Thursday, May 15, 2008
Sunday, April 20, 2008
Dated : 28-12-2007.
From : All India Shwetamber Sthanakwasi Jain Conference(Regd.), New Delhi.
Shri Digamber Jain Sabha , Amritsar.
Shri Atmanand Jain Mahasabha Uttri Bharat, Punjab.
Shri Jain Shwetamber Terapanthi Samaj, Amritsar.
Shri Jain Mittar Mandal(Regd.), Amritsar.
S.S. Jain Sabha(Regd.), Civil Lines,Amritsar. Off: Sh.Puj Sohan Lal Jain Hall,
Hon'ble S. Prakash Singh Badal,
Chief Minister, Punjab,
Government of Punjab,
CHANDIGARH.
Dear Sir,
The Punjab & Haryana High Court on 17th Dec., 2007 declared the Notifications proclaiming The Sikh Educational Institutions run by the Shromani Gurudwara Prabhandak Committee (SGPC) in Punjab as "minority institutions" as void.
Jains being a religious minority community,we understand the feelings of our Sikh community. We feel that Sikhs feel apprehended, deprivation of their religious ,cultural & Educational Rights in the State of Punjab. Similarly, Jains which are still not granted Religious Minority Community status by the State Government feel likewise. We also came to know that the Punjab Government may move the Supreme Court against the order of the Division Bench said Advocate General S.Hardev Singh Matterwal.
Your Media Advisor, S. Harcharan Singh Bains said that the State would legally contest
the order in order to safeguard the interests of Minority Community in the light of the High Court Orders.
Hon'ble C.M. Sahib the feelings of Jains religious minority community should also be looked into in the same light and your good honourbeing theHead of the state, we expect justice from you as SGPC and your Government is seeking justice in regard to the decision of the High Court.
The fact is that right from 1871, when the decennial Census began, Sikhs & Jains have been recognized as religious communities at par with Hindus and Muslims. And in making of the Constitution, the Sikhs,the Buddhists, the Jains and the Parsis all received
attention and were recognised as minorities. A number of States like Maharashtra, Uttar Pradesh, Madhya Pradesh, Chhatisgarh, Uttrakhand, Karnataka & Bihar have already declared Jains as Minotiry Community in their States.
It is interesting to note that Muslims, Christians,Buddhists and Parsis have a Minority Status in the State but why Jains are left – is a clear discrimination against the Jain Community.
The Constitution in Explanation to Article 25 recognizes the existence of the Jain religion
but brackets it with Buddhism and Sikhism for the limited purpose of one Section of the
Article which deals with a common social aspect. Considering that only 5 days after the
Promulgation of the Constitution , the Prime Minister Jawaharlal Nehru, through the letter of 31 January, 1950, signed by his Principal Private Secretary, Sh. A.V.Rai clarified the misunderstanding and assured a Jain Deputation that the Jains are a distinct religious
Minority community.
Most often Lord Mahavir is Mis-represented as Founder of Jainism in many History Books, Indian Tourism Sites(Like Incredible India) whereby he was Last Tirthankar who
revived Jainism which was Founded in This Era by Lord Rishabdev/Lord Adinath.
It is believed, Jainism is approximately 8.4 Million Years old religion or even more old than that in this cyclic period.(The papers confirming the Status of Jainism as quoted by Learned Scholars of India as well of the World are enclosed).
Jains have their own religious places to worship – Mandirs, Asthanaks & Idols of 24 Tirthankars are there. Jains have their own rituals and way to worship. Their identity is absolutely different. Marriages of Jains are mostly held within their own community. When Jains have a separate Identity in all respects, then why Punjab Government is not giving Minority Religious Status to Jains.
Dr.Bhimrao Ambedkar forcefully argued for recognition of the absolute rights of
Religious Minorities.
In the aforementioned context the following facts regarding the Jain minority religious
Right need to be noted.
i) The Jain demand for minority status is almost a century old, when in British India the Viceroy and Governor General of India, Lord Minto took a decision in Principle of giving representation to important minorities in the Central Legislature, Seth Manek Chand Hirachand, an eminent Jain leader from Mumbai and the then Acting President of the Bharatvarshiya Digamber Jain Sabha made an appeal in 1909 to the Governor General for the inclusion of the Jain Community for representation in the Council. Seth Manekchand's petition was transferred to the Government of Bombay and the Secretary to the Government of Bombay stated in his reply dated 15th Oct.1909 as under:
ii) "I am directed to inform you that a number of seats have been reserved for representation of minorities by nomination and that in allotting them the claim of the important Jain Community will receive full consideration."
iii) In his speech on the 3rd Sept. 1949, Jawahar Lal Nehru said: 'No doubt India
has a vast majority of Hindus, but they could not forget in fact there are also minorities Muslims, Christians, Parsis and Jains. If India were understood as Hindu Rashtra it meant that the minorities were not cent per cent citizens of the country.
iv) The Government of India Census counts Jains in India as a major religious
community right from the first census in British India in 1873.
v ) Jainism is mentioned as a religion along with Buddhism and Sikhism in Explanation II of the Article 25 of the Indian Constitution relating to Fundamental Right to religions freedom. On this issue Jawaharlal Nehru, the then Prime Minister, in his letter dated 31.01.1950 assured a Jain Deputation that they need not have any misgivings on this clear constitutional position.
It is respectfully submitted to your goodself that Jain Community feels aggrieved by denying them religious minority status in the State. The Jain Community has got its own ancient independent culture and religious heritage and is unquestionably a minority community. There is a feeling amongst Jains that this status is denied to them because they have not taken to the turbulent path of agitation. The Jains is a peaceful community having belief in Ahimsa.
We request Punjab Government should consider our request very seriously and grant us religious minority community status in Punjab immediately and respect the sentiments of Jains.
Thanking you,
Yours faithfully,
for All India Shwetamber Sthanakwasi for Shri Digamber Jain Sabha
Jain Conference(Regd.), New Delhi.
Amrit lal Jain
Secretary.
for Shri Atmanand Jain Mahasabha for Shri Jain Shwetamber Terapanthi Samaj
Uttri Bharat Punjab
Jitender Jain
Member Wor. Com.
for Shri Jain Mittar Mandal (Regd.) for S.S. Jain Sabha (Regd.)
Surinder Jain
President
KIND ATTENTION Dr. MANMOHAN SINGH JI
Dear Mr. Prime Minister,
Subject : Jain Petition Praying for National Religious Minority Status on Par with Muslim, Christian, Sikh, Buddhist and Zoroastrian.
We, the members of the Jain community, in India are seriously concerned to draw your attention to the recent Supreme Court judgment in the Bal Patil Jain minority case. We take inspiration from your observations in your Address to the nation on Independence Day, August 15, 2005: "Our Constitution provides for equality of all religions, All religions are safe and secure within our Republic. It is necessary that minorities should have every opportunity of carrying on their daily activities with a feeling of security and happiness."
2. The 8 August, 2005 Judgment of the 3 Judges Bench of the Supreme Court consisting of Chief Justice R. C. Lahoti, Justice D. M. Dharmadhikari and Justice P. K. Balasubramanyan, in the Bal Patil Case (CA 4730 of 1999), of Dakshin Bharat Jain Sabha, a century old Jain social, cultural and educational organisation with Bal Patil as its Convenor, written by Justice Dharmadhikari has not only declined to act on the recommendation of the National Commission for Minorities for the declaration of Jain community as a religious minority community on par with Muslim, Christian, Sikh, Buddhist and Zoroastrian (Parsi) but also its obiter dicta place Hindu religion above all other religions.
3. The total Jain population of the country (2001) is about 4.23 million which is concentrated (community above 0.1 million) in (1) Maharasthra (1.3), (2) Punjab (0.65), (3) Madhya Pradesh (0.55), (4) Gujarat (0.53), (5) Karnataka (0.41), (6) Uttar Pradesh (0.21) and (7) Delhi (0.16) which together account for 91% of the national population of the Jains. In all these States of its concentration it forms about 1% or less of the State population.
4. The Jains have been counted as a separate religious community since the decennial Census was introduced in 1871. But it enjoys a distinction. It is not recognized as a religious minority by the same Government which holds the Census for placing it within the jurisdiction of the National Commission for Minorities though of the 7, 3, namely, Maharashtra, MP and UP have recognized it as such under the State Minorities Commission Act. Two other States created by reorganization of MP and UP, namely, Chhattisgarh and Uttaranchal have also recognized it such.
5. 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 the 11 Judges Bench decision in the T.M.A. Pai Case [2002(8) SSC 481] which was 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.
6. In that Judgement, the majority Opinion of the Bench, speaking through the then Chief Justice Kirpal, was that since reorganization of the States in India has been on linguistic basis, the unit for the purpose of determining a linguistic minority be the State and not the whole of India. But the Opinion goes on to apply illogically the same yardstick to religious minorities though the States were not organized on 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'.
7. This equation between the two categories of minorities does not logically follow, as the States have not been reorganized on religious basis and all religious communities are scattered throughout the country. the SC's formulation to 'short answer' in para 7 of your petition also needs to be challenged. States were reorganized in 1956 on linguistic basis and not religious basis. Therefore for determining a linguistic minority, a State is and should be the authority but not for religious minorities. The test is only the Census of India. The Central Government, a respondent, found it convenient to take shelter under this totally illogical presumption of the Supreme Court and refused to exercise its statutory power under the Act, thus making it redundant.
8. Dakshin Bharat Jain Sabha and its Convenor of the Jain Minority Status Committee, Shri Bal Patil appellants have decided to seek modification of the Judgement. One hopes that the Supreme Court shall realize the basic flaw in the T.M.A. Pai Judgement on the point of relating status of religious minorities to States (vis-à-vis 'linguistic minorities') determines the scope of Article 30 of the Constitution and has nothing to do with the question as to which religious groups form a national minority and come under the purview of the National Commission for Minorities.
9. The interesting point is that the Muslims, Christians, Sikhs, Buddhists, even the Parsis (a minuscule community with less than 0.1 million population) 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.
10. The Constitution in Explanation to Article 25 recognizes the existence of the Jain religion but brackets it with Buddhism and Sikhism for the limited purposes of one Section of the Article which deals with a common social aspect. Considering that only 5 days after the promulgation of the Constitution, the then Prime Minister Jawaharlal Nehru, through the letter of 31 January, 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 is no reason for apprehending that Jains are considered as Hindus. Thus the Judgement is constitutionally unsound and violates an explicit assurance of the executive.
11. The Supreme Court has failed to realize the basic flaw in the T.M.A. Pai Judgement on the point of relating status of religious minorities to States determines the scope of Article 30 of the Constitution and has nothing to do with the question as to which religious groups form a national minority and come under the purview of the National Commission for Minorities.
12. Having summarily disposed of the Jain demand, 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 for resolving the communal problem, in terms of the constitutional safeguards as demanded by the Muslim community e.g. of separate electorate and reservation of seats in legislatures.
13. The obiter dicta describes the Sikhs and the Jains as 'so-called minority communities', which were not treated as national minorities at the time of framing the Constitution and have 'throughout been treated as part of the larger Hindu community'. It seeks to reduce them to sects or sub-sects of Hindu religion.
14. The fact is that right from 1871, when the decennial Census began, Sikhs and Jains have been recognized as religious communities on par with Hindus and Muslims. And in making of the Constitution, the Sikhs, the Buddhists, the Jains and the Parsis all received attention and were recognized as minorities.
15. Dharmadhikari J. quotes the eminent jurist H. M. Seervai to place the responsibility for Partition on Gandhi, Nehru and Patel for having destroyed the (Cabinet Mission) Plan. As noted by Shri Syed Shahabuddin (IFS (Retd.), Ex-MP, Supreme Court Advocate, President, AIMMM) in his article commenting on this judgement published in the Milli Gazette Nov.3, 2005 and The Tribune, Nov.25, 2005 and Communalism Combat, December 2005:
16. "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 of Jinnah and Liaqat. In effect, the obiter dicta reduces the complex course of negotiation between the Indian National Congress and the All India Muslim League, over 20 years, in which Rajendra Prasad, Nehru, Subhash Bose and Gandhiji all participated (it is doubtful if Azad was directly involved at any stage) for finding a mutually acceptable settlement to a one-shot event!"
17. Justice Dharmadhikari identifies Jainism with, what he calls, Hindu Vedic religion, though the Jains reject the Vedas and the Brahminical philosophy as their Tirthankaras and specially Mahavir have charted their own spiritual course, like Buddhism. Then Dharmadhikari J. comes to his final conclusion:
18. '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 anti-thesis 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. where they were born! This projected hieratical 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' which are recorded in Census after Census.
19. Dharmadhikari J. opines that the process of the Constitution did not contemplate any addition to the list of religious minorities other those the identified in the course of independence negotiation or those which are materially well-off. He 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.
20. But Dharmadhikari J. sees assimilation in Hinduism as the alternative and desirable goal of all religious groups in India, while the international community recognizes multi-religiosity as the natural state of things. Peaceful coexistence, fraternization, integrity, harmony are indeed laudable but any majoritarian pressure to erase the identity and to absorb and assimilate their distinctive personality goes against the concept of freedom and equality, as Dharmadhikari J. says, for 'gradual elimination of majority and minority classes' and even contemplates the possibility that there will be no need for minority commissions! He is apprehensive of rise of multi-nationalism in India but perhaps at the back of his mind he equates multi-religiosity with multi-nationalism and the latter with secessionism.
21. Thus the SC judgment goes counter to the constitutional philosophy and principles as envisaged by the Constituent Assembly and inscribed in the Constitutional Preambulary secular objectives. 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 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 crystallization 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 reflected what the Indian Constitution gave to the religious, linguistic, racial and cultural minorities of the country. Today minority rights are universally accepted as an indivisible from and essential to human rights, because almost every nation-state is multi-religious, multi-lingual and multi-cultural.
The obiter dicta observations although made extra-judicially have grave implications because the general public takes any declaration made by the Supreme Court as the law of the land. It is in this perspective that the Judgment of the Supreme Court in the matter of Bal Patil & Anr. Vs. Union of India has given the wrong message to the country against not only the Jain Community, but the minority religious communities and the National leaders of the country whom we call "Founding Fathers" and the statutory functionaries Viz the National and State Commissions for Minorities who are said to be the cause of fissiparous tendencies.
22. Such being the constitutional goal as interpreted by the Apex Court it has no difficulty in arriving to the conclusion that the "Minorities Commissions set up at the Central or State level…for minorities have to direct their activities to maintain their integrity and unity of India by gradually eliminating the minority and majority classes." (!!) And thus the Court lays down in its extra-judicial majesty that the National Commission for Minorities "should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether." (!!!)
23. The crux of the matter in pursuance of the earlier Order of the Supreme Court was that the Government of India was required to take a decision in terms of the National Commission for Minorities Act as per the recommendation. However, the Affidavit made by the Government utterly failed to take into account the issues raised in my petition as pointedly noted by the Supreme Court Order itself directing the Central Government to take a final decision within four months. The Government of India made an erroneous and irrelevant Affidavit in response to the above Order stating that the minority Status is to be determined by the States concerned. Later on a 3-Judge Bench was constituted and the latest SC. Decision is the outcome of this Bench.
24. In the aforementioned context the following facts regarding the Jain minority religious right need to be noted.
i) The Jain demand for minority status is almost a century old, when in British India the Viceroy and Governor General of India, Lord Minto took a decision in principle of giving representation to important minorities in the Central Legislature, Seth Manek Chand Hirachand, an eminent Jain leader from Mumbai and the then Acting President of the Bharatvarshiya Digamber Jain Sabha made an appeal in 1909 to the Governor General for the inclusion of the Jain community for representation in the Council. Seth Manek Chand's petition was transferred to the Government of Bombay and the Secretary to the Government of Bombay stated in his reply dated 15th oct.1909 as under.
"I am directed to inform you that a number of seats have been reserved for representation of minorities by nomination and that in allotting them the claim of the important Jain Community will receive full consideration."
ii) In a Memorandum by the Representative of the Jain Community to the Constituent Assembly in March/April 1947 to the Constituent Assembly a strong appeal was made for the inclusion of the Jain community as a minority religious community.
iii) In his speech on 3rd Sept.1949, Jawahar Lal Nehru said: "No doubt India has a vast majority of Hindus, but they could not forget in fact there are also minorities Muslims, Christians, Parsis and Jains. If India were understood as Hindu Rashtra it meant that the minorities were not cent per cent citizens of the country.
iv) Jainism is mentioned as a religion along with Buddhism and Sikhism in Explanation II of the Article 25 of the Indian Constitution relating to Fundamental Right to religions freedom. On this issue Jawahar Lal Nehru, the then Prime Minister, in his letter dated 31.01.1950 assured a Jain Deputation that they need not have any misgivings on this clear constitutional position.
v) Our National Anthem 'Jana Gana Mana' by Tagore clearly enunciates Jains in its second stanza: "Hindu Bauddha, Sikh Jain Parsik, Musalman, Christani " as a distinct religion denomination"
vi) The Government of India Census counts Jains in India as a major religious community right from the first census in British India in 1873.
vii) The Ministry of Human Resources Development, Dept. of Education, SC/ST Cell, constituting a National Monitoring Committee for Minorities Education (Published in Part I Section I of the Gazette of India) in its Memorandum on Minorities Education CI. 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 0.7% and the Jains 0.5% which means that per 10,000 persons in India 8264 are Hindus, 1135 are Muslims, 243 are Christians, 196 Sikhs, 71 Buddhists and 48 are Jains. Thus it is clear that the HRD Ministry recognizes the Jains as a religious minority on the basis of Census classification which is itself an authoritative legal document, while the Social Justice and Empowerment Ministry of the same Govt. of India is still averse to do so.
viii) And the clinching statistical census evidence that the Jains are in minority not only in every State of India but also in every district.
25. As already noted above it is incomprehensible why the Supreme court Judgment should have thought it fit to quote Maulana Abul Kalam Azad even in obiter dicta. "Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it. Further, Azad had played a leading part in providing a framework for the Constitution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united. However, Gandhi, Nehru and Patel destroyed the Plan, and accepted partition instead. Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition". (Emphasis supplied).
26. However, the shocking and bizarre implications of such quotations cited with approval in the judgment of the Supreme Court of India presided over by the Chief Justice of India are clear. It clearly means that the Supreme Court is anxious to carry the incredible message that the Father of the Nation who laid down his life for Hindu-Muslim unity, along with Nehru was responsible for the division of the country.
27. Such an atrociously perverse interpretation of the partition of India under the secure judicial garb of an ostentatious exercise of safeguarding secular credentials of the Constitution declaring that the State has no religion is indeed shocking. Yet the Bench has no constitutional or secular scruples to state further that "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". (Emphasis supplied).
26. In view of the foregoing the extra-Judicial observations of the Supreme Court Judgment on the religious status of the Jain community as part of the Hindu religious are absolutely without any basis. Also the remarks against the National leaders like Nehru, Patel and the very Father of the Nation as responsible for the partition of India are obnoxious.
29. As a matter of fact the entire tenor of the SC observations on the National and State Minority Commissions as leading to "fissiparous tendencies" and hence calling for their closure are highly objectionable as they question the basic tenets of the Indian secular Constitution and hence need to be expunged.
30. As noted by Shri Shahabuddin: "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 to Hinduism as a sect or sub-sect. The Sikhs and the Jains and the Buddhists will not accept Hindu hegemony on the ground that they are all branches of the same tree, which has sprang from the same soil. Dharmadhikari J.'s views clearly reflect the Hindutva philosophy. It is time that the Supreme Court free itself of any lurking intellectual subservience to the Hindutva philosophy."
31. The Judgment even expects the National Minority Commission "to act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat" and further that 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."
32. If the "Common faith of India" is Hinduism as averred by the Apex Bench will it not unmistakably lead to the "Hindu Rashtra" ideology of the BJP? Is this the prologue to the saffronisation of the judiciary? Can the UPA Government and the Congress subscribe to it in all secular conscience?
33. In the aforesaid context of the gravely damaging impact this SC Judgment will have on the secular ideology of the Constitution and the UPA Government formed under the leadership of the Indian National Congress should take suitable steps to see that these observations are deleted to protect the basic structure of the secular Constitution as well as the dreams of Mahatma Gandhi Pundit Jawahar Lal Nehru and Sardar Patel & many others.
34. It would be pertinent to recall here the 'Hindutva' judgment of the 3-Judge Bench of the Supreme Court in the Manohar Joshi v. Nitin Bhaurao which took the view that the statement of a candidate in the course of his election speech that "the first Hindu State will be established in Maharashtra" did not amount to a corrupt practice."
35. Taking a strong exception to this ruling P.P. Rao, eminent jurist and Senior Advocate in Bal Patil's Jain minority petition in the Supreme Court, said in his Dr.Alladi Krishnaswamy Ayyar Memorial Lecture, 1999 'Basic Features of the Constitution': "Obviously, the perceptions of secularism vary from Bench to Bench. Manohar Joshi deserves to be overruled. Secularism is too fundamental to be compromised."
36. This Lecture has pinpointed the cardinal importance of the Supreme Court declaration in the Kesavananda Bharati v.State of Kerala that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution. As rightly noted by P.P. Rao "This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. No other Court in the world had taken this position."
37. This is in consonance with the ringing peroration by Jawahar Lal Nehru on the Draft Constitution :
"We will honour our pledges. Within limits, no Judge and no Supreme Court will be allowed to constitute themselves into a third chamber. No Supreme Court and and no judiciary will sit in judgment over the sovereign will of Parliament which represents the will of the entire community. If we go wrong here and there, they can point it out; but in the ultimate analysis, where the future of the community is concerned, no judiciary must come in the way. Ultimately the whole Constitution is a creature of Parliament."
38. Thus the secular principle enshrined in the Preamble is the one feature which has primacy over all the other basic features of the Constitution. The Constitutional primacy and sanctity of this feature of secular is in Nehru's words: "At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion."
39. It would be pertinent to recall here the 'Hindutva' judgment of the 3-Judge Bench of the Supreme Court in the Manohar Joshi v. Nitin Bhaurao which took the view that the statement of a candidate in the course of his election speech that "the first Hindu State will be established in Maharashtra" did not amount to a corrupt practice."
40. Thus the secular principle enshrined in the Preamble is the one feature which has primacy over all the other basic features of the Constitution. The Constitutional primacy and sanctity of this feature of secular is in Nehru's words: "At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion."
41. The confusion created by the "Hindutva" decision has come to a full circle with this decision in the Jain minority matter. As noted in the concluding observation of P.P. Rao's Lecture referred to above "Accumulation of unlimited power in one thing, exercising it with circumspection and self-restraint is an altogether different thing. Unless the dam is strong, the reservoir cannot retain water. we need extremely capable, honest and independent Judges, nay statesmen, to handle this enormous power of judicial review in the interests of the people of India."
42. Therefore, the almost insoluble Constitutional dilemma created by the SC decision in the Jain minority matter can be only resolved by a Constitution Bench of nine or more Judges by "choosing the appropriate case and by adopting the appropriate procedure" as noted by Palkhivala (In the aforesaid context it would be relevant to note an article by the late eminent jurist, N.A. Palkhivala "India Remains Secular :Full Bench Needed to End Confusion" published in The Times of India on Feb.5, 1996.) if the Constitution is to be saved from the judiciary and the judiciary from itself.
43. In the foregoing context the Jain community is aggrieved at this decision which treats Jains as part of Hinduism. Some Congress ruled States have declared Jains as a minority religions community in pursuance of direction issued by the Congress President, Smt. Sonia Gandhi. Now there is no reason why the Central Government should not give Jains the national minority religious community status.
44. It is important to bear in mind that declaration by a State of Minority status for the Jain community will not be enough unless and until the Central Notification under the National Minorities Commission Act, 1992 also includes Jain community as a Minority community on par with other Minority communities such as Muslim, Christian, Sikh, Buddhist and Zoroastrian which is the crux of the prayer in SC Civil Appeal. Such inclusion is essential because Minority status on the State level is subject to political fluctuations if there is no State Minority Act. For example, in Maharashtra State Minority Commission which had no statutary basis was wound up in 1995 when there was a non-Congress BJP-SS coalition government.
45. To press home the utterly absurd logic of the piecemeal declaration of minority status by the States concerned would lead to a constitutionally chaotic situation. For example, the Jain community would be eligible for minority benefits in the States in which it has been declared a minority but would be denied the same in other States where there is no such recognition. Therefore this contradiction can be only resolved by first clearly identifying the religious minorities and notifying the Jain community as a minority as recommended twice by the National Commission of Minorities.
46. Finally, in case the Government of India still entertains any misgivings on granting Jain community minority status on the national level ostensibly in pursuance of the ruling given in the 11-Judge Bench decision of the TMA Pai Foundation case then in that case the Government in all constitutional conscience should de-notify the national minorities declared under the National Minorities Commission and scrap the National Minorities Commission as also the National Religious & Linguistic Minorities Commission as these would no longer have any locus standi and proceed de novo for the determination of religious and linguistic minorities on State level.
47. It is respectfully submitted that the Jain community feels aggrieved because there is no uniform and statutory all-Indian recognition of their minority status. The Jain community has got its own ancient, independent cultural and religious heritage and is unquestionably a minority religious community. It is also aggrieved because it has no representation in the National Minorities Commission. There is a feeling that Jains have been denied what is obviously due to them because they have not taken to the turbulent path of agitation. The Jains are a peaceful community but appropriate representation should not be withheld from them because of their principled adherence to peace.
48. The Jain community should have uniform access to minority welfare programmes enunciated by the Common Minimum Programme. The denial of the minority status to the Jains will mean their death warrant as a distinctive religious cultural group especially when all other minorities are going to be recognized. Although a few Jains hold important positions in industry and commerce and other spheres of life which is also the case with other religious minority communities, as a community the Jains have amongst them backward sections like in other minority or majority communities.
49. It is pertinent to note that the major portion of the Jain community in Maharashtra State incidentally has the highest Jain population in one State in India- and Karnataka States is agricultural community. In Karnataka and Maharashtra States the Jain community are eligible for benefits available to backward communities. The Jain community, therefore, demands in the first place that the Jains be treated as a national minority and given all rights and privileges which are given to other minority communities., and that they should be brought into the mainstream of the national minority welfare programmes envisaged by the Common Minimum Programme.
50. The Jain community therefore is also seriously concerned to appeal to Smt.Sonia Gandhi, the President of the INC and Chairperson of this NAC to consider the matter of the Jain minority recognition on par with other national minorities and advice the Central Government accordingly. The present Supreme Court judgment does not bar such recognition as already provided in the Constitution in Art.25.
51. In view of the forgoing observations of the Supreme Court the religious credibility, identity of not only the Jain and Sikh communities but also Constitutional status proposed to be given to the National Commission for Minorities by the insertion of Article 340 A and the statutory State Minority Commissions has been questioned unwarrantedly. This can be only undone if there is appropriate action for the reassertion of the minority rights under the Constitution and declaration of the Jain community as a minority community.
52. We are submitting this Petition to you Sir with the earnest hope that justice will be done and the Government of India will take all appropriate constitutional and legal steps to have this judgment reviewed since not only the constitutional minority right of the Jain community but all the minorities and the very secular foundation is imperiled by this SC judgment in the Jain minority case.
Yours respectfully,Bal Patil
Jain Member, Maharashtra State Minorities Commission
Chairman, Jain Minority Status Committee, Dakshin Bharat Jain Sabha
54,Patil Estate, 278, Tardeo Road, Mumbai-400007
Tel: 23861068, Telefax: 23893030, Mobile: 9869055533
E-Mail: balpatil@globaljains.com , Website: www.globaljains.com
Today a news item has appeared in section of Media regarding Considering Jains as religious Minority.In my views if the Govt. can grant the benefits, from the taxes collected from this community ,to others Minorities ,whose population is more than a neighboring Country(may be due to their aggressiveness),why this peaceful jain community should lag behind we should aggressively demand a status as a religious Minority through out India.This is genuine case and we should not Forget our duties.we are a peaceful,industrious and community which is ignored and isolated(sidelined ) always.
we want all the benefits of being a religious minority .
kindly see this blog and express your views.
regards,
Dr.Sandeep K JainJains in Delhi seek minority status
http://www.tribuneindia.com/2008/20080421/delhi.htm#3
New Delhi, April 20
The Jain community in the Capital is raising the pitch for minority status on par with the Buddhists, Christians, Sikhs, Muslims and Parsis, listed as notified minority groups under the Delhi Minorities Commission Act, 1999.
Members of the community say they want minority status primarily because they want to incorporate Jainism, the religion of the community, as a subject in Jain schools. The Capital and its adjoining areas have eight Jain schools.
They are not being able to teach Jainism to their children because most of the Jain schools in Delhi are partially funded by the government, which doesn’t allow the teaching of any particular religion at schools unless it is a minority community.
“The government is ignoring the community. We want minority status as enshrined (under Article 25) in the constitution, which empowers the government to accord minority status to six marginal ethno-religious groups, so that we can teach Jainism to our children in schools run by us. We don’t want reservations in jobs or in education,” Chakresh Jain, head of the Delhi Jain Samaj, told IANS.
Members of the Jain Samaj had assembled at Delhi Chief Minister Sheila Dikshit’s home on Saturday to celebrate Mahavir Jayanti, the birth anniversary of Lord Mahavira, the last of the Jain spiritualists. Mahavira was born 2,604 years ago in Vaishali (now in Bihar).
Chakresh Jain said children of the community here were losing touch with their traditional culture because they were not being taught Jainism in schools.
The community, comprising mostly businessmen, trace their lineage to Lord Adinath, a seer-king who preached non-violence, tolerance, vegetarianism and the importance of karma and literacy during the Vedic Age (2nd-6th century B.C.).
Members of Jain community in the Capital are jewellers by profession with the highest literacy rate. Till the middle of the last century, the community lived in the old walled city of the Capital.
According to official estimates, there are 480,000 Jains in Delhi. The Jain community is known for its social work and service in the sphere of education.
Underscoring the need for minority status, Chakresh Jain said Jains were included in the list of minorities in seven states across the country - Maharashtra, Karnataka, Gujarat, Uttar Pradesh, Madhya Pradesh, Chhattisgarh and West Bengal (which enacted a law to bring the community under the minority fold three weeks ago). According to 2001 Census, the Jain community forms .45 percent of the population.
“Delhi is one of the few states where the Jain community has not been granted minority status,” he said.
According to Jaipur-based Jain scholar Hukam Chand Bharill, “Jainism as a religion is older than Buddhism, Sikhism and Islam”. Bharill has authored 66 books on Jain spirituality and way of life.
“Sikhism, the dominant religion of Punjab, is barely 500-years-old whereas you will find mention of the Jain community in the Vedas. The ancient Indian scriptures acknowledge Rishab Dev, hailed as the first Jain guru,” the scholar told IANS, arguing in favour of minority status for the community in Delhi.
“One must not forget that Lord Mahavira’s grandfather, the ruler of Vaishali, propounded the concept of a republic (Loktantra),” Bharill said.
Bharill runs 400 Jain elementary night schools across the country (known as Vitrag Vigyan Pathshala), which churn out nearly 500 Jain scholars every year.
“We want to teach our children compassion, good behaviour, health and hygiene in school, according to Jain tradition. But we cannot do so because the government provides aid to most of our education institutions in the country. Minority status would solve the problem. But we will never teach our children to look down upon other religions,” he said.
The Jain community, who don’t like to be clubbed with Hindus, have their own temples, texts, religious mores, food habits and deities. Like Buddhism, the group is divided into two sects - the Shwetambar and Digambar folds.
“We do not believe in Jagatguru Shankaracharya, we have our own spiritual identity,” Chakresh Jain said. — IANS
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