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AHIMSA TIMES - OCTOBER 2008 ISSUE - www.jainsamaj.org
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crystallization of political thought and constitutional theory. Indeed they have provided a model for the emergent world.
The Universal Declaration of Human Rights had an impact on our Constitution but the International Covenants and, above all, the UN Declaration of Rights of Minorities, 1993 have all reflected what the Indian Constitution gave to the religious, linguistic, racial and cultural minorities of the country. Today minority rights are universally accepted as an indivisible from and essential to human rights, because almost every nation-state is multi-religious, multi-lingual and multi-cultural.
The obiter dicta observations although made extra-judicially have grave implications because the general public takes any declaration made by the Supreme Court as the law of the land. It is in this perspective that the Judgment of the Supreme Court in the matter of Bal Patil & Anr. Vs. Union of India has given the wrong message to the country against not only the Jain Community, but the minority religious communities and the National leaders of the country whom we call "Founding Fathers" and the statutory functionaries Viz the National and State Commissions for Minorities who are said to be the cause of fissiparous tendencies.
22. Such being the constitutional goal as interpreted by the Apex Court it has no difficulty in arriving to the conclusion that the "Minorities Commissions set up at the Central or State level...for minorities have to direct their activities to maintain their integrity and unity of India by gradually eliminating the minority and majority classes." (!!) And thus the Court lays down in its extra-judicial majesty that the National Commission for Minorities "should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether." (!!!)
23. The crux of the matter in pursuance of the earlier Order of the Supreme Court was that the Government of India was required to take a decision in terms of the National Commission for Minorities Act as per the recommendation. However, the Affidavit made by the Government utterly failed to take into account the issues raised in my petition as pointedly noted by the Supreme Court Order itself directing the Central Government to take a final decision within four months. The Government of India made an erroneous and irrelevant Affidavit in response to the above Order stating that the minority Status is to be determined by the States concerned. Later on a 3-Judge Bench was constituted and the latest SC. Decision is the outcome of this Bench.
24. In the aforementioned context the following facts regarding the Jain minority religious right need to be noted. i) The Jain demand for minority status is almost a century old, when in British India the Viceroy and Governor General of India, Lord Minto took a decision in principle of giving representation to important minorities in the Central Legislature, Seth Manek Chand Hirachand, an eminent Jain leader from Mumbai and the then Acting President of the Bharatvarshiya Digamber Jain Sabha made an appeal in 1909 to the Governor General for the inclusion of the Jain community for representation in the Council. Seth Manek Chand's petition was transferred to the Government of Bombay and the Secretary to the Government of Bombay stated in his reply dated 15th oct.1909 as under.
"I am directed to inform you that a number of seats have been reserved for representation of minorities by nomination and that in allotting them the claim of the important Jain Community will receive full consideration."
ii) In a Memorandum by the Representative of the Jain Community to the Constituent Assembly in March/April 1947 to the Constituent Assembly a strong appeal was made for the inclusion of the Jain community as a minority religious community.
iii) In his speech on 3rd Sept.1949, Jawahar Lal Nehru said: "No doubt India has a vast majority of Hindus, but they could not forget in fact there are also minorities Muslims, Christians, Parsis and Jains. If India were understood as Hindu Rashtra it meant that the minorities were not cent per cent citizens of the country.
iv) Jainism is mentioned as a religion along with Buddhism and Sikhism in Explanation II of the Article 25 of the Indian Constitution relating to Fundamental Right to religions freedom. On this issue Jawahar Lal Nehru, the then Prime Minister, in his letter dated 31.01.1950 assured a Jain Deputation that they need not have any misgivings on this clear constitutional position.
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8/11/2009
