May 16, 2008

Minority Recognition for Jain Community

By Bal Patil

Jainism is an ancient religion of India. That the genesis of the Jain religion can be traced to deepest antiquity in recorded history is now clearly acknowledged by eminent scholars. The non-Aryan origins of Jain religion are confirmed by H.T.Colebrooke in his Observations on the Sect of Jains. He observes that the Greek authors of the third century B.C. divided all philosophers into two groups- samana (Sramana) and brahmanas so greatly differentiated as they considered them belonging to different races.

Dr. N.R. Guseva of the Academy of Sciences of the erstwhile USSR, in her ethnological study of Jainism emphatically concludes from this: "Only one interpretation can be given to this and that is, in those times followers of Jainism were, in the main, representatives of the pre-Aryan population of the country. This means that there is basis to assert that the chief components of this non-Vedic religion were engendered by non-Aryan ethnical environment. (Jainism, 1971)
The principle of ahimsa (non-violence) and the prescription of strict vegetarianism are the prime and unique characteristics of Jain religion and ethics. They could not have developed in Vedic-brahmanic Aryan culture: there is ample evidence to show that meat eating was not a taboo to immigrant Aryans. But abstention from meat came naturally to the native inhabitants of India because of the climate. That the concept of ahimsa was foreign to Vedic culture is shown by the eminent Indologist Prof. W. Norman Brown in his Tagore Memorial Lectures, 1964-65, Man in the Universe:

"Though the Upanishads contain the first literary reference to the idea of rebirth and to the notion that one's action-karma determines the conditions of one's future existences, and though they arrive at the point of recognizing that rebirth may occur not only in animal form but also in animal bodies, they tell us nothing about the precept of ahimsa. Yet that precept is later associated with the belief is later associated with the belief that a soul in its wandering may inhabit both kinds of forms. Ancient Brahminical literature is conspicuously silent about ahimsa. The early Vedic texts do not even record the noun ahimsa nor know the ethical meaning which the noun later designated… Nor is an explanation of ahimsa deducible from other parts of Vedic literature. The ethical concept which it embodies was entirely foreign to the thinking of the early Vedic Aryans, who recognized no kinship between human and animal creation, but rather ate meat and offered animals the sacrifice to the gods." (pp.53-54)

Therefore Prof. Brown concludes: "The double doctrine of ahimsa and vegetarianism has never had full and unchallenged acceptance and practice among Hindus, and should not be considered to have arisen in Brahminical circles. It seems more probable that it originated in non-Brahminical environment, and was promoted in historic India by the Jains and adopted by Brahmanism Hinduism."

The Jain contribution in the field of ahimsa has been distinctly acknowledged by Lokmanya Tilak: "In ancient times innumerable animals were butchered in sacrifice. Evidence in support of this is found in various poetic composition such as Kalidasa's Meghaduta. But the credit for the disappearance of this terrible massacre from the Brahminical religion goes to the share of Jainism." (Bombay Samachar, 10-12-1904)

Prof . Hermann Jacobi, the eminent German Indologist said: "In conclusion, let me assert my conviction that Jainism is an original system, quite distinct and independent from all others; and that, therefore, it is of great importance for the study of philosophical thought and religious life in ancient India."

Dr. S. Radhakrishnan affirms that "The Bhagavata Purana endorses the view that Rishabha was the founder of Jainism. There is evidence to show that so far back as the first century B.C. there were people who were worshipping Rishabhdeva, the first Tirthankara. There is no doubt that Jainism prevailed even before Vardhamana (Mahavira) or Parsvanatha. The Yajurveda mentions the names of three Tirthankaras, Rishabha, Ajitanatha and Arishtanemi." (Indian Philosophy, p.287)

Tirthankara literally means one who builds a ford by which to cross the samsara. Mahavira, as senior contemporary of Buddha, lived and preached in sixth century B.C. the ancient Jain way of life characterised by Three Jewels- Ratnatraya Dharma- that is, i) Right Faith, ii) Right Knowledge and iii) Right Action. He put great emphasis on ahimsa and accepted the practices of Yoga, Meditation (Dhyana) and Deep Meditation (samadhi). In him is found a pioneering acceptance of Yoga , both Hatha Yoga and Raja Yoga.

Mahavira did not believe in the existence of God. He did not believe that God created and controlled the whole universe. He considered the recital of Mantras a waste of time and rejected the sacrificial ceremonies. In Jainism, there is no worship of gods, goddesses or spirits. The images of Tirthankaras are worshipped in their temples.

Unlike Buddhism, Jainism did not advocate conversion to its religion and it did not spread outside the country. The very rigorousness and severity of its religious and ethical code of conduct have contributed to its resilience and survival as a minority in all parts of India. The religious life of the Jain community is substantially the same as it was two thousand and five hundred years ago.

Such being the distinctly independent ethnic, religious identity of the Jain community preserved unaltered through two and half millennia it was not surprising that the Jains staked their claim for recognition as a minority. The Jain demand for minority status is almost a century old. When in British India the Viceroy took a decision in principle that the Government would give representation to "Important Minorities" in the Legislative Council, Seth Manekchand Hirachand, acting President of Bharat Varshiya Digambar Jain Maha Sabha, made an appeal to the Viceroy and Governor-General of India, Lord Minto, for the inclusion of the Jain community as an Important Minority in his petition dated 2-9-1909. The Viceroy responded positively to this petition informing that in giving representation to minorities by nomination the claim of the important Jain community will receive full consideration.

We may hearken back to the crucial importance given to minority safeguards in the Constituent Assembly Debates. Presenting the Draft Constitution to the Assembly , Dr.Ambedkar, referring to the articles on safeguards for minorities, observed: "To diehards who have developed a kind of fanaticism against minority protection I would like to say two things. One is that minorities are an explosive force which, if it erupts, can blow up the whole fabric of the State…It is for the majority to realize its duty not to discriminate against minorities"

In his Allahabad speech on 3-9-1949, Jawaharlal Nehru said: "No doubt India has a vast majority of Hindus, but they could not forget the fact there are also minorities-Moslems, Christians, Parsis, Jains. If India was understood as a 'Hindu Rashtra' it meant that the minorities were not cent per cent citizens of the country." (The Statesman, 5-9-1949)
In a Memorandum by the Representatives of the Jain Community presented to the Constituent Assembly it was categorically claimed that Jainism being essentially a non-Vedic religion having distinctive social and religious customs and their own system of law, the Jain community should be treated as a minority.

But despite the minority safeguards protestations by the Founding fathers of the Constitution a curious ingenious constitutional exercise of clubbing together of Sikh, Buddhist and Jain religions in the Explanation II in Article 25 of the Constitution of India relating to the Right to Freedom of Religion was done.

Explanation II states: "In sub-clause (b) of Clause (2), 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." And sub-clause (b) of Clause 2 of Article 25 states: "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."
As B. Shiva Rao's classic exposition The Framing of India's Constitution: A Study shows that Article 25 relating to religious freedom and particularly its explanation II including Buddhists, Jains and Sikhs in the definition of Hindus was finalized by the Fundamental rights Sub-committee comprising of stalwarts like Dr. Ambedkar and Dr. Munshi without proper discussion. It is indeed a constitutional conundrum why the Founding fathers should have resorted to this devious means of social welfare and reform of Hindu religious institutions by a blatant invasion of the admittedly distinct Sikh, Buddhist and Jain religious identities.

Clause (b) of Article 25 and its specious Explanation II is truly a religious Pandora's box. There is no reason why the religious institutions of Sikh, Buddhist and Jain faiths should be treated on par with the Hindu religious ones to push forward Hindu social welfare and reform. It could be nothing but a surreptious attempt- and rather a clumsy one- to take away the religious freedom guaranteed by that very Article under a pretentious Hindu pretext of throwing open the Hindu religious institutions to all classes and sections of the Hindus and then make this reference applicable to Sikhs, Buddhists and Jains.

A very unconvincing and clearly untenable attempt which cannot be sustained by constitutional rationalization confirms the suspicion that the particular Clause was not discussed threadbare, nor does it appear from the Constituent Assembly Debates that the protagonists of Jains. Buddhists and Sikhs were given a fair opportunity to discuss its implications for the religious freedom guaranteed under that Article.

In this context it would be useful to review as to what the reaction of the Jain community was at the dawn of the Constitution. On 25th January, 1950, a Jain delegation was led to the Prime Minister Jawaharlal Nehru and other central leaders to draw their attention to the anomalous position of the Jains under sub-clause (b) of Clause 2 of Article 25 and a petition was submitted. Jawaharlal Nehru clearly assured the delegation that the Jains are not Hindus and on 31-1-1950, his Principal Private Secretary, Mr. A.B. Ghai wrote the following letter in reply to the petition:
"This Article merely makes a definition. This definition by enforcing a specific constitutional arrangement circumscribes that rule. Likewise you will note that this mentions not only Jains but also Buddhists and Sikhs. It is clear that Buddhists are not Hindus and therefore there need be no apprehension that the Jains are designated as Hindus. There is no doubt that the Jains are a different religious community and this accepted position is in no way affected by the constitution."

The National Commission for Minorities Act, 1992, came into force on May 17, 1992. It does not specify as to which religion or religious community is a minority community, nor does it lay down any criteria for so specifying. But sub-section (c) of Section 2 says "minority" for the purposes of this Act, means a community notified as such by the Central Government.

In the aforesaid context a grave injustice has been done to the Jain community in as much as its legitimate constitutional status as a minority community has been denied by the Government of India Notification dated 23-10-1993 declaring Muslims, Christians, Sikhs, Buddhists and Zoroastrians (Parsis) as Minority Communities under the National Commission of Minorities 1992Act.

It is pertinent to note that the Government of India Resolution No.F.8-9/93-SC/ST dated 28-7-95 of 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 of Minorities Education Cl.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 Jains 0.5%. It means that per 10,000 persons in India 8,264 are Hindus, 1,135 are Muslims, 243 are Christians, 196 Sikhs,71 Buddhists and 48 are Jains."

The National Minority Commission in consideration of the following:
the relevant constitutional provisions,
various judicial pronouncements,
the fundamental differences in philosophy and beliefs (theism vs. atheism principally) vis-à-vis Hinduism, and
the substantial number of Jain population in the country, resolved to recommend to the Government of India that the Jains deserve to be recognized as a distinct religious minority, and that, therefore, the Government of India may consider including them in the listing of "Minorities" in their Notification dt.23-10-1993. This recommendation was issued on 3-10-1994.
Even after a lapse of four years the Central Government has not acted on the recommendation. This is because of the hidden Hindutva lobby operating in a section of the bureaucracy, the Government, the Congress, the United Front and now the BJP Alliance prompted by the Vishwa Hindu Parishad's insidious propaganda that the Jains are Hindus. It is pertinent to note in this context the impact of the mendacious Hinduisation process on the Jain Census figures. Hinduism has never been a proselytizing religion like Christianity and Islam but the way the Hindutva propaganda is operating that the Jains are Hindus the result is a surreptitious conversion of Jains by their misleading enumeration as Hindus in the Census. This is evident from the decennial growth rate of the Jain population from 1981 to 1991 which shows just 4% growth while the rest of the Indian population registered a growth rate of about 20 to 24 per cent.
This confirms the apprehension of the Jain community that the BJP-VHP propaganda that the Jains are Hindus is taking its demographic toll. And if this continues unabated there is grave danger of the Jain community being eliminated through such Census-engineering. It is instructive to contrast this with the violent spate of attacks against the Christian community by the Bajrang Dal and the VHP for the alleged conversion by the missionaries.

The National Minorities Commission has been reconstituted in November, 1996 under the Chairmanship of Dr. Tahir Mahmood. In its first meeting held on 17th December, 1996 the Commission has reiterated its previous recommendation that the Jain community be recognized as a minority community. As the Central Government was not inclined to take a decision even after these two clear recommendations, Dakshin Bharat Jain Sabha, a premier Jain social, religious and cultural institution dedicated to the preservation and propagation of Jain values was constrained to file a writ petition in 1997 in the Bombay High court through its Convener praying for an early decision on the Jain minority issue as recommended.

A Division Bench comprising of Justice Ashok Desai and Justice S.S. Parkar in their order on 20-10-97 directed the Central Government to take an expeditious and as early as possible decision on the issue of Jain minority recognition as recommended by the Minority Commission National. As the Central government failed to take any action on this order, the Convener, Jain Minority Status Committee, filed another Writ Petition in August 1998. The Central Government filed a Counter-Affidavit raising mainly two contentions: one, that 11-Member Bench of the Apex Court was proposed to consider an answer as "to who in the context constitutes a minority has become of utmost significance", and two, that the National Minority Commission has directed the Central Government "to take note of various notes of dissent opposing minority status to Jains, and that the Government would better ascertain the consensus within the Jain community before taking a final decision in the matter."

The Division Bench of the Bombay High Court comprising of Justice Ashok Agarwal and Justice Nijjar proceeded to dispose off the petition without giving an opportunity to the petitioner to respond to the Counter-affidavit and without going into the merits of the matter.

However, a careful reading of the Questions framed in the T.M.A. Pai Foundation case decision by the Apex Court referring the matter to an Eleven Judges' Bench makes it evident that said questions presuppose the existence of a religious or a linguistic minority and the issue before the Supreme Court, as and when it is constituted, would be to consider the scope and ambit of the rights of the minority community in one state with reference to minorities in other States, rather than to inquire into as who and in what circumstances can be declared a minority community.
As regards the dissenting notes forwarded by the National Minorities Commission to the Central government asking it to seek a consensus within the Jain community, the National Minority Commission's stand, to say the least, is preposterous and untenable. In trotting out the excuse of protests without verifying their contents, validity and relevance the Commission has thrown to the winds its constitutional and legal responsibility and its a statutory power of recommendation under the National Commission of Minorities Act, 1992.

It is instructive to refer to an interview given by the Chairman of the National Minorities Commission, Dr. Mahmood, a former dean of the Faculty of Law, Delhi University, to the RSS Hindi Weekly 'Panchjanya' of 2nd March 1997 in which he said categorically :"In our Constitution the Jains are covered by the same provisions as are available to Sikhs and Buddhists.

Constitution does not consider Buddhists, Jain and Sikhs as Hindus…and if our Government has declared Sikhs and Buddhists as Minorities, there is no reason whatsoever in not declaring the Jains as a Minority."

In view of this unambiguous statement by the Chairman one cannot but be shocked by the Commission's letter to the Government on the protests. The NMC did not pause to consider that it was demeaning, nay, denigrating its own raison d'etre as a statutory custodian of minority rights and interests. Underlying this letter seeking the consensus of the Jains is an abject, even unconscionable surrender of its autonomous dignity. It is a blatant surrender of its statutory obligations.

But nevertheless this inscrutable NMC stand has dangerous and far-reaching constitutional repercussions not only for its own meaningful existence, but also for the secular credentials of the State. It will definitely open a Pandora's box of veritable sectional, casteist, communal interests manipulated in an ostensibly democratic manner in a volatile political situation. It is impossible to imagine of a Government not based on constitution and law but on consensus and conscientious decisions!

The interview cited above by the NMC Chairman can be pertinently contrasted with his recent interview to the STARNEWS on 12-1-1999 at 7.30 p.m. when he said that the National Minority Commission has given recognition to Hindus in the State of Jammu and Kashmir and asked the Chief Minister, Mr. Farukh Abdulla, a in a categorical letter written on that day itself to extend to them the same facilities and safeguards as are available to other recognized minorities. This is certainly questionable in the context of the official stand taken by the commission in their decision as noted in the Counter-Affidavit, because the NCM under the relevant Act can only recommend and not recognize a minority status to any group or community.

Earlier Dr. Mahmood in his briefing to the media on 25-11-98 had gone on record stating :"So far, the Government has been content with national-level minorities only. We have come out with the concept of State-level Minorities and have virtually recognized Hindus as a minority entitled to invoke out jurisdiction in the States of Jammu and Kashmir, Punjab, Meghalaya, Mizoram, Nagaland and the Union territories of Lakshadweepa and Chandigarh." (Emphasis supplied) (The Times of India, 26-11-98).

This is quite an innovation not at all warranted by the National Commission Minorities Act, 1992, under which the NMC is constituted. It is incomprehensible how the Chairman can arrogate to himself such powers of suo motu recognition of any community as a minority. What was the procedure followed in this novel concept of "virtual recognition of Hindu community as a minority"? If the underlying basis is merely a demographic count of any community being numerically less than 50 per cent that is also not definitive as per the Supreme Court opinion in re: The Kerala Education Bill (AIR 1958)

The Supreme Court opined that while it was easy to say that minority meant a community which was numerically less than 50 per cent, the important question was 50 per cent of what- the entire population of India or of a state or a part thereof?

Therefore the National Minority Commission's ingenious stand must fall flat. The trouble is that Commission is adopting double standards: one in the case of Hindus and the other in the case of Jains available evidence and criteria: First, there is a recommendation made twice by the NMC, and second, the Jains are in a minority not only in the entire population of India, or State, but in every district or part thereof..

While the National Minority Commission has shown unseemly haste in taking cover under the dissenting notes against Jain Minority status, it did not pause for a moment to consider the propriety of how a sitting Law and Judiciary Minister, Mr. Ramakant Khalap, in the erstwhile United Front Government sworn to uphold the Constitution could climb this bandwagon of protesters?

– Bal PatilJanuary 5, 2003


The author is Convener, Jain Minority Status, Dakshin Bharat Jain Sabha, Co-author of Jainism (Macmillan Co. 1974) with Dr. Colette Caillat, ex-Rector, Sorbonne University, Paris, and Dr. A.N. Upadhye, a former President of All-India Oriental Conference; and Author of Supreme Courts volte face On Constitutional Amendment published by Govt. of Maharashtra, 1980. He is also a Member of the Maharashtra State Minorities Commission, Government of Maharashtra, (Representative of Jain Community in Maharashtra State).

1 comment:

anurag said...

Most of the Jain families have a HUF firm in their name as well as for income tax purpose,What will happen to them if they were to become minority

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