Supreme Court Judgement on Minority Status of Jains
Obiter Dicta Places Hindu Religion Above all Other Religions
Milli Gazette Online
The 8 August,
2005 Judgement of the 3 Judges Bench of the Supreme Court consisting of
Chief Justice R.C. Lahoti, Justice D.M. Dharmadhikari and Justice P.K.
Balasubramanyan, in the Bal Patil Case (CA 4730 of 1999), written by
Justice Dharmadhikari has not received the critical attention it deserved.
Perhaps it may
be due to the Jains being a relatively small minority which is not much in
The total Jain
population of the country (2001) is about 4.23 million which is
concentrated (community above 0.1 million) in (1) Maharasthra (1.3), (2)
Punjab (0.65), (3) Madhya Pradesh (0.55), (4) Gujarat (0.53), (5)
Karnataka (0.41), (6) Uttar Pradesh (0.21) and (7) Delhi (0.16) which
together account for 91% of the national population of the Jains. In all
these States of its concentration it forms about 1% or less of the State
population. Thus it has little political strength.
The Jains have
been counted as a separate religious community since the decennial Census
was introduced. But it enjoys a distinction. It is not recognized as a
religious minority by the same Government which holds, the Census for
placing it within the jurisdiction of the National Commission for
Minorities though of the 7, 3, namely, Maharashtra, MP and UP have
recognized it as such under the State Minorities Commission Act. Two other
States created by reorganization of MP and UP, namely, Chhattisgarh and
Uttaranchal have also recognized it such.
rejects the plea by the Jain community to the Supreme Court to advise the
Central Government to notify it as a minority under Section 2 [c] of the
National Commission for Minorities Act, 1992, in accordance with the
recommendation of the National Commission. The Supreme Court bases the
rejection on the 11 Judges Bench decision in the T.M.A. Pai Case [2002(8)
SSC 481] which was related to scope of Article 30 of the Constitution on
the right of a linguistic, religious or cultural minority to establish and
administer educational institutions of its choice. In that Judgement, the
majority Opinion of the Bench, speaking through the then Chief Justice
Kirpal, was that since reorganization of the States in India has
been on linguistic basis, the unit for the purpose of determining a
linguistic minority be the State and not the whole of India. But
the Opinion goes on to apply illogically the same yardstick to
religious minorities though the States were not organized on
religious basis and comes to the conclusion that ‘religion and
linguistic minorities, who (sic) have been put on par in Article 30, have
to be considered state-wise’. This equation between the two
categories of minorities does not follow logically follow, as the States
have not reorganized on religious basis and all religious communities are
scattered throughout the country. The Central Government, a respondent,
found it convenient to take shelter under this totally illogical
presumption of the Supreme Court and refused to exercise its statutory
power under the Act, thus making it redundant.
point is the Muslims, Christians, Sikhs, Buddhists, even the Parsis
(a minuscule community with less than 0.1 million population) had been
notified by the Central Government under the provision of the same Act
but the guillotine has fallen on the Jains. Thus, the refusal is a clear
case of discrimination against the Jain community.
does not even classify the number of State notifications which will
qualify them to be notified as a minority by the Central Government!
in Explanation to Article 25 recognizes the existence of the Jain religion
but brackets it with Buddhism and Sikhism for the limited purposes of one
Section of the Article which deals with a common social aspect.
Considering that only 5 days after the promulgation of the Constitution,
the then Prime Minister Jawaharlal Nehru, through the letter of 31 June,
1950, signed by his Principal Private Secretary, clarified the
misunderstanding and assured a Jain Deputation that the Jains are a
distinct religious minority and there is no reason for
apprehending that Jains are considered as Hindus. Thus the Judgement is
constitutionally unsound and violates an explicit assurance of the
have decided to seek a review of the Judgement. One hopes that the Supreme
Court shall realize the basic flaw in the T.M.A. Pai Judgement on the
point of relating status of religious minorities to states determines the
scope of Article 30 of the Constitution and has nothing to do with the
question as to which religious groups form a national minority and come
under the purview of the National Commission for Minorities?
disposed of the Jain demand, the Judgement devotes another 12 pages to
what can only be called obiter dicta or the personal views of Justice
Dharmadhikari. He gives his version of the history of the Freedom
Movement, in particular, the effort for resolving the communal problem, in
terms of the constitutional safeguards as demanded by the Muslim community
e.g. of separate electorate and reservation of seats in legislatures. Some
safeguards were conceded in stages by the imperial power. Finally there
was no communal settlement culminating in the Partition of 1947. His
historiography is full of flaws; it confuses the sequence of events, it
describes India Wins Freedom as the ‘ personal diary’ of Maulana Abul
Kalam Azad and attributes to him the role of ‘mediator’ between Nehru
and Patel, on one side and Jinnah and Liaqat Ali Khan, on the other.
Without any quotation from the ‘personal diary’ the writer attributes
Partition to the resolute stand taken by Nehru and Patel and their
rejection of the proposal of Jinnah and Liaqat. In effect, the obiter
dicta reduces the complex course of negotiation between the Indian
National Congress and the All India Muslim League, over 20 years, in which
Rajendra Prasad, Nehru, Subhash Bose and Gandhiji all participated (it is
doubtful if Azad was directly involved at any stage) for finding a
mutually acceptable settlement to a one-shot event!
The quotes the
eminent jurist H.M. Seervai to place the responsibility for Partition on
Gandhi, Nehru and Patel for having destroyed the (Cabinet Mission) Plan.
It is true that ‘Azad did his utmost to prevent the Partition but he
failed to persuade Nehru and Gandhi not to accept Partition’ but this
relates to the very end of the sad chapter.
Justice Dharmadhikari’s thesis states that in order to allay the fears
and apprehension in the mind of the Muslims and the Christians, the
Constitution provided them special guarantees and protected their
religious, cultural and educational rights in the form of Article 25 to
30. This is an absurd reading of the Constitution. Article
25 – 28 relate to Freedom of Religion and are universal in their
application to all citizens. Article 29 and 30 relate to Cultural and
Educational Rights of Minorities. Both sets form part of Fundamental
Rights. But they are distinct from each other both in scope and purview.
Then the obiter
dicta says that only Muslims, Christians, Anglo-Indians and Parsis are
recognized as religious minorities at the national level and attributes
the size of the Muslim and the Christian communities to the duration of
the Mughal and the British rule! It hints as if the object of the Mughal
State and the British rule was conversion. This is far from the truth. How
does it explain that regions which were under the Mughal rule for a very
short period, or not at all, have a much high proportion of Muslims as in
Bengal and Kerala while the Muslims have a low proportion in the region of
the Gangetic Valley and the Deccan which were under Muslim rule for nearly
700 years! How does it explain why the Christian percentage did not exceed
2% during the British rule?
The obiter dicta
describes the Sikhs and the Jains as ‘so-called minority communities’,
which were not treated as national minorities at the time of framing the
Constitution and have ‘throughout been treated as part of the larger
Hindu community’. It seeks to reduce them to sects or sub-sects of Hindu
The fact is that
right from 1871, when the decennial Census began, Sikhs and Jains have
been recognized as religious communities on par with Hindus and Muslims.
And in making of the Constitution, the Sikhs, the Buddhists, the Jains and
the Parsis all received attention and were recognized as minorities.
The obiter dicta
identifies the SC in the Constitution as the Shudras of Hindu society, a
view which is not shared by eminent sociologists. They were basically the
Untouchables, outside the pale of Hinduism. They were designated by
Gandhiji as Harijans. They now call themselves Dalits. Of course it
recognizes ST’s as non-Hindus. The Achhuts are distinct from the Shudras
and under the Constitution, both the Shudras and the SC’s/ST’s though
both are designated as Backward Classes, are distinct from each other.
Justice Dharmadhikari’s sociology is as poor as his history!
But the real
purpose of his travel into the uncharted territories, without a compass,
becomes apparent when, in the next para, he identifies Jainism with,
what he calls, Hindu Vedic religion, though the Jains reject the
Vedas and the Brahminical philosophy as their Tirthankaras and specially
Mahavir have charted their own spiritual course, like Buddhism.
Dharmadhikari J. comes to his final conclusion:
be called a general religion and common faith of India’. He thus
elevates Hinduism above other religions of India and equates Hinduism with
Indianness. This is an
anti-thesis of the Constitutional principle of equality of all religions
which implies that Islam, Christianity and Zoroastrianism, Buddhism or
Sikhism and other religions, whatever the number of their followers, are
equal before the law and that no distinction can be made among them on the
ground of origin i.e. where they were born! This projected hieratical
superiority of Hinduism is not only a denigration of Jainism, Buddhism and
Sikhism but an affront to the status of Islam and Christianity and
‘Other Religions’ which are recorded in Census after Census.
through philosophy and religion, Dharmadhikari J. propounds his
constitutional thesis for redefining the status of various religious
groups as minorities and conferring it only to those which had to be
re-assured of their religious and cultural rights in the background of the
Partition ‘in order to maintain the integrity of the country’. He
opines that the process of the Constitution did not contemplate any
addition to the list of religious minorities other those the identified in
the course of independence negotiation or those which are materially
seems to think that recognition of the identity of a religious group by
the State is a favour, within the privilege of the executive or the
legislature in accordance with the political compulsion at a given time.
Obviously he has not studied the proceedings of the Constituent Assembly. Dr.
Ambedkar forcefully argued for recognition of the absolute rights of
religious minorities. And the first right of a minority is the
right of recognition, followed by right to equality before law. The
Constitution may have been framed under the shadow of the tragedy of
Partition but the fundamental rights enunciated therein are independent of
time and place. They represent the finest crystallization of political
thought and constitutional theory. Indeed they have provided a model for
the emergent world. The Universal Declaration of Human Rights had an
impact on our Constitution but the International Covenants and, above all,
the UN Declaration of Rights of Minorities, 1993 have all reflected what
the Indian Constitution gave to the religious, linguistic, racial and
cultural minorities of the country. Today minority rights are universally
accepted as an indivisible from and essential to human rights, because
almost every nation-state is multi-religious, multi-lingual and multi-cultural.
Dharmadhikari J. sees assimilation in Hinduism as the alternative
and desirable goal of all religious groups in India, while the
international community recognizes multi-religiosity as the natural state
of things. Peaceful coexistence, fraternization, integrity,
harmony are indeed laudable but any majoritarian pressure to erase the
identity and to absorb and assimilate their distinctive personality goes
against the concept of freedom and equality, as Dharmadhikari J. says, for
‘gradual elimination of majority and minority classes’. He is
apprehensive of rise of multi-nationalism in India but perhaps at the back
of his mind he equates multi-religiosity with multi-nationalism and the
latter with secessionism.
safeguards and assurances under the Constitution and in international law
shall be reduced to zero if the distinct identity of any religious group,
howsoever small, is denied and any group is forced to relate to Hinduism
as a sect or sub-sect. The Sikhs and the Jains and the Buddhists will not
accept Hindu hegemony on the ground that they are all branches of the same
tree, which has sprang from the same soil. Dharmadhikari J.’s views
clearly reflect the Hindutva philosophy. It is time that the Supreme Court
free itself of any lurking intellectual subservience to the Hindutva
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