II IDENTITY OF SIKHS, JAINS AND BUDDHISTS AS SEPARATE RELIGION
The Constitution of India under its Article 25(2)(a) empowers the State to regulate or restrict any political, economic, financial or other secular activity which may be associated with religious practice. Its Article 25(2)(b) empowers the State to make any law “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”. Explanation I to Article 25(2)(b) says that the wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion. Explanation II of it says that in sub-clause (b) of clause (2) of Article 25, 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.
The use of the word “Hindus” in Article 25(2)(b) and the words “Sikh, Jain and Buddhist” in Explanation II have given birth to the controversy whether the latter are followers of religions other than the Hindu religion or that they are merely sects or sectional faiths which are a part of the larger Hindu religion?
It is to be noted that Article 25(1) deals with “religion”. The “Hindu religious institutions” referred to in sub-clause (b) of clause (2) must, therefore, be confined to the “Hindu religion”. This would necessarily mean that “Hindu religious institutions” would not cover the institutions of religions other than the Hindu religion. In Explanation II, the reference to “persons professing the Sikh, Jain or Buddhist religion” meant that persons following these religions were not legally persons following the Hindu religion. They would not have come within the coverage of Article 25(2)(b) but for Explanation II. The object of Explanation II, therefore, was “to widen the concept that Hindu religious institutions were broad-based and Sikhism, Jainism and Buddhism although separate religions could enjoy the right of temple entry”. This object would not have been achieved if Explanation II had not been enacted. In other words, because of Sikhism, Jainism or Buddhism being separate religions, they could not have been included among the Hindus in Article 25(2)(b) and, therefore, it was absolutely necessary to enact Explanation II to give the followers of Sikh, Jain and Buddhist religions the benefit of Article 25(2)(b) even though they belonged to religions other than Hinduism and their religious institutions would not be included in “Hindu religious institutions” but for Explanation II.
The Constitution Review Committee headed by Justice Venkata Chaliah recommended deletion of Explanation II to Article 25 so that the benefit of social welfare and reforms be provided to all classes and sections of these religions. In para 3.23.2 it states that after omitting Explanation II to Article 25, the sub-clause (b) of clause (2) of that Article should be reworded to read as follows:16
“(b) providing for social welfare or reform or the throwing open of Hindu, Sikh, Jain or Buddhist religious institutions of a public character to all classes and sections of these religions”.
Thus, in view of the Constitution Review Committee also Jain is a separate religion and not a part of Hinduism.
Again, one may argue that the followers of Sikhism, Jainism and Buddhism religions historically and culturally came out of Hindu religion and that the Hindu personal law applies to them, therefore, they are Hindus. As discussed above, it is clear that Article 25 recognized two different context in which the Sikhs, Jains and Buddhists could be treated as Hindus. This dichotomy of the Constitution in Article 25 was also maintained by Parliament in the enactment of the four statutes of the Hindu personal laws, namely, the Hindu Marriage Act, 1955; the Hindu Succession Act, 1956; the Hindu Minority and Guardianship Act, 1956; and the Hindu Adoptions and the Maintenance Act, 1956. Parliament enacted one section in each of these four statutes to maintain the dichotomy between those who are Hindus by religion and those who are Sikhs, Buddhists or Jains by religion even though the legislation would apply to all of them as the Hindu personal law used to apply to them before the enactment of these statutes. In enacting these four statutes the legislature expressly recognized that Sikhism, Buddhism and Jainism were religions separate from Hinduism.
In sub-section (1) of Section 2 of the Hindu Marriage Act, 1955 it is stated that 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, Prathana or Arya Samaj; and (b) to any person who is a Buddhist, Jain or Sikh by religion. The legislature, in Section 2, instead of stating as above, could have simply said that the legislation applied to Hindus, Sikhs, Buddhists and Jains. Hence, as religion, the identity of Sikhism, Jainism and Buddhism have been recognized as that of separate religions.
The Indian Succession Act, 1925 has also recognized Jain as a separate religion. In its Section 20 it is provided that one cannot become capable simply by marriage to get benefit in the property of another partner of marriage and cannot become incapable of disposing of his or her property simply by that marriage. The above provision is a law relating to succession in which its sub-section (2)(b) reflects that the above provision would not apply to Hindu, Muhammadan, Buddhist, Sikh and Jain.
