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Wednesday, July 18, 2018

In the minority

The decision to give in to Jains’ demand hinged on the status of Buddhists and Sikhs.

Updated: March 21, 2014 9:36:48 am
The government has decided to include Jains in the list of minorities. The government has decided to include Jains in the list of minorities.

The decision to give in to Jains’ demand hinged on the status of Buddhists and Sikhs.

Article 26 of the Constitution recognises the right of every religious denomination to manage its own affairs and establish religious and charitable institutions. Article 30 recognises the right of religious and linguistic minorities to establish and administer educational institutions of their choice. These provisions give minorities a certain degree of religious and educational autonomy. The Constitution does not, however, specify or indicate either the religious denominations or the minorities that come under these provisions. Nor did any legislative enactment do so until 1992.

The Central minorities commission, set up in 1978 by a presidential order, was given statutory backing when the National Commission for Minorities Act was passed in 1992. Section 2(c) of the act defined a “minority” as “a community notified as such by the Central government”. After the first statutory commission was constituted in 1993, the government issued a notification specifying Muslims, Christians, Sikhs, Buddhists and Parsis as minorities for the purposes of the act.

Jain leaders protested against their omission through representations to the commission. The commission accepted their plea and recommended to the government that the 1993 notification be amended to include Jains in the list of minorities. But no official action was taken in this regard. On taking over as chairperson of the commission in November 1996, I took up the issue with the government, arguing that since the Constitution and laws of the country invariably clubbed Jains with Buddhists and Sikhs, both recognised as minorities, it was not fair to exclude Jains without spelling out legally tenable reasons for it. While the government kept mum on my plea, the Hindu Mahasabha petitioned the Allahabad High Court for the disbanding of the commission for its “divisive” policies.

On the basis of the commission’s stance, some Jain leaders approached the Bombay High Court for relief, which the court declined to provide, stating that the issue of determining minority status was then being heard by a Constitution bench of the Supreme Court in T.M.A. Pai Foundation and others vs State of Karnataka and others. The petitioners then filed a special leave petition in the Supreme Court, which also preferred to wait for a decision in the T.M.A. Pai case.

T.M.A. Pai was decided seven years later. The court ruled that the minority status of a community had to be decided by state governments. By that time, 14 states had notified Jains as state-level minorities, along with Buddhists and Sikhs, for the purposes of their respective minorities commissions. The Jain minority case was disposed of by the Supreme Court after another three years (Bal Patil and another vs Union of India and others, 2005). The court held that it was for the government to take a decision on the issue. However, it also clearly indicated that it was not favourably disposed to the Jain community’s demand in this regard.

Jain leaders, however, continued to demand recognition as a minority at the national level. The government, which had been persistently disinclined to do so, finally accepted their demand. The Union cabinet approved the modification of the 1993 notification in January 2014. Surprisingly, there have been no visible protests against this decision.

Whether Jains could be recognised as minorities hinged on whether Jainism is distinct from Hinduism. The judiciary has always maintained that it is indeed a separate religion and not a part of the broad Hindu faith. In an earlier case, the Bombay High Court had ruled that “Jainism prevailed in this country long before Brahmanism came into existence and held the field, and it is wrong to think that the Jains were originally Hindus and were subsequently converted into Jainism.” (Hirachand Gangji vs Rowji Sojpal, 1939).

The Calcutta High Court has been more forthright: “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 even though they disown the authority of the Vedas.” (Champa Kumari, 1968).

Jains account for less than 1 per cent of the population, even though they have a slightly higher headcount in Maharashtra (1.3 per cent), Rajasthan (1.2 per cent) and Delhi (1.1 per cent). If their religion is independent and separate from Hinduism, as affirmed by the courts, there is no option but to recognise them as a minority.

There were two alternatives available to the government — either include Jains in the list of minorities or derecognise the minority status conferred on Buddhists and Sikhs in 1993. In its wisdom, the government has chosen the former course of action. In my considered opinion, the latter course would have been better and more conducive to justice, but only if the government was ready to face the possible backlash.

The writer is former chairperson of the National Commission for Minorities and member of the Law Commission

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