to Sikhs gaining complete control over their territories, it first admonishes,
“He who goes to the Hakam [magistrate], rather than settle the matter within the Panth, will be declared tankhaiyah [outcasted].”
In Part 1, it was noted that PS commands a Sikh ruler to set up judges in every pargana to decide matters of justice, which would seem to clash with RBCS’ command to settle matters within the Panth. One may reconcile this apparent controversy by the next injunction in RBCS, which in its discussion on settling disputed matters, notes that he too is tankhaiyah who,
“…refuses to accept another Sikh's word when they are debating an issue of common concern. If an arbitrator is required to decide [between two such disputants] he should be a Sikh. [At such times] both Sikhs should hold fast to their Sikh faith. God is witness to all and Dharamraj records all that a liar utters.”
So RBCS does not completely deny the concept of a judge to decide conflict, rather it focuses on using Sikhs as arbitrators, instead of the then-Mughal authorities. And again, seen here is the assumption that the accused is innocent, and one should bring strong evidence to a proceeding in attempting to impeach the other. However, to the extent that this was practiced in amongst the early Sikhs, one may have cause for doubt.
Bhai Rattan Singh Bhangu’s Sri Gur Panth Parkash, hereafter SGPP, was written in the early 1800s in response to East India Company officers inquiring from the author of the Sikh rise to political power under Ranjit Singh. In his spectacular rendering of the Sikh struggle for sovereignty in the 18th century, he makes note of a particular incident involving Bhai Sukha Singh, a famed Sikh warrior and leader in his own right during this time. Professor Kulwant Singh’s 2004 translation was referenced for this work.
Although refraining from going into the specifics, SGPP mentions that Bhai Sukha Singh’s wife gave birth to a daughter, “who died soon either of natural causes or the mother having killed her.” When such news reaches the wider Khalsa community, it would appear that the storied warrior was immediately shunned, and it is unclear if he was ever allowed to explain himself. Perhaps the gravity of the offense was such that the Panth did not see it fit to even hold such proceedings, for indeed as Bhangu puts it
“ਕਹੈ ਖਾਲਸਾ ਕੰਨਿਯਾ ਮਾਰੀ । ਰੀਤਿ ਖਾਲਸੇ ਕੀ ਹੈ ਬਿਗਾਰੀ ।”
“Said the Khalsa, to kill a daughter, goes against the very creed of the Khalsa”
Bhai Sukha Singh is later forgiven for the transgression after he redeems himself in a bout with a Pathan soldier. But what is interesting about this instance is that a warrior who was widely respected in the early Khalsa seems to have simply been assumed to have been guilty of his alleged offense. If such a Sikh was not given an opportunity to explain his fault, what could be said of the common foot-soldier?
However, again it could be that the sense of injustice that infant-killing evokes allowed for a departure from such procedures, or perhaps they were in fact followed and Bhangu, relying on oral tradition after the fact, simply did not find it relevant to include such.
Community Trust/Duty to Rescue
Written while the Khalsa was still asserting itself onto the North Indian landscape, there is emphasis throughout PS on community formation and even transcending some (but not all) caste regulations. For example, if one finds a lost item in a property they are renting,
“First he should ask the owner of the house if he has lost something of value in the house. If [the owner] can offer some clue [of having lost it] or gives some sign [which indicates an awareness of the missing item], keep one eighth and return to him the remainder.”
In lending practices, PS takes a staunch anti-interest stance for loans taken to meet basic necessities, stating,
“[The lender] should not charge the borrower any interest. It is cruel to charge interest on a loan. Do not refuse a loan out of greed for interest, [asking yourself] what gain is there if I make this loan? Nothing is lost in giving a loan when the lender does not ask the borrower for its return. When you do not ask for it, the lender will give it and you will take it. To charge interest is not right. This is the will [of the Guru].”
Such arrangements reflect the policy considerations that the writer of PS was taking into account when laying down such rules for the community. It would make sense that for the community to coalesce and avoid feelings of ill will, practices such as predatory lending for basic needs would be banned lest they result in bitter disputes, not to mention the starvation of the common Sikh. Ensuring lost property makes its way to its owner likewise would seem to have the effect of increasing the general trust within a community. Implicit here is the fact that all Sikhs are tied together in a spiritual fraternity united beneath the Gurus, and there is an assumption that Sikhs are to treat each other like family. This too may have informed Misl justice as seen in Part 1- when such closeness was violated by deeply personal crimes like murder, the punishment was left to the family to decide, almost as if in recognition of a shared hurt that they deserved to rectify.
In a modern Sikh justice system, perhaps there would be consideration of such assumptions when considering the adoption of certain legal doctrines. In the Anglo-American common law, there is no affirmative “duty to rescue” someone in need, such as a stranger drowning in a river that you are walking by. This is summarized in Section 314 of the Second Restatement of Torts:
“The fact that the actor realizes or should realize that action on his part is necessary for another’s aid or protection does not of itself impose upon him a duty to take such action.”
Would the same be true in Sikh tort law? The assumption for individual responsibility and against communal responsibility could be said to have led to a low-trust society in America, where many adopt a “not-my-problem” approach to dealing with the suffering of others. It is possible to envision a justice system where these precepts are a little more balanced- what would it look like if the default rule is indeed that one owes their fellow man a “duty to rescue”? RBCS discusses a Sikh’s duty to help one another. Indeed, in delineating who is a tankhaiyah, or outcast, it mentions in close succession,
“The Sikh who fails to assist any Sikh who has been wounded, disabled, or overcome with exhaustion in battle… The Sikh who, when asked by another Sikh for assistance in the Guru's name, neglects to do all he can to supply it.”
But in the very next injunction states that he too is tankhaiyah who “asks for assistance without good reason.”
According to RBCS, it would appear there is indeed a “duty to rescue” for a Sikh. But a caveat one may point out is that the duty would seem to be directed at the plight of other Sikhs. And to the extent that it exists, could an affirmative defense be that the Sikh believed the other Sikh did not actually need assistance, as per the implication that they who ask for assistance without good reason have also transgressed?
Returning to the first point, there may actually exist a duty that is exacted on the Sikh to help all, not just the fellow Sikh. The tales of SGPP include many in which the downtrodden approach the camps of the Khalsa, beseeching them for aid, often to recover women who had been abducted from their households by men who were protected by the ruling Mughal or Afghan authorities. In one such instance, when the army of Sardar Baghel Singh launches an attack for this reason, it is stated
“ਕਰ ਹੱਲਾ ਫਿਰ ਸਿੰਘੋਂ ਨੇ, ਦੀਉ ਐਸੇ ਕਰ ਅਰਦਾਸ, ‘ਪਰਸ੍ਵਾਰਥ ਕੇ ਕਾਰਨੈ, ਲਹੋ ਸ਼ਹੀਦੀ ਖਾਸ’”
“And so the Singhs attacked, asking for such in their Ardaas: ‘For this cause of another, may we attain a particularly notable martyrdom’”
The use of the word parsvarath here is of particular significance. “Svarath” is defined in Bhai Kahn Singh’s Mahan Kosh as,
“ਆਪਣਾ ਪ੍ਰਯੋਜਨ. ਅਪਨਾ ਮਤਲਬ.”
“For one’s own objective. Relating to one’s own issues.”
The addition of the negative prefix “par” in front of “svarath” indicates the complete negation of such self-interest, making the aim the cause of another. It is of note here that the very same word is used by Bhangu to describe the martyrdom of Guru Tegh Bahadur Sahib in a different section of SGPP,
“ਤੇਗ ਬਹਾਦਰ ਫਿਰ ਗੁਰ ਭਯੋ । ਪਰਸ੍ਵਾਰਥ ਹਿਤ ਜਿਨ ਸਿਰ ਦਯੋ ।
ਕਲਜੁਗ ਮੈਂ ਵੱਡ ਸਾਕਾ ਕੀਯੋ । ਧਰਮ ਕਰਮ ਰਖ ਹਿੰਦੂਅਨ ਲੀਯੋ ।”
“Then Tegh Bahadur assumed the Guruship, and for the cause of others He gave His head
In the Kali Yuga this marked a great sacrifice, for the ways of the Hindus were saved”
This is constant with how the event is presented in the Bacchittar Natak section of Sri Dasam Granth, in the oft-repeated statement of Guru Gobind Singh ji himself describing the circumstances around his father’s execution,
“ਤਿਲਕ ਜੰਞੂ ਰਾਖਾ ਪ੍ਰਭ ਤਾ ਕਾ ॥ ਕੀਨੋ ਬਡੋ ਕਲੂ ਮਹਿ ਸਾਕਾ ॥”
“Protecting the tilak and janeu, He achieved the highest of sacrifices in the Kali Yuga”
So, to the extent that one may argue that the standard for the Guru should be different than the standard for the Sikh, Bhangu seems to indicate that the Khalsa had taken it upon themselves to adopt the same duty, and the metaphysical doctrine that Guruship has been invested in the Khalsa by Guru Gobind Singh would tend to support this as well. An obvious question that arises from all of this, is that to the extent that a duty to rescue exists for the Sikh, to what extent should Sikh jurisprudence, if exercised, impute such a duty onto a non-Sikh? Should a non-Sikh, should they happen to live in a society governed by such a legal system, be held to the same standards? Would it make sense to hold certain people to different legal standards?
To an extent, there is already precedent for this. American tort law holds different groups to different standards- such as doctors being held to a standard of “professional care”, manufacturers being held to the strict standard of “products liability”. Of course, none of these are based on the professed faith of the entity in question. As a default rule, perhaps it should be assumed that all have the same duties under the law. However, in the next section, such assumptions of equality before the law in relation to the executive power will be examined.
Rule of Law
In describing who can be called to court, PS mentions,
“Whoever is thus summoned must present himself, though he be the Maharaja, any member of his family, a powerful subject, the vazir, or a commander. If anyone, trusting in his capacity to resist, fails to respond, the ruler should have him bound and delivered to the chief justice. He should then receive punishment in accordance with the verdict of the chief justice, and he should not be spared.”
Thus, if we follow this chain of reasoning, it would be possible for even the Maharaja to fail to respond to a summons, and be punished accordingly. There has been much controversy in recent years over how much power the American judiciary has over the President, particularly regarding the subpoena power. Distinguishing the President from a king, in the Federalist No. 69, Hamilton writes,
“The President of the United States would be liable to be impeached, tried, and, upon conviction of treason, bribery, or other high crimes or misdemeanors, removed from office; and would afterwards be liable to prosecution and punishment in the ordinary course of law. The person of the king of Great Britain is sacred and inviolable; there is no constitutional tribunal to which he is amenable; no punishment to which he can be subjected without involving the crisis of a national revolution.”
Blackstone confirms this characterization of the English monarch in his Commentaries,
“…the king [is declared] to be the supreme head of the realm in matters both civil and ecclesiastical, and of consequence inferior to no man upon earth, dependent on no man, accountable to no man.”
Based on the intention of Founders such as Hamilton and the historical precedence for compelling Presidents to testify, the Supreme Court ruled in the 2020 case of Trump v. Vance that a President may in fact be subpoenaed in criminal proceedings at both the state and federal level. According to PS, it would appear the same can be done with a Sikh Maharaja. That being said, the President does retain executive privileges- such as the right to keep sensitive information secret. To what extent would a Sikh executive be empowered to do so? Would anyone be allowed special privileges?
Latif’s History of Punjab, as discussed in Part 1, makes note of the “Nanakputras, or descendants of Nanak” who enjoyed exemptions from taxes and were allowed to wander the territories at their whim. It would make sense at the time to encourage revered personalities to visit their followings and stimulate national fervor and economic activity- do such considerations hold up today? RBCS also encourages Sikhs to treat the descendants of the Gurus with special privileges and instructs that whenever one such descendant arrives at a village, he is to be greeted with spectacle. It does not per say exempt them from the legal duties of the common man, but perhaps due to it being written prior to Sikhs gaining formal control over territory, such considerations were not considered by Chaupa Singh, his focus instead being on coalescing a community struggling under Mughal oppression.
But also relevant here is the oral tradition recorded in Bhangu’s SGPP. It has already been mentioned above, that the great warrior Bhai Sukha Singh could not escape the accusation of female infant-killing. Perhaps his status is what allowed him to return to the Panth’s folds after such allegations, but as it is relayed, he was afforded no special privilege in being able to present his case for innocence to the Khalsa. To the extent that Bhangu may have simply created this story from thin air, it should be noted that Bhangu’s own grandfather, Bhai Mehtab Singh, was a very close associate of Bhai Sukha Singh, and apart from this transgression, Bhangu has nothing but praise for him. Where Bhangu is sometimes accused of recording biased history is in his treatment of the early leader of the Sikh rebellion, Baba Banda Singh Bahadur. After a long recollection of the famed Sikh general’s holy war against the Mughal state, Bhangu asserts that Bahadur had abandoned the Khalsa codes and instituted new practices which resulted in the majority, or the Tat Khalsa, abandoning his side. Many scholars have questioned Bhangu’s allegations, finding some to have no other historical backing and others to be internally inconsistent.
Instead of attempting to resolve who has the right version of history, what is instead of more bearing to the task at hand is what all this means in relation to special privileges in the eyes of the law. What seems clear is that at least some Sikhs found it possible to hold leaders of the early Panth accountable for perceived transgressions, no matter the veracity of the allegations. To the extent that a privilege was invoked, perhaps it was in the punishment for the offense- which in both cases was being simply shunned by the Khalsa, instead of becoming the object of their infamous wrath.
Dissonance
As has been noted in both Part 1 and Part 2, there is some clash between the ideals and procedures espoused by PS and RBCS, and the behavior of the Misls as written by Latif and recorded by Bhangu. To quote Justice Souter in Washington v. Glucksberg (1997),
“It is here that the value of common-law method becomes apparent, for the usual thinking of the common law is suspicious of the all-or-nothing analysis that tends to produce legal petrification instead of an evolving boundary between the domains of old principles. Common-law method tends to pay respect instead to detail, seeking to understand old principles afresh by new examples and new counterexamples.”
It is not of very much use for anyone to try to replicate the Sikh systems of old when forging a legal philosophy meant for the modern world. Instead, the point of this exercise has been to try to understand the principles that were taken into consideration by such Sikhs, in order to prepare a jurisprudence that can respond to “new examples and new counterexamples”. There are numerous directions in which this can go from here (Prem Sumarag still has much to say on the subject of property law and contract). And that is not to say that we are beholden to such texts either- the part and parcel of any Sikh thought will always be Gurbani. Due to the nature of Gurbani interpretation, I personally find it relevant to first examine how Sikhs closer to the Guru period may have viewed issues of a legal nature, and even then, finding precise answers will remain difficult. Simple extrapolation from the writings of the Sikh Gurus could produce authoritative maxims that can guide a Sikh jurisprudence, but the question would then arise, whose interpretation should be preferred? Would this not be vesting too great an authority in the hands of a few? To quote the eminent St. Thomas Aquinas in his Summa Theologica,
“For if they are free, and able to make their own laws, the consent of the whole people expressed by a custom counts far more in favor of a particular observance, than does the authority of the sovereign, who has not the power to frame laws, except as representing the people. Wherefore although each individual cannot make laws, yet the whole people can.”