Jain Religious Minority Status - Update

Posted: 18.10.2007
Updated on: 02.12.2010

Dear Editors, HereNow4U,

I am indeed thankful to you for carrying my homage to the late Dr.L.M. Singhvi. Till very recently I interacted with him on phone and benefitted with his juristic advice in my Supreme Court matter for the recognition of Jain minority right. At the moment my APPLICATION FOR MODIFICATION / CLARIFICATION OF JUDGMENT AND ORDER DATED 8TH AUGUST 2005 is pending for hearing before a Three Judge Bench with the Chief Justice of India.

The present Applicationformodification / clarification of Judgment and Order dated 8th August, 2005 has been filed, inter alia, on account of certain observations as regards the claim of minority status of the Jain community. By way of the Judgment and order dated 8th August 2005, this Hon’ble Court directed that before the Central Government took a decision on claims of Jains as a ‘minority’ under section 2 (c) of the Act, the identification would have to be done on a State basis. It was also held that the power of Central Government would have to be exercised not merely on the advice and recommendation of the National Commission for minorities, but on consideration of the social, cultural and religious conditions of the Jain community in each State.

However, certain observations were, thereafter, made which would virtually have the effect of negating such a claim by the Jain community, even before it is considered by the Central Government.

However, after issuing the aforesaid directions, this Hon’ble Court made certain observations about the functioning and conduct of the National Commission for Minorities and also certain observations about the Jain community, which would render as meaningless the consideration to be made by the Central Government. Some of these observations are as follows:

“The so-called minority communities like Sikhs and Jains were not treated as national minorities at the time of framing the constitution. Sikhs and Jains in fact have throughout been treated as part of the wider Hindu community, which has different sects and sub-sects, faiths, modes order of worship and religious philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act and Hindu Adoption and Maintenance Act and other laws of pre and post constitution period, definition of Hindu included all Sects, sub-sects of Hindu religions including Sikhs and Jains.”

“The word ‘Hindu’ conveys the image of diverse groups of communities living in India. If you search for a person by name Hindu, he is unidentifiable. He can be identified only on the basis of his caste as upper caste Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as Shudras. Those who fall in the Hindu calls of ‘Shudras’ are now included in the Constitution in the category of Scheduled Castes with special privileges and treatment for their upliftment. This was found necessary to bring them at par with upper castes in Hindu society. The aboriginals, who have no caste were considered as distinct from four castes or Varnas of Hindu society. They have been treated favourably in the Constitution as Scheduled Tribes. For them also there are provisions for special treatment and grant of special privileges to bring them on level with the other castes from the main advanced streams of Indian society.”

That it was further observed as follows:

“There is a very serious debate and difference of opinion between religious philosophers and historians as to whether Jains are of Hindu stock and whether their religion is more ancient than the vedic religion of Hindus. Spiritual philosophy of Hindus and Jains in many respect is different but the quintessence of the spiritual thought of both the religions seems to be the same. The influence of Hindu Vedic religion is quite apparent in the custom, style of living, belief and faith of Jains. Jains do not worship images or idols of Gods but worship their Tirthankaras meaning their ideal personalities who have attained human perfection and excellence by a process of self-improvement. The literal meaning of the word ‘Jain’ is one who has attained ‘victory’. It signifies a person who has attained victory over himself by the process of self-purification. ‘Jain’ is a religious devout who is is continuously striving to gain control over his desires, senses and organs to ultimately become master of his own self.”

“This philosophy is to some extent similar to the vedic philosophy explained by Lord Krishna in ‘Bhagwat Geeta’, where Lord Krishna describes qualities of a perfect human as ‘Stithpragya’. Geeta has used the example of Tortoise to describe a balanced human-being as one who has gained full control over his organs like a Tortoise does which whenever needed, opens its limbs of body and when not needed, closes them.”

“Thus, ‘Hinduism’ can be called a general religion and common faith of India whereas ‘Jainism’ is a special religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence (Ahimsa) and compassion (karuna). Their only difference from Hindu is that Jains do not believe in any creator like God but worship only the perfect human-being whom they called Tirathankar. Lord Mahavir was one in the generation of Thirthankars. The Tirthankaras are embodiments of perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis, Aryasamajis and Lingayats. The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah. [See:- 1) Encyclopedia of Religion and Ethics Vol. 7 page 465; 2) History of Jains by A.K. Roy pages 5 to 23; and Vinoba Sahitya Vol. 7 page 271 to 284].”

“The constitutional ideal, which can be gathered from the group of articles in the Constitution under Chapters of Fundamental Rights and Fundamental Duties, is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.”

“The above mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels. Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes. If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of ‘minority’ is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensure. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat.”

“The Commission instead of encouraging claims from different communities for being added to a list of notified minorities under the Act, should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether.”

(These observations should also include those on the role alleged to have been played by Nehru, Gandhi and Patel that they were responsible for the partition of the country. Such observations the unconscionable nature of the extra-judicial observations in the judgement.)

It is respectfully submitted that the aforesaid aspects were not in issue in the case. Thus, no arguments were addressed by the counsel for the parties and there were no pleadings. It may be stated that the Petitioner had challenged the notification dated 23rd October, 1993 to be ultra-vires on the ground of hostile discrimination, whereby the Central Government declared Muslims, Christians, Parsis, Buddhists and Sikhs as minority community excluding Jains from the list arbitrarily.

It was also on record that in various States such as Chattisgarh, Maharashtra, Madhya Pradesh, Uttar Pradesh, Karnataka, Jharkhand and Uttaranchal, have already notified Jains as a religious minority in accordance with their respective State Minority Commission Act. The Jain community has been declared as religious minority community in the State of Rajasthan for purpose of Article 30 and for no other purpose. Whereas notification issued by the Central Government on 23rd October, 1992 was not for declaring religious minority community as per Article 30 of the Constitution of India but to declare minority community in terms of Section 2(c) of the Act for the determination of which no guidelines were laid down in the Act of 1992.

Recently the West Bengal Government have also declared minority status for the Jains.

That it is in view of the abovementioned observations which would have the effect of virtually nullifying the claim of the Jain community of being declared as a minority, that the present application for modification / clarification is being filed.

  1. In the circumstances, it is most respectfully prayed as follows :-
    That this Hon’ble court be pleased to expunge the remarks made in respect of the Jain community;
  2. That this Hon’ble Court be pleased to direct the Central Government to consider the case of the Jain community for minority status uninfluenced by any observations made in the judgment."

In the aforesaid context for the Jains in India, however, there are some encouraging judicial straws in the wind. The latest Division Bench judgement delivered by Dalveer Bhandari in the Supreme Court is a significant pointer that all is not lost for the Jain minority.

The judgement dated August 21, 2006, in the case of Committee of Management, Kanya Junior High School Bal Vidya Mandir, Etah, UP vs Sachiv, UP, Basic Shiksha Parishad, Allahabad, UP & Others, delivered by judges, SB Sinha and Dalveer Bhandari, emphatically states:

"(The) Jain religion indisputably is not a part of Hindu religion. The question as to whether the Jains are part of the Hindu religion is not open to debate. Jains have a right to establish and administer their own institution. But only because an institution is managed by a person belonging to a particular religion the same would not ipso facto make the institution run and administered by a minority community. A minority is determinable by reference to the demography of a state. Whether an institution is established and administered by a minority community or not may have to be determined by the appropriate authority in terms of the provisions of the statute governing the field. Furthermore, minority institutions are not immune from the operations of the measures necessary to regulate their functions. To what extent such regulations would operate, however, again is a matter which would be governed by the statute.

"Minority communities do not have any higher rights than the majority. They have merely been conferred additional protection. This has been laid down by an 11-judge bench of this court. [See: PA Inamdar & Others vs State of Maharashtra & Others, (2005) 6 SCC 537.]

Thus the Jain religious minority status has reached a crucial constitutional and judicial stage'.

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