Part ii

12. In view of the foregoing the extra-Judicial observations of the Supreme Court Judgment on the religious status of the Jain community as part of the Hindu religious are absolutely without any basis. Also the remarks against the National leaders like Nehru, Patel and the very Father of the Nation as responsible for the partition of India are obnoxious.

13. As a matter of fact the entire tenor of the SC observations on the National and State Minority Commissions as leading to “fissiparous tendencies” and hence calling for their closure are highly objectionable as they question the basic tenets of the Indian secular Constitution and hence need to be expunged.

14. As to how and why India was divided the Apex Court in its supreme wisdom approvingly refers to Maulana Abul Kalam Azad’s autobiography as quoted by H.M. Seervai in his Constitutional Law of India para. 1.314, p.153, fourth Edition, Vol.I:

“Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it. Further, Azad had played a leading part in providing a framework for the Constitution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united. However, Gandhi, Nehru and Patel destroyed the Plan, and accepted partition instead. Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition”. (Emphasis supplied)

15. The shocking and bizarre implications of such quotations cited with approval in the judgment of the Supreme Court of India presided over by the Chief Justice of India are clear. It clearly means that the Supreme Court is anxious to carry the atrociously incredible message that the Father of the Nation who laid down his life for Hindu-Muslim unity, along with Nehru was responsible for the division of the country.

16. As Justice Pana Chand Jain (Retd.) has noted in his comments on the SC Judgment:

“It is true that Azad was a true secular nationalist and the Nation has always recognised him, as a great Hero. However, criticizing Gandhi, Nehru and Patel for partition without any context or reason cannot be appreciated even it be true, from the Bench of the Supreme Court presided over by the Hon’ble Chief Justice of Supreme Court which works and imparts justice social, economical and political to more than 100 crores citizens of this great country under the photo of Gandhi. The reference to para 1.314 from the book requires to be deleted from the judgment”.

17. Such an atrociously perverse interpretation of the partition of India under the secure judicial garb of an ostentatious exercise of safeguarding secular credentials of the Constitution declaring that the State has no religion is indeed shocking. Yet the Bench has no constitutional or secular scruples to state further that “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”. (Emphasis supplied)

18. Not stopping at this the Apex Court Bench has given free rein to its judicial genius to make certain observations which in effect question the basic secular constitutional structure. In the course of their observations certain remarks have been passed which call into question not only the secular ethos of the basic structure of the Constitution but also multi-religious and multi-cultural mosaic of India that is Bharat.

19. The judgment makes sweeping remarks like “The so-called minority communities like Sikhs and Jains were not treated as national minorities…Sikhs and Jain, in fact, have throughout been treated as part of the wider Hindu community…” It goes on incredibly to state that “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”.

20. That is in nutshell the religious philosophy of the professedly secular Bench of the Supreme Court of the Indian Republic. Naturally it has no compunction to come to the conclusion that the “constitutional ideal in the Chapters of Fundamental Rights and Fundamental duties, is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.”

20. Such being the constitutional goal the Apex Court has no difficulty in arriving to the conclusion that the “Minorities Commissions set up at the Central or State level…for minorities have to direct their activities to maintain their integrity and unity of India by gradually eliminating the minority and majority classes.” And thus the Court lays down in its extra-judicial majesty that the National commission for Minorities “should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether.” (!!!)

21. In the aforesaid context of the judicial decision taking an ambiguous stand on the Jain minority right and consequently questioning the very essence of minority rights under the constitution and the observations holding the father of the nation guilty of the partition will have grave repercussions if allowed to stand unchallenged.

22. If the “Common faith of India” is Hinduism as averred by the Apex Bench will it not unmistakably lead to the “Hindu Rashtra” ideology of the BJP? Is this the prologue to the saffronisation of the judiciary? Can the UPA Government and the Congress subscribe to it in all secular conscience?

24. In the aforesaid context of the gravely damaging impact this SC Judgment will have on the secular ideology of the Constitution and the UPA Government formed under the leadership of the Indian National Congress should take suitable steps to see that these observations are deleted to protect the basic structure of the secular Constitution as well as the dreams of Mahatma Gandhi Pundit Jawahar Lal Nehru and Sardar Patel & many others.

25. It would be pertinent to recall here the ‘Hindutva’ judgment of the 3-Judge Bench of the Supreme Court in the Manohar Joshi v. Nitin Bhaurao which took the view that the statement of a candidate in the course of his election speech that "the first Hindu State will be established in Maharashtra" did not amount to a corrupt practice."

26. Taking a strong exception to this ruling P.P. Rao, eminent jurist and Senior Advocate in Bal Patil’s Jain minority petition in the Supreme Court, said in his Dr.Alladi Krishnaswamy Ayyar Memorial Lecture, 1999 ‘Basic Features of the Constitution’: "Obviously, the perceptions of secularism vary from Bench to Bench. Manohar Joshi deserves to be overruled. Secularism is too fundamental to be compromised.”
27. This Lecture has pinpointed the cardinal importance of the Supreme Court declaration in the Kesavananda Bharati v.State of Kerala that Article 368 did not enable Parliament to alter the basic structure or framework of the Constitution. As rightly noted by P.P. Rao "This decision is not just a landmark in the evolution of constitutional law, but a turning point in constitutional history. No other Court in the world had taken this position."
28. This is in consonance with the ringing peroration by Jawahar Lal Nehru on the Draft Constitution :
"We will honour our pledges. Within limits, no Judge and no Supreme Court will be allowed to constitute themselves into a third chamber. No Supreme Court and and no judiciary will sit in judgment over the sovereign will of Parliament which represents the will of the entire community. If we go wrong here and there, they can point it out; but in the ultimate analysis, where the future of the community is concerned, no judiciary must come in the way. Ultimately the whole Constitution is a creature of Parliament."
29. Thus the secular principle enshrined in the Preamble is the one feature which has primacy over all the other basic features of the Constitution. The Constitutional primacy and sanctity of this feature of secular is in Nehru's words: "At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practise but also propagate any particular religion."