Muslim Religious Minority

8/8/2019 Muslim Religious Minority

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first, the state was 'an after-thought'. The additional Islamic law does not acknowledge 'the independentexistence of state, nor is state regarded as a primary condition of human society. It makes the Statecompletely subservient to the religion of the Prophet. According to the Islamic law, the state is only aninstrument to serve the creed in the attainment of its objectives or fulfilment of ideals of the muslim

brotherhood. The Islamic theory of state was, therefore, based on a three fold idea of one scripture, onesovereign and one nation; scriptu was the hly Quran, sovereign was the imam (leader), also calledKhalifa (the caliph)- political successor to the Prophet, and nation was the millat-the muslim

brotherhood. The basic feature of the state, according to this theory, was its 'indivisibility' in all thethree aspects. It contemplated the establishment of a theocratic state based on the Islamic law, andrecommended only one sovereign, the caliph, to rule over the whole of the muslim world. The caliphwas styled as the amir ul momnin-'the leader of the faithful'; his office was thus a political institution

based on Islamic injunctions. The sovereignty resided in the millat which elected their imam or thecaliph, and the latter was under religious obligation to implement the Islamic law on and for the benefitof his muslim subjects. The Islamic government was, therefore, one which was composed of themuslims, by the muslims and existed for the happiness and welfare of the muslims alone."This paragraph has references of Books such as Arnol J Toynbee, A Study of History: 12 vols; OUP,4th impression, 1948, IV, p. 230, Wolseley Haig, CHI,III, p.-10, A.B.M. Habibullah, Foundation of

Muslim Rule in India; Allahabad, 2nd ed; 1961, p.2., Toynbee, Study of History, pp.clt; VI, p. 285,Toynbee, Study of History, pp.clt; IV, p. 98, Toynbee, Study of History, pp.clt; VI, pp.98-100,Toynbee, Study of History, pp.clt; VI, p.5,129, 131-132, 245-60.

Government of India made notification declaring Sikhism, Baudhism and Jainsims religious minoritygroups. If these groups are treated as minority, rest of religion groups born and brought up in India iftaken separately may be treated in minority in comparison to Muslims at least in Uttar Pradesh wherethe population of Muslims in Census is 18.6% and in some District as mentioned in the order dated14.3.2007 population ranges from 21% to 49%.Anglo-Indians ,Parsees ,Plains' tribesmen in Assam (other than Tea Gardens' tribesmen) , Indian

Christians ,Sikhs Budhists may urged claiming himself to be minority institution being that Budhist isa minority group on the basis of population below 50%.The questions arose to be considered who is minority, whether muslims claim themselves as religiousminority and whether anybody who is claiming as religious Muslim minority could be recognised forgrant-in-aid by the State of Uttar Pradesh being religious minority and what would be the basis for suchrecognition.On behalf of the National Commission for Minorities and Registrar General, Census. U.P. MinorityCommission, Lucknow is questions came up for consideration being founded by religious MuslimMinority.The Apex Court in (2005) 5 SCC 298, Ashok Lanka and another vs. Rishi Dixit and others, relevant

paragraph 42 of which is being quoted below:"Furthermore it is well settled that even in a case where a petitioner might have moved the Court in his

private interest and for redressal of personal grievances, the Court in furtherance of the public interestmay treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of

justice (see Guruyayoo Devaswom Managing Committee v. C.K. Rajan, SCC para 50 and PrahladSingh versus Col. Sukhdev Singh (1987) 1 SCC 727)."The same view was again settled by the Apex Court in AIR 2003 SC 4531, General Manager, KisanSahkari Chini Mills Limited, Sultanpur, U.P. versus Satrughna Nishad. Again similar matter came upfor consideration before this Court in 2006 (4) A.D.J. 106 (All.) (Full Bench), Suo Moto Action Taken

by the Court Versus I.C.I.CI. Bank Ltd. Allahabad and others. The Division Bench of this Courtdealing with the habeas corpus petition framed certain issues of public importance involved in the caseand referred the matter to Hon. The Chief Justice to register as P.I.L. to be decided by the appropriatecourt. The Chief Justice, Allahabad High Court, treating it as a Public Interest Litigation constituted aFull Bench. The Full Bench considering the case of Ashok Lanka and another (Supra) held that it waswithin the domain of the Court even to enquire the facts of public importance suo moto if exigency sorequires and the matter was returned to the same Bench to decide the issue of public importance.In view of the law laid down by the Apex Court as well as by this Court, the Court is of the view thatthis Court is fully competent to enquire into the matter of public importance whether the Madarsasfounded by the Muslims Minority community could be recognized as Minority institutions and they are

entitled to get grant-in-aid as minority institution founded by the religious minority community andother related questions which are germane to the issues are involved in the present case.Further in view of the law laid down by the Apex Court in (1998) 1 SCC 1, State of Rajasthan versus


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Prakash Chand and others, 2001 (4) AWC 2688, Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. andothers versus Deen Bandhu Pathak, Student and 2001 (1) AWC 383, Chandra Bhushan Tewari versusState of U.P. and others, as this Bench was allocated the work to decide matters relating to Education ithad the jurisdiction to decide the case. Further, the question whether Muslims constitute religiousminorities in India, though initially did not arise, but arose during the course of hearing as parties areclaiming minority status being Muslim, could be decided by the Court by framing issues. The law iswell settled in the case of State of U.P. and another Vs. Satya Narain Kapoor (Dead by Lrs. And others

(2004) 8 Supreme Court Cases 630. Relevant paragraph of the case is quoted below:"We are not doubting the jurisdiction of the High Court to take cognizance of an issue wherein theelement of public interest is involved and to take up and entertain the same as public interest litigationand pronounce upon such issues exercising the jurisdiction which the Constitution does vest in the HighCourt but that has to be done by following the established rules of practice and procedure consistentlywith the rules of natural justice. The High Court, if convinced, should have framed specific issues withwhich it proposed to deal with in public interest and then should have put the State on specific noticeinviting its pleadings and documents. Any other party likely to be adversely affected and interested in

being heard may have been allowed the opportunity of doing so. A larger issue involving public interestand far-reaching implications should not have been dealt with so lightly, casually and hurriedly as the

High Court has done".

Judgment of the Apex Court reported in AIR 2003 SC, p. 355, T.M.A. Pai Foundation V. State ofKarnataka. He also placed before me another case law of the Apex Court reported in AIR 2005 S.C.,3172, Bal Patil and another V. Union of India and others, Paragraph 34 of which makes it clear thatevery group in India is minority. Paragraph 10,11 and 34 of the judgment of the Apex Court are beingreproduced below:-"10. The expression 'minority' has been used in Article 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 and 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 inview the constitutional guarantee for protection of cultural, educational and religious rights of allcitizens, it was not felt necessary to define 'minority'. Minority as understood from constitutionalscheme signifies an identifiable group of people or community who were seen as deserving protectionfrom likely deprivation of their rights by other communities who happen to be in majority and likely tograin political power in a democratic form of Government based on election.11. In the back ground of constitutional scheme, the provisions of the Act therefore instead of givingdefinition of 'minority' only provide for notifying certain communities as 'minorities' who might requirespecial 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 provisionenabling the Central Government to identify a community as a 'minority' which in the consideredopinion of the Central Government deserves to be notified for the purpose of protecting and monitoringits progress and development through the Commission.

34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions setup at the Central or State levels. Commissions set up for minorities have to direct their activities tomaintain integrity and unity of India by gradually eliminating the minority and majority classes. It, onlyon 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 andmulti-linguistic as India is. A claim by one group of citizens would lead to a similar claim by anothergroup 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 areminorities 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 ofthe other group, an atmosphere of mutual fear and distrust would be created posing serious threat to theintegrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessarythat Minority Commission should act in a manner so as to prevent generating feelings of

multinationalism in various sections of people of Bharat."In view of the judgment of the Apex Court, the question arises whether there is any such identifiable


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group of people or community who were seen as deserving protection from likely deprivation of theirrights by other communities who happen to be in majority and likely to gain political power in ademocratic form of Government based on election.As held by the Apex Court that the concept of minority was introduced to given protection to somegroups from likely deprivation of rights of minority by other communities who happen to be in majorityand likely to grain power in democratic form of the Government, whether at present there is any suchlikelihood of deprivation of any group or minority and they are entitled to get protection under Articles

25 to 30 of the Constitution of India and whether under such protection any institution instituted andfounded by any minority group is entitled to get benefit under the Constitution of India. The questionfurther arises to be considered is that if this was the intention of the Constituent Assembly to make

provision of Articles 25 to 30 of the Constitution of India due to feeling of afraid atmosphere, mutualfear and distrust which was created at the time of partition of the country which has already come to anend, any such protection will not create sow seeds of multinationalism in India.(i) What was the total number of population of India on the date the Constitution of India came into

existence,(ii) The total population of all the minority communities including Budhist Muslims and Christians etc.on the date the Constitution of India came into force.

(iii) What is the total population of minority communities in the latest census of 2001.(iv) In case Census was conducted as regard the other minority groups on the caste basis, the details ofthe same shall also be produced and(v) The Government of India shall also produce before the Court report of the Justice SachcharCommittee.Several questions are framed about definition and recognition of minority group under the Constitutionof India. It is brought to the notice that a notification dated 23.10.93 was issued by Government of Indiarecognising Muslims, Christians, Sikhs, Buddhists, Jain and Parsees as minorities.It is also brought to the notice that that Constituent Assembly debates make it clear that minorities wererecognised according to their strength and their population. Above minorities were divided in 3 groups

i.e. A, B, and C as mentioned in the schedule prepared by a Committee on Minority Rights. Besidesthat, Buddhists are not recognised as minority by Constituent Assemply.Group-A consists of population less than percent in the Indian Dominion omitting States1.Anglo-Indians2.Parsees3.Plains' tribesmen in Assam (other than Tea Gardens' tribesmen)Group B- Population not more than 1 percent.4. Indian Christians5. SikhsGroup - C consists of population exceeding 1 percent.1. MuslimsAccording to 11 Judge Bench judgment of Apex Court reported in AIR 2003 Supreme Court 355-T.M.A. Pai Foundation vs. State of Karnataka, specifically defines minority:"The word 'minority' is not defined in the Constitution but literally it means 'a non-dominant'group. It isa relative; term and is referred to, to represent the smaller of two numbers, sections or group called;'majority'. In that sense, here may be political minority, religious minority, linguistic minority"The protection of minorities in our constitution has been deal with by three Judge Bench judgment ofthe Apex Court (reported in AIR 2005 SC 3172-Bal Patil and another vs. Union of India and others) in

paragraph 35, the Apex Court held that:

"The Commission instead of encouraging claims from different communities for being added to a list ofnotified minorities under the Act, should suggest ways and means to help create social conditions wherethe list of notified minorities is gradually reduced and done away with altogether.Apex Court further held that -"Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure ofconstitutional democracy".According to Census of 2001 submitted through the affidavit of Secretary of U.P. Commission forMinorities, Lucknow, the regional proportion on the basis of census of U.P. , the total percentage ofdifferent minorities communities are as follows: -Muslims : 18.50

Christians : 0.1Sikh : 0.4


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Buddh : 0.2Jain : 0.1It further appears from the religion proportion of minorities of different districts of the State of U.P. onthe basis of 2001 census.District Muslims Christians Sikhs Buddhists JainSaharanpur 39.11 0.17 0.71 0.13 0.37Muzaffarnagar 39.09 0.09 0.54 0.07 0.49

Bijnor 41.71 0.11 1.56 0.11 0.08Moradabad 45.54 0.23 0.23 0.06 0.06Rampur 49.14 0.38 3.21 0.12 0.08Jyotiba Phule Nagar 39.38 0.28 0.37 0.02 0.04Meerut 32.55 0.25 0.88 0.09 0.63Baghpat 24.73 0.09 0.09 0.03 1.54Ghaziabad 23.79 0.27 0.64 0.10 0.36Bulandshahr 21.07 0.13 0.16 0.07 0.05Budaun 21.33 0.11 0.09 0.16 0.02Bareilly 33.89 0.26 0.80 0.20 0.02

Pilibhit 23.75 0.11 4.59 0.11 0.01Lucknow 20.52 0.34 0.63 0.12 0.11Barabanki 22.04 0.08 0.12 0.09 0.11Bahraich 34.83 0.09 0.32 0.14 0.04Shrawasti 25.60 0.05 0.07 0.05 0.00Balrampur 36.72 0.08 0.08 0.18 0.01Siddharthnagar 29.43 0.06 0.06 0.39 0.00Sant Kabir Nagar 24.02 0.05 0.04 0.27 0.00Considering the facts detailed above, other points arises to be considered in this case whether list ofminorities notified by notification dated 23.10.93 could be reduced on the basis of latest census report

on population and strength of different minority communities to achieve the goal under the constitutionas held by Apex Court in Bal Patil and another vs. Union of India and others case (supra).It is urged that the Muslims are not rightly recognised as religious minority group as the population ofMuslims is about 50% in comparison to the majority population in India. The judgments of Apex Courtin T.M.A. Pai Foundation v. State of Karnataka reported in AIR 2003 SC p. 355, P.A. Inamdar andothers vs. State of Maharashtra and others case reportedin 2005 (3) E.S.C. 373 and in Islamic Academyof Education and others v.State of Karnataka and others case reported in (2003) 6 SCC,page 697 insupport of his case. It is further urged that the Muslims, Christians, Sikhs, Budhists,Jains, Jews areminority in comparison to Hindus under the notification of the Government of India dated 23.10.1993.It is further urged that the calculation of 50% will be made on the basis of Hindu religion (the way ofworship) and as such the minority was determined in comparison with the Hindus.The questions arise to be considered (i) what is the Definition of Religion (ii) Whether Hindus aremembers of one religious or identity or are a combination of various religious groups born and broughtup in India from time to time including Budhism, Janim,Araya Samajis, Brahm Samajis, Lingayats,Shakts, Shaivs, Escons (Worshippers of Lord Krishna), Sikhism, Kabirpanthis, followers ofShankaracharya, Rmanujacharyas and the group of followers who are involved worship of Lord Krishnaand Lord Rama and other groups who perform different way of worship of the God in India.The question further arises to be considered that in case all the religions born and brought up in Indiacould be considered within Hinduism, then how the Government of India made notification declaring

Sikhism, Baudhism and Jainsims religious minority groups. If these groups are treated as minority, restof religion groups born and brought up in India if taken separately may be treated in minority incomparison to Muslims at least in Uttar Pradesh where the population of Muslims in Census is 18.6%and in some District as mentioned in the order dated 14.3.2007 population ranges from 21% to 49%. Allthese questions require consideration considering the historical back ground where in the British Rulethe census was made from 1851 up to 1941 on the basis of all religious groups separately and werenever considered to be part of one religion.

In view of undisputed facts and claim about, the Court framed questions and issued notices to affordopportunities to the State of U.P., National Minority Commission, U.P. Minority Commission, Union of

India and the Registrar General, Census, as per majority opinion, this Court orders as under:1.The Proclamation dated 23.5.2005 dissolving the Legislative Assembly of the State of Bihar is


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unconstitutional.2.Despite the unconstitutionality of the impugned proclamation, but having regard to the facts andcircumstances of the case, the present is not a case where in exercise of discretionary jurisdiction thestatus quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of theProclamation dated 7.3.2005 whereunder it was kept under suspended animation.Under Section 2(c) of the National Commission for Minorities Act, 1972 and Muslims, Sikhs, Budhists,Parsees and Christians were recognised as religious minorities. Muslim population is less than 50% of

the total population of India, they were rightly recognised as minorities. Notification dated 23.10.1993recognising Muslims and other religious groups as minorities was rightly issued. The word 'religion'has not been defined in the Constitution of India. The first case considered by the seven Judges' Benchof Apex Court defined religion in the judgment reported in AIR 1954 SC 282, The Commissioner,Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt. InParagraph-17 of the judgment Apex Court has observed as follows:-"17......Religion is certainly a matter of faith with individuals or communities and it is not necessarilytheistic. There are well known religions in India like Budhism and Jainism which do not believe in Godor in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrineswhich are regarded by those who profess that religion as conducive to their spiritual well being, but it

would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not onlylay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances,ceremonies and modes of worship which are regarded as integral parts of religion, and these forms andobservances might extend even to matters of food and dress."The Apex Court in Paragraph-22 of the same judgment observed as follows:-"22........ As we have already indicated, freedom of religion in our Constitution is not confiend toreligious beliefs only; it extends to religious practices as well subject to the restrictions which theConstitution itself has laid down. Under Art. 26(b), therefore, a religious denomination or organisationenjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essentialaccording to the tenets of the religion they hold and no outside authority has any jurisdiction to

interfere with their decision in such matters."A Constitution Bench of Apex Court in a judgment reported in AIR 1983 SC, p.1, S.P. Mittal v. Unionof India further considered what is the religion. In Paragraph-12 of the judgment, Apex Court observedas follows:-"12.............The Constitution considers Religion as a matter of though, expression, belief, faith andworship, a matter involving the conscience and a matter which may be professed, practised and

propagated by anyone and which may even have some secular activity associated with it.........."The Apex Court in its judgment made survey of all case laws available upto that time including AIR1954 SCR, p. 388, Ratilal Panachand Gandhi v. State of Bombay, AIR 1961 SC 1402, DurgahCommittee Ajmer v. Syed Hussain Ali Brothers, AIR 1963 SC, 1638, Tilkayat Shri Govindlalji Maharajv. State of Rajasthan, AIR 1964 SC, 1501, Birakishore v. State of Orissa and AIR 1966 SC 1119, SastiYagnapurushdasji v. Muldas Bhundardas Vaishya. In Paragraph 76 of the judgment, the word 'religion'has been defined by the Apex Court. Paragraph-76 of the judgment is being reproduced below:-"76. ..........The expression 'Religion' has, however, been sought to be defined in the 'Words andPhrases", Permanent Edn. 36A, p.461 onwards, as given below:"Religion is morality, with a sanction drawn from a future state of rewards and punishments."The terms 'religion' and 'religious' in ordinary usage are not rigid concepts.'Religion' has reference to one's views of his relations to his Creator and to the obligations they imposeof reverence for his being and character and of obedience to his will.

"The word 'religion' in its primary sense (from 'religare' to rebind-bind back), imports as applied tomoral questions, only a recognition of a conscious duly to obey restraining principles of conduct. Insuch sense we suppose there is no one who will admit that he is without religion."'religion' is bond uniting man to God and virtue whose purpose is to render God worship due him assource of all being and principle of all government of things."'Religion' has reference to man's relation to divinity to the moral obligation of reverence and worship.Obedience, and submission. It is the recognition of God as an object of worship, love and obedience;

right feeling ship, love and obedience; right feeling towards God, as highly apprehended."'Religion' means the service and adoration of God or a God as expressed in forms of worship; andapprehension, awareness, or conviction of the existence of a Supreme Being; any system of faith,

doctrine and worship, as the Christian religion, the religions of the Orient; a particular system of faith orworship.


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"'The term 'religion' as used in tax exemption law, simply includes (1) a belief, not necessarily referringto supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) asystem of moral practice directly resulting from an adherence to the belief; and (4) an organisationwithin the cult designed to observe the tenets or belief, the content of such belief being of no moment."while 'religion' in its broadest sense includes all forms of belief in the existence of superior beingscapable of exercising power over the human race, as commonly accepted it means the formalrecognition of God, as members of societies and association, and the term 'a religious purpose', as used

in the constitutional provision exempting from taxation property used for religious purposes, means theuse of property by a religious society or body of persons as a place for public worship."'Religion' is a squaring human life with superhuman life. Belief in a superhuman power and such anadjustment of human activities to the requirements of that power as may enable the individual believerto exist more happily is common to all 'religions'. The term 'religion' has reference to one's views on hisrelations to his Creator, and to the obligations they impose on reverence for His being and character andobedience to his will."The term 'religion' has reference to one's view of his relations to his Creator, and to the obligationsthey impose of reverence for his being and character, and of obedience to his will. With obligations hemay think they impose, and the manner in which an expression shall be made by him of his belief on

those subjects, no interference can be permitted, provided always the law of society designed to secureits peace and prosperity, and the morals of its people, are not interfered with."Thus, on consideration of law settled by the Apex Court religion is a matter of particular thought,expression, belief, faith and worship involving the conscience, man's relationship to divinity, moralobligation and has reverence of one's views of his relationship to the creator.Considering the definition of religion as settled by the Apex Court detailed above, India consists of twokinds of religions, (1) the religions born on foreign land and brought to India such religions are Islam,Christianity, Zoroastrian and Parsees and (2) religions born and developed in India which areBuddhism, Jainsim, Sikhism, Aryasamaj, Brahmsamaj, Radhaswami, Lingayats, Kabirpanth,Adwaitvad by Adi Jagat Guru Shankaracharya, Religion based on Philosophy of Ramanujacharya, other

Saints and Philosophers, Vaishnav Panth, other different religions of Bhakti Marg including ChaitanyaMahaprabhu, ISCON, Saint Nimbarkacharya, Philosophy of Saint Ramanand, Theosophical Society ofIndia, Nirankaris, Panth founded by Swami Vivekanand on the basis of philosophy of Rama KrishanaParamhans, Religion beleiving Lord Rama as God, Religion believing Lord Krishna as God,Aghorpanth, Sufism, Saint Ravidas, Saint Tukaram and other different beliefs, thoughts and religionsand different religions believing on different God and Goddess, Tribals who worship the Nature, Tribalshave their own God/Goddess in India, hundreds of such Tribal groups who worship differentGod/Goddess (mostly not connected with each other) throughout India from North East, West Bengal,Orissa, Kerala and Andhra Pradesh, Gujrat, Uttar Pradesh, Chhattishgarh, Jharkhand, Bihar andMadhya Pradesh. Considering the definition of religion as defined by the Apex Court, all these arereligions born, developed and existing in India.Whether Islam, Christianity and other religions notified as religious minority under the notificationdated 23.10.1993 and all these religions were rightly declared as religious minority communities incomparison to majority, i.e., Hindus.Muslim community were rightly recognised as religious minority and are entitled to get all the benefits

provided by the Constitution of India under Articles 29 and 30.Our Parliament has enacted National Commission for Minorities Act, 1992 (Act No. 19 of 1992). By anotification dated 23rd October, 1993, in exercise of power under Section 2(c) of the NationalCommission for Minority Act, 1992, the Central Government notified follower religious communities

as minority communities:-1.Muslims,2.Christians,3.Sikhs,4.Buddhists and5.ZoroastriansThough this Court by a specific direction directed Union of India and other Opp. Parties to inform theCourt what are the basis or reasons or criterion for declaring any community as religious minoritycommunity, but neither Union of India not the State of Uttar Pradesh brought any material on record toshow criterion for determining a community as religious minority community and as such this Court

while considering the question whether Muslim community is a religious minority has to see theproceedings of the Constituent Assembly and various judgments of Apex Court and other Court.


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Minority has not been defined in the Constitution of India. The Eleven Judges Bench of the Apex Court in T.M.A. Pai Foundation and others v. State ofKarnataka, AIR 2003 SC 356 has also considered report of the Advisory Committee on minority placedin the Constituent Assembly. A part of Paragraph 157 is being reproduced below:-"157....similarly, conferring certain rights on a special class, for good reasons, cannot be consideredinequitable. All the people of India are not alike, and that is why preferential treatment to a specialsection of the society is not frowned upon. Article 30 is a special right conferred on the religious and

linguistic minorities because of their numerical handicap and to instill in them a sense of security andconfidence, even though the minorities cannot be per se regarded as weaker sections or underprivilegedsegments of the society."Paragraphs 158, 159 and 160 of the judgment of the Apex Court is also very relevant to the controversyinvolved in the present case, the same is being quoted below:-"158. The one billion population of India consists of six main ethnic groups and fifty-two major tribes;six major religions and 6,400 castes and sub-castes; eighteen major languages and 1,600 minorlanguages and dialects. The essence of secularism in India can best be depicted if a relief map of Indiais made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into themaking of a map. Each person, whatever his/her language, caste, religion has his/her individual

identity, which has to be preserved, so that when placed together it goes to form a depiction with thedifferent geographical features of India. These small pieces of marble, in the form of human beings,which may individually be dissimilar to each other, when placed together in a systematic manner,

produce the beautiful map of India. Each piece, like a citizen of India, plays an important part inmaking of the whole. The variations of the colours as well as different shades of the same colour in amap is the result of these small pieces of different shades and colours of marble, but even when onesmall piece of marble is removed, the whole map of India would be scarred, and the beauty would belost.159. Each of the people of India has an important place in the formation of the nation. Each piece hasto retain its own colour. By itself , it may be an insignificant stone, but when placed in a proper manner

goes into the making of a full picture of India in all its different colours and hues."160. A citizen of India stands in a similar position. The Constitution recognises the differences amongthe people of India, but it gives equal importance to each of them, their differences notwithstanding, foronly then can there be a unified secular nation. Recognizing the need for the preservation and retentionof different pieces that go into the making of a whole nation, the Constitution, while maintaining, interalia, the basic principle of equality, contains adequate provisions that ensure the preservation of thesedifferent pieces."One of the Hon'ble Judge in Eleven Judges' Bench of the Apex Court in Paragraphs 169, 170 and 184observed as follows:-"169. Dr. B.R. Ambedkar while intervening in debate in regard to amendment to draft Art.23 whichrelated to the rights of religious and linguistic minorities stated that "the term 'minority' was usedtherein not in the technical sense of the word minority as we have been accustomed to use it for

purposes of certain political safeguards, such as representation in the legislature, representation in theservices and so on." According to him, the word minority is used not merely to indicate, the minority intechnical sense of the word, it is also used to cover minorities which are not minorities in the technicalsense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar citedfollowing example which runs as under:"For instance, for the purposes of this Art. 23, if a certain number of people from Madras came andsettled in Bombay for certain purposes, they would be, although not a minority in the technical sense,

cultural minorities. Similarly, if a certain number of Maharastrians went from Maharashtra and settledin Bengal, although they may not be minorities in technical true sense, they would be cultural andlinguistic minorities in Bengal.The Article intends to give protection in the matter of culture, language and script not only to a minoritytechnically, but also to a minority in the wider sense of the term as I have explained just now. That isthe reason why we dropped the word minority because we felt that the word might be interpreted in thenarrow sense of the term when the intention of this House, when it passed Art. 18, was to use the word"minority" in a much wider sense, so as to give cultural protection to those who were technically notminorities but minorities nonetheless." (See Constituent Assembly Debates Official Report reprinted byLok Sabha Secretariat).

170. The draft article and the Constituent assembly Debates in unambiguous terms show that minoritystatus of a group of persons has to be determined on the basis of population of a State or Union


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Territory.184. In view of what has been stated above, my conclusion on the question who are minorities eitherreligious or linguistic within the meaning of Art. 30 is as follows :The person or persons establishing an educational institution who belong to either religious or linguisticgroup who are less than fifty per cent, of total population of the State in which educational institution isestablished would be linguistic or religious minorities."Paragraph 246 of the judgment of the Apex Court is also very relevant, the same is being quoted

below:-"246. It has been settled by a catena of decisions of this Court (In RE: The Kerala Education Bill, 1957(1959 SCR 995), Rev. Sidhajbhai Sabhjai & Ors. v. State of Bombay & Anr..(1963 (3) SCR 837), TheAhmedabad St. Xavier's College Society & Anr. (1975 (1) SCR 173) and St. Stephen's College v.University of Delhi (1992 (1) SCC 558), that Article 30 of the Constitution conferred special rights onthe minorities (linguistic or religious. The word 'minority' is not defined in the Constitution but literallyit means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of twonumbers, sections or group called 'majority'. In that sense, there may be political minority, religiousminority, linguistic minority, etc."Paragraph 143 of the judgment of Apex Court is also very relevant in the context of the matter before

the Court, the same is being quoted below:-"143. This means that the right under Art. 30(1) implies that any grant that is given by the State to theminority institution cannot have such conditions attached to it, which will in any way dilute or abridgethe rights of the minority institution to establish and administer that institution. The conditions that cannormally be permitted to be imposed, on the educational institutions receiving the grant, must be relatedto the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secularconditions so laid, such as a proper audit with regard to the utilization of the funds and the manner inwhich the funds are to be utilized, will be applicable and would not dilute the minority status of theeducational institutions. Such conditions would be valid if they are also imposed on other educationalinstitutions receiving the grant."

The Apex Court in T.M.A. Pai Foundation case (supra) has recoded a finding in Paragraph-158 thatIndia consists of six main ethnic groups, 52 major Tribes, six major religions, 6400 castes and sub-castes, 18 major languages and 1600 minor languages and dialects. The Apex Court further found thatMuslims are neither unprivileged nor weaker section of the Indian society, but the protection ofminority was introduced only to instill in them a sense of security and confidence.On consideration of Constituent Assembly debates, it transpires that at the time of partition on the basisof two nations theory India was partitioned on the ground that Hindus and Muslims constitute twonations, most of the Muslims were expected to go to Pakistan and only few nationalist Muslims wereexpected to remain in India who were insecure or lacking confidence at the time of partition. Thequestions arise to be considered Whether sense of insecurity and lack of confidence prevailing at thetime of partition still continuing in 2007 and Muslim community are still continuing as minority andhow minority will be calculated in comparison to which religious group?In order to consider these questions, the Court has gone through the relevant part of proceeding ofConstituent Assembly.Constituent Assembly Debates (Proceedings commenced on 9.12.1946 and continued till 24.1.1950(Vol. 1, published by Lok Sabha Secretariat, New Delhi, 1989))make it clear that Constituent Assemblyappointed an Advisory Committee on minority, which submitted a report on minority rights before theConstituent Assembly. Constituent Assembly deliberated the issue and fixed certain percentage of

population for consideration of any community as religious minority community.

From perusal of the report, it transpires that the Advisory Committee on Minority divided minoritiesaccording to their strength and population and prepared a Schedule in three parts, the same is beingreproduced below:-"...We have divided the minorities according to their strength or according to their population. In theSchedule the three parts are set out and dealt with separately because they require separateconsideration proportion to their strength...."The Court is considering of only such religious minorities mentioned in the Schedule of AdvisoryCommittee on Minority, notified in notification dated 23.10.1993 issued by Government of India underSection 2(c) of National Minority Commission Act, 1992.From perusal of the Constituent Assembly Debates dated 27th August, 1947, it is clear that the

Schedule of religious minority communities was prepared, the same is being detailed below:-"Group: A-Population less per cent, in the Indian Dominion omitting States.


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1.Anglo-Indians.2.Parsees.B- Population not more than 1-1/2 per cent.3.Indian Christians.4.SikhsC- Population more than 1-1/2 per cent.5.Muslims.

"This Schedule is based on the strength of the communities in order that the relevant provisions in thesubsequent section may fit in and therefore this is merely a formal matter. There is no controversyabout it."The report of the Advisory Committee on minority containing Schedule was adopted on 27.8.1947.Some members of the Constituent Assembly belonging to Muslim religion were demanding somespecial rights including proportionate representation of Muslims. Deliberations made in ConstituentAssembly by some members on the rights of minorities are relevant in the present context, same are

being reproduced as follows:-Speech of Dr. P.S.Deshmukh".........I believe I voice the feeling of a large section of this House when I say that the representatives of

these minorities have taken a long and and nationalistic view of the whole matter and provided they donot do anything to spoil the good effect. I would like to assure them on behalf of us all that they willnever have any occasion to repent what they have conceded. It should always be remembered that weare, speaking the bare truth, a highly charitable and liberal-minded people. Some of our Muslimfriends, mostly as a result of the British policy, painted us as tyrants and majority-made oppressors. Ihave never found any justification for such an accusation, but an unjust and untrue charge was repeatedad nauseium and somehow sustained throughout the last so many years. It is upon those falsefoundations that Pakistan was demanded and conceded. Very few showed patience to analyse the facts.Rather than tyrannize the minorities, the fact was that in most places the minorities privileges far in

excess of what may be called just or fair. In my own curious Province, Muslims still enjoy a position

which is even today denied to over 60 per cent of the peasants and workers by our own Hindu rulers.This is not an occasion on which I would like to go further into the matter than this. I am content thatno minority is going to try any more to deprive others of what legitimately belongs to them. For manyyears past, it was the majority that has been tyrannized. Unfortunately, the so-called majority is dumband deaf and although many of us try always to speak in their name, I have no hesitation in stating thatwe have completely failed in translating our words into action. May I ask, Sir, what place has beengiven to millions of Jats, millions of Ahirs, Gujars, Kurmis, Kunbs, the Adibasis and millions of others.Have we not been a little too engrossed in our own exploits and have given inadequate though to the

thousands of these poor people who have sacrificed their lives to give us the present freedom. Whatplace have we assigned to them except to visualize that they will as heretofore blindly, meekly andreligiously vote for any one we will choose for them. From this point of view, the situation is gloomyeven today...."Mr. H.J. Khandekar, one of the members of the Constituent Assembly while replying the same on 28thAugust, 1947 made following speech:-".....Speaking plainly it means that he desires separate electorates in a different form. I may explain toyou the effects of separate electorates in this country. It was because of Lord Mortley Minto thatMuslims got separate electorates and the result was that our country was divided into two. The sameseparate electorates are being brought before us in the form of percentage. If this is accepted either forHarijans or for our Muslim brothers, then it would mean the fulfilment of what my friend Mr. Jinnah

has always said "Muslims of India and Muslims of Pakistan"-which means the preparation for Pakistanwithin India. Much suffering has been caused already. India has been divided into two. BrotherMuslims have got what they wanted and was for their benefit. Having got that, they should be goodenough not to try to create Pakistan within India and should not bring an amendment of this sort in thisHouse......"Mr. Naziruddin Ahmad and other speakers also wanted some reservation for muslim community in theConstitution of India, which was refused by the Constituent Assembly and Honourable SardarVallabhbhai J. Patel, President of Advisory Committee while replying for such demands of members ofthe minorities made following speech in the Constituent Assembly, relevant part of which is beingquoted below:-

"....I thought that our friends of the Muslim League will see the reasonableness of our attitude and allowthemselves to accommodate themselves to the changed conditions after the separation of the country.


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But I now find them adopting the same methods which were adopted when the separate electorateswere first introduced in this country, and in spite of ample sweetness in the language used there is a fulldose of poison in the method adopted. (Hear, Hear). Therefore, I regret to say that if I lose theaffection of the younger brother, I am prepared to lose it because the method he wants to adopt would

bring about his death. I would rather lose his affection and keep him alive. If this amendment is lost,we will lose the affection of the younger brother, but I prefer the younger brother to live so that he maysee the wisdom of the attitude of the elder brother and he may still learn to have affection for the elder

brother.Now, this formula has a history behind it and those who are in the Congress will be able to rememberthat history. In Congress history this is known as the Mohammad Ali Formula. Since the introductionof separate electorates in this land there were two parties amongst the Muslims. One was the

Nationalist Muslims or the Congress Muslims and the other the Muslim League members, or therepresentatives of the Muslim League. There was considerable tension on this question and at one timethere was a practical majority against this joint electorate. But a stage was reached when, as was

pointed out by the Mover of this amendment in Allahabad a settlement was reached. Did we stand bythat settlement? No. We now have got the division of the country. In order to prevent the separationthis formula was evolved by the nationalist Muslims, as a sort of half-way house, until the nation

becomes one; we wished to drop it afterwards. But now the separation of the country is complete andyou say, let us introduce it again and have another separation. I do not understand this method ofaffection. Therefore, although I would not have like to say anything on this motion, I think it is betterthat we know our minds perfectly each other, so that we can understand where we stand. If the processthat was adopted, which resulted in the separation of the country, is to be repeated, then I say: Thosewho want that kind of thing have a place in Pakistan, not here (Applause). Here, we are building anation and we are laying the foundations of One Nation, and those who choose to divide again and sowthe seeds of disruption will have no place, no quarter, here, and I must say that plainly enough. (Hear,Hear.) Now, if you think that reservation necessarily means this clause as you have suggested, I am

prepared to withdraw the reservation for your own benefit. If you agree to that, I am prepared, and I am

sure no one in this House will be against the withdrawal of the reservation if that is a satisfaction to you.You cannot have it both ways. Therefore, my friends you must change your attitude, adapt yourself to

the changed conditions. And don't pretend to say "Oh, our affection is very great for you". We haveseen your affection. Why talk of it? Let us forget the affection. Let us face the realities. Ask yourselfwhether you really want to stand here and cooperate with us or you want again to play disruptivetactics. Therefore, when I appeal to you, I appeal to you to have a change in your heart, not a change inthe tongue, because that won't pay here. Therefore, I still appeal to you: "Friends, reconsider yourattitude and withdraw your amendment". Why go on saying "Oh, Muslims were not heard; Muslimamendment was not carried". If that is going to pay you, you are much mistaken, and I know how itcost me to protect the Muslim minorities here under the present condition and in the presentatmosphere. Therefore, I suggest that you don't forget that the days in which the agitation of the typeyou carried on are closed and we begin a new chapter. Therefore, I once more appeal t you to forget the

past. Forget what has happened. You have got what you wanted. You have got a separate State andremember, you are the people who were responsible for it, and not those who remain in Pakistan. Youled the agitation. You got it. What is it that you want now? I don't understand. In the majority Hindu

provinces you, the minorities, you led the agitation. You got the partition and now again you tell meand ask me to say for the purpose of securing the affection of the younger brother that I must agree tothe same, thing again to divide the country again in the divided part. For God's sake, understand thatwe have also got some sense. Let us understand the thing clearly. Therefore when I say we must forget

the past, I say it sincerely. There will be no injustice done to you. There will be generosity towardsyou, but there must be reciprocity. If it is absent, then you take it from me that no soft words canconceal what is behind your words. Therefore, I plainly once more appeal to you strongly that let usforget and let us be one nation....."The amendment proposed by the Muslim members were refused by the Constituent Assembly on thereservation and separate electorate.The matter was again considered by the Constituent Assembly while considering Article 17, i.e.,"Conversion from one religion to another brought about by coercion or undue influence shall not berecognised".Speech of Shri R.V. Dhulekar, member of the Constituent Assembly is very relevant in the context of

controversy involved in the present case, the same is being reproduced below:-"Mr. President, my opinion is that clause 17 should be retained as it stands. In the present environment,


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all sorts of efforts are being made to increase the population of a particular section in this country, sothat once again efforts may be made to further divide the country. There is ample proof, both withinthis House and outside that many who live in this country are not prepared to be the citizens of thiscountry. Those who have caused the division of our land desire that India may be further divided.Therefore in view of the present circumstances, I think that this clause should be retained. It is

necessary that full attention should be paid to this. While on tour, I see every day refugees movingabout with their children and I find them at railway stations, shops, hotels, bakeries and at numerous

other places. The men of these bakeries abduct these women and children. There should be legislationto stop this. I would request you that an early move should be made to stop all this and millions of

people would be saved.I submit that we cannot now tolerate things of this nature. We are being attacked and we do not wantthat India's population, the numerical strength of the Hindus and other communities should graduallydiminish, and after ten years the other people may again say that "we constitute a separate nation".These separatist tendencies should be crushed.

Therefore, I request that section 17 may be retained in the same form as is recommended by theAdvisory Committee."In Constituent Assembly debate dated 27th August, 1947 Sri B. Pocker Sahib Bahadur, a

Representative of Muslim from Madras made following statement:_".....At present the Muslims are strong and well-organised. Now, if they are made to feel that theirvoice cannot even be heard in the Legislature, they will become desperate. I would request you not tocreate that contingency...." (Page 214 of the Constituent Assembly Debates)Aforesaid statement of a Muslim representative was made in the Constituent Assembly debates after

partition of the country has taken place.Participating in the debate of the Constituent Assembly, Sri M. Ananthasayanam Ayyangar, arepresentative of Madras in his speech before the Constituent Assembly stated as follows:-"....In my part of the world, the Madras Presidency, though the Muslims are in a minority, they also

joined in this move for separating the country. Have you a responsible for it? Have you a paralled to

this carriage that is going on in the Punjab whoever may be responsible for it."Replying the debates, the President of the Advisory Committee on Minority has made a speech, relevant

part of which is being reproduced below:-"My friends the Mover of this amendment says the Muslim community today is a strong-knitcommunity. Very good, I am glad to hear that, and therefore I say you have no business to ask for any

props (Cheers). Because there are other minorities who are not well-organised, and deserve specialconsideration and some safeguards, we want to be generous to them...."This was the situation at the time immediately after partition coupled with the finding recorded by theApex Court that Muslim minorities were never regarded as weaker and unprivileged section of thesociety, but only for a sense of security and confidence minorities were given special treatment. InParagraph 246 of the Eleven Judges' Bench judgment of the Apex Court in T.M.A. Pai Foundation andothers v. State of Karnataka case reported in AIR 2003 SC 356, word minority was defined and itmeans 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of twonumbers.Considering the controversy of Muslim minority in its entirety, this Court feels it appropriate toconsider whether the Muslims in India or in State of Uttar Pradesh are non-dominant group which is theintention of the Constitution of India as held by the Apex Court in Eleven Judges' Bench Judgment inT.M.A. Pai Foundation case (supra) followed by the judgments of the Apex Court reported in 2005 (3)ESC 373, (2003) SCC (6) 697, Islamic Academy of Education and another v. State of Karnataka and

others.The Apex Court while considering the case of Jain community claiming as minority has laid downcertain principles relating to minority and made observations that such demands may lead to multi-nationalism.In this regard Paragraphs 10, 14, 20, 21, 22, 23, 25, 32, 33, 34, 36 of Three Judges' Judgment of theApex Court in Bal Patil and another v. Union of India and others reported in AIR 2005, SC, 3172 arevery relevant, same are being reproduced below:-"10. The expression 'minority' has been used in Article 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 and 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 inview the constitutional guarantees for protection of cultural, educational and religious rights of all


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citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutionalscheme signifies an identifiable group of people or community who were seen as deservingcommunities who happen to be in majority and like to gain political power in a democratic form ofGovernment based on election.14. On considering the general functions of the Commission enumerated under section 9 which are onlyillustrative and not exhaustive, the Commission cannot be said to have transgressed its authority inentertaining 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 Commissionin favour of the Jains is in the nature of advice and can have no binding effect. The power underSection 2(c) of the Act vests in the Central Government which alone, on its own assessment, has toaccept or reject the claim of status of minority by a community.20. The history of the struggle for Independence of India bears ample testimony of the fact that theconcept of 'minorities' and the demands for special care and protection of their religious and culturalrights arose after bitter experience of religious conflicts which intermittently arose in about 150 years ofBritish Rule. The demand of partition gained momentum at the time the Britishers decided to leave byhanding over self-rule to Indians. The Britishers always treated Hindus and Muslims as two differentgroups 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 communitiesin India to Christianity. Prior to passing of the Independence Act of India to hand over self-rule toIndians, Britishers in the course of gradually conceding some democratic right to Indians, contemplatedformation 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 andMuslim national leaders who had jointly and actively participated in the struggle for independence ofIndia.21. The attempt of the Britishers to form separate electorates and make reservations of seats on the basisof population of Hindus and Muslims, however, ultimately led to revival of demand for reservation ofconstituencies 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 ofseparate Muslim State presently known as Pakistan.22. Many other revelations concerning competing claims for reservation of seats on religious basis can

be gathered from the personal diary of prominent national leaders late Abdul Kalam Azad. The diarywas made public, in accordance with his last wish only after 25 years of independence. The publicationof Azad's diary made it necessary for constitutional expert H.M. Seervai to re-write his chapter undercaption 'Partition of India - Legend and Reality' in his book on 'Constitutional Law of India'. Manyapprehensions and fears were expressed and disturbed the minds of the Muslims. They thought indemocracy 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 manyprominent 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 thenational leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali onthe 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 Indianregardless of his language or religion. The opposing group of Muslim leaders, in the interest ofmembers 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 electorate constituencies based on their population be formedand seats be reserved for them in different parts of India. Late Abdul Kalam Azad tried his utmost tofind a midway and thus break the stalemate between the two opposing groups but Nehru and Patelremained 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 Baluchistanhad to be ceded to form a separate theocratic nation - Pakistan. See the following paragraph 1,314 at

pg. 153 of 'Constitutional Law of India' by H.M. Seerval, Fourth Edition, Vol. I:-"1,314. Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twentiesGandhi 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 Constiution of a free and united India on which

the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remainunited. However, Gandhi accepted partition instead, Azad did his utmost to prevent the partition of


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India, but he failed to persuade Nehru and Gandhi not to accept partition."23. It is against this background of partition that at the time of giving final shape to the Constitution ofIndia, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and otherreligious communities by providing to them special guarantee and protection of their religious, culturaland educational rights. Such protection was found necessary to maintain unity and integrity of freeIndia because even after partition of India, communities like Muslims and Christians in greater numbersliving in different parts of India opted to continue to live in India as children of its soil.

25. Parsis constituted a numerically smaller minority. They had migrated from their native State Iranand settled on shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilatingthemselves into the Indian population.32. We have traced the history of India and its struggle for independence to show how the concept ofminority developed prior to and at the time of framing of Constitution and later in the course of itsworking, History tells us that there were certain religious communities in India who were required to begiven full assurance of protection of their religious and cultural rights. India is a country of people withthe largest number of religions and languages living together and forming a Nation. Such diversity ofreligions, culture and way of life is not to be found in any part of the world. John Stuart Mill describedIndia 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 aguarantee of security to the identified minorities and thus to maintain integrity of the country. It wasnot in contemplation of the framers of the Constitution to add to the list of religious minorities. TheConstitution through all its organs is committed to protect religious, cultural and educational rights ofall. 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 hasaccepted one common citizenship for every Indian regardless of his religion, language, culture or faith.The only birth in India. We have to develop such enlightened citizenship where each citizen of

whatever religion or language is more 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 whicheveryone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive ofencroachment of his rights by others in minority or majority.33. The constitution ideal, which can be gathered from the group of articles in the Constitution underChapters of Fundamental Rights and Fundamental Duties , is to create social conditions where thereremains no necessity to shield or protect rights of minority or majority.34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions setup at the Central or State levels. Commissions set up for minorities have to direct their activities tomaintain 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 isconsidered and conceded, there would be no end to such claims in a society as multi-religious andmulti-linguistic as India is. A claim by one group of citizens would lead to a similar claim by anothergroup of citizens and conflict and strife would ensure. 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 acaste-ridden Indian society, no section or distinct group of people can claim to be in majority. All areminorities 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 ofthe 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, necessarythat Minority Commission should act in a manner so as to prevent generating feelings of multi-nationalism in various sections of people of Bharat.36. These concluding observations were required after the eleven-Judges' Bench in TMA PaiFoundation case (supra) held that claims of minorities on both linguistic and religious basis would beeach State as unit. The country has already been reorganized in the year 1956 under the StatesReorganization Act on the basis of language. Differential treatments to linguistic minorities based onlanguage within the State is understandable but if if the same concept for minorities on the basis ofreligion is encouraged, the whole country, which is already under class and social conflicts due tovarious 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 gettingspecial protections, privileges and treatment as part of constitutional guarantee. Encouragement to such


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fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. Weshould guard against making our country akin to a theocratic State based multi-nationalism. Ourconcept of secularism, to put it in a nut-shell, is that 'State' will have no religion. The States will treatall religions and religious groups equally and with equal respect without in any manner interfering withtheir individual rights of religion, faith and worship."In view of the judgment of the Apex Court in Bal Patil case (supra) after considering T.M.A. PaiFoundation case, it is clear that intention to provide minority status was to remove sense of insecurity

and lack of confidence in the mind of Muslim and other religious communities at the time of partitionof India and further the Apex Court cautioned the country not to create a theocratic State based onmulti-nationalism and refused to recognise Jain as a minority.

Considering the matter in its entirety, criterion for minority, i.e., population and strength and alsojudgments of the Apex Court referred above that the intention was to provide protection to a non-dominant group, this Court is of the view that at present Muslim religious community in U.P. is not areligious minority as there is no sense of insecurity or lack of confidence prevailing amongst them in

present scenario. According to the finding of the Apex Court in T.M.A. Pai Foundation case (supra) thatMuslim minority is not weaker or unprivileged section of the society.

Historical Back Ground of Muslim MinorityMuslim community started claiming as religious minority only just before independence. Islam came inIndia in 712 A.D. through foreign invaders. First invasion was made by Mohd. Bin Qasim andthereafter a series of invasions were made by Mohd. Gajni and Mohd. Gori etc. Mohd. Bin Qasimestablished Islamic Rule in Sindh and Multan in 712 A.D. After Mohd. Gori, Mohd. QutubbuddinAibak, Akram Shah, Altmus, Gyasuddin Blaban, Razia Sultan, Jalaluddin Khilji, Alauddin Khilji, FirozShah Tughlak, IbrahimmLodhi and other Sultans ruled India and thereafter Babar established Moghulrule in 1526 followed Humaun, Akbar, Jahangir, Shahjahan, Aurangjeb and other Moghul rulers andlastly by Bahadur Shah Zafar in greater India. Indian society other than Muslim minority was ruled byMuslim Rulers for about one thousand years over most parts of India. For all these years Indian society

other than Muslim minority was subjected to pay Jezia Tax in most parts of India to remain as Hindusand to perform their cultural and religious rites.Relevant Paragraphs at page 50 of a Book 'Advanced Study in the History of Medieval India (Vol. III:Medieval Indian Society and Culture) by J.L. Mehta is relevant in the present context, the same is beingreproduced below:-"Mohd. Bin Qasim, who laid the foundation of the Muslim Rule in Sindh and Multan (711-12), securedthe status of Zimmis for his hindu subjects from the caliph and accorded protection to their lives and

property on the receipt of jaziya. Obviously, this step was necessitated as a matter of politicalexpediency because in spite of the loss of independence, the hindu masses, in general offered odggedresistence to forced conversions. It was physically impossible for Qasim and handful of his Arabfollowers to compel the vanquished multitude 'to choose between Islam and death', particularly, whenthey were 'armed to the teeth'. Recognition of hindu 'idolators' of Arabia. His example was followed bythe turkaofghan rulers of Delhi in their dealings with the hindus. The latter were not treated as full-fledged citizens of 'the Islamic stte' albeit they received status of zimmis-'the second-class' or 'inferior'citizens, which denied them all political rights and made them suffer from certain socio=religious and

economic disabilities so as 'to prevent them from growing strong. In the words of Jadu Nath Sarkar,"The very term zimmi is an insulting title. It connotes political inferiority and helplessness like thestatus of a minor proprietor, perpetually under a guardian; such protected people could not claimequality with the citizens of the Muslim theocracy."

There developed, with the passage of time, four schools of though for the authoritative interpretation ofshara or 'the Islamic law'; these were known as Malakite, Shafite, Hanbalite and Hanafite after thenames of their founders-Malik Ibn Anas (715-95 A.D.), Ash-Shafi (767-820), Ahmad Bin Hanbal (780-855) and Abu Hanifah (699-766), Doctors of the first three schools offered no other alternative butdeath to 'the idolators' including the hindus, on their refusal to embrace Islam. It were the exponents ofthe Hanifah school alone who permitted their existence in the Islamic state as zimmis. That explains theintesne hatred of the non-muslims by the orthodox muslims fanatics, in general; whenever a muslimruler fell under the spell of such orthodox ulema, he adopted the policy of religious intolerance and

persecution of his hindu subjects. It created a permanent gulf between the hindus and muslims whichcould not be bridged effectively for a long time. According to an observation, 'the politcal and religious

condition under which the hindus were forced to live in a muslim state raised a great barrier between thetwo communities. The political supremacy of muslims was absolute; the hindus not only enjoyed no


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political status in practice, but could not even aspire to it under Islamic theory'. While living in theirown country and in possession of their own hearths and homes, the hindus were reduced to the status ofinferior citizens of 'an Islamic state' as the sultanate of Delhi was usually styled. On the other hand, themuslims, though in microscopic minority, constituted the privileged or the most favoured children ofthe state who enjoyed the bounties and benefited from all the public welfare and other state enterprises."

Relevant paragraph at page 42 of the Book 'Advanced Study in the History of Medieval India (Vol. III:

Medieval Indian Society and Culture) by J.L. Mehta is also relevant, the same is being quoted below:-"Thus, Islam does not separate religion from politics; in fact, the concept of religion in Islam emergedfirst, the state was 'an after-thought'. The additional Islamic law does not acknowledge 'the independentexistence of state, nor is state regarded as a primary condition of human society. It makes the Statecompletely subservient to the religion of the Prophet. According to the Islamic law, the state is only aninstrument to serve the creed in the attainment of its objectives or fulfilment of ideals of the muslim

brotherhood. The Islamic theory of state was, therefore, based on a three fold idea of one scripture, onesovereign and one nation; scriptu was the hly Quran, sovereign was the imam (leader), also calledKhalifa (the caliph)- political successor to the Prophet, and nation was the millat-the muslim

brotherhood. The basic feature of the state, according to this theory, was its 'indivisibility' in all the

three aspects. It contemplated the establishment of a theocratic state based on the Islamic law, andrecommended only one sovereign, the caliph, to rule over the whole of the muslim world. The caliphwas styled as the amir ul momnin-'the leader of the faithful'; his office was thus a political institution

based on Islamic injunctions. The sovereignty resided in the millat which elected their imam or thecaliph, and the latter was under religious obligation to implement the Islamic law on and for the benefitof his muslim subjects. The Islamic government was, therefore, one which was composed of themuslims, by the muslims and existed for the happiness and welfare of the muslims alone."This paragraph has references of Books such as Arnol J Toynbee, A Study of History: 12 vols; OUP,4th impression, 1948, IV, p. 230, Wolseley Haig, CHI,III, p.-10, A.B.M. Habibullah, Foundation ofMuslim Rule in India; Allahabad, 2nd ed; 1961, p.2., Toynbee, Study of History, pp.clt; VI, p. 285,

Toynbee, Study of History, pp.clt; IV, p. 98, Toynbee, Study of History, pp.clt; VI, pp.98-100,Toynbee, Study of History, pp.clt; VI, p.5,129, 131-132, 245-60.

Pt Jawahar Lal Nehru in his Book titled as 'Glimpses of World History' (Published by OxfordUniversity Press) has given detailed this in Chapter 66. Relevant passage finds place at page 214 of theBook, the same is being quoted below:-".....Meanwhile, the people of the country, the Hindus, were being slowly converted to Islam. The

process was not rapid. Some changed their religion because Islam appealed to them, some did sobecause of fear, some because it is natural to want to be on the winning side. But the principal reasonfor the change was economic. People who were not Muslims had to pay a special tax, a poll tax-jezia,as it was called. This was a great burden on the poor. Many would change their religion just to escapeit. Among the higher classes desire to gain Court favour and high office was a powerful motive....."

How the assessment of amount of jezia tax was payable by Hindu population is clear from the Booktitled as 'The Administration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi. Therelevant passage is being quoted below:-"...The assesses were divided into three categories in accordance with their wealth. Those in possessionof ten thousand dirhems or more were considered to be wealthy; those who had less than ten thousand

but more than two hundred dirhems were classified as belonging to the middle class, those who had

less than two hundred dirhems but enough, in addition to the cost of maintaining themselves and theirdependents, to pay the tax were considered to be poor. The first category was required to pay forty-eight dirhems per annum; the second twenty-four; and the third twelve. These seem to have been therates for the urban areas; in the countryside the government levied a flat charge of four per cent of thestate demand upon agricultural produce. If the agents of government failed to collect the jiziyah fromany one for an entire year, he could not be charged the sum later. A dirhem was roughly 550 Englishgrains of silver..."The history further makes it clear that population of any community played a vital role for affectingIndia's polity as well as Geography. Afghanistan was part of Greater India as Gandhar. It was also partof Greater India up to 1739 A.D. and Buddhism was a dominant religion in Afghanistan. Conversion of

Buddhists into Islam in Afghanistan started process of separation which completed


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in 1739 AD when Nadirshah separated Afghanistan from India and merged in his empire. After deathof Nadirshah Afghanistan became an independent Muslim State. Due to Islamic Rule for more than onethousand years in Sindh, Punjab, North Western Frontier Provinces and Bengal Hindu majority were converted into Muslim. In the year 1945, the percentage of Muslim population was 54 percent and Hindus were 45 per cent and others were 1 per cent in Bengal only. Due to certain privilegesto Muslims in India Greater India was partitioned in 1947 on the basis of two nations theory that theMuslims and Hindus constitute two nations. Present problem in Kashmir valley is also problem of

Majority Muslim population whereas there is no such problem in Jammu and Laddakh where Hindusand Buddhists are in majority. History also makes it clear that due to special privileges to Muslims formore than one thousand years during Muslim Rule, though they were in microscopic minority andspecial separate rights to Muslims were given by Britishers also after 1906 upto Inidia was actually

partitioned on the basis of Muslim population in undivided India. It is clear that population coupledwith special rights awarded to Muslims, detailed above, played a greater role in changing history andgeography of this country.As has already been discussed above which is a historical fact that majority of Muslims were convertedHindus and has origin of Hindus ancestors who adopted Muslim religion for various reasons during the

period of more than one thousand years of Islamic Rule in the country and the majority of conversion

took place due to economic reason of poor who could not pay Jezia Tax compulsorily made payable byHindu population. Historic Book 'Glimpses of World History' written by Pt. Jawahar Lal Nehru makesit clear that conversion from Hindu community to Muslim religion during muslim Rule took placemostly due to poverty and due to non-payment of Jezia Tax. It is only after the end of the Muslim rule,Hindus and Muslims jointly fought against Britishers in 1857 AD-the first war of independence againstforeigners to re-establish India's own rule. This common-ness and nationhood lasted not for more than50 years, when Muslim League was established in 1906 which started claiming separate rights on theground of religion which was conceded by Congress as well as British Parliament which ultimatelyresulted in division of the country on the basis of religion and changed Geography of India.The above careful study of the history makes it clear that minority rights were given for protecting their

right and not to claim any privilege or special rights in comparison to Hindus, but to remove sense ofinsecurity and lack of confidence in minority, who opposed partition of India, but this minority rightwas misinterpreted by certain quarters and inspite of the fact that at present the population of MuslimReligious group is more than 18.5 per cent, they are still claiming themselves as religious minoritycommunity, though neither there is any insecurity nor there is any lack of confidence in Muslimswhereas Muslim Religious group has now become single largest religious dominant group on the basisof population & strength affecting all walks of life including democratic process. It is further clear thatin some States of India Muslim population is about 25 per cent and at least more than 13.8% on allIndia basis. In this backdrop, now Muslims have become a dominant group in all respects and haveceased to be a Religious minority community. As the matter before the Court is relating to UttarPradesh, hence the Court is expressing opinion only with regard to Muslim Religious community inUttar Pradesh. This Court has taken note of historical background, judgments of Apex Court anddebates of Constituent Assembly and is of the view that any further recognition of Muslims as areligious minority community will necessarily give rise to multinationalism in India and as such theState of Uttar Pradesh as well as Central Government may consider and pass appropriate orders todelete entry of Muslims as a religious minority community in India.The above discussions made it clear that ancestors of present Hindu society fought and saved theirreligion, civilization and culture even by paying Jezia Tax for continuing as Hindu in Islamic Rule indifferent parts of India and present Indian generation should be grateful for saving their religion, culture

and civilisation even under such odd situation.It is further clear from the History that it was Akbar who did not impose any Jezia tax, but the same wasre-imposed lateron by Aurangjeb.During the period of Muslim Rule for about one thousand year, no member of Muslim communityclaimed any minority rights. The Britishers thereafter tookover the administration of India. First war ofIndependence in 1857 was fought by both Hindus and Muslims jointly. After 1857, first war ofindependence, certain social, political and religious awakening took place in the Indian society. Anumber of social reformers and religious leaders emerged who worked in the Indian Society some ofthem were Swami Dayanand Sarswati who established Arya Samaj, Sri Raja Ram Mohan Rai, SwamiVivekanand and various other awakening and political changes also took place in the Indian society

towards their rights in this era.From the Book 'Discovery of India' by Pt. Jawahar Lal Nehru following facts are borne out that how


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concept of minority was developed in pre independence era:-Indian National Congress was also established in 1885 and thereafter in 1906, Indian Muslim Leaguewas established by some Muslim leaders. Under the banner of Indian National Congress, Hindus andMuslims both participated in the national movement of Independence under the leadership of nationalleaders belonging to both the communities and ultimately under the leadership of Mahatma Gandhimovement for independence gained momentum. But, Muslim League started claiming separateelectorate/franchise for Muslims even prior to 1935.

The above history of Muslim Religious Community in India makes it clear that though Muslims werealways in microscopic minority, but constituted the privileged class or were most favoured children ofthe State who enjoyed all the benefits from the public welfare and other State enterprises during MuslimRule. The other non-muslim communities for about centuries under the Islamic Rules wereunderprivileged, weak and nondominant group of the Indian society. Muslim community was dominantupto partition of the India in all spheres of life including polity. The History itself speaks that abnormalgrowth of Muslim population proved to be a weapon for Muslim community for getting political powerand to re-establish the Government in power of their own choice in the democratic process by usingtheir voting rights in one side or the other prior and after partition in India.The above historical background makes it clear that the Muslim Religious Community was a privileged

class in comparison to Non-Muslim religious communities during Muslim Rules and also continuing assuch during British Rule which developed a complex in Muslim Religious Community and in order torevive aforesaid privilege the Muslim Religious Community claimed partition of India. Pakistan,Bangladesh and Afghanistan which were part of ancient India were separated from it and are IslamicStates and non-muslim religious communities are compelled to reside under the Islamic Rules.The intention of Founding Fathers of the Constitution of India was not to create any privilege tominority religious community while introducing Articles 29 and 30 of the Constitution of India. Thiswas just a protection given to minorities due to meagre population and strength treating such religiousgroups as non-dominant groups/communities. Constituent Assembly has categorised these non-dominant religious groups in three classes in the Schedule, i.e., 1/2%, less than 1-1/2% and above 1-

1/2%. This was the criteria fixed by the Constituent Assembly for determining religious or linguisticminority. According to the Apex Court it is the region or the State which is the criteria fordetermining a religious or linguistic minority. Muslim Religious community is at present more than18.5% of population in Uttar Pradesh is a dominant religious community and no sense of insecurity orlack of confidence exist amongst them at present. The claim of any religious group/community as

privileged class may give rise to other community to make such demands which may be detrimental tonation's unity and integrity.Pt Jawahar Lal Nehru in his Book 'Discovery of India' at page 382 had described minority in India asunder:-" ....Minorities in India, it must be remembered are not racial or national minorities as in Europe; theyare religious minorities. Racially India is a patchwork and a curious mixture, but no racial questionshave arisen or can arise in India. Religion transcends these racial differences, which fade into oneanother and are often hard to distinguish. Religious barriers are obviously not permanent, asconversions can take place from one religion to another, and a person changing his religion does notthereby lose his racial background or his cultural and linguistic inheritance. Latterly religion, in anyreal sense of the word, has played little part in Indian political conflicts, though the word is oftenenough used and exploited. Religion differences, as such, do not come in the way, for there is a greatdeal of mutual tolerance for them. In political matters religion has been displayed by what is calledcommunalism, a narrow group mentality basing itself on a religious community but in reality concerned

with political power and patronage for the interested group...."In his Book 'Discovery of India' at page 392, Pt Jawahar Lal Nehru further noted as follows:-"Mr. Jinnah's demand was based on a new theory he had recently propunded that India consited of twonations, Hindu and Mislem. Why only two. I do not know, for if nationality was based on religion, thenthere were many nations in India....."Above observations of Pt Jawahar Lal Nehru that the question of minority was raised by Muslimleaders in order to gain their political powers would be clear from Chapter II of the Book 'TheAdministration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi published in 1973and reprinted in 1973. The relevant part of Chapter II, pages 22 and 23 are being reproduced below:-"ISLAM takes a comprehensive view of life and does not separate politics from religion....."

"By the time of the Prophet's death, the Muslim state was already strong and well consolidated. IN itsessence it was the organized Muslim community functioning as a religious entity to preserve and


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propagate its beliefs and to provide the facilities to practise them, confronted with socia, economic andpolitical needs to sustain its life as an independent society, hence organized into a state without whichits prime object of maintaining its Islamic character could jeopardized. This need could be felt by anyreligious group, but in Islam religion was not merely a matter of prayer and belief but it also embracedthe external behaviour of man to a degree that such a conception of the Islamic community wasinevitable. The Muslim thinkers have mostly upheld this conception of the Islamic State. Their legalthinking also has been affected by this belief; indeed this conception is so deeply immersed in the

Islam

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Muslim Religious Minority