Friday, May 9, 2008

Indian Supreme Court Judgement on Jain Minority Issue

President, Chakresh Kumar Jain,
Secretary-General, Bal Patil

The press and media reports on the recent Supreme Court Judgment of the Three-Judge Bench of the Chief Justice, R.C. Lahoti, Justice D.M. Dharmadhikari and Justice P.K. Balasubramanyam are misleading. The reports were headlined stating that “SC.declares Sikhs, Jains part of broader Hindu religion”. Such reports appeared in leading English dailies like the Hindustan Times, The Tribune, The Times of India, and the local language newspapers.

2. Actually the observation that the Sikhs and Jains are “part of the wider Hindu community” occurs on P.15 of the Judgment. It is pertinent to note that from page 10 to page 22 the Judgment contains observations that are not part of the decision as the Court notes:

“Before parting with this case, the Court cannot resist from making certain observations which are considered necessary in order to remind the National and state commissions for Minorities the scope and nature of their functions under the provision of the Act and the role they have to play in constitutional perspective”.

3. The other observations which are not part of the Judgment and hence not Judicially relevant are:i)“ The Hinduism can be called a general religion and common faith, whereas Jainism is a special religion formed on the basis of quintessence of Hindu religion.”

ii)“However, Gandhi, Nehru and Patel destroyed the cabinet Mission Plan (proposed by Maulana Abul Kalam Azad) and accepted partition instead. Azad did his utmost to prevent the partition of India but he failed to persuade Nehru and Gandhi not to accept partition.”

4. These observations although made extra-Judicially have grave implications because the general public takes any declaration made by the Supreme Court as the law of the land. And as can be seen from the press reports and news Channels giving the wrong impression that the Supreme Court rejected the Jain demand for backward community status how damaging such extra-Judicial remarks can be.

5. It is in this perspective that the Judgment of the Supreme Court in the matter of Bal Patil & Anr. Vs. Union of India has given the wrong message to the country against the Jain Community, the National leaders of the country whom we call “Founding Fathers” and the statutory functionaries Viz the National and State Commissions for Minorities who are said to be the cause of fissiparous tendencies.

6. As a matter of fact these extra-Judicial observations are quite irrelevant and uncalled for in view of the central issue of the matter, namely, a prayer to take a decision on the recommendation made by the National Commission for Minorities that Jains be declared a minority religious community on par with the other notified communities, Muslims, Christions, Sikhs, Buddhists and Zoroastrians (Parsis).On this issue the present Supreme Court decision has said that:

i) “Before the Central Government takes a decision on the claims of Jains as a minority under section 2 (c) of the Act, the identification has to be done on a state basis. This power is to be exercised on the consideration of social cultural and religions conditions of the Jain community in each state,”

ii) “The state has to be regarded as a unit for determining religions minority for the purpose of Article 30 of the Constitution.”

7. The facts of this petition are as follows:
Dakshin Bharat Jain Subha, a century old Jain organization in western India made a petition through its Convener of Jain Minority states Committee, Bal Patil in the Bombay High Court in 1997 that the Jain community as recommended by the National Commission for Minorities, The Division Bench of the Bombay High Court directed the Central Government to take on expeditious decision.

8. As the Government failed to take decision, a second petition was filed in the Bombay High Court which was disposed on the ground that the matter will be decided after the 11 Judge Bench in TMA Pai Foundation matter takes decision.

9. Thus Bal Patil made a Special Leave Petition to the Supreme Court which was admitted after being taken of the purview of the 11-Jndge Bench. In 2004 a Division Bench of the Supreme Court ordered the Central Government to take a final decision in the matter within four months, and in case of its failure to take a decision permitted the petitioner to be heard on merit.

10. It is pertinent to note that this Order also emphasised that in "T.M.A Pai Foundation's case the the point raised inthis appeal was neither raised nor decided. A final decision has now to be taken by the government on the aforesaid recommendation made by the Commission."

11. The Government of India made an erroneous and irrelevant Affidavit in response to the above order that the minority Status is to be determined by the States concerned. Later on a 3-Judge Bench was constituted the latest SC. Decision is the outcome of this Bench.

12. In the aforementioned context the following facts regarding the Jain minority religions right need to be noted.

i) The Jain demand for minority status is almost a century old, when in British India the Viceroy and Governor General of India, Lord Minto took a decision in principle of giving representation to important minorities in the Central Legislature, Seth Manek Chand Hirachand from Mumbai, an eminent Jain leader from Mumbai and the then Acting President of the Bharatvarshiya Digamber Jain Subha made an appeal in 1909 to the Governor General for the inclusion of the Jain community for representation in the Council. Seth Manek Chand’s petition was transferred to the Government of Bombay and the Secretary to the Government of Bombay stated in his reply dated 15th oct.1909 as under.

“I am directed to inform you that a number of seats have been reserved for representation of minorities by nomination and that in allotting them the claim of the important Jain Community will receive full consideration.”

ii) In a Memorandum by the Representative of the Jain Community to the Constituent Assembly in March/April 1947 a strong appeal was made for the inclusion of the Jain community as a minority religious community.

iii) In his speech on 3rd Sept.1949, Jawahar Lal Nehru said: “No doubt India has a vast majority of Hindus, but they cold not forget in fact there are also minorities Mustions, Christians, Parsis and Jains. If India were understood as Hindu Rashtra it meant that the minorities were not cent per cent citizens of the country:

iv) Jainism is mentioned as a religion along with Buddhism and Sikhism in explanation II of the Article 25 of the India Constitution relating to Fundamental Right to religions freedom. On this issue Jawahar Lal Nehru, the than prime Minister, in his letter dated 31.01.1950 assured a Jain Deputation that they need not have any misgivings on this clear constitutional position.

v) Our National Anthem ‘Jana Gana Mana’ by Tagore clearly enunciates Jains in its second stanza: “Hindu Bauddha, Sikh Jain parsik, Musalman, Christans “as a distinct religion denomination”

vi) The Government of India Census counts Jains in India as a major religious community right from the first census in British India in 1873.

vii) And the clinching statistical census evidence that the Jains are in minority not only in every state of India but also in every district.

13. As view of the foregoing the Supreme Court Judgment extra-Judicial observations on the religious status of the Jain community as part of the Hindu religious are absolutely without any basis. Also the remarks against the National leaders like Nehru, Patel and the very Father of the Nation as responsible for the partition of India are obnoxious.

14. As a matter of fact the entire tenor of the SC observations on the National and State Minority Commissions as leading to “fissiparous tendencies” and hence calling for their closure are highly objectionable as they question the basic tenets of the India secular constitution and hence need to be expunged.

15. In view of the forgoing observations of the Supreme Court the Jain community and the petitioner in the impugned Judgment are concerned to make a Review Petition in the matter.


Jain Member, Maharashtra State Minorities Commission, Govt. of Maharashtra,
Chairman, Jain Minority Status Committee, Dakshin Bharat Jain Sabha
Secretary-General, All-India Jain Minority Forum,
Co-Author: JAINISM (Macmillan Co 1974). with Colette Caillat, (Member Institut de France, Paris,) & A.N. Upadhye, (ex-President, All-India Oriental Conference,)
Author: SUPREME COURT'S VOLTE FACE ON CONSTITUTIONAL AMENDMENT (Published by Govt. of Maharashtra, 1980)

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