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Minority claims and majoritarian anxieties: The Jain question

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Minority Claims and Majoritarian Anxieties The Jain Question

Manisha Sethi

An exploration of the judicial and legislative responses to n 2014, the outgoing United Progressive Alliance (UPA) the claim for minority status by the Jains in government at the centre notifi ed “the Jain community as a minority community in addition to the fi ve communities post-independence reveals the state’s deep-seated I already notifi ed as minority communities, namely, Muslims, disquiet about the idea of minority rights. Both the state Christians, Sikhs, Buddhists and Zoroastrians” (GOI 2014). and the courts, notwithstanding their commitment to This was a culmination of a long struggle by the Jains to be these rights, viewed the demand of Jains with suspicion recognised as a minority—a demand that dates back to 1909. This frenetic mobilisation by Jain organisations has been and detrimental to “national unity.” This article hopes to largely ignored by chroniclers of the period. This article, how- demonstrate that the case of Jains is in fact quite central ever, trains its lens not on the efforts of the community and its to the way in which definitions and understandings of internal fault lines, which are many, but on the legislative and minority and majority have come to be interpreted judicial responses to this demand. in our polity. Origin of the Demand In the early decades of the 20th century, when the British gov- ernment was mulling a series of reforms in order to increase the involvement of Indians in the governance of British India, Seth Manekchand Hirachand petitioned Lord Minto, the then viceroy and governor general, to include Jains in the category of important minority. Seth was an infl uential member of the Jain community and the acting president of the Bharatvarshiya (Patil 2010). Despite an assurance from the viceroy that the Jains’ appeal would be considered duly, the Morley–Minto reforms, as the Indian Councils Act 1909 came to be called, made no provision for the representa- tion of the Jains. More than a decade after Seth had made the claim on behalf of the community, the 1921 Census report for the Punjab returned a curious category, “Jain–Hindus.” (2002: 5) has called this an “unhappy and artifi cial compro- mise,” and attributed this to the infl uence of prejudiced enu- merators. However, this would be to ignore how the colonial exercises of governance were shaping identities and providing new means and ways to articulate and think about self and community. Well into the 20th century, campaigns were under taken by Jain leaders to persuade the community to register themselves as Jains and not Hindus (Carrithers and Humphry 1991: 6). Through the colonial period, courts opened up an arena where claims to identities were being made. Vigorous litiga- tion over religious practices and pilgrimage sites reached the British courts. Though this was a continuation of the earlier Manisha Sethi ([email protected]) is with the Centre for the practice of appealing to political authority to resolve religious Study of Comparative Religions and Civilisations, Jamia Millia Islamia, confl icts, what was distinct now were the new legal and theo- New . retical categories that British jurisprudence had introduced.

Economic & Political Weekly EPW DecEMBER 3, 2016 vol lI no 49 55 SPECIAL ARTICLE

Right through the later decades of the 19th century and fi rst contribution to the intellectual and cultural life of the country. Their half of the 20th century, until the Hindu Succession Act, 1956 ancient culture and civilisation will need special care and protection was in place, the courts in British India saw intense litigation when a permanent constitution is framed, the denial of the minority over the right of Jain widows to inherit and dispose of their status to the Jains will mean their death warrant as a distinctive cul- tural group especially when all other minorities are going to be recog- dead husband’s property. The meaning of the terms “custom,” nised. Even the legitimate sections of Hinduism like the Harijan and a “law,” and “community” were being forged and contested small community like Parsees are treated as minorities. Although the through legal exercises. Jains held important positions in industry and commerce and other In the years leading up to the partition and independence, spheres of life, as a community the Jains are backward … we, there- the debates around the fate of minorities in British India fore demand in the fi rst place that the Jains be treated as a minority gained currency. The Constituent Assembly set about the task and given all rights and privileges which may be given to other com- of drafting the Constitution in great earnest. In deference to munities. (Ansari 1996: 232–37) the urgency of attending to the minority question, Govind Another memorandum, submitted a few months later, by Ballabh Pant moved a resolution in January 1947 to set up an the All India Shwetamber Sthanakwasi Jain Conference, stated Advisory Committee on Fundamental Rights and Minorities that Jains were “racially Hindus” and “in the interests of the (henceforth Advisory Committee). Kasturbhai Lalbhai, a unity of the country” renounced any claim to separate repre- prominent mill owner from Ahmedabad and follower of Gan- sentation in the legislative, executive, or administrative insti- dhi, was nominated to the Advisory Committee by Rajendra tutions of the country or indeed any separate political rights Prasad as the representative of the Jains. As a trustee of the (Ansari 1996: 229–31). It did, however, appeal against interfer- Anandji Kalyanji Pedhi (Trust), Lalbhai had negotiated with ences of the British government in the religious affairs through the British over the rights to manage the Shvetambar pilgrim provisions which were repugnant to the sentiments of Jains. It site of Shatrunjaya. It has been argued that the Trust’s robust mainly sought the independence to administer and maintain defence of ownership of Shatrunjaya—both in the courts, their temples, pilgrim sites, charitable trusts, and religious bureaucracy, and the public arena—had been central to the institutions (the two principal examples of interference were production of Jain identity, or at any rate that of Murtipujak the Beggars Act of Bombay, which criminalised the begging of Shvetambar Jains, in modern Western India (Ku forthcoming). alms by Jain ascetics, and the Bihar Hindu Religious Endow- Lalbhai was inundated with letters and appeals from asso- ments Bill, which effectively transferred the management of ciations of different Jain denominations—both Shwetambar Jain temples to government-appointed committees). So, while and Digambar—reminding him of the momentousness of the the fi rst demand was for thoroughgoing protections embrac- task that he had been assigned with. One telegram read thus: ing political and cultural rights, the second emphasised the “Remember heavy responsibility. Jain recognition as inde- freedom for religious practices. pendent ancient original minority like Sikhs essential. Essen- When the Constitution was drafted, Article 25, Explanation tial recognise Digambar monks free movements. Jain rath II included Jains (and Buddhists and Sikhs) under the “broad” yatras vihar be unrestricted [sic]” (Piramal 1998: 406–07). rubric of Hinduism, stating, “In sub-clause (b) of clause (2), the Lalbhai’s biographer though notes that he found the numerous reference to Hindus shall be construed as including a reference petitions he received from Jain organisations and individuals to persons professing the Sikh, Jain or Buddhist religion, and the tiresome and ignored them most of the time. reference to the Hindu religious institutions shall be construed accordingly.” Fearful of the submergence of their distinct iden- In the Legislative Arena tity within Hinduism, a Jain deputation met the then Prime Though the Advisory Committee on minorities had a Jain Minister Jawaharlal Nehru and other senior cabinet ministers member, Jains were absent from the schedule of minorities to submit a petition challenging this anomaly in early 1950. drawn up by the committee on the basis of the percentage of In responding to Jain (and indeed Sikh) suspicions, the population of communities. The schedule included Anglo– drafters of the Constitution cleaved the defi nition of Hindu— Indians, Parsees, Plains’ tribesmen in Assam (in group A with Hindu by faith and Hindu by law. The letter from A V Pai, population below 0.5%), Indian Christians and Sikhs (in group B Nehru’s principal private secretary, to the Jain delegation read with population between 0.5% and 1.5%) and fi nally Muslims as follows: and Scheduled Castes (in group C with population exceeding This particular Article merely makes a defi nition. This defi nition by 1.5%) (cited in Ansari 1996: 254–55, 263). enforcing a specifi c constitutional arrangement circumscribes that Nonetheless, the Jains saw this as an opportunity to wrest rule. Likewise you will note that this mentions not only Jains but also concessions being promised to minorities. A memorandum Buddhists and Sikhs. It is clear that Buddhists are not Hindus and therefore there need be no apprehension that the Jains are designated was submitted to the Constituent Assembly in March–April as Hindus. There is no doubt that the Jains are a different religious 1947 underlining the urgency of granting minority status to community and this accepted position is in no way affected by the con- the community. stitution. (qtd in Patil 2007) The four statutes—namely, the Hindu Marriage Act 1955; The recognition of the Jains as a separate minority has now become necessary for at least two reasons. First, in spite of their glorious past the Hindu Succession Act, 1956; the Hindu Minority and and substantial contribution to modern India, the community has Guardianship Act 1956; and the Hindu Adoptions and Mainte- been declining in numbers and is not in a position to make its rightful nance Act 1956—which together form the Hindu personal

56 DecEMBER 3, 2016 vol lI no 49 EPW Economic & Political Weekly SPECIAL ARTICLE laws, also reiterated the inclusion of Jains into the Hindu legal and 30) in a secular state were at the heart of these litigation framework. Each of these statutes contained a provision that exercises and legal pronouncements. stated that We can identify three broad questions posed before the The expression ‘Hindu’ in any portion of this Act shall be construed courts: fi rst, whether Jains were Hindus; second, whether they as if it included a person who, though not a Hindu by religion, is nev- constituted a minority; and last, what was the nature of spe- ertheless a person to whom this Act applies by virtue of the provisions cial rights enjoyed by minorities. Closely related to this was contained in this section (emphasis added). the issue of rights enjoyed by “individual citizen” as opposed The move to include Jains under the purview of reformed to rights granted to community or “class of citizens.” The personal laws by the Hindu Law Committee was also resisted courts come across as polyphonic, at times granting Jains the by the Jain leaders. Ambedkar though dismissed reservations benefi ts of minority status, at other times denying it. However, about the Hindu Code Bill with the following argument: the process shows that the wresting of rights was often tortu- The peculiarity about the Hindu religion, as I understand it, that it is ous—commitment to minority rights notwithstanding—with one religion which has got a legal framework integrally associated with both the state and courts viewing minority rights with suspi- it … it would not be diffi cult to understand why Sikhs are brought cion and detrimental to “national unity.” under the Hindu religion, why Buddhists are brought under the Hindu We can contrast a set of judgments—the fi rst, which clearly religion and Jains are brought under the Hindu religion … In this country although religions have changed the Law has remained one hold that the inclusion of Jains within the Hindu fold was sim- … The Jains come and ask: ‘What are you going to do to us? Are you ply a legal fi ction; the second set of judgments on the other going to make us Hindus? The Sikhs say the same thing. The Buddhists hand, rehabilitate them into the Hindu fold. The latter can be say the same thing. My answer to that is this: I cannot help it. You have seen expressing clear majoritarian anxieties on the question of been following a single law system and it is too late now for anyone to say that he shall reject this legal system wholesale … That cannot be granting minority status to Jains. While the fi rst fortifi ed the done. Therefore, the application of the Hindu Law and the Hindu Code legal category of Hinduism, the second articulated fears about to Buddhists, Jains and Sikhs is a historical development to which you the balkanisation of Hindu identity. and I cannot give any answer. (Ambedkar 1995: 886–88) The fi rst set of judgments drew a line between faith and law. Thus, a motley collection of religious faiths were lumped to- gether and designated as “Hindu” for purposes of application Pannalal v Sitabai case: One of the early cases after inde- of law. Notwithstanding the disclaimer that the Constitution pendence, Pannalal v Sitabai (1953) held that the Hindu Wom- did not attempt to subsume the smaller groups into Hinduism, en’s Rights to Property Act applied to Jains. Echoing Ambed- there was an underlying belief in the inexorable force and kar, the court held that it was too late in the day to contend scope of the operation of Hindu laws such that they were seen that “Jains” are not included in the term “Hindus” for the pur- to suffuse all major religions that sprung in India. This expan- poses of law.1 Notwithstanding the acceptance of law on this sive religious category to be governed by a single set of per- subject, the court felt that framers of the Constitution had felt sonal laws prefi xed by the title “Hindu” was then contrasted impelled to include the term “Jain” in Article 25 and the stat- with Islam and Christianity, which were to be administered by utes in consideration of the differences in two faiths. “Again their own personal laws. In the end, such defi nitional callis- faith is one thing and law is another.” thenics ended up not only hemming in Jains, Buddhists and Sikhs as Hindus by “law” but also creating a sharp demarca- Champa Kumari Singhi case: We now turn to two related tion between these so-called Indic religious groups and non- judgments which emerged from the assessment of the family Indic ones. And this division, howsoever unstated, and what- assets of Champa Kumari Singhi as belonging to Hindu Undivided ever may have been the legislative intent, continued to cast its Family (henceforth HUF) liable to be taxed under Section 3 of shadow on the way minorities were to be defi ned. the Wealth Tax Act. Singhi contested this on grounds that she was a Jain and not a Hindu. The Judicial Response The Calcutta High Court, before which the matter appeared, Despite the voluminous reports of a plethora of committees said that despite the marvellous catholicity, elasticity, eclecti- and sub-committees on minorities, lengthy debates in the cism of Hindu theology and despite the “almost unlimited Constituent Assembly, and the creation of National Commis- freedom of private worship,” “It will require too much of sion for Minorities (NCM) in 1992, somehow surprisingly, the boldness to hold that the Jains, dissenters from Hinduism, are term itself remained inexactly defi ned and its catalogue Hindus.” It concluded that a “Jain undivided family cannot be ambiguous, leaving it open to judicial interpretations. a Hindu undivided family.” To form a HUF, the court concluded Jains were not the only community approaching the courts fi rmly, the members must be Hindus. The statutes therefore seeking redress, entitlements, and benefi ts due to minorities provide for an artifi cial fi eld of application of the law (Commis- and asking the courts to clarify the term minority community sioner of Wealth Tax, W v Smt Champa Kumari Singhi and and its application. Since Independence, one can see hectic Ors 1968). jostling for ensuring that the rights enshrined in Articles 29 The commissioner of wealth tax appealed against this inter- and 30 were not frittered away. The litigation by Jains needs to pretation of the Calcutta High Court. The Supreme Court held be placed in this context. Concerns about religious freedom the high court’s pronouncement to be in error. Citing modern (Articles 25–28) and rights afforded to minorities (Articles 29 comparative research in Hinduism, and, Buddhism,

Economic & Political Weekly EPW DecEMBER 3, 2016 vol lI no 49 57 SPECIAL ARTICLE the Supreme Court argued that the theory that “Jains are Hindu Jain Swetamber Terapanthi Vidyalaya case: In the early dissenters is based on a misreading of the ancient authorities 1980s, the Jain Swetamber Terapanthi Vidyalaya (henceforth relating to these religions” (Commissioner of Wealth Tax, W v Vidyalaya) approached the Calcutta High Court against two Smt Champa Kumari Singhi and Ors 1972). However, the quib- orders passed by the West Bengal Board of Secondary Educa- ble was not whether Jains were Hindus or not, but simply tion (hereafter the Board). The Vidyalaya challenged the or- whether they would “be governed by the provisions of these ders on the grounds that it was an institution belonging to a enactments that are included in the term ‘Hindu’.” religious and linguistic minority, and under Articles 29 and The Supreme Court held that Jains were defi nitely not 30, its managing committee was entitled to maintain and Hindus, and the development of paralleled that of manage it without any interference from the Board (Sree Jain Hindu Law. Nonetheless, it was no longer possible to rectify Swetamber Terapanthi ... v the State of WB and Ors 1982). the error that colonial courts had made—namely, treating The state argued that Jain Swetambars were a sect of Hin- Jains as mere Hindu dissenters with no independent law— duism and denied that they could lay claim to a distinctive lan- because of the statutory enactments. The separate mention of guage or script, especially Prakrit. In order to ascertain whether Jains to whom Hindu law would apply meant that the position Jains were a minority, the court turned to the defi nition of had remained unchanged with the drafting of the Constitution, minority as delineated in the Kerala Education Bill, 1957.2 and the liberal interpretation of the term Hindu continued to Applying the numerical test laid out therein, the court relied, be in operation. The combined weight of these legislative and in particular, on the census of 1971, which showed that the judicial pronouncements accord “recognition to the fact that members of this community formed a mere 0.47% of the popu- even though Jains may not be Hindus by religion they are to be lation. Again, the court turned to statutes and the specifi c governed by the same laws as the Hindus.” mention of Jains “both in the Hindu Law as well as in the vari- ous acts such as Hindu Marriage Act, Hindu Adoptions and Education Trust case: In the mid-1970s, a clutch Maintenance Act, Hindu Succession Act, etc,” to demonstrate of petitions from a number of groups—including Arya Samajis, that Jain Swetamber Terapanthi sect professed “a faith different Jains, and Sikhs—all claiming to be religious minorities, from Hindu Religion.” reached the Delhi High Court; the question before the bench Despite differences in emphases, these judgments agreed on of the high court was to identify the “minorities based on the point that Jains were deemed Hindus only to the extent of religion” under Article 30(1) of the Constitution (Arya Samaj application of law. On the point of faith, there seemed to be no Education Trust, Delhi ... v the Director of Education, Delhi 1976). dispute that they were distinctive. The Union of India, Delhi administration and Directorate of However, Article 25 and the statutes did end up creating a Education, Delhi resisted the contention that petitioners were pan-Indic “Hinduism,” enveloping communities and groups religious minorities. as diverse as Jains and Sikhs. It was a process of defi ning The bench rejected the claims of Arya Samajis, but allowed Hind uism as a legal category.3 Such a defi nition then continued that Jains and Sikhs were distinct from Hindus and thus worthy to be a source of contestations over whether Jainism was a of marshalling the provisions of 30(1). For this bench, the con- mere sect of Hinduism or a separate religion and whether stitutional acknowledgment of the distinctiveness of Jainism Jains were a minority. (and Buddhisim and Sikhism) in fact inheres in Article 25. The Constitution demonstrated in Article 25 “the two different From Hindus by Law to Hindus by Faith contexts in which the Sikhs, Jains, and Buddhists could be At the heart of the Jain demand for minority status were these treated as Hindus and in which they would not be regarded as arguments: the religion’s antiquity (which challenged the Hindus.” Clearly, the former is the context of application of claim that Jainism emerged from Hinduism), beliefs (which Hindu codex and latter the context of doctrine. contrasted sharply with the Hindu belief in god as a creator), The two contexts are delineated and marked out: the fi rst rejection of Vedas and other Hindu scriptures, separate places refers to the coexistence of Explanation I (“The wearing and of worship, and a well-developed system of jurisprudence that carrying of kirpans [daggers] shall be deemed to be included applied to every aspect of an adherent’s life. In addition to in the profession of the Sikh religion”) and Explanation II; Jainism’s distinctive features which differentiated it from and the second refers to a dichotomy between “all classes and Hinduism, those in favour of minority status for Jains cited the sections of Hindus” mentioned in Article 25(2)(b) on the one demographic profi le of the community, which rendered it in hand, and “persons professing the Sikh, Jaina or Buddhist, their view the only genuine national minority. Standing at less religion” mentioned in Explanation II of the Article on the than 1% of the total population, there is not a single district other. The legislature did not simply proclaim that Hindu or taluka where the Jains constitute sizeable numbers as to personal laws would apply to Jains, Sikhs, and Buddhists; had dominate numerically. it done so, it would have implied that all these religions were However, the Jains failed to secure their inclusion in the part of Hinduism. It had instead enacted Explanation II and central list of national minorities declared through the Gov- one section each in the Hindu personal laws to maintain this ernment of India (GoI) notifi cation in 1993. Precisely a year later, dichotomy. The two contexts must not be confused, concluded hectic lobbying with the NCM resulted in its recommendation the bench. for the recognition of Jains as a national minority on par with

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Muslims, Christians, Sikhs, and Parsees. Neither this recom- ‘Vishnu’) and Judiciary as the ultimate watch dog (comparable with mendation nor its renewal in 1996 led the government to make Lord ‘Shiva’). (State of Rajasthan and Ors v Vijay Shanti Educational any announcement to this effect. During the period, the Jain Trust 2003) delegations continued to appeal to the government to declare It was with such a vision of the Constitution that the bench Jains as a national minority.4 read the constitutional provisions. The judges here rejected In the absence of such a recognition, several petitions con- the numerical criteria (less than 50%) for a group to be tinued to be fi led in high courts of different states over the declared a minority, saying that the touchstone should be the years, seeking directions for the declaration of Jains as a Constitution and its laws. For these judges, the defi nition of minority in the state and enable them to enjoy the rights under Hindu in the various acts demonstrated that the Parliament’s Article 30. If there is one illustration of the way in which understanding was “that basically whether a person is vagueness of the defi nition of minority plays out in legal con- Buddhist, Jaina or Sikh by religion, is a Hindu.” Further, in tests, it is the case which we turn to now. its opinion, “there cannot be any classifi cation or micro- classifi cation so as to divide Hindus in the context of Indian Vijay Shanti Educational Trust case: The Vijay Shanti Educa- origin. Even if we accept, that the Jain religion is a separate tional Trust petitioned the Rajasthan High Court in 2000 to and distinct religion by itself, the question still remains that, declare Jains as a minority in the state of Rajasthan so that that by itself would not confer the minority status on the Jains. they may avail the benefi ts of Article 30(1) and admit minority Basically, they are all Hindus.” students under management quota in the Bachelor of Dental The judges raised the spectre of endless fi ssion of the nation- Surgery (BDS) course being run by them. The Rajasthan gov- state attending every claim to minority status, which would ernment argued that according to the National Commission lead, in the bench’s view, to the tragic denouement where the for Minorities Act 1992 (NCM Act), a minority is defi ned as “a “pious concept of WE THE PEOPLE would be defeated.” Textual community declared as such by the central government,” and support for the “Jains are Hindus” thesis was sought from a since no such declaration had been made, the Jains were not variety of “authorities.”6 The bench said, “[T]he fact remains entitled to take advantage of the constitutional provisions that basically, they are all Hindus and it would be found from under Article 30. the deeper study of the Jain religion that they worship the The Rajasthan High Court held that this was only for the Hindu God and Goddess, like Ganesh, Laxmi and Saraswati.” purpose of the NCM Act and could not be a restricting condi- In the bench’s understanding, the founding fathers of the tion for a community which otherwise satisfi ed the twin crite- Constitution, in drafting Explanation II under Article 25 in the ria (of being a religious group and having population less than manner that they did, must have been touched by “the cool 50% of the total population) to avail the benefi ts accruing to breeze of our heritage” which the court had just catalogued. minorities. Such a “restrictive reading of provisions of Consti- “The real question,” the bench said was not of some seats (in tution [as the government counsel was suggesting] … would the dental college) but to “save the fragmentation of Indian be against all canons of interpretation. It would essentially Society on the basis of professing different religions … The imply that failing the proclamation of an “exhaustive list of moment persons following different sects being Hindus, start minority communities in each state” by the central govern- claiming minority status, because of a particular faith they ment, no community would be able to enjoy its rights under profess, it would be a great irony of faith for this country and the Constitution (Vijay Shanti Edu Trust v State of Rajasthan nothing would remain as majority.” In the court’s view, rights and Anr 2001). under Articles 29 and 30 could be claimed by Muslims, Chris- On the question of whether the Jains constituted a separate tians and Jews, but it viewed with horror the claims of those religious category, the court cited the classifi cation of religions who are “essentially and basically Hindus.” The double bench found in the 1991 Census, where the Jains formed a separate in denying Jains the minority status entrenched the commu- class, alongside Hindus, Muslims, Buddhists, Sikhs, and Chris- nity fi rmly within the fold of extended Hindu family. tians. It also referred to the various acts, in the application of The deployment of such a logic, of this sharp distinction be- which, “the Parliament was categorical in making a legal tween Indic and non-Indic faiths, and anxious articulation of fi ction in respect of Jains to be deemed Hindus.”5 fears about fragmentation of a majority was also seen in the The state of Rajasthan and the Rajasthan Minorities Com- Supreme Court judgment adjudicating directly upon a petition mission appealed against the judgment. The double bench that seeking declaration of Jains as a national minority. heard the appeal overturned it in favour of the state’s position. Early in the judgment, the double bench laid out an ideological case: This case arose from a writ fi led by Bal Patil on framework. “The Constitution of India is the fountain source behalf of the Dakshin Bharat Jain Sabha in 1997 in the Bombay of all laws in the country.” And then in a creative interpreta- High Court seeking an order for the central government to tion, it said that the Constitution is take cognisance of the explicit recommendation by the NCM. The high court disposed of the petition on grounds that the based on the concept of trinity, that is, creator—Lord Brahma, main- tainer the Lord Vishnu and the ultimate Lord Shiva. Three wings of issue of the claim of various communities to the status of the Constitution are Legislature, that is, the Creator (comparable “minority” was pending before a bench of 11 judges of the with Lord ‘Brahma’), Executive as maintainer (comparable with Lord Supreme Court in the case of TMA Pai Foundation.

Economic & Political Weekly EPW DecEMBER 3, 2016 vol lI no 49 59 SPECIAL ARTICLE The petitioners then moved a special leave petition in the act as such and extend any special treatment or protection to them Supreme Court, now known famously as the Bal Patil v the as minority. Union of India (2005) case. The central government’s counter The three-judge bench did not rest at providing us with the affi davit in the Supreme Court also cited the pending TMA Pai contours of the concept of minority, alerting us to criteria cru- case, as well as drew the apex court’s attention towards the cial in identifying and naming groups as minority. It could not NCM’s direction to the government “to take note of various restrain itself from commenting on the roots and character of notes of dissent opposing minority status to Jains,” and to Jainism, challenging the very premise of the petitioner’s “ascertain the consensus within the Jain community before appeal that Jainism was a faith distinct from other religions. taking a fi nal decision in the matter” (Bal Patil & Anr v Union There is a very serious debate and difference of opinion between re- of India & Ors 2005). ligious philosophers and historians as to whether Jains are of Hindu In 2002, the 11-judge bench delivered its judgment in the stock and whether their religion is more ancient than the vedic religion TMA Pai case. In the majority judgment, the bench held that of Hindus. Spiritual philosophy of Hindus and Jains in many respect is different but the quintessence of the spiritual thought of both the since the reorganisation of the States in India has been on linguistic religions seems to be the same. The infl uence of Hindu vedic religion lines, therefore, for the purpose of determining the minority, the unit is quite apparent in the custom, style of living, belief and faith of Jains. would be the state and not the whole of India. Thus, religious and … linguistic minorities, who have been put on a par in Article 30, Thus, ‘Hinduism’ can be called a general religion and common faith have to be considered State-wise. (TMA Pai Foundation v State of Kar- of India whereas ‘Jainism’ is a special religion formed on the basis of nataka 2002)7 quintessence of Hindu religion. … In philosophical sense, Jainism is a TMA reformist movement amongst Hindus like Brahamsamajis, Aryas amajis Following the Pai judgment, the centre pleaded before and Lingayats. (Bal Patil & Anr v Union of India & Ors 2005) the Supreme Court (in the Bal Patil case) that it had no role to play in the declaration of any community as a minority, while Its parting shot was a warning to the NCM to not encourage the counsel for the Jain community urged that the centre “fi ssiparous tendencies” and “feelings of multinationalism in could not shirk its responsibility, which Section 2(c) of the NCM various sections of people of Bharat” by ceding to minority Act vested it with.8 claims of different groups. This would be “a serious jolt to the In 2005, a three-judge bench of the Supreme Court in res- secular structure of constitutional democracy.” “Commissions ponse to Bal Patil’s petition ruled that “It is not for this court to set up for minorities have to direct their activities to maintain issue any direction or mandate on the basis of the claim of integrity and unity of India by gradually eliminating the mi- some members of the Jain community, which is opposed to by nority and majority classes.” Further, another section of the same community” (Bal Patil & Anr v [A]s such, the Hindu society being based on caste, is itself divided into Union of India & Ors 2005). The bench in fact spent a great deal various minority groups. Each caste claims to be separate from the of time delineating the concept of minority. The bench noted other. In a caste-ridden Indian society, no section or distinct group of that though the term minority has been deployed in Articles people can claim to be in majority. All are minorities amongst Hindus. 29 and 30 of the Constitution, “it has nowhere been defi ned.” It The bench questioned the very concept of a religious minority: conjectured that the extension of “constitutional guarantees Differential treatments to linguistic minorities based on language for protection of cultural, educational and religious rights of within the state is understandable but if the same concept for minori- all citizens” was the reason behind this vague defi nition of ties on the basis of religion is encouraged, the whole country, which is “minority.” Drawing upon the “constitutional scheme,” the already under class and social confl icts due to various divisive forces, bench designated a minority as “an identifi able group of peo- will further face division on the basis of religious diversities. (Bal Patil & Anr v Union of India & Ors 2005) ple or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational So, from the judgment of the double bench of the Rajasthan rights by other communities who happen to be in majority and High Court, which could not conceive of minorities other than likely to gain political power in a democratic form of Govern- “Muslims, Christians and Jews,” the Supreme Court questioned ment based on election.” the very relevance of the category of religious minority. Noting the functions of the NCM, the bench commented that the commission was not directed to identify any community as Judicial Abrogation of Minority Rights: a minority, its recommendation (in favour of Jains in this case) 30(1) Against 29(2) could only be deemed advisory, having “no binding effect.” The same bench of the Delhi High Court which had ruled The central government is not bound, the bench observed, to unequivocally that Jains were a minority, a religious commu- automatically carry out the advice and recommendation of the nity distinct from Hindus in answering the question “who con- NCM, but to notify a community as minority after serious stituted minorities based on religion under 30(1),” was also refl ection on the social, cultural, and religious conditions of asked to deliberate on what rights Article 30(1) entailed for the Jain community in each state. Numerical debilitation alone minorities so recognised. cannot justify the status of minority.

If it is found that a majority of the members of the community belong S S Jain Sabha case: In a separate bunch of writ petitions fi led to the affl uent class of industrialists, businessmen, professionals and by Jains, Sikhs, and Christians in the Delhi High Court, this propertied class, it may not be necessary to notify them under the right to establish and administer schools under Article 30(1)

60 DecEMBER 3, 2016 vol lI no 49 EPW Economic & Political Weekly SPECIAL ARTICLE was given a wide meaning to include their right to admit with the central concept of secular and equality embedded in students of their choice. Certain provisions of the Delhi School the Constitution” [sic]. The pleader concluded his argument by Education Act, 1973, namely, the twin principles of merit and taking recourse to Article 29(2). Denial of admission to non- residence in a zone for admission were thus seen as violation minority students in BCom and BA (corporate) courses—even of their right. The high court ruled the Delhi School Act valid though the overall balance of 50–50 was maintained— (S S Jain Sabha (of Rawalpindi), ... v Union Of India and Ors amounted in the eyes of the state a violation of non-minority 1976). Drawing upon the 1954 Supreme Court judgment on candidates’ right to admission without being discriminated on the State of Bombay v Bombay Education Society (1954), the grounds of religion. In the state’s view therefore, 29(2) always court held that a minority institution’s claim to the right trumped 30(1). to admit students “belonging to the particular religion or The Madras High Court, however, viewed the state’s inter- language” under Article 30(1) would run counter to the rights pretation as improper and inappropriate, and its order as an of non- minority students who enjoyed the right to admission unnecessary overreach amounting to laying down afresh a to an institution without being discriminated on grounds of rule “which interfere[s] with the right guaranteed under Arti- religion provided to all citizens under Article 29(2). This cle 30(1) of the Constitution of India.” A minority college was article, according to the State of Bombay v Bombay Education intended to serve the minority community and “If they are Society (1954) judgment, “confers a special right on citizens prevented from admitting their own community candidates,” for admission into educational institutions maintained or felt the court, “the very purpose of establishing the institution aided by the State. To limit this right only to citizens belong- would be defeated.” Not only are minority institutions entitled ing to minority groups will be to provide a double protection to admit their candidates by preference or by reservation, they for such citizens…” are at liberty to do so “to the exclusion of all others, and that The courts set up a fundamental contradiction between right, in my view, fl ows from the right to administer the educa- 30(1), which grants the minorities to run an institution, and tional’ institutions guaranteed under Article 30(1) of the Con- between 29(2), which gives a citizen the right to admission to stitution of India.” In no manner, in this court’s view, would an institution without being discriminated on grounds of reli- the admission of Jain students to the exclusion of non-Jain stu- gion. Article 29(2) in fact comes to be viewed as a protection dents in the BCom course be tantamount to “discrimination afforded to majority from possible minority discrimination. In falling under Article 29(2) of the Constitution of India.” The the end, the imagined legislative intent of the drafters of the high court held unambiguously that the “State has no right to Constitution is invoked to abridge group rights: compel the minority institutions to give up their right under

The aim of our Constitution is unity in diversity. It is to enrich the Article 30(1) of the Constitution of India.” unity by making it assimilate the diversities. It is not to encourage In this instance, the court weighed in on the side of Article fi ssiparous tendencies. The fundamental right guaranteed by article 30(1), considering its sanctity inviolable. But these cases also 30(1) is not, therefore, to be extended so as to encroach upon other refl ect the deep-seated discomfort with the idea of minority fundamental rights or to go contrary to the intentions of the founding rights: the Delhi High Court conjuring the phantom of “fi ssipa- fathers (emphasis added). (S S Jain Sabha (Of Rawalpindi), ... vs Union of India and Ors 1976) rous tendencies” in response to the plea of minority institu- tions to admit students of their communities; and the state A M Jain College case: The apparently contradictory pulls of worrying that failure to guarantee exact 50–50 division of mi- Article 29(2) and 30(1) are set up repeatedly in subsequent nority and non-minority students in every single stream of cases. The A M Jain College By Honorary ... v Government of study—or rather the preponderance of minority students— Tamil Nadu and Anr (1993), arose out of a government order would “undermine secular democracy.” restraining the college, a Jain minority one, from admitting more than 50% of Jain students in the BCom course. At the Conclusions centre of judicial interpretation was the St Stephens judgment. The drafters of the Constitution did not invent these some- The college felt that its position adhered to the rule laid out in times dichotomous, sometimes overlapping categories of faith St Stephen’s College v the University of Delhi (1992) that allowed and law. Indeed these were bequeathed to them through a minority-aided educational institutions to admit students long history of judicial and legislative pronouncements. These from their own community as long as the intake did not “ex- emerged out of the contingencies of colonial administration, ceed 50% of the annual admission.” which was actively involved in defi ning and marking out these The college maintained that the overall intake of minority categories. Implicated too in this process was the production students remained within the prescribed limit of 50%; it was of orientalist knowledge: “discovery” of sacred books and only in the BCom and BA (corporate) courses, which Jain stu- coda, their translation, publication, circulation and entry into dents were more inclined to enrol in that their intake exceeded colonial courts to authenticate whether a community was a 50%. The government pleader and the Directorate of Educa- religion, or a mere sect, or a religion without its own law. tion argued that the college was misreading the St Stephens’ If the court in the Pannalal case mobilised law digests to judgment as “segregated faculties or universities for imparting establish Jains as Hindu dissenters, the Supreme Court in the general secular education are undesirable and that they may matter of Champa Kumari’s wealth tax assessment made allu- undermine secular democracy, which would be inconsistent sion to “new researches,” which disproved the dissenter thesis.

Economic & Political Weekly EPW DecEMBER 3, 2016 vol lI no 49 61 SPECIAL ARTICLE In particular, was cited ’s Jaina Law, which models of Hinduism, a minority is most easily defi ned through when published in 1926, comprehensively illustrated the exist- its distance from an overarching Hinduism. ence of a uniquely Jain jurisprudence. However, once set out Even more visible is the discomfort with the nature of rights and delineated, the overlap between “Hindu by law” and “Jain that minorities can claim. While debating Para 18 of the draft by faith”—or Hindu dissenters in shorthand—could not be of Fundamental Rights, which evolved fi nally into Articles 29 erased. “The course suggested by C R Jain cannot possibly be and 30, Ambedkar distinguished between technical and non- followed particularly in the presence of statutory enactments,” technical minorities. He was responding to the objection lamented the Supreme Court. These categories were then pre- raised by Z H Lari, member of the constituent assembly, that sented as fait accompli. Para 18 omitted the term minority in delineating the right of As we have seen, this process continued well into the post- any section of citizens to conserve their language, script, or colonial period. In fact, the law–faith dyad becomes linked to culture. This, feared Lari, would be too general and offer no the majority–minority dyad to produce some unexpected re- protection to the minorities. Ambedkar reassured the House sults. A new set of texts now began to be invoked to prove Jains that it had been dropped simply to allay too narrow an inter- not as Hindu dissenters but as Hindus. This process can be pretation of the term. seeing operating not in isolation but within wider judicial and The technical sense of the word minority relates to those legislative fi elds that were defi ning religion, assigning mean- communities which require “certain political safeguards, such ing to religious practices, discarding what seemed superfl uous, as representation in the Legislature, representation in the ser- and sifting the essential from the non-essential. Derrett writes vices and so on;” in its non-technical sense, minorities could how the competence of the Constitution makers and courts to subsume those groups who require cultural and linguistic make such defi nitions and intervene in religious practices seen safeguards, such as Tamilians in or Maharashtrians in to be abhorrent to modern constitutional values (such as Bengal. The former were religious communities and the latter untouchability, etc,) could not be circumscribed by religious linguistic groups who though not technically minorities were doctrine (1968: 438–40). While such a project arose out of a “minorities nonetheless” (CAD vol VII). By May 1949, however, reformist imperative, over a period of time, this constant reservations for minorities in legislature had already been re- engagement with the constitution of a reformed—and authen- jected by the Constituent Assembly, and by the end of the year tic—Hinduism had contradictory effects. What emerged was even in services, thus emptying “technical minority” of its sig- an all-embracing defi nition of Hinduism. nifi ers (CAD vol X). The distinction between technical and non- In Sastri Yagnapurushdasji v Muldas Bhundardas (1966) technical minorities thus became redundant as both religious judgments, the Supreme Court described Hinduism as “a way and linguistic minorities now enjoyed only cultural rights. of life,” which could accommodate a range of groups and While Ambedkar’s intention in deleting “minority” from teachings. Underlying the diversity of teachings of Buddha, Article 29 may have been to broaden the scope of the term , Basava, Tukaram, Guru Nanak, Dayanand, and itself, its effect has been, as we have seen in the arguments Chaitanya, was “a kind of subtle indescribable unity which keeps forwarded by the state or even the conclusions drawn by the them within the sweep of the broad and progressive Hindu reli- courts, the pitting of Article 29 against 30, in which universal gion.” In an early collapsing of law–faith dyad, it attributed rights are privileged over particularist claims, and individual Explanation II to the awareness of the “Constitution-makers … citizen rights favoured over group rights. Rights being of this broad and comprehensive character of Hindu religion.” claimed by religious minorities are almost synonymous with We see repeatedly that this all-embracing Hinduism is central “fi ssiparous tendencies.” It is only a short distance there from to the defi nition of minority. Even though a distinction is made the Supreme Court proclaiming the illegitimacy of the very from Ambedkar onwards between the legal and religious category of religious minorities.

Notes what? Is it 50% of the entire population of India Jains, Hindus, Sikhs and Buddhists, though 1 It referred to acknowledged authorities such as or 50% of the population of a State forming a pursue different philosophies or “darsan” in Mayne’s Hindu Law, West and Buhler’s Hindu part of the Union?” It dismissed the state of their worldly affairs or sectarian matters Law (4th edition), Gopal Chandra Sarkar’s Kerala’s contention that a community can be are governed by customary law applicable to Hindu Law (7th edition) and Hari Singh Gour’s declared a minority only “in the particular Hindus.” Hindu Code (4th edition) as well as case law to region in which the educational institution in 6 Pauranik Kosh by Rana Prasad Sharma (which demonstrate that Jains were to be regarded as question is or is intended to be situated” as fal- says on pp 71–71 that Rishabhdev was the name Hindus for the purposes of law though they lacious. Instead, it held that for the present of one of the commanders of the army of Lord seem to dissent from some of the principles of purposes of determining the validity of a law Rama which attacked Lanka), Vivekanada’s A orthodox Hinduism. to be applied to a state, a community must be Study of Religion (para 32, Part I states that “Of 2 Kerala Education Bill 1957 (1959 1 SCR 995; AIR deemed to be a minority based on its popula- the two hundred and ninety millions of people 1958 SC 956); Reference under Article 143(1). tion in the entire state. inhabiting India, only two millions are Chris- Mulling over the attributes of a minority, a 3 Same as note 1. tians. Sixty millions Mohammedans and all the term left undefi ned in the Constitution, the 4 See letter to Deve Gowda at http://www.navel- rest are Hindus.”); Rishi Ved Vyas, creator of 18 Court says, “It is easy to say that a minority gazing.net/2014/01/the-jain-demand-for-mi- Puranas; P K Nijhawan”s Hinduism Redefi ned: community means a community which is nority-status-is.html), accessed on 6 January Cyclical Concept of History (“A Muslim belongs numerically less than 50%, but then the ques- 2015. to an international brotherhood of the faith- tion is not fully answered, for part of the ques- 5 The high court was fi rm in concluding that: “It fuls. Not (or) dissimilar is the position in tion has yet to be answered, namely, 50% of has long been established that notwithstanding respect of Christianity though liberal thought

62 DecEMBER 3, 2016 vol lI no 49 EPW Economic & Political Weekly SPECIAL ARTICLE

has mellowed it considerably during the last Pannalal v Sitabai (1953): AIR, Nag, p 70. CAD (1948): Vol VII, 7 and 8 December, Consti- 200 years. As against that Hinduism is only the Sastri Yagnapurushdasji v Muldas Bhundardas tuent Assembly Debates, http://164.100.47.132/ proverbial Indian elephant which cannot be (1966): AIR, SC, p 1119. LssNew/constituent/vol7p21.html and http:// easily comprehended.” [sic]). S S Jain Sabha (Of Rawalpindi), ... v Union of India 164.100.47.132/LssNew/constituent/vol7p22. 7 TMA Pai Foundation v State of Karnataka 2002 and Ors (1976): ILR, Delhi, p 61. html, res pectively, accessed on 5 January 2015. (8) SCC 481. It thus called for the preparation State of Rajasthan and Ors v Vijay Shanti Educational — (1949): Vol X, 14 October, http://164.100.47.132/ of list of linguistic and religious minorities on Trust (2003): RLW, Raj, 4, p 2568. LssNew/constituent/vol10p7.html, accessed on the basis of states and population therein, pav- St Stephens’ College v University of Delhi (1992): 5 January 2015. ing the way for state-wise declaration of minor- SCC, SC, 1, p 558. Derrett, J M (1968): Religion, Law and the State ity status for Jains. So, Jains were declared a in India , London: Oxford University Press, minority in eight states, including , The State of Bombay v Bombay Education Society pp 438–40. Karnataka, , Uttar Pradesh, (1954): AIR, p 561; 1955 SCR, p 568. , Jharkhand, Uttaranchal and Ra- TMA Pai Foundation v State of Karnataka (2002): Dundas, Paul (2002): The Jains, London and New jasthan, and Delhi. SCC, SC, 8, p 481. York: Routledge, p 5. 8 The provisions of the National Commission for Vijay Shanti Edu Trust v State of Rajasthan and Anr GOI (2014): Notifi cation 27 January, Government Minorities Act, 1992, in particular its section 2(c) (2001): WLC, 4, p 345. of India, F NO 1–1/2009–NCM. do not defi ne minorities explicitly, allowing Ku, Hawon (Forthcoming): “The British Courts instead for wider parameters under which a and the Rise of a Modern Jain Identity during community requiring special treatment and References the Nineteenth Century,” Cooperation, Contribu- protection can be notifi ed as such by the tion and Contestation: The Jain Community, central government. Ambedkar, B R (1995 reprint): “Dr Ambedkar and British Expansion and Jainological Scholarship, the Hindu Code Bill,” Dr Babasaheb Ambedkar 1800–1950, Andrea. Cases Cited Writings and Speeches, Vol 14, Part Two, Mum- Luithle-Hardenberg, John E Cort and Leslie C Orr bai: Education Department, Government of (eds), Berlin: EB Verlag. Arya Samaj Education Trust, Delhi ... v the Director Maharashtra, pp 886–88. Patil, Bal (2007): “Misleading Report in the Hindu of Education, Delhi (1976): AIR, Delhi, p 207. Ansari, Iqbal (1996): Readings on Minorities: Per- about Including Jains in the SC Category,” A M Jain College By Honorary ... v Government of spectives and Documents, Vol II, Delhi: Institute Ahimsa Times, Vol 90, http://www.jainlibrary. Tamil Nadu and Anr (1993): MLJ, 1, p 140. of Objective Studies. org/elib_master/magazine/ahimsa_times/Ahim- Bal Patil & Anr v Union of India & Ors (2005): SSC, Baird, Robert D (2005): “On Defi ning Hinduism” sa_Times _2007_12_SrNo_90_523590_std.pdf, SC, 6, p 690. as a Religious and Legal Category,” Religion accessed on 10 January 2015. Commissioner of Wealth Tax, W v Smt Champa Ku- and Law in Independent India, Baird (ed), Delhi: — (2010): “The Jain Minority Issue,” paper pre- mari Singhi and Ors (1968): AIR, Cal, p 74. Manohar, pp 69–86. sented at the International Workshop on the Commissioner Of Wealth Tax, West ... v Champa Ku- Carrithers, Michael and Caroline Humphry (1991): Jaina and the British: Collaboration and Con- mari Singhi & Ors (1972): AIR, p 2119. “Jains as a Community: A Position Paper,” The fl ict, Concealment and Contribution during the Kerala Education Bill (1958): AIR, SC, p 956. Assembly of Listeners: Jains in Society, Carrithers 19th Century and Early 20th Century. Sree Jain Swetamber Terapanthi ... v the State of and Humphry (eds), UK: Cambridge University Piramal, Gita (1998): Business Legends, Delhi: Viking WB and Ors (1982): AIR, Cal, p 101. Press, p 6. Penguin India, pp 406–07.

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