Gujarat Govt. urged to withdraw Freedom of Religion Bill classifying Jains & Buddhists as Hindus

By Pervez Bari,

Bhopal : The proposed amended Freedom of Religion Bill as passed by the Gujarat Assembly, classifying Jains and Buddhists as Hindus is an unwarranted assault on their distinct religious identity recognised by the Constitution of India itself, is clearly a violation of their constitutional religious identity. The Bharatiya Janata Party ruled Gujarat Government must withdraw this draconian Freedom of Religion Bill immediately and unconditionally.

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The All India Jain Minority Forum made the above assertion in a Press release. The release issued by Chakresh Jain, president Jain Samaj Delhi, and Bal Patil, secretary general & ex-member Maharashtra State Minorities Commission, said it would be best to quote what India’s first Prime Minister Pandit Jawaharlal Nehru gave assurance to a Jain delegation on the so-called ambiguity of Explanation II of Article 25 of the Constitution of India.

The Press release pointed out that on 25th January, 1950, a Jain delegation was led to the Prime Minister Jawaharlal Nehru and other central leaders to draw their attention to the anomalous position of the Jains under sub-clause (b) of Clause 2 of Article 25 and a petition was submitted. Nehru clearly assured the delegation that the Jains are not Hindus and on 31-1-1950, his Principal Private Secretary, A.V. Pai wrote the following letter (a copy of the letter is enclosed) in reply to the petition:

“This Article merely makes a definition. This definition by enforcing a specific constitutional arrangement circumscribes that rule. Likewise you will note that this mentions not only Jains but also Buddhists and Sikhs. It is clear that Buddhists are not Hindus and, therefore, there need be no apprehension that the Jains are designated as Hindus. There is no doubt that the Jains are a different religious community and this accepted position is in no way affected by the Constitution.”

In his Allahabad speech on 3rd September,1949, Jawaharlal Nehru had said:”No doubt India had a vast majority of Hindus, but they could not forget the fact that there are also minorities Moslems, Christians, Parsis and Jains. If India was understood as a “Hindu Rashtra ” it meant that the minorities were not cent per cent citizens of the country.” (The Statesman, 5-9-1949)

It may be recalled that the Deputy Prime Minister of India, Sardar Vallabhbhai Patel in his letter of 25th August,1946 addressed to Sir Bhagchand Soni, President, All India Digamber Jain Mahasabha, assured the Jain Community not to be worried about their religious rights and promised that “in free India there would be no restrictions upon the religious liberty of any community and there need be no apprehensions in this regards.”

The National Minorities Commission arrived at their recommendation that the Jain community be declared as a minority religious community. It was in consideration of the following:

1)the relevant constitutional provisions, 2) various judicial pronouncements, 3) the fundamental differences in philosophy and beliefs (theism vs.atheism principally) vis-a-vis Hinduism, and 4) the substantial number of Jain population in the country, resolved to recommend to the Government of India that the Jains deserve to be recognised as a distinct religious minority, and that, therefore the Government of India may consider including them in the listing of “Minorities” in their Notification dated 23-10-1993. This recommendation was issued on 3-10-1994.

So far Jains have been declared as a minority in Maharashtra, (which has the largest population of Jains in India), Karnataka, Madhya Pradesh, Rajasthan, Uttar Pradesh, Chhattisgarh, Jharkhand, and Uttaranchala. Dakshin Bharat Jain Sabha and the All India Jain Minority Forum are pursuing the issue of national minority status for Jains in the Supreme Court of India

The release recalled Lokmanya Tilak had said: “In ancient times innumerable animals were butchered in sacrifice. But the credit for the disappearance of this terrible massacre from the Brahmanical religion goes to the share of Jainism.” (Bombay Samachar, 10-12-1904)

Thus, it would be appropriate instead of saying that the Jains assimilated the so-called Hindu culture or customs, because there was nothing was known as Hindu in Vedic times, the Hindus of the modern India have adopted the Jain culture. It is significant to note that the Jains do not believe in the most characteristic Hindu-Vedic-Brahmanic ritual Shraddha.

It is important to note in the foregoing context that in the pre-independence period a decision in the erstwhile Madras High Court:

The acting Chief Justice Kumar Swami Shastri held in Getappa vs. Eramma & Others (AIR 1927); “Were matters res Integra, I would be inclined to hold that modern research has shown that the Jains are not Hindu dissenters but that Jainism has an origin and history long anterior to the Smritis and Commentaries which are recognized authorities on Hindu law and usage”.

The Jain religion refers to a number of previous Tirthankaras and there can be little doubt that Jainism as a distinct religion was
flourishing several centuries before Christ. In fact, Jainism rejects the authority of the Vedas which form the bed rock of Hinduism and denies the efficacy of the various ceremonies which Hindus consider essential. So far as Jain Law is concerned it has its own Law books of which Bhadrabahu Samhita is an important one. Vardhamana Neeti and Aradhana Neeti by the great Jain teacher Hemchandra deal also with Jain Law.”

Mr. Justice Rangnekar of the Bombay High Court observed in the Hirachand Gangji vs. Rowji Sejpal (AIR 1939, Bombay 377) :
“It is true that the Jains reject the scriptural character of the Vedas and repudiate the Brahmanical doctrines relating to obsequial
ceremonies, the performance of Shraddhas and offering of oblations for the salvation of the soul of the deceased. Amongst them there is no belief that a son by birth or adoption confers spiritual benefit Hindus in their conduct towards the dead, omitting all obsequies after the corpse is burnt or buried. Now it is true, as later historical researches have shown that Jainism prevailed in this country long before Brahmanism came into existence or converted into Hinduism. It is also true that owing to their long association with the Hindus, who formed the majority in the country, the Jains have adopted many of the customs and even ceremonies strictly observed by the Hindus and pertaining to Brahmanical religion.”

It is pertinent to note that Hinduism under Article 25 and in the Hindu Code bills later passed in 1954-55 when Dr.Ambedkar was the Law Minister are two different things although having a generic connection on the definition of Hindu in the Personal Laws well explained by Prof..Mahmood, a former chairman of the National Commission for Minorities, in (Religious Identity, Beliefs and Practices under the Indian Legal System) article in Religion and Law Review June 1999.

As Prof. Mahmood, a former Chairman of the National Commission for Minorities, has unequivocally noted “Hinduism is not the state religion of India. The Constitution of India does not confer on Hinduism the status of even privileged or favoured religion. It does, however, refer to Hinduism in different contexts.”6 The Bombay Public Trust Act 1950 says that in its provisions “Hindu” includes Jain, Buddhist and Sikh. In the Orissa Hindu Religious Endowments Act, 1969 “Hindu religion” includes Jain, Buddhist and Sikh religions. Under the Madras Hindu Religious and Charitable Endowment Act 1959 the expression “Hindu” does not include Jains, unless the Act is specifically extended to the Jains.

As is clear, these laws speak only of whether their provisions – primarily meant for Hindus – would apply to the Buddhists, Jains and Sikhs (on which point they are not uniform). “They do not furnish and answer to the question who is a Hindu by religion. Most certainly they do not, and indeed cannot, mean to say that Buddhists, Jains or Sikhs are Hindus” (emphasis added.).

The Personal law Acts, The Hindu Marriage Act 1955, the Hindu Succession Act 1956, the Hindu Adoption and Maintenance Act 1956 and the Hindu Minority and Guardianship Act 1956, all apply to Hindus, Buddhists, Jains and Sikhs – as is declared by their opening provisions. All the four Acts clarify that :

“The expression ‘Hindu’ in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is nevertheless a person to whom this Act applies by virtue of the provisions contained in this section.”

Clearly, this is a rule of interpretation which cannot, by any dint of imagination be treated as a definition of the word “Hindu” in general. Nor can it ever be stretched to claim that in law Hinduism, Buddhism, Jainism and Sikhism are one and the same religion. It is necessary to differentiate between “Hindu by religion” and “Hindu for the purpose of application of laws” – the latter expression referring to those non-Hindus who share with Hindus certain laws. This is true of the so-called “definition” of the expression ‘Hindu’ in Article 25 of the Constitution as well as of the same in the Hindu-law Acts of 1955-56 and the legislation relating to Hindu religious endowments.

Thus, the release said, the provision of Explanation II in Article 25 has no religious connotation. Instead of saying the same thing four times of four different religious communities – Hindus, Buddhists, Jains and Sikhs – Article 25 (2)(b) says it once, for the Hindus, and then adds that the same provision be read in the Constitution for three other communities as well – the Buddhists, the Jains and the Sikhs. Makers of the Constitution did not intend to merge the Buddhists, Jains and Sikhs into the Hindu religion; nor were they indeed competent to do so.

Hinduism, Buddhism, Jainism and Sikhism remain, under the Constitution and the law of India, four different faiths; and their followers four different religious communities.”

In the latest Supreme Court Appeal (Civil) 9595 of 2003: Petitioner: Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P. Respondent: Sachiv, U.P. Basic Shiksha Parishad Allahabad, U.P. & Others, Date of Judgment: 21/08/2006 The Division Bench of S. B. Sinha & Dalveer Bhandari and the Judgment delivered by Justice Dalveer Bhandai states:

“The Founding Fathers of the Constitution had unequivocally recognized the Jains as a minority community as is evident from the proceedings of the Constituent Assembly. While keeping in view that the Jains are a minority community, a representative of the Jain community was taken in the Minority Advisory Committee of the Constituent Assembly.”

“Jain religion indisputably is not a part of Hindu religion. The question as to whether the Jains are part of the Hindu religion is not
open to debate. Jains have a right to establish and administer their own institution. But, only because an institution is managed by a person belonging to a particular religion, the same would not ipso facto make the institution run and administered by a minority community. A minority is determinable by reference to the demography of a State. Whether an institution is established and administered by a minority community or not may have to be determined by the appropriate authority in terms of the provisions of the statute governing the field. Furthermore, minority institutions are not immune from the operations of the measures necessary to regulate their functions. To what extent such regulations would operate, however, again is a matter which would be governed by the statute.”

Besides, the Jains, Buddhists and the Sikhs have been counted as religious denominations right from the first Census in India in 1873 under the Indian Census Act.

In view of the foregoing evidence the proposed Bill of Freedom of Religion as passed by the Gujarat Assembly is clearly a violation of the constitutional religious identity of the Jains and Buddhists. Gujarat Government must withdraw this draconian Freedom of Religion Bill immediately and unconditionally, Chakresh Jain and Bal Patil asserted. ([email protected])