Ahimsa Times 2007 12 SrNo 90

Author(s): Ahimsa Times
Publisher: Ahimsa Times

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AHIMSA TIMES - DECEMBER 2007 ISSUE - www.jainsamaj.org
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larger issue on which the contention is based, is of the opinion that the purpose of the representations would be served if Explanation II to Article 25 is omitted. (The Tribune News Service, April 2, 2002.) As noted by Prof. Mehmood, a former Chairman of the National Minority Commission and a former Dean of the Faculty of Law, Delhi University: "A confusion, indeed not warranted by the words of Explanation II to Article 25, seems to have gone round that the Constitution declares Buddhists, Jains and Sikhs to be "Hindus". Most certainly it does nothing of the sort... The provision of Explanation II in Article 25 has no religious connotation. Instead of saying the same thing four times of four different religious communities - Hindus, Buddhists, Jains and Sikhs - Article 25 (2)(b) says it once, for the Hindus, and then adds that the same provision be read in the Constitution for three other communities as well - the Buddhists, the Jains and the Sikhs. Makers of the Constitution did not intend to merge the Buddhists, Jains and Sikhs into the Hindu religion; nor were they indeed competent to do so. Hinduism, Buddhism, Jainism and Sikhism remain, under the Constitution and the law of India, four different faiths; and their followers four different religious communities." (Religious Identity, Beliefs and Practices under the Indian Legal System) article in Religion and Law Review June 1999)Prof. P.C. Jain (L. L. M.: Ph.D.: Associate Professor, Department of Law, Former Administrative Secretary to Vice-Chancellor, University of Rajasthan, Jaipur - 302 004) in his article Right of Jains to be Declared as a Minority based on Religion - Some Observations (cited as: (2004) PL Web Jour 10) www.ebcindia.com/lawyer/articles/705.htm offers a learned discussion of the Constitutional and legal aspects of Jain minority religion. Dr. Jain cites the Aurangabad Bench of Bombay High Court (Shri Amolak Jain Vidya Prasarak Mandal, Kada v. State of Maharashtra, WP No. 587 of 2000 decided on 1010-2002) has also held so for the Maharashtra State. 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.
As emphasized by Dr. Jain: "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." 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, observed: AIR 1954 SC 282). (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 Jainism 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 Gajendragadkar, J. in Tilkayat Shri Govindlalji Maharaj vs. The State Of Rajasthan And Others (1964(1) SCR 561) and by Jaganmohan Reddy, J. in State of Rajasthan v. Sajjanlal Panjawat, [1974] 2 SCR 741; (AIR 1975 SC 706) In Gateppa v. Eramma, Kumaraswami Shastri, A.C.J. of Madras High Court has also said thus: (Gateppa v. Eramma, AIR 1927 Mad 228): "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 Sojpal 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,
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