This decision could have come in 2005. A judicial misreading is to blame.
Rahul Gandhi’s demand and the cabinet’s decision to declare Jains a national minority is a welcome but overdue decision. It rectifies an inexplicable omission since a community based on a unique faith comprising less than 0.5 per cent of the population was nationally not recognised as a religious minority!
Apart from the general apathy of successive governments and the absence of a persistent demand by the Jain community, the main reason was the 2005 decision of the apex court in Bal Patil vs Union of India.
A strong advocate of a minority status for the community, Patil had petitioned the Supreme Court to notify Jains as a minority under the National Minorities Commission Act, 1992. The apex court, disagreeing with the petitioner’s contention, ought to have rejected the petition on the established legal principle that a direction cannot be issued to an authority to issue a notification where the statute gives a discretion in that regard.
Instead, the three-member bench did an exegesis as to how Jains were a part of Hinduism, how Jains are a reformist movement among the Hindus (like the Arya Samajis), that within the fold of Hinduism everyone is a minority and that such recognition militates against the concept of Indian secularism!
Not only was all this unnecessary, the five-page, 37-paragraph judgement also displayed a monumental lack of understanding of Indian history, philosophy and comparative religion on the part of the apex court. The government thereafter did not notify Jains on the plea that Jains, being part of Hinduism, cannot be a minority!
Astonishingly, the apex court ignored the remarkably rich Jain heritage in India for over 5,000 years. The Jain and the Vedic traditions comprise the two ancient streams of religious and philosophical thought in India, the former being the older. Jain principles are radically different from mono/polytheistic faiths; Jainism, for instance, is irreligious in its denial of the concept of creation/creator and instead follows the ‘Anadi Anantam Cho’ evolutionary concept, that is, the universe has always existed and will always continue. Nude figures, considered Rishabha, have been discovered at Mohenjodaro and Harappa. Seal motifs found there are identical to those found in the ancient Jain art at Mathura. Scholars like Radha Mookerji, Roth, Chakravarti, Ram Prasad Chanda, T.N. Ramchandran, Mahadevan, Kamta Jain, Radhakrishnan, Hiralal Jain, Zimmer, Jacobi and Vincent Smith have all established that Jainism is an ancient religion which is not a sect or sub-sect. The Shramana tradition of Jainism significantly predates the Vedic one.
Radhakrishnan noted that Rishabhdeo had been recognised even in the Bhagvada Purana and was worshipped well before the first century BC. The Yajurveda mentions the names of three Tirthankaras. The constitutional founding fathers included a Jain representative in the Constituent Assembly. The Bombay government in 1909 endorsed “the claim of the important Jain community” for reservation as a minority. In 1993, the Minorities Commission recommended that the community be declared a minority religious community. Nehru’s secretary clarified in 1950 on his behalf, “...there can be no doubt that they are a distinct religious community and the Constitution does not in any way affect this well recognised position.” This last sentence was intended to dispel the interpretation of Article 25 Expln II clubbing Sikhs, Buddhists and Jains with Hinduism. In Discovery of India, Nehru wrote that “Jainism and Buddhism were certainly not Hinduism or Vedic dharma....” Eminent writer Dr Jyoti Jain wrote that there is absolutely no evidence that “Jainism branched off from the Vedic religion...instead it may well be the oldest living religion of non-Aryan or pre-Aryan origin”. From the Encyclopaedia of Religions to Encyclopaedia Britannica, Jainism is defined and treated as a separate religion. There is no dispute here.
A catena of judicial pronouncements consistently endorsed the same position. Since 1957, it is accepted that a numerical minority at the state and/or at the central level is sufficient for qualification as a minority. Ironically, Jains are already a notified minority in 12 states and while these states comprise well over 50 per cent of India’s population, Jains nationally were not a minority!
That Jains do not believe in God as a creator, that it was a distinct religion flourishing before Christianity, that it flourished long before Hinduism as an independent religion and that Jains always rejected the authority of the Vedas and cannot be called Hindus, has respectively been held by the apex court in 1954 and by different HC judgements in 1939, 1951, 1957, 1968 and 1976. Not one of these decisions or books or material is even cited in the Bal Patil case!
The valiant effort by a later, smaller two-member bench of the apex court in 2006 could do no more than distinguish Bal Patil but was unable to undo the clear error of substantive principle.
It is interesting that not all Jains share the perception of the need for minority status. Despite being India’s second smallest religion after Parsis, Jains have a literacy rate of 94 per cent (compared to the national average of 65 per cent) and a female literacy rate of over 90 per cent (as against 54 per cent nationally). The sex ratio for Jains is much better than the national average. The community has the highest per capita income, paying over 20 per cent of the income tax in the country. Many, including this author, believe that Jains should thank the government but refuse the benefits (including reservations) which may flow under the notification, though that is unlikely to happen. In the ultimate analysis, Jains’ fight for minority status should seek to protect and promote Jainism as a distinct faith and culture.
(The author is MP, Congress national spokesperson and jurist.)