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AHIMSA TIMES - OCTOBER 2008 ISSUE - www.jainsamaj.org
Page 11 of 19
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
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