Towards a Sikh Jurisprudence

Takeaways
Sikh legal theory must be based on principles, such as feminism and an inclusive attitude for one humanity that is embedded in scripture as well as religious practice.
   The Khalsa republic established in 1699 has institutions for self-governance. The Sarbat Khalsa is a direct democracy which explains why the rules must be agreed by consensus and compromise.
The Takhts have specific regional functions — convening Sarbat Khalsa, declaring its will and undertaking mediation to enable consensus and compromise.

The Guru is a means, an experiment, a method not a conclusion. The Guru Granth Sahib Ji is a technology for Praise, for Praise of the Most High is the true and, therefore, universal religion. It is not a tribal narrative, which seeks to define and tell us in literal language about God, the world, history and Divine law. The Guru opens us through metaphor to the limitless Praise of the Living That. It is not the limited, abstract fixing of a God of a tribe. When it comes to living meeri-peeri, therefore, there is a challenge with Sikh jurisprudence. For laws and institutions are by definition fixed and precise. Yet these must take the form which a Living Guru, the Guru Khalsa Panth (body) embodying the Guru Granth Sahib Ji (Spirit) actualises in every freshly-scented Now. Sikh jurisprudence is based on principles, not provisions.
   These must include laws protecting the equality between women and men, for Gurmat is a feminist religion i.e. it acknowledges that women and men have equal rights and duties. Certainly, women and men are separate — Kaurs and Singhs — but they are of equal dignity. There must be laws protecting the freedom of conscience — we need only refer to the example of Guru Tegh Bahadur’s martyrdom on behalf of Hindus. There would be laws preventing racial discrimination for Guru Gobind Singh has taught us to “recognise the humankind as One.” There would be provision for the terminally ill, as Guru Arjun’s establishing of a leprosarium and work there for four years inspires us. Provision also for the protection of the environment following Guru Har Rai’s example in founding a zoo and conserving and studying rare plants. People challenged physically or mentally would be assisted as Guru Gobind Singh encouraged blind people to perform the sewa of keertan in the sadh sangat. Weapons of mass destruction would not be permitted for in their nature they are indiscriminate, yet we know that the Sikhs only oppose zulm — oppression — they do not oppose even the soldier which they fight. Hence, when the soldier was injured or surrendered, mercy was always shown and hence, Bhai Kannayya could be encouraged to provide medication for them. The military strategy would be non-offensive defence, the idea being that the provision of more aggressive arms merely triggers an arms race through a security dilemma as the neighbour perceives that you have the capacity to cause harm. Through use of anti-aircraft rather than aircraft, or anti-tank rather than tanks, the security dilemma and arms racing is avoided. Such strategy depends on an active and armed citizenry and it is obvious that this is what the Gurus created. Historically, the right of political participation is given to those fighting. The gift of kirpan was therefore the gift of sovereignty to a free and equal people, new princesses and princes, Kaurs and Singhs.
    The system would be democratic in a very dramatic sense. As there is no intermediary between the Sikh and WaheGuru, but one must commune with the In-Dweller, so only direct democracy transforms the ego, the manmat, the particular will into Gurmat, the individual’s higher will which is the general will of the sadh sangat, which is by definition the Natural Law, hukam, taking birth in that moment for that group. The individual can no more surrender the will in political matters to representatives than s/he can surrender it to priestly classes — bhais, sants, or Jathedars in spiritual matters. It is the will which is transformed from lead to gold, the alchemy of the spirit cannot take place in the abstract through rituals according to narrative texts and traditions, but in the Living of the Spirit through the ongoing experiment in love which is Life.
  This will of the sadh sangat, which is the Guru Khalsa Panth we term gurmatta. It can only be formed by Sarbat Khalsa. The gurmatta cannot be disputed or debated. This is the legislature of the Guru Khalsa Panth. Since each individual can only experience true joy of Gurmat while living according to the gurmattas, there is little need to create executive machinery to implement this. Thus, many Sikh bodies have grown up in an uncoordinated and unsupervised manner. The judicial function is also fairly limited, since there can be no compulsion in the manner of obedience to your higher will. A Sikh committing one of the four bujhar kurehats — four vows of abstinence, breaking of which entails breaking from the Order of the Khalsa — is not pursued. S/he must return of their higher will, confess their shortcoming and receive and perform reparation for their falling away. The tankhah is not punishment in the sense of retribution, nor is it redemption. It is making good to the people who have suffered from your ab-use of the gifts of Life. Such reparation is decided by the panj piyaras — women, men or mixed — who are empowered by the local sadh sangat to represent the Guru Khalsa Panth in this matter as also the initiation into the Order of the Khalsa. As one is joining the spiritual sisterhood of the Khalsa, it is obvious that one follows the Reht of that Guru — the Sikh Reht Maryada of the Guru Khalsa Panth, whatever the local representatives present at your initiation — the panj piyaras — might say. There is One Guru, one Reht. Sikh criminal justice must be based on the idea of reparation, rather than retribution or redemption. Such idea is not only based on the kurehats but also the methodology Guru Nanak employed to deal with the exploitative business man, Malik Bhago, the serial killer, Sajjan, the cannibal, Khoda, and the prostitutes/dancing girls in Ceylon. All were to henceforth use their Divine gifts, not abuse them, thus abusing themselves and abusing the Self.
The Takhts have a mixture of functions — they may arbitrate cases brought before them by both parties and work as executive branches in geographical areas. The Akaal Takht is the central office and is, therefore, primus inter pares, first among equals. It may convene meetings of the Sarbat Khalsa, the legislative body. Only the gurmattas decided here have the status of law in the Guru Khalsa Panth and the title of maryada. To oppose the Guru is to revert to manmat. The Akaal Takht may promulgate hukamnamas, which are executive orders agreed by all the executing authorities — Takhts. There are written rules in the Gurdwara Reform Act 1925 which established the position of the Jathedar of Akaal Takht, which before-hand was simply the hereditary fiefdom of Shaheedi Misl, and unwritten conventions, established by practise, about the procedure for these. The Shaheedi Misl was not involved in seizing territory so it was regarded as a more neutral party in disputes. Finally, it may arbitrate on cases voluntarily brought before it. It has no powers to investigate individuals or groups, since compliance with the law — maryada — is voluntary. However, Jathedars may provide personal views on the behaviour of individuals or groups, one thinks of the examples of Jassa Singh Ramgharia or Bandai Khalsa, which may influence public opinion within the Guru Khalsa Panth, leading to boycott. The Akaal Takht is the seat of the Most Holy Who Is Most Merciful. It is not a seat of fear, but a seat of coming together as the Children of the Guru, and trying to transform our lower habits into the channels revealed by our higher wills.
Attempts to increase the powers of the Jathedar of Akaal Takht to Papal status are born out of ignorance of Sikh political philosophy which is based on the equality of all Sikhs, and Sikh mysticism which is based on inward transformation through practical struggle between death instincts — God rejection (manmukh), and life instincts — God Be Praised/acknowledged (nam simran). Both require the intimate involvement of all Sikhs in every aspect of Guru Khalsa Panth. Practical involvement is part and parcel of spiritual growth. Those who want to increase the executive powers of the Akaal Takht can learn from our history when coordination of separate efforts in the Misl period was more successful and enduring than centralisation during Ranjit Singh’s reign. Modern business and political theory also discuss the importance of lowest possible level decision-making, subsidiarity, to increase the value added by the individual to the corporate effort. Smaller groups are more flexible, more motivated and less easy to subvert. If kow-towing intellectuals decide to increase the powers of the Jathedar in spite of the weight of theology and history against them, we may see the Jathedar try to implement the Sant Samaj “maryada”. In that case, we will see a split on a global scale which will make the current squabbling and violence about langar look like an introductory step. For it is not clear why the Sant Samaj — a group of old amritdhari men, have any more right to subvert and challenge the Guru than a group of teenage amritdhari girls in the west, who might form a group, the Teen Tamasha. If anything, the “maryada” of these young ladies might have less Vedantic interpretation and less brahminical ritual.