Right of Jains to be Declared as a Minority based on Religion Some Observations
by Dr P.C. Jain*
Cite as : (2004) PL WebJour 10
The States of Uttar Pradesh1, Madhya Pradesh2 and Chhattisgarh3 have declared Jain community a minority based on religion. The Aurangabad Bench of Bombay High Court has also held so for the Maharashtra State4. The community which is recognized as a minority based on religion has the right to establish and administer educational institutions of their choice. Article 30(1) of the Constitution declares thus:
30. (1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
If Jains are part of Hindu religion they cannot also be called a minority based on religion. But, on the other hand, if, for the purpose of Constitution, they are not part of Hinduism, and form a separate independent religion can they, for the purpose of Article 30(1), be called a minority based on religion.
Meaning of Minority in Article 30(1)
The expression minorities based on religion attracts three elements, namely,
(I) the existence of a minority;
(II) it being based on religion; and
(III) the basis being religion in the sense in which the word is used in Article 30(1).
To understand the sense in which the Constitution-makers used the word minority in Article 30(1) of the Constitution, it would be better to look into the discussion preceding the enactment of Article 30(1). On 16-4-1947 the draft of the fundamental rights along with the Report of the Sub-Committee on Fundamental Rights was submitted to the Constituent Assembly. At that time it did not contain any provision corresponding to Article 30(1).5 On this Shri K.M. Munshi submitted one proposal for conferring certain rights on national minorities based on religion. The genesis of his proposal was from the minorities rights embodied in the Polish Treaty of 28-6-1919 which became a part of the Polish Constitution.6 It is well known that the problem of national minorities bedevilled Europe and was tried to be settled by the Treaty of Versailles after the First World War, the Polish Treaty being a part of the settlement. The political element in the use of the word minority was signified by the adjective national to qualify the word minorities both in the Polish Treaty and in the Munshis draft. Munshis proposal was accepted by the Sub-Committee on Minorities and was embodied as an annexure to their interim report.7 Later, para 18 of the draft of fundamental rights contained the provisions corresponding to the present Articles 29 and 30 of the Constitution. In that draft both the rights, as contained under Articles 29 and 30 in the present Constitution, were conferred on minorities. The Drafting Committee, however, distinguished between the right of any section of citizens to conserve their language, script or culture8 and the right of all minorities based on religion or language to establish and administer educational institutions of their choice.9 Thus, the word minorities was ommitted from the draft of fundamental rights relating to the conservation of language, script or culture. This omission, however, was objected to by Shri Lari. Dr Ambedkar submitted to the House as to why the Drafting Committee thought it necessary to alter the language of paragraph 18 of the fundamental rights thus10:
On reading the paragraph contained in the original fundamental rights, it will be noticed that the term minority was based therein not in the technical sense of the word minority as we have been accustomed to use it for the purposes of certain political safeguards, such as representation in the legislature, representation in the services and so on. The word is used not merely to indicate the minority in the technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense, but which are, nonetheless, minorities in the culture and linguistic sense.11 For instance, for the purposes of this Article 23, if a certain number of people from Madras came and settled in Bombay for certain purposes, they would be, although not a minority in the technical sense, cultural minorities. Similarly, if a certain number of Maharashtrians went from Maharashtra and settled in Bengal, although they may not be minorities in the technical sense, they would be cultural and linguistic minorities in Bengal. The Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term, as I have explained just now. That is the reason why we dropped the word minority because we felt that the word might be interpreted in the narrow sense of the term, when the intention of the House, when it passed Article 18, was to use the word minority in a much wider sense, so as to give cultural protection to those who were technically not minorities but minorities nonetheless.
Thus, Dr Ambedkar made a distinction between the technical and non-technical senses of the word minority. He used the term minority in the former sense in connection with reservations for minority in legislatures and services. Muslims, for instance, were such a minority. He used the non-technical sense of minority where majority community people of one linguistic area migrating to another and becoming there a linguistic minority. To dispel the uncertainty when the word minority is used in these two different senses, it was dropped from Article 29(1) and in its place the words any section of the citizens were substituted, which have now formed part in Article 29(1) of the Constitution.
In draft Article 23(3), the predecessor of the present Article 30(1), the words minority based on religion, community or language was used. One Mr Pandit Thakur Das Bhargava suggested an amendment for the deletion of the word community. He explained the object of the amendment as follows:12
Now, Sir, the word community is sought to be removed from this provision because community has no meaning. It is a fact that the existence of a community is determined by some common characteristics and all communities are covered by the words religion or language, then community as such has no basis.
Dr Ambedkar accepted this amendment and the word community was dropped inasmuch as a minority based either on religion or on language necessarily covered the word community which was itself based either on religion or language.13
Minority based on religion
The words minority based on religion used in Article 30(1) mean that the only or principal basis of a minority is either adherence to one of the many religions and not a sect or a part of the religion. In all religions sub-sections, sects or classes exist. For instance, the Arya Samajis among the Hindus, the Catholics or the Protestants among the Christians, the Shias or the Ahammadiyas among the Muslims, the Namdharies among the Sikhs etc. may be called religious denominations inasmuch as they are numerically less in number professing doctrines which are different than those of the majority although the religion is the same.14 Thus, there cannot be a religion within a religion, though there can be a religious denomination within a religion. Such denomination cannot be a minority based on a religion. Therefore, the minority contemplated under Article 30(1) must be based on a religion which should be distinct from other religions.
Context of religion in the Constitution
Under the Constitution, different rights and different aspects relating to religions are considered. Articles 25 to 28 are grouped under the heading Right to Freedom of Religion and Articles 29 to 30 are placed under the group Cultural and Educational Rights. Each of these Articles have separate marginal headings. Article 25(1) gives the right to profess, practise and propagate religion to each individual irrespective of whether he belongs to the majority or minority. An individual need not subscribe to the religion as a whole but may do so only in respect of the basic tenets. If a law or administrative action contravenes the particular part of the religion professed by the individual, his right to profess, practise or propagate that religion may be affected. In this context, therefore, the word religion means the distinct religion and all recognised practices thereof.15
II IDENTITY OF SIKHS, JAINS AND BUDDHISTS AS SEPARATE RELIGION
The Constitution of India under its Article 25(2)(a) empowers the State to regulate or restrict any political, economic, financial or other secular activity which may be associated with religious practice. Its Article 25(2)(b) empowers the State to make any law providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I to Article 25(2)(b) says that the wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II of it says that in sub-clause (b) of clause (2) of Article 25, the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
The use of the word Hindus in Article 25(2)(b) and the words Sikh, Jain and Buddhist in Explanation II have given birth to the controversy whether the latter are followers of religions other than the Hindu religion or that they are merely sects or sectional faiths which are a part of the larger Hindu religion?
It is to be noted that Article 25(1) deals with religion. The Hindu religious institutions referred to in sub-clause (b) of clause (2) must, therefore, be confined to the Hindu religion. This would necessarily mean that Hindu religious institutions would not cover the institutions of religions other than the Hindu religion. In Explanation II, the reference to persons professing the Sikh, Jain or Buddhist religion meant that persons following these religions were not legally persons following the Hindu religion. They would not have come within the coverage of Article 25(2)(b) but for Explanation II. The object of Explanation II, therefore, was to widen the concept that Hindu religious institutions were broad-based and Sikhism, Jainism and Buddhism although separate religions could enjoy the right of temple entry. This object would not have been achieved if Explanation II had not been enacted. In other words, because of Sikhism, Jainism or Buddhism being separate religions, they could not have been included among the Hindus in Article 25(2)(b) and, therefore, it was absolutely necessary to enact Explanation II to give the followers of Sikh, Jain and Buddhist religions the benefit of Article 25(2)(b) even though they belonged to religions other than Hinduism and their religious institutions would not be included in Hindu religious institutions but for Explanation II.
The Constitution Review Committee headed by Justice Venkata Chaliah recommended deletion of Explanation II to Article 25 so that the benefit of social welfare and reforms be provided to all classes and sections of these religions. In para 3.23.2 it states that after omitting Explanation II to Article 25, the sub-clause (b) of clause (2) of that Article should be reworded to read as follows:16
(b) providing for social welfare or reform or the throwing open of Hindu, Sikh, Jain or Buddhist religious institutions of a public character to all classes and sections of these religions.
Thus, in view of the Constitution Review Committee also Jain is a separate religion and not a part of Hinduism.
Again, one may argue that the followers of Sikhism, Jainism and Buddhism religions historically and culturally came out of Hindu religion and that the Hindu personal law applies to them, therefore, they are Hindus. As discussed above, it is clear that Article 25 recognized two different context in which the Sikhs, Jains and Buddhists could be treated as Hindus. This dichotomy of the Constitution in Article 25 was also maintained by Parliament in the enactment of the four statutes of the Hindu personal laws, namely, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and the Maintenance Act, 1956. Parliament enacted one section in each of these four statutes to maintain the dichotomy between those who are Hindus by religion and those who are Sikhs, Buddhists or Jains by religion even though the legislation would apply to all of them as the Hindu personal law used to apply to them before the enactment of these statutes. In enacting these four statutes the legislature expressly recognized that Sikhism, Buddhism and Jainism were religions separate from Hinduism.
In sub-section (1) of Section 2 of the Hindu Marriage Act, 1955 it is stated that this Act applies: (a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj; and (b) to any person who is a Buddhist, Jain or Sikh by religion. The legislature, in Section 2, instead of stating as above, could have simply said that the legislation applied to Hindus, Sikhs, Buddhists and Jains. Hence, as religion, the identity of Sikhism, Jainism and Buddhism have been recognized as that of separate religions.
The Indian Succession Act, 1925 has also recognized Jain as a separate religion. In its Section 20 it is provided that one cannot become capable simply by marriage to get benefit in the property of another partner of marriage and cannot become incapable of disposing of his or her property simply by that marriage. The above provision is a law relating to succession in which its sub-section (2)(b) reflects that the above provision would not apply to Hindu, Muhammadan, Buddhist, Sikh and Jain. Thus, as per Section (2)(b) of Section 20 also Jainism is a separate religion.
The Special Marriage Act, as it was originally enacted in 1872, has also mentioned the Hindu, Buddhist, Sikh and Jain religions as separate religions. The same position is maintained in the Special Marriage Act, 1954 as well.
The Constitution-makers in Article 25 have mentioned Buddhism, Sikhism and Jainism as separate religions. It may further be argued that as per Explanations I and II, Sikhism, Buddhism and Jainism are recognized as separate religions only for the purpose of temple entry and that Sikhism is also recognized as a separate religion for the purpose of carrying kirpan. It is quite true that Explanations I and II apply only to these two contexts. But it is to be noted that the Constitution-makers instead of recognizing Buddhism, Sikhism and Jainism as separate religions could have simply given the right to carry of kirpans to the Sikhs and the temple entry to Sikhs, Buddhists and Jains. In the same way, it could also be said that the declaration in the Hindu Code that these religions are separate from Hinduism was not necessary if the Hindu law was only to apply to Sikhism, Buddhism and Jainism that could have been done without declaring them as separate religions.
The competence of Constitution-makers was not limited by any religious doctrine. If they wanted they could have said that Sikhism, Buddhism and Jainism are not so much separate religions but only separate sects arising out of and based on Hinduism historically and culturally, and therefore, parts of Hinduism. But instead of saying so they have everywhere mentioned these three religions as separate religions. It was open to them to regard them as separate religions. If once they have regarded so, it should not be open for any one to argue that they are sects or sections of Hindu religion.
Thus, without any doubt, it could be said that the Constitution and the Hindu Code have recognized Jains to belong to a separate religion.
Jainism is separate from Hinduism
Learned historians have also declared that Jainism is separate from Hinduism. Heinrtch Zimmer17states as:
Jainism denies the authority of the Vedas and the orthodox traditions of Hinduism. Therefore, it is reckoned as a heterodox Indian religion.
J.N. Farguhar18states as:
Jainism has been a rival of Hinduism from the beginning.
Pandit Jawahar Lal Nehru19 has said that Jain religion or Bodh religion, certainly are not Hindu or vedic religion. Dr Radha Krishnan20 has also pointed out that there is great difference between basic principles of Hindu and Jain religion and they both are standing at two different poles.
In the second antara of Jan, Gan, Man, the National Anthem, composed by Gurudeo Ravindra Nath Tagore, Jain community had been separately mentioned along with Hindu, Buddhist, Sikh, Parsi, Muslim and Christians.21
Various High Courts in our country have also held that Jain religion is a separate religion.22
In census also, under the religion returns Jain are ever being shown as one of the religions and a separate code used to assign for recording religion returns under Jain. The Union of India, through its Deputy Secretary, as Officer-in-charge in Virendra Kumar Jain v. Union of India23 has submitted a written reply to the writ petition on behalf of Respondent 1, the Union of India wherein it was stated as24:
As regards grounds 11(I) and (Q) are concerned, religion is an important and perhaps the basic cultural characteristic of the population. In a secular State like India several religions have thrived and every decennial census provided an interesting picture of the religious persuasions of the people. Ever since the beginning of the modern census taking in India Jain has been treated as one of the main religions and its population has been shown separately.
The above references do clearly show that Jain is a separate religion.
III CRITERIA FOR DETERMINING THE STATUS OF MINORITY
In 1992 Parliament enacted National Commission for Minority Act, 1992 to provide for matters connected therewith or incidental thereto and for the functions of which were spelled out in Section 9(1) of the Act. In the Act under Section 2(c), the community which is declared as minority community by the Central Government, is meant as minority community. The Central Government by notification dated 23-10-1993 has declared (i) Muslims (ii) Christians (iii) Sikhs (iv) Buddhists, and (v) Zoroastrians (Parsis) as minority communities. In this notification Jains have been omitted and thereby deprived the benefits available to minority communities under the Act.
In State of Rajasthan v. Vijay Shanti Educational Trust25, the question before the Divisional Bench of the Rajasthan High Court was how the status of a community is to be ascertained as a minority? It was argued before the Court that if a community has not been included in the Notification issued by the Central Government under Section 2(c) of the Act of 1992, that community has no basis to claim the status of a minority community and thereby the rights under Article 30 of the Constitution. The Court observing that the Act of 1992 is only regulatory for the development of the minorities, held that mere exclusion or non-inclusion of Jain community in the Notification issued under Section 2(c) of the Act of 1992 is not the factor which can be said to be determinative for the purpose of ascertaining the minority status.26 But the Court has emphasised a different criteria for determining the status of minority. It states27:
Thus, it is to be borne in mind that the object of providing fundamental rights under Articles 25 to 30 of the Constitution in favour of minorities was in consideration of giving up the right of separate representation in Parliament/Legislature and instead a joint electorate having been set up obviously, therefore, what is to be seen is as to what were the minorities who did have a right of separate representation in the previous Constitution? .
Thus, if the question is considered from the stand point of the Constituent Assembly Debates, Jains cannot be said to be a minority community.
Further, the Court relying upon the paras 27 to 37 of the Yagnapurushdasji v. Muldas Bhundardas Vaishya28 also came to the conclusion29 that Jainism is clearly within the sweep of broad and progressive Hindu religion and held30 that Jains are part and parcel of Hindus for the purpose of all Constitutional provisions and in absence of minority status, there is no question of availing the benefits or protection under Articles 29 and 30 of the Constitution. The Court further made it clear that the freedom to profess any religion, is a fundamental right, but that freedom cannot be used for the purpose of claiming minority status as to avail the benefits of Articles 29 and 30 of the Constitution.31
Here it would be pertinent to refer to again the decision of the Supreme Court in Yagnapurushdasji v. Muldas Bhundardas Vaishya28. Their Lordships of the Supreme Court in this case dealing with broad and comprehensive aspects of Hindu religion have also observed as32:
Hinduism has two aspects, a broad one which is historical and cultural and a narrow one which is legal. While Sikhism, Jainism and Buddhism may have come out of Hinduism for the purpose of history and culture, they are not parts of Hinduism for the purpose of Constitution and law.
The above observation of the Supreme Court if analysed reveals that Jains for the purpose of Constitution and law are not part of Hinduism.
The word religion has not been defined in the Constitution. But Mukherjea, J. speaking for the Court in the case of Commr. HRE v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, observed33: (AIR para 17)
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India like Buddhism and Jainism34 which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well-being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.
The above observation was also referred by Gajendra Gadkar, J. in Tilkayat case35 and by Jaganmohan Reddy, J. in State of Rajasthan v. Sajjanlal Panjawat36.
In Gateppa v. Eramma37, Kumaraswami Shastri, A.C.J. of Madras High Court has also said thus38:
I would be inclined to hold that modern research has shown that Jains are not Hindu dissenters but that Jainism has an origin and history long anterior to the Smritis and commentaries which are recognized authorities on Hindu law and usage. In fact, Mahaveera, the last of the Jain Thirthankars, was a contemporary of Buddha and died about 527 B.C. The Jain religion refers to a number of previous Thirthankars and there can be little doubt that Jainism as a distinct religion was flourishing several centuries before Christ. In fact, Jainism rejects the authority of the Vedas which form the bedrock of Hinduism and denies the efficacy of the various ceremonies which Hindus consider essential.
In Hirachand Gangji v. Rowji Sojpal39 Rangnekar, J. of the Bombay High Court also observed that the Jains have rejected the scriptural character of the Vedas, and repudiated the Brahminical doctrines relating to obsequial ceremonies, the performance of shradhas and the offering of oblations for the salvation of the soul of the deceased, that Jains did not believe that a son, either by birth or adoption, confers spiritual benefit on the father, and that they differed from the Brahminical Hindus in their conduct towards the dead, omitting all obsequies after the corpse was burnt or buried and held40:
Now, it is true, as later historical researchers have shown, that Jainism prevailed in this country long before Brahminism came into existence or held the field, and it is wrong to think that the Jains were originally Hindus and were subsequently converted into Jainism.
In CWT v. Champa Kumari Singhi41 Banerjee, J. of the Calcutta High Court has also said that:
15. The Jains rejected the authority of the Vedas, which forms the bedrock of Hinduism and denied the efficacy of various ceremonies which the Hindus consider essential. It will require too much of boldness to hold that the Jains, dissenters from Hinduism, are Hindus.
The report of the Mandal Commission also places Jain as a religion separate from Hindu religion. In the report while stating percentage distribution of Indian population by caste and religious groups, Jains have been grouped with Muslims, Christians, Sikhs and Buddhists and under Category II, the heading of which is given as Non-Hindu Communities, Religious groups etc. In the report, Jains have not grouped with Hindus which have been placed in Category III under the head Forward Hindu Castes and Communities. This report has also been accepted by the Honble Supreme Court in Indra Sawhney case43.
In Bawari Masjid case44 the Supreme Court has observed Jainism to be a separate religion from Hinduism. The Court stated:45
156. Before we pass final orders, some observations of a general nature appear to be in order. Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity, Zoroastrianism, Judaism, Buddhism, Jainism and Sikhism to find shelter and support upon this land.
Thus, the observations of the Honble Supreme Court and survey of judicial decisions of various High Courts and also the discussion made above, reveal the same trend that Jainism, Sikhism and Buddhism are not part of Hinduism for the purpose of Constitution and law and are separate religions. Out of these three religions, namely, Sikhism and Buddhism have been declared by the Central Government as minority based on religion. The Jains have been omitted in the list. The non-inclusion of Jains as minority based on religion may amount to violation of Article 14, read with Article 30 of the Constitution of India.
IV UNIT FOR DETERMINATIONS OF MINORITY STATUS
In the T.M.A. Pai Foundation v. State Govt. of Karnataka46 relating to educational rights of minorities, the Supreme Court was to decide the question as to who constitutes a minority. The Court heard the writ petition in February 1997. The seven-Judge Bench of the Honble Supreme Court has deferred the matter to be decided by a Constitutional Bench of 11 Judges and passed the following order: (SCC pp. 596-97, para 180)
In view of the 42nd Amendment to the Constitution placing with effect from 3-1-1977 the subject Education in Entry 25 List III of the 7th Schedule to the Constitution, and the quoted decisions of the larger Benches of this Court being of the pre-amendment era, the answer to the brooding question, as to who in the context constitutes a minority, has become one of the utmost significance and therefore, it is appropriate that these matters are placed before a Bench of at least eleven Honble Judges for determining the questions involved.
Consequently, the matter was referred to the Constitution Bench of the Supreme Court comprising of 11 Judges. The Supreme Court in T.M.A. Pai Foundation v. State of Karnataka47 referred various decisions of the Supreme Court and held48:
The word minority is not defined in the Constitution but literally it means a non-dominant group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or groups called majority. In that sense, there may be political minority, religious minority, linguistic minority etc.
Hence, in view of eleven-Judge Bench decision of the Supreme Court in the abovementioned case there can be political as well as religious minorities. The followers of Jain religion though, may not form a political minority but certainly are a religion based minority as referred to in Article 30. The Court in this case, has also made it clear that the State will be the unit in relation to which the status of religious minority is to be determined. Therefore, in declaring a community as minority based on religion under Article 30(1) the decision will have to be taken by the respective States. The Court held49::
76. If, therefore, the State has to be regarded as the unit for determining linguistic minority vis-à-vis Article 30, then with religious minority being on the same footing, it is the State in relation to which the majority or minority status will have to be determined.
The answer to the question as to whether Jains constitute a minority has to be decided by the respective States. For that, at one end, the basis is that of a status of a separate religion and, at the other end, in contradiction to it, there is main and basic concept which has been flowing from the Indian origin and cultural heritage that Jains are part and parcel of Hindus. It is now for the legislatures to think as to how to deal with the problem. To declare Jains to be a minority based on religion, the State must have in mind that the application of law under the Constitution and in several statutes have shown that Jainism has never been treated even as a form or a development of Hinduism and that it has been considered at parity with Sikhism and Buddhism from several decades. Since, the Sikhs and Buddhists have been declared minority based on religion, therefore, the Jains, who are in minority in every State and throughout India, should also be declared so.