December  2005 
Year 12    No.113


Majority rules?

A recent Supreme Court judgement on the minority status of Jains places the Hindu religion above all other religions in India


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.)

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