Gujarat Governor Returns Gujarat State Freedom of Religion (Amendment) Bill 2006

By BalPatil

As the Secretary-General of the All Indian Jain Minority Forum actively pursuing the Jain religious minority right under the Constitution on par with the national religious minorities in India, Muslim, Christian, Sikh, Buddhist and Zoroastrian (Parsee) we have campaigned against the Gujarat Anti-conversion bill treating Buddhists and Jains as part of Hinduism. I am happy that the Gujarat Governor has taken the right step of returning the Bill.

If, despite this constitutionally valid gubernatorial rebuff it would be unfortunate if the Gujarat State home minister, Mr.Amit Shah is keen to complete the process of passing the Gujarati Freedom of Religion Act.

Gujarat governor Nawal Kishore Sharma returned the controversial Gujarat Freedom of Religion (amendment) Bill, 2006, saying the legislation violated the right to religious freedom. The bill, meant to check religious conversions, sought to replace the definition of convert by a new one under which a person renouncing one denomination and adopting another denomination of the same religion was to be excluded from the meaning of `convert’.

Returning `The Gujarat Freedom of Religion (amendment) Bill, 2006’, the governor said “what made it more objectionable were three explanations stipulating that the Jains and Buddhists shall be construed as denominations of Hindu religion, Shia and Sunni of Muslim religion and Catholic and Protestant of Christian religion.

The provisions of amendment bill violated Article 25 of the Constitution which guarantees to all citizens to freely profess, practice and propagate a religion, Sharma said. The bill should be reconsidered for suitable amendments so as to bring its contents in conformity with the Constitution, he said.

The Gujarat Freedom of Religion Act, 2003, was enacted with a view to preventing conversions of persons from one religion to another by use of force or by allurement or by fraudulent means.

In 2006, the state government had brought the bill to amend the Gujarat Freedom of Religion Act 2003.

The law as it stands prior to these amendments provides a shield against forceful or inappropriate religious conversions. However, the proposed amendments would amount to withdrawing the protection against such conversions particularly in case of Jains and Buddhists, the governor said.

Permit me to give a few links to my articles protesting against this Bill and Jain minority right on which I have had the privilege to speak and present papers in international conferences in the USA, Japan, the UK:

http://jaina.in/

http://sabrang.com/cc/archive/2006/dec06/forum.html.

http://www.indiancatholic.in/newsread.asp?nid=5566

http://americanbuddhist.net/node/4092

Pluralism Project: "Gujarat Freedom of Religion Bill: Assault on Jainism" a Commentary by Bal Patil (India) under the caption: "Gujarat Freedom of Religion Bill: Assault on Jainism" a Commentary by Bal Patil (India)

http://www.butterfliesandwheels.com/

Bal Patil on Hinduization in Gujarat
The Gujarat Freedom of Religion (Amendment) Bill 2006 defines Buddhists and Jains as Hindus.
Date filed: 15-02-2007

http://www.herenow4u.de/Pages/eng/Articles/TheRiseDeclineAndRenewals.htm

The Rise, Decline And Renewals Of Sramanic Religious Traditions Within Indic Civilisation With Particular Reference To The Evolution Of Jain Sramanic Culture And Its Impact On The Indic Civilization (A Paper presented in the Conference on Religions in Indic Civilisation in New Delhi, December, 18-21, 2003, Organised by the Centre for the Study of Developing Societies in collaboration with International Association for the History of Religions and India International Centre.)

It would be useful to discuss the current religio-Hindutva environment in India and the historiographical context in which these two Sramanic-Indic religions – Jainism and Buddhism – arose in ancient India. There has been near irreparable damage done to the religious identity of these two major religions by a conscious attempt at "Hinduisation" of these faiths or appropriation within the "all-Hindu" fold, in large measure attributable to a Vedic-Brahmanic influence. Prior to independence and the adoption of the Constitution, the ideologues of a "Hindu Rashtra" (Hindu state), including Veer Savarkar, consciously appropriated anti-Brahmanic religions like Jainism and Buddhism as part of Hinduism.

Thereafter, right from India's birth as a republic and our adoption of the Indian Constitution, a significant section of the Jain community has been disturbed by their inclusion along with Sikhs and Buddhists in Explanation II of Article 25 of the Constitution within the "Hindu" definition, done, ostensibly, to carry out certain reforms of religious institutions.

On January 25, 1950, a delegation of Jains met the then prime minister, Jawaharlal Nehru, and other central leaders to draw their attention to the anomalous position of Jains under sub-clause (b) of Clause 2 of Article 25 and a petition was submitted to him. Jawaharlal Nehru clearly assured the delegation that Jains were not Hindus and their separate status would be preserved.

Six days later his principal private secretary, AV Pai replied to the petition where he said: "It is clear that Buddhists are not Hindus and therefore there need be no apprehension that the Jains are designated as Hindus. There is no doubt that the Jains are a different religious community and this accepted position is in no way affected by the Constitution."

Addressing a public meeting in Allahabad on September 3, 1949, Nehru had said: "No doubt India had a vast majority of Hindus but they could not forget the fact that there are also minorities, Moslems, Christians, Parsis and Jains. If India was understood as a "Hindu Rashtra" it meant that the minorities were not cent per cent citizens of the country" (The Statesman, September 5, 1949).

A careful reading of Article 25 as a whole makes it crystal clear that there is no reference to the Hindu religion except with regard to Hindu religious institutions of a public character in sub-clause (b) of Clause (2). It is also clear that the provision for social welfare and reform or throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus also specifically refers to the Hindu religion. It is therefore impossible to fathom what constitutional purpose the founding fathers had hoped to serve by construing the reference to Hindus to include a reference to persons professing the Sikh, Jain or Buddhist religion. Why was it necessary to drag in these three – the Sikh, Buddhist and Jain religions – and club them together with the reference to Hindus?

Apart from a few exceptions, most histories and encyclopaedias of world religions fail to mention Jainism as an independent religion. There are pervasive misconceptions about the origin of Jainism, about its relation to Vedic-Brahmanic Hinduism, about Mahavira being the founder of Jainism, about Jainism being an offshoot of Buddhism or Hinduism, or a reformist sect of Hinduism. There are misrepresentations galore. Jainism is overshadowed by Hinduism and Buddhism and, if noticed at all, is mentioned in passing as one of the ancient Indian religious movements subsidiary to Buddhism.

It is a well-attested historical Indological fact that Buddha was a junior contemporary of Mahavira (the 24th Jain prophet erroneously called the founder of Jainism) during the sixth century BC. Moreover, no less a person than Indian Buddhist, Bhikshu Dharmanand Kosambi (father of the eminent scholar-historian-archaeologist, DD Kosambi) has written, on the basis of Buddhist scriptures, that Buddha was for some time a disciple of Mahavira in the initial stages of his search for an ascetic/renunciatory discipline. But finding the Jain renunciatory practice too severe, Buddha left to search for his own Middle Path.

Dr. Albert Schweitzer speaks in glowing terms of the principle of Ahimsa non-violence as laid down by Jainism: “The laying down of the commandment not to kill and not to damage is one of the greatest events in the spiritual history of mankind. Starting from its principle, founded on world and life denial of abstention from action, ancient Indian thoughts and this is a period when in other respects ethics have not progressed very far reaches the tremendous discovery that ethics know no bounds. So far as we know this is for the first time clearly expressed by Jainism.”

Almost all the scholars agree that Jainism has pre-Aryan roots in the religious and cultural history of India. As Dr. A. N. Upadhye remarked – “The origins of Jainism go back to the pre-historic times. They flourished in the past, even before the advent of Aryans with their priestly religion, a society of recluses who laid much stress on individual exertion, on practice of a code of morality and devotion to austerities, as means of attaining religious summum bonum.” (Jainism by Colette Caillat, A.N. Upadhye & Bal Patil, Macmillan, 1974)

Heinrich Zimmer, in his The Philosophies of India, conceded that there is truth in the Jain idea that their religion goes back to a remote antiquity, and that Jainism is the oldest of all Dravidian born philosophies and religions. He also psychologically demonstrated that Jain Yoga originated in pre-Aryan India, and has nothing to do with orthodox Brahmanism which simply appropriated it in later centuries.

Dr. Hermann Jacobi believes that "Jainism goes back to a very early period, and to primitive currents of religious and metaphysical speculation, which gave rise to the oldest Indian philosophies. They (the Jains) seem to have worked out their system from the most primitive notions about matter."

In the Buddhist scripture, Majjima Nikaya, Buddha himself tells us about his ascetic life and its ordinances, which are in conformity with the Jain monk's code of conduct. He says: "Thus far, Sariputta, did I go in my penance. I went without clothes. I licked my food from my hands. I took no food that was brought or meant especially for me. I accepted no invitation to a meal." Buddhism scholar, Rhys Davids has observed that Buddha found his two teachers, Alara and Uddaka, at Vaishali and started his religious life as a Jain.

In Digha Nikaya's Samanna Phal Sutta, the four vows of Lord Parshvanath (who flourished 250 years before Mahavira's liberation) have been mentioned. The Anguttara Nikaya Attakatha contains references to Boppa Sakya, a resident of Kapilavastu, who was Buddha's uncle and who followed the religion of the Nigganathas i.e. Jains.

In my Civil appeal No.4730 of 1999 in the Supreme Court of India before a Three-Judge Bench 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
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."

However, Dr.L.M. Singhvi, eminent jurist, in a letter to Shri A.R. Antulay, Minister for Minority Affairs, (re: Bal Patil judgement) there is a detailed discussion of the issue of the recognition of Jain religion as a religious minority in consonance with the secular faith of the Indian Constitution. Particularly he has stressed how the Jain Sramana and the Vedic traditions “differed substantially and sharply, even though both the traditions flourished among the same people living together in Bharat” and that the “Jains did not accept the authority and the orthodoxy of the absolute adherents of Vedas” just as the Jains also did not “accept the concept of Creator God and Created Universe.”

Dr.Singhvi also has referred to the Supreme Court decision in the case (Bal Patil vs.Union of India) which he considers to be “an example of utter superficiality.”

What he has further noted is that the “judgment was also per curiam,” and that “the Court simply said that a mandamus cannot be issued to command a recommendation be implemented. What it said was that it was for the Central and State Government to decide on the question. Earlier, larger Benches had recognized Jains as a distinct and separate. The judgment in Bal Patil case is a judgment of three Judges which goes against the judgment of 11 Judges and many previous judgments of larger Benches on the basis of which Jains must be recognized as a religious minority, distinct and separate from from the Hindus. Indeed, inclusive references to Jain and Sikhs in Article 25 of the Constitution clearly indicates that Jains, sikhs and buddhists despite being separate and distinct were accepted as minority rreligion .”

In conclusion he notes his “locus” as the Founder President of the World Jain Confederation commanding the support of all sects and denominations of Jains in India and throughout the world, and requests Shri Antulay to notify “Jains as a religious minority and to provide the much needed assurance to reinforce our Rainbow Pluralism and Unity in Diversity implicit in Indian Secularism"

I am pursuing this matter in the Supreme Court of India for the expunction of certain obiter dicta observations. In the meanwhile in another two-judge decision dated August 21, 2006, in the case of Committee of Management, Kanya Junior High School Bal Vidya Mandir, Etah, UP vs Sachiv, UP, Basic Shiksha Parishad, Allahabad, UP & Others, delivered by judges, SB Sinha and Dalveer Bhandari, of the Supreme Court of India emphatically states:

"(The) Jain religion indisputably is not a part of Hindu religion. The question as to whether the Jains are part of the Hindu religion is not open to debate. Jains have a right to establish and administer their own institution..."

- BAL PATIL, Secretary-General, All India Jain Minority Forum, New Delhi,

Ex-Member, Media Expert Committee, Govt. of India,
Ex- Member, Maharashtra State Minority Commission, Govt.of Maharashtra, Mumbai.
Ex-President, National Society for Prevention of Heart Disease & Rehabilitation,
Co-Author: JAINISM (Macmillan Co 1974). with Colette Caillat, (Member Institut de France, Paris,) & A.N.Upadhye, (ex-President, All-India Oriental Conference,) Author: SUPREME COURT'S VOLTE FACE ON CONSTITUTIONAL AMENDMENT (Published by Govt. of Maharashtra, 1980) Author:Jaya Gommatesa! Foreword by C.Caillat (Publisher :Hindi Granth Karyalay, 2006, Mumbai) My translation of Dr.L. Alsdorf's German Beitraege zur Geschichte von Vegetarismus und Rinderverehrung in Indien is presently being edited for publication by Dr. Bollee, Indologist. My translation of Dr.Asdorf's French Les Etudes Jaina, Etat Present et Taches Futures is published by Hindi granth Karyalay, (2005) Mumbai. as The Jaina Studies Present State and Future Tasks edited by Dr.Willem Bollee. Participant and speaker in the 7th Jaina Studies Workshop on Jaina Law and Jaina Community, Centre for Jaina Studies, SOAS, University of London, & Dept of Indic Religion, Centre for Theology and Religious Studies, University of Lund. Participated and presented a paper on the Evolution of Sramanic Jain Tradition and Its Impact on Indic Civilisation & Religious Fundamentalism in the XIXth World Congress of the International Association for the History of Religion, Tokyo, Japan, 2005.

Courtesy:::

Haji Shamsuddin Shaikh,
Chairman - Maharashtra Dalit Muslims