http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9  

CASE NO.: Appeal (civil)  4730 of 1999

PETITIONER: Bal Patil & Anr.                                                 

RESPONDENT: Union of India & Ors.                                    

DATE OF JUDGMENT: 08/08/2005

BENCH: Chief Justice of India,D. M. Dharmadhikari & P. K. Balasubramanyan

JUDGMENT: J U D G M E N T

Dharmadhikari J.

The appellant is an organization representing a section of Jain  community. It approached by writ petition the High Court of Bombay  seeking issuance of a mandamus/direction to the Central Government  to notify ’Jains’ as a ’minority’ community under section 2(c) of the  National Commission for Minorities Act, 1992 (shortly referred to as  the Act).  

Section 2(c) of the Act defines minority thus :- "Minority, for the purposes of this Act, means a community notified  as such by the Central Government;"

       The High Court of Bombay by the impugned order simply  disposed off the petition on the ground that the claim of varous  communities to the status of ’minority’ for purpose of seeking  constitutional protections is one of the main issues pending before a  bench of eleven judges of this court in the case of TMA Pai Foundation  [2002 (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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9  

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 whole of India. Thus, religious and linguistic minorities, who  have been put on a par in Article 30, have to be considered  statewise.  

[Emphasis added]

       After the decision of the eleven judges’ Bench case (supra),  additional affidavit by the Central Government through its Joint  Secretary, Ministry of Social Justice & Empowerment has been filed.  The stand now taken by the Central Government in this appeal before  this court is that in accordance with the law laid down by the majority  opinion in the TMA Pai case (supra), it is "for the State Government to  decide as to whether the Jain community should be treated as a  minority community in their respective states after taking into account  their circumstances/conditions in that state". It is also informed that  the State Governments of Chhatisgarh, Maharashtra, Madhya Pradesh,  Uttar Pradesh and Uttaranchal have already notified Jains as ’minority’  in accordance with the provisions of the respective State Minority  Commissions Act.  

Learned Counsel U.U. Lalit, in the light of law declared in the  decision of the eleven judges’ Bench (supra) and the consequent stand  taken by the Central Government, strenuously urged that for the  purpose of notifying a community as ’minority’ at the national level,  the Central Government, which is empowered to consider the claim of  a particular community for being notified as such under section 2(c),  cannot shirk its statutory responsibility. It is argued that the legal  position explained by the majority view in the eleven judges Bench  case that State Governments can determine the minority status of a  community in states formed on linguistic basis under States  Reorganisation Act, 1956 does not render the power of Central  Government under section 2(c) of the Act redundant.

       Learned counsel representing the claim of the members of the  Jain community before this court further submitted that in accordance  with section 2(c) of the Act, Muslims, Christians, Sikhs, Buddhists,  Zoroastrians (Parsees) have already been notified as minority  communities for the purpose of the Act and the Jains having  substantiated their claim of being a religious minority, the refusal to  notify them as such under the Act is unjustified and abdication of  statutory powers of the Central Government.  

       We have heard Learned Additional Solicitor General Shri B.  Dutta, appearing for the Central 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 who happen to  be in majority and likely to gain political power in a democratic form of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9  

Government based on election.

       In the background of constitutional scheme, the provisions of the  Act therefore instead of giving definition of ’minority’ only provide for  notifying certain communities as ’minorities’ who might require special  treatment and protection of their religious, cultural and educational  rights. The definition of ’minority’ given under the Act in section 2(c) is  in fact not a definition as such but only a provision enabling the  Central Government to identify a community as a ’minority’ which in  the considered opinion of the Central Government deserves to be  notified for the purpose of protecting and monitoring its progress and  development through the Commission.  

The Statement of Objects and Reasons for the enactment reads  thus:-  "The Minorities Commission was set up on January, 1978 for providing  an institutional arrangement for evaluating the safeguards provided in  the Constitution for protection of the minorities and to make  recommendations for ensuring implementation of the safeguards and  the laws.  The Minorities Commission with statutory status would infuse  confidence among the minorities about the working and the  effectiveness of the Commission. It would also carry more weight  with the State Governments/ Union Territory Administrations and  the Ministries/ Departments and the other Organizations of the  Central Government.  

It has, therefore, been decided to give statutory status to the  Minorities Commission by the proposed legislation.

The National Commission for Minorities will consist of a Chairperson  and six members.  

The main task of the Commission shall be to evaluate the progress of  the development of minorities, monitor the working of the safeguards  provided in the Constitution for the protection of the interests of  minorities and in laws enacted by the Central Government or State  Governments, besides looking into the specific complaints regarding  deprivation of rights and safeguards of the minorities. It shall also  cause studies, research and analysis to be undertaken on the issues  relating to socio-economic and educational development of the  minorities and make recommendations for the effective  implementation of the safeguards for the protection and interests of  minorities by the Central 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 Government which alone, on its own assessment,  has to accept or reject the claim of status of minority by a community.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9  

        After the verdict in the eleven judges’ Bench in  TMA Pai  Foundation case (supra), the legal position stands clarified that  henceforth the unit for determining status of both linguistic and  religious minorities would be ’state’. This position is doubly clear not  only from the answer given in conclusion to question no. 1 quoted  above but also the observations contained in paras 76 and 81 of the  majority judgment quoted hereinafter.

"76. If, therefore, the State has to be regarded as the unit for  determining "linguistic minority" vis-‘-vis Article 30, then with  "religious minority" being on the same footing, it is the State in  relation to which the majority or minority status will have to be  determined.

81. As a result of the insertion of Entry 25 into List III, Parliament  can now legislate in relation to education, which was only a State  subject previously. The jurisdiction of Parliament is to make laws for  the whole or a part of India. It is well recognized that geographical  classification is not violative of Article 14. It would, therefore, be  possible that, with respect to a particular State or group of States,  Parliament may legislate in relation to education. However, Article 30  gives the right to a linguistic or religious minority of a State to  establish and administer educational institutions of their choice. The  minority for the purpose of Article 30 cannot have different  meanings depending upon who is legislating. Language being the basis  for the establishment of different States for the purposes of  Article 30, a "linguistic minority" will have to be determined in  relation to the State in which the educational institution is sought  to be established. The position with regard to the religious  minority is similar, since both religious and linguistic minorities  have been put on a par in Article 30."

[Emphasis added]  

        Henceforth, before the Central Government takes decision on  claims of Jains as a ’minority’ under section 2(c) of the Act, the  identification has to be done on a state basis. The power of Central  Government has to be exercised not merely on the advice and  recommendation of the Commission but on consideration of the social,  cultural and religious conditions of the Jain community in each state.  Statistical 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 State Commissions for Minorities, the scope

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9  

and nature of their functions under the provisions of the Act and the  role they have to play in constitutional perspective.  

       The history of the struggle for independence of India bears  ample testimony of the fact that the concept of ’minorities’ and the  demands for special care and protection of their religious and cultural  rights arose after bitter experience of religious conflicts which  intermittently arose in about 150 years of British Rule.  The demand of  partition gained momentum at the time the Britishers decided to leave  by handing over self-rule to Indians. The Britishers always treated  Hindus and Muslims as two different groups of citizens requiring  different treatment. To those groups were added Anglo-Indians and  Christians as a result of large scale inter-marriages and conversions of  several sections of communities in India to Christianity. Prior to  passing of the Independence Act of India to hand over self-rule to  Indians, Britishers in the course of gradually conceding some  democratic rights to Indians, contemplated formation of separate  constituencies on reservations of certain seats in legislature in  proportion to the population of Hindus and Muslims. That attempt was  strongly resisted by both prominent Hindu and Muslim national leaders  who had jointly and actively participated in the struggle for  independence of India.  

The attempt of the Britishers to form separate electorates and  make reservations of seats on the basis of population of Hindus and  Muslims, however, ultimately led to revival of demand for reservations  of constituencies and seats in the first elected government to be  formed in free India.  Resistance to such demands by Hindu and some  Muslim leaders ultimately led to partition of India and formation of  separate Muslim State presently known as Pakistan.  

       Many other revelations concerning competing claims for  reservation of seats on religious basis can be gathered from the  personal diary of prominent national leader late Abdul Kalam Azad.  The diary was made public, in accordance with his last wish only after  25 years of independence. The publication of Azad’s diary made it  necessary for constitutional expert H. M. Seervai to re-write his   chapter under caption ’Partition of India \026 Legend and Reality’ in his  book on ’Constitutional Law of India’. Many apprehensions 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. They also insisted that separate  electoral constituencies based on their population be formed and seats  be reserved for them in different parts of India. Late Abdul Kalam Azad  tried his utmost to find a midway and thus break the stalemate  between the two opposing groups but Nehru and Patel remained  resolute and rejected the proposal of Jinnah and Liaqat Ali. The tragic  result was that provinces with the highest Muslim population in the  erstwhile States of Sindh, Punjab and Baluchistan had to be ceded to  form a separate theocratic nation - Pakistan. See the following

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9  

paragraph 1.314 at pg. 153 of ’Constitutional Law of India’ by H.M.  Seervai, Fourth Edition, Vol.I :-  

"1.314. 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."  

       It is against this background of partition that at the time of  giving final shape to the Constitution of India, it was felt necessary to  allay the apprehensions and fears in the minds of Muslims and other  religious communities by providing to them special guarantee and  protection of their religious, cultural and educational rights. Such  protection was found necessary to maintain unity and integrity of free  India because even after partition of India, communities like Muslims  and Christians in greater numbers living in different parts of India  opted to continue to live in India as children of its soil.   

       It is with the above aim in view that the framers of the  Constitution engrafted group of Articles 25 to 30 in the Constitution of  India. The minorities initially recognized were based on religion and on  national level e.g.  Muslims, Christians, Anglo-Indian and Parsis.  Muslims constituted the largest religious minority because Mughal  period of rule in India was longest followed by British rule during which  many Indians had adopted Muslim and Christian religions.  

Parsis constituted 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 now included in the Constitution in the category of  Scheduled Castes with special privileges and treatment for their  upliftment. This was found necessary to bring them at par with upper  castes in Hindu society. The aboriginals, who have no caste were  considered as distinct from four castes or Varnas of Hindu society.  They have been treated favourably in the Constitution as Scheduled  Tribes. For them also there are provisions for special treatment and  grant of special privileges to bring them on level with the other castes  from the main advanced streams of Indian society.  

There is a very serious debate and difference of opinion between  religious philosophers and historians as to whether Jains are of Hindu  stock and whether their religion is more ancient than the vedic religion  of Hindus. Spiritual philosophy of Hindus and Jains in many respect is

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9  

different but the quintessence of the spiritual thought of both the  religions seems to be the same. The influence of Hindu vedic religion is  quite apparent in the custom, style of living, belief and faith of Jains.  Jains do not worship images or idols of Gods but worship their  Tirathankars meaning their ideal personalities who have attained  human perfection and excellence by a process of self-improvement.  The literal meaning of the word ’Jain’ is one who has attained ’victory’.  It signifies a person who has attained victory over himself by the  process of self-purification. ’Jain’ is a religious devout who is  continuously striving to gain control over his desires, senses and  organs to ultimately become master of his own self.  

This philosophy is to some extent similar to the vedic philosophy  explained by Lord Krishna in ’Bhagwat Geeta’, where Lord Krishna  describes qualities of a perfect human as ’Stithpragya’. Geeta has used  the example of Tortoise to describe a balanced human-being as one  who has gained full control over his organs like a Tortoise does which  whenever needed, opens its limbs of body and when not needed,  closes them.  

       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  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 :\026 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  their religious and cultural rights. India is a country of people with the  largest number of religions and languages living together and forming  a Nation. Such diversity of religions, culture and way of life is not to be  found in any part of the world. John Stuart Mill described India as "a  world placed at closed quarters". India is a world in miniature. The  group of Articles 25 to 30 of the Constitution, as the historical  background of partition of India shows, was only to give a guarantee  of security to the identified minorities and thus to maintain integrity of  the country. It was not in contemplation of the framers of the  Constitution to add to the list of religious minorities. The Constitution  through all its organs is committed to protect religious, cultural and  educational rights of all. Articles 25 to 30 guarantee cultural and  religious freedoms to both majority and minority groups. Ideal of a  democratic society, which has adopted right of equality as its  fundamental creed, should be elimination of majority and minority and  so called forward and backward classes. Constitution has accepted one  common citizenship for every Indian regardless of his religion,  language, culture or faith. The only qualification for citizenship is a  person’s birth in India. We have to develop such enlightened  citizenship where each citizen of whatever religion or language is more

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9  

concerned about his duties and responsibilities to protect rights of the  other group than asserting his own rights. The constitutional goal is to  develop citizenship in which everyone enjoys full fundamental  freedoms of religion, faith and worship and no one is apprehensive of  encroachment of his rights by others in minority or majority.  

       The constitutional ideal, which can be gathered from the group  of articles in the Constitution under 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.  

       The above mentioned constitutional goal has to be kept in view  by the Minorities Commissions set up at the Central or State levels.  Commissions set up for minorities have to direct their activities to  maintain integrity and unity of India by gradually eliminating the  minority and majority classes. If, only on the basis of a different  religious thought or less numerical strength or lack of health, 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.

The Commission instead of encouraging claims from different  communities for being added to a list of notified minorities under the  Act, should suggest ways and means to help create social conditions  where the list of notified minorities is gradually reduced and done  away with altogether.  

These concluding observations were required after the eleven  judges Bench in TMA Pai Foundation Case (supra) held that claims of  minorities on both linguistic and religious basis would be each State as  a unit. The country has already been reorganized in the year 1956  under the States Reorganization Act on the basis of language.  Differential treatments to linguistic minorities based on language  within the state is understandable but if the same concept for  minorities on the basis of religion is encouraged, the whole country,  which is already under class and social conflicts due to various divisive  forces, will further face division on the basis of religious diversities.  Such claims to minority status based on religion would increase in the  fond hope of various sections of people getting special protections,  privileges and treatment as part of constitutional guarantee.  Encouragement to such fissiparous tendencies would be a serious jolt  to the secular structure of constitutional democracy. We should guard  against making our country akin to a theocratic state based on multi- nationalism. Our concept of secularism, to put it in a nut shell, is that  ’state’ will have no religion. The states will treat all religions and  religious groups equally and with equal respect without in any manner  interfering with their individual rights of religion, faith and worship.  

Let the Commission gear its activities to keep them in right  direction with the above constitutional perspective, principles and  ideals in its view.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9  

       With these observations and concluding remarks, this appeal  stands disposed of as we do not find that any case is made out for  grant of any relief to the appellants in exercise of writ jurisdiction of  the High Court and hence, the appellate jurisdiction of this Court.