Jain Minority Status in India as Directed by the Supreme Court of India
Government of India
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2. The hoary antiquity and the unique religious and metaphysical identity of Jainism is an unimpeachable historical fact attested by eminent Indologists and scholars. Yet Jain religion and community is being denied its constitutional minority status on par with other religious minorities such as Muslim, Christian, Sikh, Buddhist and Zoroastrian (Parsi) under the National Commission of Minorities Act, 1992, of the Government of India.
3. Unfortunately a major fallacy was built into the Constitution itself by treating a reference to Hindus as including a reference to Sikh, Jain and Buddhist religions. This was done under an implicit and unspelt out assumption that the majority of those residing in India, having faith in Vedas, and those not believing in Vedas such as Jains, Sikhs and Buddhists-excluding Muslims, Christians and other religions of non-India origin- are Hindus on the specious consideration that these are following a Hindu way of life, and hence are taken to be followers of Hinduism.
4. This is precisely where the crux of the Minority problem, its communalization or Hinduisation lies; just because Jains, Buddhists, and Sikhs have grown together through centuries with the rest of the Vedic-Brahmanic Hindus and other ethnic and religious minorities and there is an inevitable intermingling of pluralist customs, traditions and culture it cannot simply mean that the non-Hindus or non-Vedics have forsaken their individual religious and ethnic identities. Likewise is the case of Christians and Muslims in India that although they are forbidden from the mainstream of the pan-Hinduistic culture, yet the fact remains that as much as the Hindus, Jains and Buddhists have influenced each other equally, these so-called alien faiths have not remained aloof and certainly played a seminal role in the synthesis of Indian or Bharatiya, and not Hindu culture.
5. Unfortunately the basic facts are lost sight as to when the term Hindu came into currency in India and also how the so-called Hinduism or the Hindu culture is influenced fundamentally by the ethical and metaphysical principles of Jainism such as ahimsa and the theory of karma and transmigration of souls. It is pertinent to note that the concept of ahimsa was foreign to Vedic culture as shown by the eminent Indologist Prof.W.Norman Brown in his Tagore Memorial Lectures, 1964-65, Man in the Universe:
6. Though the Upanishads contain the first literary reference to the idea of rebirth and the notion that ones action karma determines the conditions of ones future existences, and though they arrive at the point of recognizing that rebirth may occur not only in animal form but also in animal bodies, they tell us nothing about the precept of ahimsa. Yet that precept is later associated with the belief that a soul in its wandering may inhabit both kinds of forms. Ancient Brahmanical literature is conspicuously silent about ahimsa. The early Vedic texts do not even record the noun ahimsa nor know the ethical meaning which the noun later designated The ethical concept which it embodies was entirely foreign to the thinking of the early Vedic Aryans, who recognized no kinship between human and animal creation, but rather ate meat and offered animals in the sacrifice to the gods.
7. Therefore, Prof.Brown concludes: The double doctrine of ahimsa and vegetarianism has never had full and unchallenged acceptance among the Hindus, and should not be considered to have arisen in Brahmanical circles, it seems more probable that it originated in a non-Brahmanical environment, and was promoted in historic India by the Jains and was adopted by Brahmanic Hinduism.
8. In a Memorandum by the Representatives of the Jain community presented to the Constituent Assembly it was categorically claimed that Jainism being essentially a non-Vedic religion having distinctive social and religious customs and their own system of law, the Jain community should be treated as a minority.
9. As B.Shiva Raus classic exposition The Framing of Indias Constitution: A Study shows that Article 25 relating to religious freedom and particularly its Explanation II including Buddhists, Sikhs and Jains in the definition of Hindus was finalized by the Fundamental Rights Sub-Committee. It is indeed a constitutional conundrum why the Founding Fathers should have resorted to this devious means of social welfare and reform of Hindu religious institutions by a blatant invasion of the admittedly distinct Sikh, Buddhist and Jain religious identities.
10. On 25th January, 1950, a Jain delegation was led to the Prime Minister, Jawaharlal Nehru and other Central leaders to draw their attention to the anomalous position of the Jains under Sub-clause (b) of clause 2 of Article 25 of the constitution and a petition was submitted. Jawaharlal Nehru clearly assured the delegation that the Jains are not Hindus.
11. Jawaharlal Nehru had earlier said in his Allahabad speech on September 3, 1949 (reported in The Statesman dt.Sept.5, 1949): No doubt India has a vast majority of Hindus, but they could not forget the fact there are also minorities-Muslims, Christians, Parsis and Jains. If India was understood as a Hindu Rashtra it meant that minorities were not cent per cent citizens of the country.
12. In the aforesaid context a grave injustice has been done to the Jain community in as much as its legitimate constitutional status as a minority community has been denied by the Government of India Notification dated 23-10-1993 declaring Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Paris) as Minority communities under the National Commission for Minorities Act 1992.
13. Later in pursuance of various representations made by the Jain community to the National Minority Commission and the evidence presented as regards the ancient religious identity of Jainism distinct from Vedic Hinduism the National Minority Commission in consideration of: (1) the relevant constitutional provisions, (2)various judicial pronouncements, (3) the fundamental differences in philosophy and beliefs (theism vs. atheism principally) vis-а-vis Hinduism, and (4) the substantial number of Jain population, recommended to the Government of India that the Jains be recognized as a distinct religious minority on 23-10-1994. This recommendation was renewed in 1996.
14. It is pertinent to note in this context that right from the first Census in British India in 1871 the Jains are enumerated as a major religious community. Also the Government of India Resolution No.F.8-9/93-SC/St dated 28-7-95 of the Ministry of Human Resources Development, in its Memorandum of Minorities Education Cl.3.1.3 mentions that according to 1981 census the religious minorities constitute about 17.4\% of the population of which Muslims are 11.4\%, Christians 2.4\%, Sikhs 2\%, Buddhists ).7\% and Jains ).5\%. It means that per 10,000 persons in India 8,264 are Hindus, 1,135 are Muslims, 243 are Christians, 195 Sikhs, 71 Buddhists and 48 are Jains. According to the latest Census 2001 the total population of the Jains is 4,225,053, that is, 0.4\%
15. As the Central government was not inclined to take a decision even after these two clear recommendations of the National Minority Commission, Dakshin Bharat Jain Sabha, a premier Jain social, religious and cultural institution, was constrained to file a writ petition in 1997 in the Bombay High court through its Convenor, Jain Minority Status Committee, Mr. Bal Patil, praying for an early decision on the Jain minority issue as recommended.
16. A Division Bench comprising of the Bombay High Court in their Order on 20-10-1997 directed the Central Government to take an expeditious and as early as possible decision on the issue of Jain minority recognition as recommended by the National Minority Commission. As the Central Government failed to take action on this Order the Convenor decided to prefer a Special Leave Petition in the Supreme Court of India in 1999 for which Leave was granted.
17. It is pertinent to mention that the Jain community in seeking the minority status is not asking for any reservations such as is available to the Other Backward communities and Scheduled castes and Scheduled Tribes in India under the constitution. The constitutional minority status enables the minority community to give preferential educational and employment opportunities to the students of their community.
18. The latest ruling on October 31, 2002 of the 11-Judge Constitution Bench of the Supreme Court of India is significant because it re-defines the rights of minorities to establish and run educational institutions of their choice. On the question, who constitutes a minority, the Bench said, The linguistic and religious minorities have to be considered on the basis of States and the population therein as the States were reorganized on the basis of language.
19. So far Karnataka, Madhya Pradesh, Maharashtra, Uttaranchala, Rajasthan, Jharkhand, Chattisgarh and Uttar Pradesh have declared minority status for the Jain community. The Jain community is aggrieved because there is no uniform, statutory all-Indian recognition of their minority status and that it has no representation in the National Minorities commission.
20. Mr.Bal Patils Civil Appeal in this matter came up for hearing on July 28, 2004. The Supreme Court Order of the Division Bench comprising of Justice Ashok Bhan & Justice Kapadia dated July 29, 2004 has directed the Central Government to take a final decision on the recommendation of the National Minority Commission pending for the last ten years that the Jain community be recognised as a minority community within four months.
21. The Supreme Court Order as noted above has asked the Central Government to take a decision to include Jain community in the Central Notification within the next four months i.e. by first week of December 2004 as recommended by the National Minority Commission. If no decision is taken within this stipulated time the Supreme Court has ruled that no further time shall be granted to the Union of India and the Appeal will be taken up for hearing.
22. As the Supreme Court Order concludes: Since the recommendations are pending for consideration before the Central Government for the last ten years and a final decision has to be taken, we adjourn this case to enable the government to take a final decision on the point within four months from today. It is made clear that no further time shall be granted to the Union of India.
23. It is thus a test of the secular conscience of the Government of India of the United Progressive Alliance which has adopted the Common Minimum Programme with a major objective of minority welfare.
24. This is a historic opportunity for the international Jain community to co-operate and come together regardless of the sectarian differences with their Indian Jain brethren to achieve their legitimate constitutional right as a distinct religious Minority on par with Buddhists and Sikhs who are already declared as minorities and appeal to the Indian Government to take an expeditious decision as directed by the highest judiciary in the land and sign this petition