Are Jains not in minority? Think again

Some time back press reports suggested that the Supreme Court had rejected the claim of Jains to be a minority. It was further suggested that only Muslims and Christians were really minorities, not others.

Some time back press reports suggested that the Supreme Court had rejected the claim of Jains to be a minority. It was further suggested that only Muslims and Christians were really minorities, not others.

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The press report is a totally misleading summary of a learned judgment of the Supreme Court.

The case Bal Patil v. Union of India was decided on August 8, 2005 by a three-Judge bench headed by Chief Justice Lahoti. The judgment was however prepared by Justice Dharmadhikari.

In that case the only issue raised was about the provision in section 2 (c) of the National Commission for Minorities Act 1992. It defined a minority, “for the purposes of this Act" as a community notified as such by the Central Government.

The Commission recommended to the Government that Jains be declared a minority community for the purposes of this Act. Government deferred its decision because of the pendency of an eleven judge bench hearing a petition relating to educational institutions. That bench ultimately decided that this question could only be answered by the respective state Government as a community which is a minority in one State may be a majority in other States.

For instance Hindus in Punjab or Jammu and Kashmir or Arunanchal Pradesh are a minority though a majority community in the country. Punjab was formed on the demand of the Sikhs for a separate Sikh majority state. After this the Supreme Court in Bal Patil's case could only say that the definition of "minority" in section 2 (c) was itself misconceived as it was not open to the Central Government to declare any community at all as a minority because the position varied from State to State.

The Court rightly rejected the petition as the Central Government could not be directed to declare any community as a minority. It also chose further to delve into the political history of the country in order to put down any tendency of encouraging multi-nationalism.

If this is what Justice Dharmadhikari wanted to say he could do so in one or two short paragraphs.

He or the other brother judges could have suggested that in this view of the matter not only the definition given in section 2 (c) was misconceived even the setting up of the National Minorities Commission was equally so. Only State Minority Commissions could, if at all, be in order. There are already the courts to protect the minority rights given by the Constitution.

There are active lobbyists in each political party out to woo the Muslim vote bank and other caste/ community vote banks. The bench did not express any such view. Instead it gave its views ex-cathedra on several controversial issues which are not matters capable of judicial determination but have been the subject of endless political historical debates. Sample their dicta on:

1.Whether Jinnah or the Congress leaders were responsible for partition. We all know how much it has cost LK Advani to express his views on this issue in Pakistan.

Justice Dharmadhikari has relied on Seervai's book and Maulana Azad's memoirs to hold Gandhiji and Nehru guilty, and not Jinnah. His view that Azad had tried to broker pence between Nehru-Patel and Jinnah- Liaqat has hardly any basis.

Jinnah claiming to be sole representative of India's Muslims could not tolerate Azad (whom he called the Congress showboy) and other few Muslims who were with the Congress. Liaqat and Nehru were also not directly involved. The only meetings were of Gandhiji with Jinnah in the latter's house. On Gandhiji's death Jinnah in his condolence message described Gandhiji as a great Hindu leader.
Now Seervai was no doubt an eminent constitutional writer and advocate but was no historian.

Even on interpretation of the Constitution he has at times crossed swords with the Supreme Court and has shown his preference to Privy Council and English rulings. He had represented the UP Assembly in the Presidential reference relating to the Assembly- High Court confrontation in the sixties. His anachronistic views were not accepted by the Supreme Court and thereafter he devoted a whole chapter of his magnum opus to reiteration of his arguments which bordered on fanaticism matching that of then functionaries of the legislatures.

Later developments on Kashmir and the UNO and documents from British archives and other sources have proved that it was the British who were hell-bent on creating a separate pro-British State including Kashmir from out of the Hindu- majority India. Any way it is not a matter for judicial adjudication.
2.Whether Jain, Buddhist and Sikh religions are part of Hindu religion? On this issue it is not the fundamental philosophy of the religions but how the political activists view the matter that is relevant.

All that the Constitution suggests is that they are separate religions though their personal law and way of life are the same as those of Hindus.
3.Whether the affluence of a community can deprive a community of minority status. If it could, then Parsis and Sikhs or Sindhis,like Jains, could never claim minority status.

The question of minority status that had arisen before the eleven-judge bench was only in the context of Articles 26 and 30 relating to educational institutions.
That will gradually became superfluous now that the Supreme Court has finally accepted that non-minorities have the same rights as minorities to establish and administer educational institutions of their choice.

The rights of both are subject to reasonable regulations in the interests of educational standards and such other factors. Only a marginal controversy remains about the extent of permissible regulations in respect of minority and non- minority institutions respectively. With globalisation and free market economy it is only a matter of time that this too will disappear.So the Supreme Court has not in this case decided anything about whether Jains are a minority or not.

For the present the DAV College cases from Punjab holds the field. In that case Hindus were held to be a minority in the Sikh majority State of Punjab.By the same logic Sikhs, Buddhists and Jains can claim to be minority status in every state where they are not the majority community.