Legal status of Jainism as a distinct religion in India
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To quote from the Encyclopædia Britannica Article on Hinduism,[2]"...With Jainism which always remained an Indian religion, Hinduism has so much in common, especially in social institutions and ritual life, that nowadays Hindus tend to consider it a Hindu sect. Many Jains also are inclined to fraternization..." "...Along with Hinduism and Buddhism, it is one of the three most ancient Indian religious traditions still in existence. ...While often employing concepts shared with Hinduism and Buddhism, the result of a common cultural and linguistic background, the Jain tradition must be regarded as an independent phenomenon. It is an integral part of South Asian religious belief and practice, but it is not a Hindu sect or Buddhist heresy, as earlier scholars believed."[3]
This has been fortified by the Supreme Court of India's decision in 2006, wherein the Court opined "Jain Religion is indisputably not a part of Hindu Religion". (see below).
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[edit] The Constitution of India
According to some legal professionals, Article 25 in the Constitution of India most clearly recognizes Jainism as a religion, inter alia:
| “ | (2)(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. | ” |
In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jain or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Some believe that this article makes it clear that the Constitution framers were aware of the distinct status of Jain religion, inter alia. Further, it is not logical 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"[1].
[edit] 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[2]
In the judgment, the Supreme Court opined[3]
| “ | 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 Tirthankar. 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. | ” |
The Supreme Court also noted[4]: " ... that the State Governments of Chhatisgarh, Maharashtra, Madhya Pradesh, Uttar Pradesh and Uttarakhand have already notified Jains as 'minority' in accordance with the provisions of the respective State Minority Commissions Act."
This cast 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.
[edit] Criticism of the Supreme Court's Decision in Bal Patil's Case
In para 27 of the Bal Patil Case quoted above the Supreme 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 Supreme 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.
A section of the Hindu Marriage Act, 1955 (25 of 1955) states:
| “ |
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.
|
” |
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.
The Hindu Succession Act 1956 (30 of 1956), The Hindu Minority and Guardianship Act 1956 (32 of 1956) and The Hindu Adoptions and Maintenance Act 1956 (78 of 1956) are on similar lines as The Hindu Marriage Act, 1955 stated above. Hinduism is treated as religion and Virashaiva, Lingayat, Brahmo, Prarthana or Arya Samaj as Hindu religion's "forms or developments".
The Hindu Minority and Guardianship Act, 1956 (32 of 1956) further states in sub-clause 3 of Section 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. | ” |
According to some legal professionals, this sub-clause 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.
The Hindu Adoptions and Maintenance Act 1956 (78 of 1956) states in sub-clause (bb) of the Explanation:
| “ | 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 | ” |
It notes that a child brought up in Hindu or Jaina faith would be treated belonging to the Hindu or Jaina religion respectively. Some legal experts argue that 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] U.P. Basic Shiksha Parishad Judgment
In 2006, the Supreme Court opined that "Jain Religion is indisputably is not a part of Hindu Religion"[5].
[edit] Illustrations noted by the Supreme Court
Jainism and Other Religions: Illustrations noted by Supreme Court of India in the U.P. Basic Shiksha Parishad Judgment[5] (the para numbers refer to the paragraphs in the Judgment):
[edit] Jawaharlal Nehru
10.1 On September 3, 1949, while addressing a public meeting at Allahabad, the first Prime Minister of India, Shri Jawaharlal Nehru said[6]:
| “ | 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 can be considered as a clarification on Article 25 of the Constitution of India.
10.2 On January 31, 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 25 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, |
” |
10.5 Jawaharlal Nehru, in his 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. | ” |
[edit] Dr. S. Radhakrishnan
10.3 Dr. S. Radhakrishnan, the former President of India, in his 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. | ” |
[edit] References
- ^ 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."
- ^ http://judis.nic.in/supremecourt/qrydisp.asp?tfnm=27098
- ^ [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 Bal Patil Judgment]
- ^ [para 7 of the Bal Patil Judgment]
- ^ a b (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) [1]
- ^ Jawaharlal Nehru's speech reported in the English daily newspaper The Statesman dated September 5, 1949
