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Posted Online on Saturday 4, November 2005 09:45 IST

Muslim Islamic NewsSupreme Court Judgement on Minority Status of Jains

Obiter Dicta Places Hindu Religion Above all Other Religions

By Syed Shahabuddin

The Milli Gazette Online

3 November 2005

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 news.

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.

The Judgement 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.

The interesting 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.

The Judgement does not even classify the number of State notifications which will qualify them to be notified as a minority by the Central Government!

The Constitution 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 executive.

The appellants 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?

Having summarily 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.

Secondly, 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 religion.

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.

Then Dharmadhikari J. comes to his final conclusion:

‘Hinduism can 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.

Having wandered 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 well-off.

Dharmadhikari J. 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.

But 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.

All constitutional 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 philosophy. «

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