Ahimsa Times 2007 12 SrNo 90

Author(s): Ahimsa Times
Publisher: Ahimsa Times

Page 12

AHIMSA TIMES - DECEMBER 2007 ISSUE - www.jainsamaj.org
Page 12 of 20
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 held: "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." (AIR 1939 Bom 377);
In CWT v. Champa Kumari Singhi Banerjee, J. of the Calcutta High Court has also said that: "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" AIR 1968 Cal 74;. This report has also been accepted by the Hon'ble High Court and Supreme Court in Arya Samaj Education Trust v. Director of Education, AIR 1976 Del 207) and Indra Sawhney (Writ Petition (Civil) No.930 of 1990 - Indira Sawhney Vs Union of India And others (16.11.1992).
In Babari Masjid case the Supreme Court has observed Jainism to be a separate religion from Hinduism. The Court stated in:( CWP No. 317 of 1993) before the Supreme Court ) "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." In the T.M.A. Pai Foundation v. State Govt. of Karnataka(2002) 8 SCC 481 ) 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 Hon'ble 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) 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 Karnataka referred various decisions of the Supreme Court and held: 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 held: "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 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), 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. The Supreme Court bases its rejection of the Jaina claim for minority status 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. As already noted 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. States were reorganized in 1956 on linguistic basis and not religious basis. As noted by 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 : "His historiography is full of flaws. 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 sector 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." In this case the Supreme Court of India declined to issue a writ of Mandamus towards granting Jains the status of a religious minority throughout India. The Court however left it to the respective States to decide on the minority status of Jain religion In the judgment, the Supreme Court opined: "Thus, 'Hinduism can be called a general religion and common faith of India whereas 'Jainism is a special religion formed
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