Legal Status of Jainism as a Distinct Religion
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[edit] The Recent Legal Debate on Jainism
The Bal Patil Judgment
In 2005, the Supreme Court of India declined to issue a writ of Mandamus towards granting Jains the status of a religious minority throughout India. The Court however left it to the respective States to decide on the minority status of Jain religion.[1]
In the judgment, the Supreme Court opined, "... Thus, 'Hinduism' can be called a general religion and common faith of India whereas 'Jainism' is a special religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis on non-violence ('Ahimsa') and compassion ('Karuna'). Their only difference from Hindus is that Jains do not believe in any creator like God but worship only the perfect human-being whom they called Tirathankar. Lord Mahavir was one in the generation of Thirthankars. The Tirathankars are embodiments of perfect human-beings who have achieved human excellence at mental and physical levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis, Aryasamajis and Lingayats. The three main principles of Jainism are Ahimsa, Anekantvad and Aparigrah. [See :- 1) Encyclopedia of Religion and Ethics Vol. 7 pg. 465; 2) History of Jains by A. K. Roy pgs. 5 to 23; and Vinoba Sahitya Vol. 7 pg. 271 to 284]." [para 31 of the Judgment]
The Supreme Court also noted, " ... that the State Governments of Chhatisgarh, Maharashtra, Madhya Pradesh, Uttar Pradesh and Uttaranchal have already notified Jains as 'minority' in accordance with the provisions of the respective State Minority Commissions Act." [para 7 of the Judgment]
This casted a doubt on the independent standing of Jain religion. Scholars in the Jain tradition, as well as several groups amongst the Jain community protested, and emphasised that Jain religion stands as a religion in its own right. While Hinduism as a mode of living, and as a culture is to be found across various religions in India because of several common customs, traditions and practices, but as religions Hindu religion and Jain religion are distinct.
U.P. Basic Shiksha Parishad Judgment
Very recently, the Supreme Court opined that "Jain Religion is indisputably is not a part of Hindu Religion". (para 25, Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P. v. Sachiv, U.P. Basic Shiksha Parishad, Allahabad, U.P. and Ors., Per Dalveer Bhandari J., Civil Appeal No. 9595 of 2003, decided On: 21.08.2006, Supreme Court of India) [2]
[edit] THE CONSTITUTION OF INDIA
PART III :FUNDAMENTAL RIGHTS Right to Freedom of Religion 25. Freedom of conscience and free profession, practice and propagation of religion. (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law- (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus. Explanation I.- The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II.- In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Article 25 most clearly recognizes Jainism as a religion, inter alia. A bare reading of the above article suffices to make it clear beyond any doubt that the Constitution framers were aware of the distinct status of Jain religion, inter alia. Further, it would be devoid of logic, to deduce from this explanation that Jainism is, inter alia, a part of Hinduism. There are many laws which state that a reference to a "male" would include a reference to a "female". (Section 8 of the Indian Penal Code states: "8.Gender—The pronoun “he” and its derivatives are used of any person, whether male or female.")
[edit] Criticism of the Supreme Court's Decision in Bal Patil's Case
In para 27 of the Bal Patil Case quoted above the Hon'ble Court noted Sikhs and Jains, in fact, have throughout been treated as part of the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act, Hindu Adoption and Maintenance Act and other laws of pre and post-Constitution period, definition of 'Hindu' included all sects, sub-sects of Hindu religions including Sikhs and Jains. With deference to the Hon'ble Court the observtion of amounts to deciding an issue which may not be completely supported by the provision of laws which are intended to support it. The Sections of the various Hindu personal codes are quoted above for reader's own perusal and analysis. An explanation is put into the end to elucidate how the Hon'ble Court might have been erroneous.
A. THE HINDU MARRIAGE ACT, 1955 (25 of 1955)
2. Application of Act.
(1) This Act applies (a) To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) To any person who is a Buddhist, Jaina or Sikh by religion, and (c) To any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) Any child, legitimate or illegitimate, one of whose parents a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe. community, group or family to which such parent belongs or belonged; and (c) Any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
Explanation (A): Thus, the Hindu Marriage Act refers to Hindu as a religion and finds Virashaivas, Lingayats, Brahmo, Prarthana or Arya Samaj as "forms or developments" of Hindu religion. It uses the term “religion” for Muslim, Christian, Parsi and Jewish faiths. It then, in the Explanation, intends to treat Jainism as a “religion” along with Hinduism, Buddhism, and Sikhism and there is a clear and marked distinction of approach, since the two phrases "religion" and "forms or developments" have been carefully chosen to give the intended effect.
B. THE HINDU SUCCESSION ACT, 1956 (30 of 1956) 2. Application of Act
(1) This Act applies
(a) To any persons who is a Hindu by religion in any of its forms or developments including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj; (b) To any person who is Buddhist, Jaina or Sikh by religion; and (c) To any other person who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such persons would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. The following persons are Hindu, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) Any child, legitimate or illegitimate one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought tip as a member of the tribe community, group of family to which such parent belongs or belonged; (c) Any person who is a convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
Explanation (B): The Hindu Succession Act is on similar lines as stated in Submission [A] above. Hindusm is treated as religion and Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj as Hindu religion's "forms or developments". The Explanation is also on similar lines as that of the Hindu Marriage Act.
C. THE HINDU MINORITY AND GUARDIANSHIP ACT, 1956 (32 of 1956)
3. Application of the Act.
(1) This Act applies, (a) To any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj.
(b) To any person who is a Buddhist, Jain or Sikh by religion, and (c) To any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion unless it is proved that any such person would not have been governed by the Hindu, law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. The following persons are Hindus, Buddhists, Jams, or Sikhs by religion as the case may be:
(i) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhist, Jams or Sikhs by religion;
(ii) Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhists, Jain or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged; and
(iii) Any person who is a convert or re-convert to the Hindu, Buddhist, Jain or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1) nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs. (2A) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to Renoncants of the Union Territory of Pondicherry.] (3) The expression “Hindu” in any provision 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.
Explanation (C): The Hindu Minority and Guardianship Act is further substantiating the submission, as it is also on similar lines as stated in Submissions [A & B] above. Hinduism is treated as religion and Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj as Hindu religion's "forms or developments". Jainism is referred to as a religion. The Explanation is also on similar lines. Sub-clause 3 of Section 3 most beautifully enunciates the spirit of the Act, holding that only for the purposes of reference, a person though NOT HINDU BY RELIGION, would be construed as a Hindu for the purposes of this Act. It causes pain and is unfortunate that such a clear legislative mandate skipped the attention in the judgment, and was perhaps misconstrued.
D. THE HINDU ADOPTIONS AND MAINTENANCE ACT, 1956 (78 of 1956)
2. Application of Act. (1) This Act applies
(a) To any person, who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prathana or Arya Samaj,
(b) To any person who is a Buddhist, Jain or Sikh by religion, (c) To any other person who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation. The following persons are Hindu, Buddhists, Jainas or Sikhs by religion, as the case may be:
(a) Any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion; (b) Any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought tip as a member of the tribe, community, group or family to which such parent belongs or belonged; (bb) Any child, legitimate or illegitimate, who has been abandoned both by his father and mother or whose parentage is not known and who in either case is brought up as a Hindu, Buddhist, Jaina or Sikh; and] (c) Any person who is convert or reconvert to the Hindu, Buddhist, Jaina or Sikh religion.
Explanation(D): The Hindu Adoption and Maintenance Act is on similar lines as the above legislations. Sub clause (bb) of the Explanation is notable, inter alia. It notes that a child brought up in Hindu or Jaina faith would be treated belonging to the Hindu or Jaina religion respectively. However, if Jaina was only a sub-sect or a "form or development" of Hinduism, how could a child brought under the Jaina way, not be belonging to the Hindu religion. This illustration would show that the bringing up of a child under the Hindu way would certainly be different from the Jaina way, or so the legislature had intended.
[edit] Jainism and Other Religions: Illustrations noted by Supreme Court of India
(In the case of Committee of Management Kanya Junior High School Bal Vidya Mandir, Etah, U.P. v. Sachiv, U.P. Basic Shiksha Parishad, Allahabad, U.P. and Ors., Civil Appeal No. 9595 of 2003, decided On: 21.08.2006)
[the para numbers refer to the paragraphs in the Judgment]
Pt. Jawaharlal Nehru
10.1 On 3rd September, 1949, while addressing a public meeting at Allahabad, the first Prime Minister of India, Shri Jawahar Lal Nehru said. -
No doubt India has a vast majority of Hindus, but they could not forget the fact that there were also minorities - Muslims, Parsis, Christians, Sikhs and Jains. If India was understood as a Hindu Rashtra, it meant that the minorities were not cent percent citizens of this country.
The said speech was reported in the English daily newspaper 'The Statesman' dated 5.9.1949.
Clarification on Article 25 of the Constitution of India
10.2 On 31st January, 1950, the PPS to the then Prime Minister of India sent a letter to the Jain Deputation on behalf of the then Prime Minister, which reads as under: With reference to the deputation of certain representatives of the Jains, who met the Prime Minister on the 25th January, 1950, I am desired to say that there is no cause whatever for the Jains to have any apprehensions regarding the future of their religion and community. Your deputation drew attention to Article 25, explanation II of the Constitution. This explanation only lays down a rule of construction for the limited purpose of the provision in the article and as you will notice, it mentions not only of Jains but also Buddhists and the Sikhs. It is clear therefore, there is no reason for thinking that Jains are considered as Hindus. It is true that Jains in some ways closely linked to Hindus and have many customs in common, but there can be no doubt that they are a distinct religious community and constitution does not in any way affect this well recognized position. Yours faithfully, Sd. A.V. Pai Principal Private Secretary to the Prime Minister
10.5 Pt. Jawahar Lal Nehru, in his celebrated book "Discovery of India", mentioned as under: Buddhism and Jainism were certainly not Hinduism or even the Vedic Dharma. Yet they arose in India and were integral parts of Indian life, culture and philosophy. A Buddhist or Jain, in India, is a hundred per cent product of Indian thought and culture, yet neither is a Hindu by faith. It is, therefore, entirely misleading to refer to Indian culture as Hindu culture.
Dr. S. Radhakrishnan
10.3 Dr. S. Radhakrishnan, the former President of India, in his celebrated book "Indian Philosophy Vol I" mentioned as under: The Bhagawat Purana endorses the view that Rishbhadeva was the founder of Jainism. There is evidence to show that so far back as the first century B.C. there were people who were worshipping Rishabhadeva, the first Tirthankara. There is no doubt that Jainism prevailed even before Vardhamana Mahaveera or Parsvanatha. The Yajurveda mentions the names of three Tirthankaras-Rishab, Ajitnath & Aristanemi.
15. Dr. Radhakrishnan, who edited the 6th Volume of The Cultural Heritage of India, mentioned as under: The Jains claim a great antiquity for their religion. Their earliest prophet was Rishabhdeva. Who is mentioned even in the Vishnu and Bhagawat Puranas as belonging to a very remote past. In the earliest Brahmanic literature are found traces of the existence of a religious Or.
