Part III

30. But unfortunately this Constitutional position was dealt a severe blow by the judgment of the Bench of three Judges in Manohar Joshi v. Nitin Bhaurao as noted above. If in the Manohar Joshi case the Supreme court made a severe dent in the secular structure of the Constitution in the Jain minority matter it has gone overboard and sought to dismantle the secular citadel of the Constitution itself and all in the name of protecting the Constitution. Then it was a matter of the encroachment of Hindutva in the Representation of the People Act", now it has inscribed judicial inroads by riding roughshod over the basic concept of the Constitutional Preambulary secular ideal itself.
31. In the aforesaid context it would be relevant to note an article by the late eminent jurist, N.A. Palkhivala "India Remains Secular :Full Bench Needed to End Confusion" published in The Times of India on Feb.5, 1996.
32. As noted by Palkhivala "The Bench of three Judges was clearly bound by the law as laid down in Bommai's case where nine judges reiterated the principle that secularism is the cardinal basic principle of the Indian Constitution; and that mingling of religion with politics is unconstitutional." As noted further by him : As has been decided in a number of English cases, the question is- what would the man in the Clapham omnibus think? Indian languages are suficiently unambiguous to enable us to choose the right words if we sincerely desire to be unambiguous. After all,one should be sincere with one's self before one can be sincere with the world.".
33. Thus Palkhivala rightly concluded : No one can deny that India has more than its fair share of fanaticism and fundamentalists in public life. The country cannot aford to ramain in the twilight of uncertainty as to the right interpretation of the Representation of the People Act. The duty of the Chief Justice of India is plain and incontrovertible : He should form a Bench of nine or more judges , as soon as possible, to resolve the confusion created by the recent judgment of the three Judges last month. there should be no difficulty in getting the co-operation of the bar in choosing the appropriate case and in adopting the appropriate procedure. Action has to be taken before people are misled into acquiring the wrong mindset."
34. The confusion created by the "Hindutva" decision has come to a full circle with this decision in the Jain minority matter. As noted in the concluding observation of P.P. Rao’s Lecture referred to above "Accumulation of unlimited power in one thing, exercising it with circumspection and self-restraint is an altogether diferent thing. Unless the dam is strong, the reservoir cannot retain water. we need extremely capable, honest and independent Judges, nay statesmen, to handle this enormous power of judicial review in the interests of the people of India."
35. Therefore, the almost insoluble Constitutional dilemma created by the SC decision in the Jain minority matter can be only resolved by a Bench of nine or more Judges by "choosing the appropriate case and by adopting the appropriate procedure" as noted by Palkhivala if the Constitution is to be saved from the judiciary and the judiciary from itself.
35. In the foregoing context the Jain community is aggrieved at this decision which treats Jains as part of Hinduism. Some Congress ruled States have declared Jains as a minority religions community in pursuance of direction issued by the Congress President, Smt. Sonia Gandhi. Now there is no reason why the Central Government should not give Jains the national minority religious community status.
36. It is important to bear in mind that declaration by a State of Minority status for the Jain community will not be enough unless and until the Central Notification under the National Minorities Commission Act, 1992 also includes Jain community as a Minority community on par with other Minority communities such as Muslim, Christian, Sikh, Buddhist and Zoroastrian which is the crux of the prayer in SC Civil Appeal. Such inclusion is essential because Minority status on the State level is subject to political fluctuations if there is no State Minority Act. For example, in Maharashtra State Minority Commission which had no statutary basis was wound up in 1995 when there was a non-Congress BJP-SS coalition government.
37. It is respectfully submitted that the Jain community feels aggrieved because there is no uniform and statutory all-Indian recognition of their minority status. The Jain community has got its own ancient, independent cultural and religious heritage and is unquestionably a minority religious community. It is also aggrieved because it has no representation in the National Minorities Commission. There is a feeling that Jains have been denied what is obviously due to them because they have not taken to turbulent path of agitation. The Jains are a peaceful community but appropriate representation should not be withheld from them because of their principled adherence to peace.
38. The Jain community should have uniform access to minority welfare programmes enunciated by the Common Minimum Programme. The denial of the minority status to the Jains will mean their death warrant as a distinctive religious cultural group especially when all other minorities are going to be recognized. Even the legitimate sections of Hinduism like the Harijan and a small community like the Parsees are treated as minorities. Although a few Jains hold important positions in industry and commerce and other spheres of life which is also the case with other religious minority communities, as a community the Jains have amongst them backward sections like in other minority or majority communities.
39. It is pertinent to note that the major portion of the Jain community in Maharashtra –Maharashtra State incidentally has the highest Jain population in one State in India- and Karnataka States is agricultural community. In Karnataka and Maharashtra States the Jain community are eligible for benefits available to backward communities. The Jain community, therefore, demands in the first place that the Jains be treated as a national minority and given all rights and privileges which are given to other minority communities., and that they should be brought into the mainstream of the national minority welfare programmes envisaged by the Common Minimum Programme.
40. The Jain community therefore is seriously concerned to appeal to Smt.sonia Gandhi, the President of the INC and Chairperson of this NAC to consider the matter of the Jain minority recognition on par with other national minorities and advice the Central Government accordingly. The present Supreme Court judgment does not bar such recognition as already provided in the constitution in Art.25.

41. In view of the forgoing observations of the Supreme Court the religious credibility, identity of not only the Jain and Sikh communities but also Constitutional status proposed to be given to the National Commission for Minorities by the insertion of Article 340 A and the statutory State Minority Commissions has been questioned unwarrantedly. Therefore the petitioner in the impugned Judgment is concerned to make a Review Petition in the matter. It is earnestly hoped that the National Commission for Minorities as also the statutory State Minority Commissions too will make suitable interventions by making by applications for modification/and/or clarification of the Supreme court judgement and also an appeal to the Chief Justice of India for constituting a a Bench of nine Judges to clear the confusion created by the Manohar Joshi and the Jain minority matters

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