BY SYED SHAHABUDDIN
The August 8, 2005 judgement of a three-judge bench of the
Supreme Court consisting of Chief Justice RC Lahoti, Justice DM Dharmadhikari
and Justice PK Balasubramanyan in the Bal Patil Case (CA 4730 of 1999), written
by Justice Dharmadhikari, has not received the critical attention it deserves.
Perhaps because the Jains are a relatively small minority that
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) Maharashtra
(1.3), (2) Punjab (0.65), (3) Madhya Pradesh, MP (0.55), (4) Gujarat (0.53), (5)
Karnataka (0.41), (6) Uttar Pradesh, UP (0.21) and (7) Delhi (0.16), which
together account for 91 per cent of the national population of Jains. In all
these states the minority forms about one per cent or less of the state
population. Thus it has little political strength.
The Jains have been considered a separate religious community
since the decennial census was first introduced. But the Jain community enjoys a
special distinction. It is not recognised as a religious minority placed within
the jurisdiction of the National Commission for Minorities by the same
government that holds the census although three of the seven states, namely,
Maharashtra, MP and UP, have recognised it as such under the State Minorities
Commission Act. Two other states created by the reorganisation of MP and UP,
namely, Chhattisgarh and Uttaranchal, have also recognised it as 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 an 11-judge bench’s decision in the TMA Pai case (2002 (8) SSC
481), which related to the 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
the reorganisation of the states in India had been carried out on a linguistic
basis, the unit for the purpose of determining a linguistic minority should be
the state and not the whole of India. But the verdict goes on to apply
the same yardstick to religious minorities, even though the states were not
organised on a 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 logically follow, as the states were not reorganised on a
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 by the Supreme Court and
refused to exercise its statutory power under the Act, thus making it redundant.
The interesting point here is that Muslims, Christians,
Sikhs, Buddhists, even Parsis (a minuscule community with a population of less
than 0.1 million) 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 that will qualify them to be notified as a minority by the central
government!
The Constitution in explanation to Article 25 recognises the
existence of the Jain religion but brackets it with Buddhism and Sikhism for the
limited purposes of one Section of the Article dealing with a common social
aspect. Consider that only five days after the promulgation of the Constitution,
the then prime minister Jawaharlal Nehru, through a letter of June 31, 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 was no reason to apprehend that Jains would be considered Hindus. Thus
the judgement is constitutionally unsound and violates an equal assurance of the
executive.
The appellants have decided to seek a review of the judgement.
One hopes that the Supreme Court shall realise the basic flaw in the TMA Pai
judgement in relating the status of religious minorities to states determines
the scope of Article 30 of the Constitution and has nothing to do with the
question of which religious groups form a national minority and come under the
purview of the National Commission for Minorities.
Having disposed of the Jain demand summarily, 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 to resolve the communal problem in
terms of the constitutional safeguards demanded by the Muslim community e.g. a
separate electorate and the reservation of seats in legislatures. Some
safeguards were conceded in stages by the imperial power. Ultimately, 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 put
forward by Jinnah and Liaqat. In effect, the obiter dicta reduce the complex
course of negotiations between the Indian National Congress and the All India
Muslim League over 20 years, in which Rajendra Prasad, Nehru, Subhas Bose and
Gandhi all participated (it is doubtful if Azad was directly involved at any
stage) toward a mutually acceptable settlement, to a one-shot event!
He ‘quotes’ eminent jurist HM Seervai to lay 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 minds of Muslims and Christians, the
Constitution provided them special guarantees and protection of their religious,
cultural and educational rights in the form of Articles 25 to 30. This is an
absurd reading of the Constitution. Articles 25-28 relate to freedom of
religion and are universal in their application to all citizens. Articles 29 and
30 relate to the cultural and educational rights of minorities. Both sets form
part of the fundamental rights. But they are distinct from each other both in
scope and purview.
Then the obiter dictum says that only Muslims, Christians,
Anglo-Indians and Parsis are recognised as religious minorities at the national
level and attributes the size of the Muslim and Christian communities to the
duration of Mughal and British rule! It suggests that the object of the Mughal
state and British rule was conversion. This is far from the truth. How does it
explain why regions which were under Mughal rule for a very short period, or not
at all, have a much higher proportion of Muslims, such as Bengal and Kerala,
while Muslims have a low proportion in the Gangetic Valley and the Deccan, which
were under Muslim rule for nearly 700 years? How does it explain why the
percentage of Christians did not exceed two per cent during British rule?
The obiter dicta describe Sikhs and the Jains as ‘so-called
minority communities’ that were not treated as national minorities at the time
the Constitution was framed and have throughout been treated as part of the
larger Hindu community. It seeks to reduce them to sects or sub-sects of the
Hindu religion.
The fact is that right from 1871, when the decennial census
began, Sikhs and Jains have been recognised as religious communities on par with
Hindus and Muslims. And during the making of the Constitution, Sikhs, Buddhists,
Jains and Parsis all received attention and were recognised as minorities.
The obiter dictum identifies the Scheduled Castes in the
Constitution as the Sudras of Hindu society, a view not shared by eminent
sociologists. They were basically the Untouchables, outside the part of
Hinduism. They were designated as Harijans by Gandhi. They are now called Dalits.
Of course, it recognises Scheduled Tribes as non-Hindus: The Achhuts are
distinct from the Sudras and under the Constitution, the Sudras and the SCs/STs,
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 uncharted territories
without a compass becomes apparent when in the next paragraph he identifies
Jainism with what he calls Hindu Vedic religion though the Jains reject the
Vedas and Brahmanical philosophy, for the Tirthankaras and especially Mahavir
have charted their own spiritual course, much like Buddhism.
Then Justice Dharmadhikari 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 antithesis 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. they were born! This projected
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’ recorded in census after census.
Having wandered through philosophy and religion, Justice
Dharmadhikari propounds his constitutional thesis for redefining the status of
various religious groups as minorities, conferring it only upon those that had
to be reassured 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 than those identified in the course of independence
negotiation.
Justice Dharmadhikari 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 the 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 crystallisation 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 reiterated what the Indian Constitution gave to the
religious, linguistic, racial and cultural minorities of the country. Today
minority rights are universally accepted as indivisible from and essential to
human rights because almost every nation-state is multi-religious, multi-lingual
and multi-cultural.
But Justice Dharmadhikari sees assimilation in Hinduism as the
alternative and desirable goal of all religious groups in India, while the
international community recognises multi-religiosity as the natural state of
things. Peaceful coexistence, fraternisation, integrity, harmony are indeed
laudable but any majoritarian pressure to erase their identity and to absorb and
assimilate their distinctive personality goes against the concept of freedom and
equality, as Justice Dharmadhikari says, for ‘gradual elimination of majority
and minority classes’. He is apprehensive about the rise of multi-nationalism in
India. Perhaps he equates multi-religiosity with multi-nationalism and the
latter with secessionism, at the back of his mind.
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 itself to Hinduism as a sect or sub-sect. The Sikhs, the Jains
and the Buddhists will not accept Hindu hegemony on the ground that they are all
branches of the same tree that has sprung from the same soil. Justice
Dharmadhikari’s views clearly reflect the essence of Hindutva philosophy. It is
time the Supreme Court frees itself of this intellectual subservience.
(Syed Shahabuddin is president, All India Muslim
Majlis-e-Mushawarat.)
