9911796707
TMI Blog2005 (8) TMI 705X X X X Extracts X X X X X X X X Extracts X X X X ..... 8) SCC 481]. This appeal stood adjourned on several dates awaiting the judgment in the TMA Pai Foundation case. In the counter affidavit filed the Central Government stated that they would abide by the judgment of the eleven judges' Bench in TMA Pai Foundation case and thereafter consider the claim of Jains to the status of minority community under the Act. During the pendency of this appeal, the eleven judges' Bench decision in TMA Pai was delivered and the decision is reported in 2002 (8) SCC 481. Amongst several questions which were formulated for answer by the eleven judges Bench the most important question included was as under:- What is the meaning and content of the expression minority in Article 30 of the Constitution of India? The answer in the opinion of majority in the Bench of eleven judges speaking through Kirpal, CJ (as he then was) is the following :- Ans: Linguistic and religious minorities are covered by the expression minority under Article 30 of the Constitution. Since reorganization of the States in India has been on linguistic lines, therefore, for the purpose of determining the minority, the unit will be the State and not the wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ral Government who merely reiterated the stand taken in the affidavit filed on behalf of the government that in view of the judgment in TMA Pai case (supra), the Central Government henceforth will have no role to play. It is for the respective State Governments to take decision on the claim of Jains depending upon their social condition in the respective states. The expression 'minority' has been used in Articles 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith worship'. Group of Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their religious, cultural and educational rights by other communities ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al Government or State Governments. It may also suggest appropriate measures in respect of any minority to be undertaken by the Central Government or State Government. The Commission set up under the Act has several functions to perform, which are provided, in section 9. The functions entrusted are for ensuring progress and development of minorities and protecting their religious, cultural and educational rights. There is no specific function conferred under section 9 on the Commission to identify any community as a 'minority' and recommend to the Central Government that it be so notified under section 2(c) of the Act. On considering the general functions of the Commission enumerated under section 9 which are only illustrative and not exhaustive, the Commission cannot be said to have transgressed its authority in entertaining representation, demands and counter- demands of members of Jain community for the status of 'minority'. Keeping in view the provisions of the Act, the recommendation made by the Commission in favour of the Jains is in the nature of advice and can have no binding effect. The power under section 2(c) of the Act vests in the Central Governm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cal data produced to show that a community is numerically a minority cannot be the sole criterion. If it is found that a majority of the members of the community belong to the affluent class of industrialists, businessmen, professionals and propertied class, it may not be necessary to notify them under the Act as such and extend any special treatment or protection to them as minority. The provisions contained in the group of Articles 25 to 30 is a protective umbrella against the possible deprivations of fundamental right of religious freedoms of religious and linguistic minorities. The recommendation in favour of Jains by the National Minority Commission was made before the Eleven Judges' Bench of this Court in TMA Pai case (supra) had clarified the concept of 'minority' for the purpose of extending constitutional protection. It is not for this court to issue any direction or mandate on the basis of the claim of some members of the Jain community, which is opposed to by another section of the same community. Before parting with this case, this Court cannot resist from making some observations which are considered necessary in order to remind the National and St ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsions and fears were expressed and disturbed the minds of the Muslims. They thought in democracy to be set up in India, the Hindus being in majority would always dominate and retain political power on the basis of their voting strength. There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights. Abdul Kalam Azad acted as mediator in negotiations between the national leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali on the other. Nehru and Patel insisted that in the new Constitution, there would be one united India belonging to people of various religious faiths and cultures with all having full freedom of their social, cultural, religious and other constitutional rights. They advocated one single citizenship to every Indian regardless of his language or religion. The opposing group of Muslim leaders, in the interest of members of their community, insisted on providing to them participation in democratic processes proportionate to their ratio of population and thus counter-balance the likely domination of Hindu majority ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted a numerically smaller minority. They had migrated from their native State Iran and settled on the shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilating themselves into the Indian population. The so-called minority communities like Sikhs and Jains were not treated as national minorities at the time of framing the Constitution. 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. The word 'Hindu' conveys the image of diverse groups of communities living in India. If you search for a person by name Hindu, he is unidentifiable. He can be identified only on the basis of his caste as upper caste Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as Shudras. Those who fall in the Hindu class of 'Shudras' are n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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]. It is not necessary to go into greater details of philosophical and ideological beliefs and conduct of Jains. They have been dealt with in necessary detail in the recommendations of the National Commission for Minorities. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of Constitution and later in the course of its working. History tells us that there were certain religious communities in India who were required to be given full assurance of protection of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealth, wealth, education, power or social rights, a claim of a section of Indian society to the status of 'minority' is considered and conceded, there would be no end to such claims in a society as multi-religious and multi- linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensue. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat. ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
