Allahabad: 50% Muslim quota for the P.G. Medical Courses in AMU is unconstitutional and impermissible

HIGH COURT OF JUDICATURE OF ALLAHABAD
CJ's Court
Special Appeal No.1321 of 2005
The Aligarh Muslim University, Aligarh
Vs.
Malay Shukla and another

Connected with:

Special Appeal Nos.1322 of 2005, 1323 of 2005, 1324 of 2005, 1327 of 2005, 1346 of 2005, 1347 of 2005, 1348 of 2005, 1395 of 2005, 1397 of 2005, 679 of 2005, 680 of 2005, 681 of 2005, 682 of 2005, 728 of 2005, 747 of 2005, 748 of 2005, 749 of 2005, 750 of 2005, 751 of 2005, 1396 of 2005 and 1320 of 2005.
Hon'ble Ajoy Nath Ray, CJ.
Hon'ble Ashok Bhushan, J.

(Delivered by Hon'ble Ajoy Nath Ray, CJ.)

The short basic issue in all these appeals is whether the Aligarh Muslim University is a minority Institution. The point arises because suddenly some eighty five years after incorporation, they chose for the first time to reserve a Muslim quota, by way of a 50% reservation of post-graduate course seats meant for qualified MBBS doctors. The judgment under appeal before us has been delivered by an Hon'ble Single Judge of our Court on the 4th of October, 2005. Both sides, to be more accurate, all parties, felt aggrieved, and came up in appeal. The appeals will all be disposed of by this common order.
On the one side, who spoke first, were the Aligarh Muslim University, represented by Mr. S.S. Ray, leading Dr. Dhawan, the Union of India and the learned Attorney General on whose behalf Mr. Gopal Subramaniam addressed us, two individuals one of whom is a member of the Court of the University, which is its administrative body, the Minority Commission whose case was put forward by Mr. Ravindra Srivastava, and groups of Muslim students, admitted on quota, represented by two learned counsel one of whom was Mr. Ashok Khare and another Mr. S.A. Shah.
On the other side were certain dissatisfied students whose case was put forward by Mr. Ravi Kant. Before we proceed any further, we make it clear that in spite of the most elaborate expertise and painstaking arguments on the part of the University and its supporters, we felt so utterly unconvinced that Mr. Ravi Kant was called upon to speak for about two hours whereas the other side had amongst themselves addressed us for some five days or so. Those hearings were substantially full day hearings.
Although we cannot say the same thing about the various reasons given by Hon'ble the Single Judge and the orders passed by his Lordship, we have no hesitation in upholding his Lordship's main and primary decision in these matters, which is that Basha still holds the field and the 1981 Act must give way before it wherever the two come in conflict.
Basha is the case of Azeez Basha, a Five Judge Bench decision of the Supreme Court and the report of the case will be found at AIR 1968 S.C. 662. It ruled that the University is not a minority institution.
The 1981 Act is an Act of our Parliament, No.62 of 1981 being Aligarh Muslim University (Amendment Act 1981), which received assent of the President of India on the 31st December, 1981 and was published thereafter on the same day.
In Basha, the Court spoke through the Hon'ble then Chief Justice K.N. Wanchoo; it is a decision running to about 12 pages of the All India Reporter.
That case has to be read by any reader of this judgment before proceeding any further herewith. On the simple principle of following higher and binding authorities, we have to give this case full and complete effect and none of the statements in this case can be discounted by us. It would be wrong for us to quote the case fully here and it would be a wholly unnecessary and unusual exercise; but the case should be treated as quoted herein fully and we must be understood hereafter as bearing in our minds all the time the basic and first principle that we in this Bench are forbidden to look behind the decision of a five Judge Bench of the Supreme Court of India.
The problem before us arose because Parliament, an equally binding source of law so far as we are concerned, chose to pass the amending Act of 1981 which, according to appellants, (by the appellants hereafter we shall mean the University and its supporters; we shall refer to the aggrieved non-Muslim students as the cross-appellants hereafter), the said Act of 1981 changed the basis of Basha and that too to such an extent that today, we as the appropriate pronouncing authority must pronounce the Aligarh Muslim University as a minority Institution, the Basha case notwithstanding.
The task before the Hon'ble Single Judge was, and before us also is, to see whether the 1981 Act so altered the basis of the Basha case, legally and validly, as substantially to convert the Aligarh Muslim University into a minority Institution because, and only because, of the said amendment Act, or whether, if the Act by its words had succeeded in purporting to achieve that object, it, by that very reason, transgressed the permitted authority and limit of Parliament, which cannot, simply like a superior Court, overrule the decision given by any Court of law, least of all the Supreme Court of India. The issue is, did the 1981 Act make such changes as Parliament was entitled to make, and thereby achieve the effect of altering the non-minority character of the Aligarh Muslim University, or did it seek to achieve that end by simply and substantially overruling the Supreme Court decision, for which it has no competence.
Although the Basha case is to be treated as quoted here by us, we must recount here some of the salient points mentioned in that judgment, in the manner we respectfully read it.
It took into account, in some detail, the early history leading to the setting up of the Aligarh Muslim University by an Act of the Indian Legislative Council in 1920. That Act received the assent of the Governor General on the 14th of September, 1920. Several, but not all, property of the University earlier belonged to one MAO College, the full form being the Mohammadan Anglo Oriental College and the Muslim University Association. These were Mohammadan Institutions no doubt. The inception of these came sometime in the latter part of the 1870's; one of the leading gentlemen, who took a prominent part in this, was one Sir Syed, father of the illustrious Hon'ble Judge of Allahabad High Court Mahmood, J., the short lived Barabankian from Olympus. The idea was to set up a University and the ambition was to go on the lines of the University of no less a status than Oxford, or Cambridge. An interesting fund was raised to as large an extent as Rs.30 lac, even in those days, by collecting one rupee from every Mohammdan of the then British India. Whether this was followed to the letter or not, we need not inquire into.
Mr. S.S. Ray told us that a bare look at even some of the albums showing pictures of the Aligarh Muslim University would convince anybody of its deep green character. The architecture and the Quoranic inscriptions are all there.
Be that as it may, in the Basha case their Lordships went on to consider the effect of the Aligarh Muslim University Act of 1920 ((XL of 1920). Their Lordships were considering the issue for judging the validity of certain amendments made to the Act in the years 1951 and 1965.
Although the Union of India through Mr. Subramaniam has been at pains to argue before us that the Aligarh Muslim University is a minority Institution, the stand of the Union of India before the Supreme Court was radically different. We cannot make much of this opposing stand because Parliament had intervened with the 1981 Act and the Union of India and the Attorney General are entitled to support the Acts of Parliament in courts of law. Whether they will succeed in their support or not, is quite another matter.
Before the Supreme Court, the Union of India argued that the Aligarh Muslim University was a free Institution and not a minority one; as such the amendments made in 1951 and 1965 were all supported by the Union. The Supreme Court accepted the Union's contention and ruled in as clear terms as possible that the Aligarh Muslim University was not a minority University; it is not necessary for us to enter again into details about the exact nature and scope of the 1951 and 1965 amendments. Suffice it for us to say that those dealt, amongst other things, with a recasting of the constitution of the Court of the University, which was originally dealt with amongst others by Section 23 of the act of 1920. All the members of the Court in 1920 had to be Mohammadans; there was a clause in Section 23 by way of a proviso, that unless one were a Mohammadan one would not be entitled to be a member of the Court. These were substantially changed; the proviso forbidding non-Mohammadans from becoming members of the Court was done away with, and Azeez Basha and some others were aggrieved, but to no effect. In ruling the Aligarh Muslim University to be non-minority, their Lordships considered several matters, but to our mind the most important one was about the grant of degrees, and incorporation of the University itself.
This matter must be dealt with specifically and in some detail. Prior to 1920, the MAO College was affiliated to the University of Allahabad; degrees were granted by the Allahabad University to students of this College; the College did not itself grant degrees then.
There has been some dispute raised before us whether in 1920 it would be possible for the Mohammadan community to found a University on their own, without intervention of an Act of the Legislature, for the purpose of granting degrees to their own students. In the Basha case, the Supreme Court has at least assumed that it would be possible for the Mohammadan community to set up a University on their own without any legislative Act. What the Supreme Court has said in this matter, we have to and we do accept. We only note that after 1956 and the passing of the University Grants Commission Act a University can only be set up by the appropriate legislature; on the basis of Yashpal's case, which was given to us by Dr. Dhawan, and paragraph 59 thereof (2005, 5 SCC 420), the safest way to go about it, would be to have the State Legislature utilize their power under List-II Entry-32. The University Grants Commission can of course make a deemed University as provided in the Act. It seems that even before the 1956 Act, and even way before we gained our Independence, the setting up of a University fair and square would need intervention of the Supreme Government. The word ''University' might be referred to in this regard in Earl Jowitt's Dictionary of English law; the power of a University to grant degrees in general does not seem to be an exclusive right of theirs; there seems to be some doubt as the Encyclopedia Americana and also Jowitt's Dictionary seem to state that Colleges are as competent as Universities to grant degrees. The passage at 15 Halsbury 256 can also be referred to; it states there that the essential feature of a University seems to be that it is incorporated as such by the sovereign power; Blackstone is referred to there.
For us these authorities need not and perhaps should not be looked into; in Basha the Supreme Court opined that it would be possible for the Mohammadans to set up a University on their own, but what they could not be certain about, in setting such an Institution up, would be the matter of recognition of the degrees.
It is not stated clearly in Basha what exactly this recognition means; however, with all due respect, we assume that the recognition of the degree would mean recognition by the sovereign power and all its subordinates of the validity and reliability of the degrees to be granted.
Basha clearly stated that the certainty of recognition of a University degree could be had by the Mohammadan community, if the University were brought into existence by the Legislature. In paragraph 26, on the left column of page 673 of the said report his Lordship the then C.J. said as follows:

"It seems to us that it must have been felt by the persons concerned that it would be no use bringing into existence a University, if the degrees conferred by the said University were not to be recognised by the Government."

It was later on said in the same left column:-

...it would not be possible for the Muslim minority to establish a University of the kind whose degrees were bound to be recognised by Government and therefore it must be held that the Aligarh University was brought into existence by the Central legislature and the Government of India. If that is so, the Muslim minority cannot claim to administer it, for it was not brought into existence by it. Article 30 (1), which protects educational institutions brought into existence and administered by a minority, cannot help the petitioners..."

In our respectful reading this was the cornerstone of the Basha judgment. Their Lordships held the University to be different from the pre-existing Mohammadan College; it is noted by their Lordships that there were long negotiations and a tussle between the Mohammadan community and the then Government; the Government did not wilt to the Mohammadan wish to have a Mohammadan institution for the benefit of the Mohammadan community, if not exclusively, at least substantially; this was not acceded to by the Government.
The Mohammadans gave way; they took what they got. In the affidavit before us the repeated requests made by the Mohammadan community for their own College are mentioned in several places. Mr. Subramaniam took us through those paragraphs to demonstrate that the wish of the community to set up a University of their own was indeed there, and they tried very hard, no doubt, to have their wishes granted.
India of 1920 is not same as the India of 2005 or 2006. Section 3 (28) of the General Clauses Act, 1897 as amended up to date clearly says that the India of 1920 is British India; we do not have to go to a General Clauses Act definition to know that it was not a country where there were different political parties of any real power or importance; it was not an India where one community could wait for a more supportive and sympathetic political party to come in power and then gain their objective; there was no democracy. What the British said, went. For any public achievement the people of India, whether Mohammadans or not, had to be in the good books of the English people. Any other achievements had to be made underground. It was in this context that the University was set up by the then ruling Government; as soon as it was incorporated under the auspices of the English Government and the English Legislature, the University had all success and all support from the very beginning; the Mohammadan community chose the politically right path of inviting high English personages like Lord Lytton to be associated with their College; once they gave way to the manner in which the then Legislature desired to set up the University, the degrees of the University had full and 100% value. The degrees of a University, even if it could be set up independently then, which was in the bad books of the English Government, but wholly Mohammadan and wholly green, and perhaps wholly good, was of no practical value; it would either die or go underground. The other University, which was set up by the Act of 1920 started with a prospect of prosperity and prospered it has, right until date.
We are aware that their Lordships of the Supreme Court have not looked at the issue in the light that we have respectfully used above, but we feel confident, again respectfully, that we have not gone against what the Supreme Court has stated but only tried to support it, such support being necessary in the face of the current challenges.
It is on record that the finances of the Aligarh Muslim University became the headache of the Government after incorporation; it is on record that some 74 acres of extra land went to the Aligarh Muslim University as part of the prosperous setting up process; it is provided in the Act itself that the fund of Rs.30 lac would be utilized for recurring expenditure; this means that the Muslim fund would help the University and die out and no Muslim nucleus would remain even in the accounts of the Aligarh Muslim University.
In the Basha case certain supervisory powers of administration were clearly pronounced as important, e.g., it is stated in paragraphs 7, 8 and 9 as follows.
Section 6, the degree section so to speak, laid down that degrees, diplomas and other distinctions of the University shall be recognized by the Government like those of any other University. Section 8 provided that the University shall be open to all persons of either sex and whatever race, creed or class. Section 13 provided that the Lord Rector shall have the right to cause an inspection to be made and also cause an inquiry to be made. The Court had to comply with these provisions; the Lord Rector could issue directions and after explanations were considered his directions had to be complied with by the Court of the University. Section 14 contained the provision for the visiting board which also had power to inspect; it had annulling powers; the Visiting Board also had overriding powers. Although the Court had to be composed in the beginning of Muslims only, their Lordships said in paragraph 9 of the Basha judgment that there was no condition that the Lord Rector had to be of the Muslim community.
A very great attempt was made before us to show that the Basha case, in any event, needed guarded reading in view of later Supreme Court cases.
It was said that in the PAI case 2002, 8 SCC 481 the Supreme Court has, in a much larger Bench than the Basha Bench gone into the issue of governmental control of even minority Institutions. The argument therefore ran, that the administrative control by, say, the Lord Rector or the Visiting Board, would not be factors robbing the Aligarh Muslim University of its minority status today in the light of the PAI judgment. We are of the opinion that this views the coin from a side, which is seriously opposite and wrong. That a minority institution, for the purpose of stopping maladministration and gross unfairness, is subject to governmental control does not mean that when it is to be decided whether an institution is a minority institution or not, the factors of governmental control ought to be discounted altogether. That would be a complete misreading of PAI and it would be viewing PAI from the wrong and opposite angle; that minority institutions can be controlled does not mean that control of institutions by the Government does not tend to show an institution up as basically a non-minority institution; when one is considering the degree of control permitted for a minority institution, one assumes the minority status; when the minority status or the non-minority status is not admitted or assumed, the factor of administration and control by free or non-minority groups becomes not only important, but very important.
Reference has been made to the St. Stephen's College case about the importance of administration in determining minority status. The report is at 1992, 1 SCC 558. Brother Bhushan in his Lordship's judgment has also dealt with the importance of administration as a determinative factor for judging minority status. I fully agree with his Lordship.
In answering Question 3 (a) in the TMA PAI case, Kripal C.J. said at page 587 of the report above mentioned as follows:-

"Q.3(a) What are the indicia for treating an educational institution as a minority educational institution? Would an institution be regarded as a minority educational institution because it was established by a person (s) belonging to a religious or linguistic minority or its being administered by a person (s) belonging to a religious or linguistic minority?
A. This question need not be answered by this Bench; it will be dealt with by a regular Bench".

That the question has been left unanswered by the Bench does not mean that all earlier Supreme Court Cases of lesser strength are overruled; one has to read the earlier cases and the openness of the question all together. We in the Division Bench of the High Court are in the happy position that we have no problem in following St. Stephen's, and the other cases.
In our respectful opinion, the question of establishing and administering an institution is infinitely the most relevant at the point of time of its coming substantially into being. Attention must be focussed at that point of time. Who established it? Who was then administering it? What was the purpose of establishing it? The answers to these questions will enable the Court to determine whether the institution is a minority one or not. We are of the respectful opinion that not one of these questions can be held to be irrelevant in the matter of ascertaining whether an institution is a minority one or not. More than this on this issue we do not have any courage to say.
The question of administration in 1920 after the Act came into being was gone into in Basha. The college and the Union however argued that the point of time for our inquiry is much before, perhaps even in 1870, when the M.A.O. College was founded. We do not agree; there is no doubt that the M.A.O. College, if it had remained as such would be a minority institution. The issue before us is not whether the MAO College was a minority College or not. The issue before us is whether the Aligarh Muslim University of 1920 is a minority institution or not. That certainly came into being in 1920. Whether it was established and administered by the minority community through the year 1920, is a question, which we must answer by taking into account both Basha and the 1981 Act. This brings us to the crux of the issue, i.e. whether the MAO College and the Aligarh Muslim University are one and the same thing and the process of the incorporation in 1920 is no more than something superficial, something procedural, some mere process, which cannot touch the substance of the matter.
We do not here again wish to set down under two tables the items in Aligarh Muslim University, which were green and the items in Aligarh Muslim University, which were free, so to speak, white. The Supreme Court has done so in Basha; the history of the Mohammadan tint has been considered; the passing of all property of the Muslim association and the Muslim College, the passing of all their bequests and receipts to the University have been considered by the Supreme Court; their Lordships have considered all factors and we simply have to follow them. In following them, we cannot escape the conclusion that their Lordships treated the MAO College and the Aligarh Muslim University as two different and distinct entities; one was set up by the Mohammadan community and the other by the Legislature; one was affiliated to the University of Allahabad and was unable to grant degrees of its own; the other was set up by an Act of legislature and a Section permitted it to grant degrees as recognised as those of any other University; the one had Mohammadans completely in control of administration; the other had serious supervisory control over the Mohammadan Court by, inter alia, the Board; one had building, property and some money; the other had, may be the same building, but much more property and unlimited English funds.
Their Lordships did not opine that the MAO College permeated into the Aligarh Muslim University, or that if it had changed anything, it had only changed into a dinner jacket from a Sherwani.
In the face of this, Parliament passed the said Act of 1981; the one and the most important sub-section in the said Act is sub-section 2 (l), which reads as follows:-
"2.(l) "University" means the educational institution of their choice established by the Muslims of India, which originated as the Muhammadan Anglo-Oriental College, Aligarh and which was subsequently incorporated as the Aligarh Muslim University".

Several other amendments were made in 1981, but this sub-section is the key to the lock. Is this sub-section good? Can this and Basha subsist? These are the basic questions.
The University was at pains to submit that this sub-section and Basha cannot subsist; if this sub-section were before the Basha Court, according to them, the decision would have been otherwise; they relate to the test of Prithvi Cotton, 1969, 2 SCC 283. According to them 2(l) made all the difference; further according to them, this difference the Parliament was entitled to make.
Thus, we proceed on the basis that 2 (l) and Basha cannot subsist. We agree with the University to this extent, and to this extent therefore, we respectfully disagree with the Hon'ble Single Judge, who has read down 2 (l) only but not struck it down. But was Parliament entitled to insert 2 (l)? The point is the point of Parliament being disentitled to assume the role of a Court of appeal in regard to judgments of courts of law. There are two ways, basically, a judgment can get overruled. First, it might be by direct appeal; that is not possible in Basha; in other matters, it might be that the same issue comes up before a court of higher authority and the earlier precedent is disapproved. This is another equally effective way of overruling in law; if the High Court had said that X is a minority institution in one case and thirty years later, the Supreme Court had said no, X is a non-minority institution, the High Court's judgment would get substantially overruled, practically as effectively as an appeal then and there would have overruled it.
Either way of overruling a judgment is forbidden to Parliament. Several cases in regard to this resolution of conflict between Court cases and legislative Acts have been considered by the Hon'ble Single Judge and also cited before us. Brother Bhushan has also referred to those.
We mention only three below:-

(i) 1989 (3) SCC 488: Ujagar Prints (II) Vs. Union of India
(ii) 1997 (8) SCC 522: S.S. Bola & Others Vs. B.D. Saridana
(iii) 1996 (7) SCC 637: Indian Aluminium Company Vs. State of
Kerala.

We refer specifically however, to a case given by Dr. Dhawan, a very recent one, being the case of Virender Singh Hooda and others Vs. State of Haryana and another (2004) 12 SCC 588. At page 610 in paragraph 46, the following sentence occurs in the beginning:-
"It is equally well settled that the legislature cannot by a bare declaration, without anything more, directly overrule, reverse or override a judicial decision; it may, at any time in exercise of the plenary power conferred on it by the Constitution render a judicial decision ineffective by enacting a valid law on a topic within its legislative field, fundamentally altering or changing with retrospective, curative or neutralising effect the conditions on which such decision is based (I.N.Saksena v. State of M.P. (1976) 4 SCC 750: 1977 SCC (L&S) 36).

This is the test that we apply. In our opinion, the test applies on all fours. Section 2 (l) is an enforced declaration of substantial identity. Even according to the University, on the basis of 2 (l) the minority status has to be declared. Thus, they themselves argue that the definition is a definition of substantial identity as between the Mohammadan College and the incorporated University.
The Supreme Court did not hold so; it held exactly otherwise; it was fully aware (said with the greatest of respect) of what it needs for an institution to qualify as a minority institution; it never said that incorporation and incorporation alone as a process was the sole factor why their Lordships were deciding the University to be a non-minority one; numerous factors were considered by their Lordships; by consideration of those factors, their Lordships reached a conclusion of separation, of distinctness, as between the minority College and the non-minority University.
What Section 2(l) does is that it both overrules the view taken by the Supreme Court of the situation prevailing in 1920 and it lays down, practically in so many words, that the University is an Article 30 establishment.
Why do we say that it does so? Because 2 (l) states that the University was only subsequently incorporated from and out only of the Anglo Oriental College, which was already there, and if that is so, and if there is no distinction between these two, then, because of the process of incorporation and the process of incorporation only, it is impossible to say that the minority institution has lost its minority character.
We have said that in Basha the Supreme Court took a view of the 1920 situation; the view was a reasoned view; there were many factors, which persuaded their Lordships to come to a final decision that the Aligarh Muslim University was different from the MAO College and was so substantially different as to make the one a free institution notwithstanding the other being a minority one. By Section 2 (l) the reasoning and the decision are directly ridden roughshod over by Parliament; it does away with the reasoning by enforcing by way of declaration that the MAO College became the Aligarh Muslim University by incorporation and that the one is the other excepting for incorporation and incorporation alone; at the same time it lays down in the definition a proposition; the necessary corollary of which is a statement that the Aligarh Muslim University partakes of the same minority status as its substantially indistinguishable predecessor had, that predecessor being the MAO College. The necessary corollary is a very close second step and so close as to be practically indistinguishable from the definition itself. Section 2 (l) therefore seeks to state practically in stark terms that Parliament has overruled the Basha decision. This Parliament is not entitled to do.
We are again grateful to Dr. Dhawan for giving us authorities for the proposition that if a deemed provision is introduced by way of a statutory fiction or enactment, the Court must proceed consequently thereupon also, and not give the definition a truncated meaning by stopping with the definition and refusing to give it its due consequences also.
The root case is the House of Lords decision in the Finsbury Borough Council case, reported at 1952 Appeal Cases 109: (1951) All.ER 587.
This was approved in the case of Arooran Sugars Ltd, (1997) 1 SCC 326, see paragraph 11.
The Supreme Court reproduced the following dictum of Lord Asquith:-
"If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it ....The statute says that you must imagine a certain state of affairs. It does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs."

The consequence therefore is, that the Court cannot stop from giving effect to the consequence of 2 (l). What is this consequence? The consequence is that Aligarh Muslim University becomes a minority institution. Is it a remote consequence? Not at all. Is it a direct consequence? Most certainly yes. Is it an proximate consequence? The answer is that it is so proximate that it is hardly possible to call it even a mere consequence of S. 2 (l); it was as if Parliament had said the Aligarh Muslim University is a minority institution, full stop.
The learned Single Judge in the court below has opined that this case satisfied the test of Parliament seeking brazenly to overrule a judicial decision. We respectfully agree.
In the original 1920 Act, also, there was a definition. The definitions had not gone up to (l) at that time; Section 2 (h) of the 1920 Act originally defined the term University as follows:-
"2 (h) ''University' means the Aligarh Muslim University."
This definition is changed; this Aligarh Muslim University is made to be substantially indistinguishable in form and succession from the MAO College; the definition Section might be a small one, but it is a vital one. Parliament had no authority in the face of the Basha ruling to make this type of change and sit in appeal or sit in review over a five Judge decision of the Supreme Court. It was not a mere change of basis; the basis which prevailed in 1920 had been looked at by the Court and the view had been taken thereon. A deemed fiction changing that basis by way of a definition section is no different from saying that the decision is overruled and the view is not what the Supreme Court had taken but the view is, as we the Parliament now say it is. We are quite clear in our minds that Parliament overstepped its limits.
Just before 1981 there was another Amendment Act of 1972, which inserted Section 5 (9A), which defined the boundaries with respect to a University mosque. We think that this is neither here nor there. Even in the original statute Section 5 (2) as one of the object clauses laid down that the University would have powers to promote oriental and Islamic studies and give instruction in Muslim theology and religion and to impart moral and physical training. This type of mingling of Islamic study along with other matters does not at all alter the status of the University to a minority status.
Other changes than 2 (l) were also made in 1981, but those we will come to later. We must now more fully explain what it is exactly, in the practical world, that has compelled us to inquire into the free or minority status of this University. There have been time gaps in the list of dates and years in the history of the Aligarh Muslim University, which would make Rip Van Winkle look like suffering from lack of sleep. From 1920 until 1947 or 1950, nothing much happened; it was a period of dormancy. There were amending Acts of 1951, 1965, 1972 and 1981; there was a Basha case in 1967-68; it was, so to speak just a little stirring in bed, but not really getting out of it, because the non-minority institution continued to be non-minority institution through the Basha decision. The 1981 amendments were made, but those remained in the book; it hardly touched anybody; at least it did not touch anybody badly enough for him to come to Court or raise any public issue in the media. Dr. Dhawan said that after the 1981 Act, the University was awaiting the PAI decision; it needed a decision for its stand on reservation. May be so, but it awaited in a state of complete dormancy. There might have been committees within the University thinking of what to do if it is a minority institution, but the waves never went out of the University pond. Then came 2004-2005; examinations were held on the 31st of January, 2005 for the purpose of filing up 157 posts in the stream M.D., M.S., i.e. all Post Graduate Medical Courses. The qualification needed for these studies is that the students have to be already a qualified MBBS, i.e. a qualified practitioner. The Post Graduate Medical Course of the Aligarh Muslim University has been there for a long time and it is a reputed one. Many Post Graduate Doctors from the Aligarh Muslim University will be found in many a reputed Hospital and Nursing Home. We believe this to be so and our belief, in spite of our giving it expression during hearing, was not contradicted by anybody.
50% of these 157 seats, (we shall not bother about the fraction) were attempted to be reserved for the Mohammadan students for the 2005 examinations.
The Mohammadan reservation there has never been for the last 85 years. The University was only in name a Muslim University. There were institutional reservations, but those are possible even for free institutions. The minority status might have been discussed in the private Halls of the University; we do not know about that. The claiming of a Muslim quota came for the first time for the Post Graduate Doctoral courses starting in the year 2005 and the gap is from 1920 to 2005.
Examinations were held; the Muslim quota has been given effect to; 50% seats have been filled up by Mohammadan students who have been given preference on the basis of the their religion; students have felt aggrieved; they have come before the Court; criticism was made that only one or two came first, and then in groups, and mostly after the first interim order had been passed by the Court in a writ petition.
That might be so, but we are herein concerned with the claim of the Muslim reservation after long 85 years; we do not know what the practical effect of a change of a free post graduate doctoral course into a minority reserved post graduate doctoral course will be; it is not for us to inquire into the practicalities. It is for us only to note facts and to go about the law of the matter.
The Muslim reservation was claimed on the basis of and solely on the basis of the 1981 amendments; if there were no amendments in 1981, this litigation would not be on. Two other provisions entered in 1981 by way of amendment are, in our opinion, material, but the others, so far as this court is concerned, can remain on the statute book.
The next amendment after Section 2 (l) is Section 5 (2) (c). This is set out below:-
"5 (2)(c). to promote especially the educational and cultural advancement of the Muslims of India".

We are of the opinion that if the University is free, which according to our judgment it is, this sub-section cannot survive. It is flatly discriminatory. If a clause like this were to be introduced into the Charters of the Banaras Hindu University directing that it should promote especially the educational and cultural advancement of the Hindus of India, it would be discriminatory. This new Section 5 (2) (c) is discriminatory for exactly the same reason. It would be a wrong view to take that by introducing just 5 (2) (c) the Act has so changed the basis or the whole situation as to cause the Court to take a different view from Basha. It would be placing an overmuch importance on a comparatively small thing. The main issue is 2 (l); the decision on that has to shape the decision on 5 (2) (c); we are of the clear opinion that it is not the other way round.
The cross appellants in the Court below asked for striking down of Section 2 (l) and Section 5 (2) (c); they did not specifically ask for striking out of another amendment which is certainly related to the minority issue.
In the preamble of the 1920 Act, it is stated as follows:-
"An Act to establish and incorporate a teaching and residential Muslim University at Aligarh".

By the 1981 Act, the words ''establish and' have been removed. The reason is very simple; Article 30 uses the word establish; if establishment and incorporation are even kept in proximity, there might be a doubt whether incorporation alone might rob the University of its minority status; incorporation is a single factor, but it is not an unimportant factor. It is a process, but it is a process of a very high order. It is only by incorporation that Universities could be brought into being in 1981, apart from a deemed status being given to it. Leaving the words ''establish and incorporate' together would therefore militate with the object and purpose of introduction of Section 2 (l); it was therefore sought to be removed by the 1981 Act.
We are of the opinion that this removal is bad and must be struck down. The preamble of the Act must remain as it was.
The Supreme Court having taken a view that ''incorporation and establishment' are connected and are importantly connected, that view taken in regard to the 1920 situation, cannot be summarily overruled by Parliament so as to bring into existence a new minority institution.
We are therefore of the opinion that along with 2 (l) Section 5 (2) (c) must also fall and there should be a restoration of the preamble as it was.
This brings us to a second point, which arose during the course of argument; it was not argued in the Court below, but the Court having felt the necessity of hearing views of both sides on it, put the query to them and answers came forth with all the usual compliance and learned expertise.
It is a point of legislative competence. We are concerned with a simple Act of Parliament of 1981. We are not concerned with a constitutional amendment or, as Dr. Dharwan prefers, an exercise of a constituent power by Parliament. Nor we are concerned with any such unprecedented thing as a referendum to the people of India and the change, or part breakdown as per Dr. Dhawan, of the Constitution on the basis thereof. These are different and higher matters. We are concerned only with a simple Act of Parliament, which cannot by itself amend the Constitution. The Aligarh Muslim University is not merely a University, but a field of legislative power. Entry-63 of List-I of the 7th Schedule of our Constitution runs as follows:-
"The institutions known at the commencement of this Constitution as the Benares Hindu University, the Aligarh Muslim University and the [Delhi University; the University established in pursuance of Article 371-E;] any other institution declared by Parliament by law to be an institution of national importance".

Section 2 (l) of the 1981 Act defines the Aligarh Muslim University. It is a definition different from what prevailed on the date of adoption of the Constitution. The new purported definition is not mechanical or unsubstantial and not something to which the principle de minimis non curat lex is applicable. It is a substantially altered definition of an item mentioned in the Constitution. In our opinion, the definition of any word or item in the Constitution cannot be inserted by Parliament excepting by way of a Constitutional amendment. On this ground, the 1981 Act suffers from the lack of legislative competence.
See how this works out in practice. If the 1981 Act were not there, Parliament would be legislating for Aligarh Muslim University, although the State of Uttar Pradesh would be legislating for other Universities situated in the State of Uttar Pradesh under Entry-32 of List-II. Parliament could not, say, in 1980, even purport to make a law or cause a subordinate legislation to come into being to the effect that 50% of the Aligarh Muslim University Post Doctoral seats would be reserved for Mohammadans. That is because Basha was holding the field. Aligarh Muslim University was a free University and 50% seats could be no more reserved for Muslims there than for Hindus in B.H.U. So Parliament could not do it in 1980. However, the 1981 Act then came into being. If it is good, then 2 (l) changes the free status of the University into a minority status, as a matter of definition and by force. And immediately direct consequences result. The University and its officials boldly put forward the Muslim reservation, which was incompetent even for Parliament to put forward in 1980. How has this power been purported to be assumed? Because of the 1981 Act and none other. So Parliament has given to a University a power to do something, which it was incompetent to do even by legislation; how has it given that power? It has given that power by simple legislation. If that legislation is valid, then it has succeeded in giving power beyond its own ordinary power as per the Constitution, to some other authority. This is absurd; the absurdity occurred because and only because Parliament has sought by a simple Act of Parliament to define a Constitutional institution and field.
Parliament is similarly incompetent from another point of view. A minority institution cannot be created by Parliament; only a minority can create it. Whether a minority has succeeded in creating an Article 30 institution of the Constitution or not, is in the peculiar province and jurisdiction of the courts of law to declare. Parliament is incompetent to declare by, at least a simple legislation, an institution to be a minority institution. If it could do that then it could add to Article 30 by saying A,B,C,D, etc. will be Article 30 institutions. Parliament cannot do it, not at least by a simple Act of Parliament, if by anything else. When a dispute arises as to the minority status, parties come to Court and the Court takes a view; the taking of this view either results in a declaration or otherwise of the minority status of the institution. In this instant case, the Court had taken a view. The view was taken on facts and on the effect of the rights, liabilities and duties attaching to the institution being the Aligarh Muslim University. It was within the province of the Court to take this view. Once this view is taken, it cannot be dislodged by an Act of Parliament; it cannot perhaps be dislodged by any means, and in this issue the point of changing the basis of the judgment, or brazenly overruling a Court's judgment is not involved. It is a point of incompetence of Parliament. It is only for a Court to decide whether an institution is a minority institution or not; the Court can take a different view at a different point of time, but Parliament has no authority to force the Court to take such a different view in a minority status matter. Just as a carpenter has no power to force the soil, air and sunlight to produce a tree, Parliament has no power to force on to a Society a minority institution. Politics is not permitted in this restricted constitutional field. We would strike down the aforesaid provisions of the 1981 Act on this separate ground alone, and we make it clear that in this and the earlier ground of Parliament directly overruling Azeez Basha, both of us have felt absolutely in agreement.
The reliefs, which we ought to grant, have now to be reasoned out; we have not fully heard out the admitted Mohammadan students on the basis of the quota, which we now declare to be invalid. We have heard their appeals and we take their appeals on record. These Post Doctoral courses last for a year or two. Those started in the beginning of the year 2005 and the year is over. We are unable to upset the study programme of these qualified Doctors, who have got in, so far as the records show, perhaps luckily but without any fault of their own. The fault might lie with the University because of its insufficient foresight and its insufficient publicity in taking in as many as 50% Mohammadan students when they were claiming the Mohammadan reservations after 85 years of the incorporation of the University for the first time, but we leave it to the conscience of the University and its key people and its advisors.
The University communicated with the Union of India before it claimed the reservation for itself and went ahead with the examinations. The concurrence of the Union was communicated to the University by its letter dated 25.2.2005. The concurrence therefore came far later than the examinations; the concurrence was rendered temporarily invalid within a fortnight by the passing of the interim order of Court. We cannot help saying that people in high positions should have thought a little more about the uncertainty they might be introducing in the career of students before they went ahead with a somewhat sudden claim of a Muslim minority quota.
We are unable to dislodge the students, who are studying and we are aware that this will have to be at the cost of the cross appellants, who are 34 in number. Dr. Dhawan was at pains to show how only a few of them might still, in any event, be said to somewhat aggrieved, but we are of the opinion that it will not serve any useful purpose to enter into these details now, as we cannot grant them much relief. Even the locus standi of the students was challenged at first, but the issue of locus is such a narrow one that it would be impossible to say that none of the cross appellants had in any view of the matter any legal locus standi to challenge the Muslim quota. Locus on the part of the Minority Commission and the Union of India was also challenged by the cross appellants in their turn. We have found these objections to be not worthy of detailed, or even any, discussion in a heavyweight constitutional matter like this. The relief that we grant to the students, if relief those can be called, are spelt out below. Before the 50% claim of Muslim quota, the Aligarh Muslim University had 75% institutional reservation and 25% free admission on all India basis. Dr Dhawan was at pains to argue that at present an institutional reservation above 50% is not possible. We are however not concerned with institutional reservation as a rule, but with moulding of relief for a year; the issues are thus, so far as we understand, slightly different.
On the above basis, the following orders are passed.
(i) The judgment and order under appeal is affirmed excepting to the extent indicated below;
(ii) The Aligarh Muslim University is declared to have always been and is a free institution and not a minority institution within the meaning of Article 30 of the Constitution and that the ruling in Basha is in no way touched.
(iii) Sections 2 (l) and 5 (2) (c) introduced in the Aligarh Muslim University Act of 1920 by the said 1981 Amendment Act are invalid and those insertions are struck out.
(iv) The removal of the words ''establish and' from the preamble of the 1920 Act by the 1981 Act is invalid and those words are restored to the preamble.
(v) The claim of 50% Mohammdan quota for the post graduate medical courses by the University is declared as unconstitutional and impermissible and they shall make no claim of minority quota in like or other manner in future.
(vi) The Union's communication dated 25.2.2005 vetting the purported minority status of the Aligarh Muslim University by permitting their claim of Muslim reservation is quashed and set aside.
(vii) The admission of Muslim students made on the invalidly claimed quota of 50% is maintained on account of pure practicality.
(viii) The University shall undertake an exercise of recasting the results of the examinations of 2005 and will ascertain thereby which of the cross appellants would have secured admission instead of which of the Mohammdan students admitted in the 50% quota; alternatively which of the 34 cross appellants would have obtained a more preferred choice of discipline according to their priorities, and instead, which Mohammdan students were permitted to have such disciplines because and only because of the 50% quota. The exercise shall be made by way of recorded writing and preserved in the documents and records of the University and communication shall be made by the University in this regard to the cross appellants or their advocates on record within a period of a fortnight from the date of completion of judgment.
(ix) The above exercise will not mean that any of the Mohammdan students will be dislodged by any of the cross appellants; the exercise will however mean that if possible, the University will offer the newly seen to be entitled cross appellants disciplines more of their choice, if according to the University they will be able to complete such disciplines within the limited time available in a reasonable manner.
(x) Furthermore, if any of the so seen newly entitled candidates have not secured admission to the Aligarh Muslim University at all and take the examinations for the post doctoral course in 2006, then and in that event, the better result of the two years shall be counted in favour of such cross appellants; it is clarified that such better results will be counted only within the same institutional reservation.
In granting the above orders, we are aware that in the Court below the prayer for restoration of the preamble of the Act to its original form was not made; in this type of litigation, however, in our opinion, the procedure of amendment is infinitely less important than the arguments made on the relief, and the necessity of making as quickly as possible one full and compendious order, so far as one particular Court is concerned, at one and the same time.

Dt/-22.12.2005
RKK/RK

Allahabad: Muslims no longer a minority

HIGH COURT OF JUDICATURE OF ALLAHABAD
Reserved
Court No.19
Civil Misc. Writ Petition No.34892 of 2004
Committee of Management,
Anjuman Madarsa Noorul Islam Dehra Kalan,
Ghazipur through its Manager & others.......................Petitioners

Vs.

State of U.P. Through Secretary,
Minority Welfare and Waqf Department,
U.P., Lucknow and others..........................................Respondents

Hon. S.N. Srivastava, J.

Since I have been scheduled to sit at Lucknow Bench of this Court from 9th April, 2007, I consider it appropriate to pronounce operative part of the judgment of the writ petition. This operative part of the judgment shall be followed by the rest judgment.

For the reasons to be detailed in the body of the judgment of the writ petition, writ petition succeeds and is allowed. The impugned order dated 17.5.2004, passed by the State of Uttar Pradesh recognising Opp. Party nos. 4 to 6 on Grant-in-Aid as religious Muslim minority institutions is quashed and it is held that any institution founded by petitioners or Opp. Party nos. 4 to 6 are not entitled to be recognised for Grant-in-Aid as religious minority institutions in the State of Uttar Pradesh after applying twin criteria, i.e., population and strength of a religious community as laid down by the founding fathers of the Constitution of India as is clear from proceedings of Constituent Assembly to determine any religious community as a religious minority. The Court finds that Muslims have ceased to be a religious minority community in the State of Uttar Pradesh on consideration of the materials on record which includes various Census Reports including Census Reports of 1951 and 2001 and, therefore, directs State of Uttar Pradesh to treat any member of Muslim community equal to other non-minority religious communities without discriminating in any respect in accordance with law being an integral part of citizenry of India

(i) A writ in the nature of mandamus is issued commanding State of Uttar Pradesh to consider Applications of petitioners and Opp. Party nos. 4 to 6 or other Applications of other institutions founded by Muslim community for recognition on Grant-in-Aid in the similarly situated manner as other non-minority institutions are being dealt with in accordance with law without any discrimination.

(ii) A writ of mandamus is also issued to Union of India and the State of Uttar Pradesh to take appropriate steps to modify the notification dated 23.10.1993 issued by the Union of India accordingly.

(iii) A writ of mandamus is further issued commanding the Chief Secretary, Uttar Pradesh to initiate an enquiry into the serious allegations of corruption made by petitioners in Paragraphs 9 and 10 of the Supplementary Affidavit dated 1.2.2007 filed by Zulfikar Ahmad, Manager, Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur, which runs as follows:-

"9. That to the utter surprise the respondent in collusion particularly the Secretary Sri Chandra Prakash by taking illegal gratification of Rs.5 lacs has taken certain more institutions on grant including Madarsa Khanam Zan of Varanasi and Madarsa Ahle Sunnat Ateequia Gonda.

10. That same demand is being done in respect of Petitioners institution as well and demand of Rs. 8 lacs is being done in respect of other newly prepared 100 institutions vide G.O. Dated...whereas the consideration of Madrsa recognised in year 1996 is being harass that its case was refused on basis of delay vide order .......The copies of order cancelling the Madrsa taken on grant amongst 67 and allotment of fresh Madarsa at its place vide order dated 13.12.06 are also being annexed as.....to this affidavit along with copy of order of this High Court...."

The enquiry shall be made for orders passed recognising the institutions for Grant-in-Aid from the year 2003 upto now. Such enquiry shall be conducted by an Officer not below the rank of Principal Secretary which shall be completed within three months' from the presentation of a certified copy of this order and further action shall be taken accordingly.
There shall be no order as to cost.
5.4.2007
bgs/-

Reserved
Court No.19

Civil Misc. Writ Petition No.34892 of 2004
Committee of Management,
Anjuman Madarsa Noorul Islam Dehra Kalan,
Ghazipur through its Manager & others.......................Petitioners

Vs.

State of U.P. Through Secretary,
Minority Welfare and Waqf Department,
U.P., Lucknow and others..........................................Respondents

Hon. S.N. Srivastava, J.

By way of this writ petition, the petitioner No. 1- Committee of Management of Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur (hereinafter referred to as the 'Madarsa'), and the petitioner No. 2, is the Manager of the Madarsa, pray for quashing the impugned order dated 17.5.2004 passed by the State of U.P., recognzing 67 Madarsas for grant-in-aid. They further prayed for to issue a writ of mandamus commanding the State of U.P. to recognise the petitioners' Madarsa for Grant-in-Aid and any other further suitable relief which this Court deems proper.

In the year 1995-96, out of 204 Madarsas which were founded and recognized by the Muslims minority were recommended for grant-in-aid, out of which 68 Madarsas were recognized for grant-in-aid. By an order dated 17.5.2004, 67 other remaining Madarsas were again recognised for grant-in-aid. In 2006 out of remaining 66, 32 Madarsas were recognised for grant-in-aid. The grievance of the petitioners is that though petitioners' Madarsa was also founded by Muslim religion minority and was permanently recognised altogether, but the State of U.P. refused this for grant-in-aid, though it fully satisfies all the norms. It was further pleaded by the petitioners that the opposite parties no. 4 to 6 are such Madarsas which do not satisfy the criteria for recognition for grant-in-aid and are private Madarsa in which all the family members of the Manager are teachers and employees and other requirements are also not satisfied. It was further pleaded that though the Madarsa at Sl. Nos. 12, 13, 16, 17, 19, 20, 22, 29 and 29 in the list of recognised minority institutions for Grant-in-Aid are also founded by the Muslim minority but they also did not fulfil any norms, but were wrongly recognised for grant-in-aid, ignoring the petitioners' Madarsa.

Learned counsel for the parties were heard on 3.11.2006 and the matter was placed on 7.11.2006 for further hearing. During the course of the arguments certain questions relating to minority arose. As the petitioners and the opposite parties no. 4 to 6 were claiming themselves as minority institutions founded by the Muslim religion minority notified under Section 2(c) of the National Minority Commission Act, 1992 by Notification dated 23.10.1993, the question arose to be considered what is the definition of Minority and who could be recognised as religious minority and its criteria for recognition. This Court by a detailed order dated 18.12.2006 framed certain issues and also issued notices to the Union of India, Registrar General, Census, New Delhi and National Commission for Minority, New Delhi. The order dated 18.12.2006 passed by this Court is being reproduced as follows:-
"Sri N.A. Khan, learned counsel for petitioner states that petitioner has moved an application on 23rd November, 2006 to the competent authority, but no communication has been made so far to from the competent authority as to the order passed on the application.
On the other hand, Sri S.C. Dwivedi, learned counsel representing opp. Parties, states that for the purpose of determining whether petitioner is an minority institution and is entitled to inclusion as such in the list of aided institutions, a Committee has been constituted and an enquiry in this regard is going on about all the Institution which are claiming grant-in-aid as minority institutions. As petitioner and other Institutions are claiming benefit of Minority Institutions being a group of Muslim community and a similar controversy is also involved in Writ Petition No. 42265 of 2006, this writ petition is also connected with Writ Petition No. 42265 of 2006.
In Writ Petition No. 42265 of 2006, this Court on 11th December, 2006 has framed certain issues, which are as under:-
(i) What is the definition of minority?
(ii) Who could be recognized as a member of minority religion and what would be the criteria for recognizing minority?,
(iii) Whether minority could be recognized at national level, provincial level or at regional level? and
1.Whether a community having more than 5% of the total population in the country could be recognized as minority?"

Learned Standing Counsel referred judgment of the Apex Court reported in AIR 2003 SC, p. 355, T.M.A. Pai Foundation V. State of Karnataka. 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 that every group in India is minority. Paragraph 10,11 and 34 of the judgment of the Apex Court 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 in view the constitutional guarantee for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their rights by other communities who happen to be in majority and likely to grain 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 giving definition of 'minority' only provide for notifying certain communities as 'minorities' who might require special treatment and protection of their religious, cultural and educational rights. The definition of 'minority' given under the Act in section 2(c) is in fact not a definition as such but only a provision enabling the Central Government to identify a community as a 'minority' which in the considered opinion of the Central Government deserves to be notified for the purpose of protecting and monitoring its progress and development through the Commission.

34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels. Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes. It, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensue. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat."

In view of the judgment of the Apex Court, the question arises whether there is any such identifiable group of people or community who were seen as deserving protection from likely deprivation of their rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election.

As held by the Apex Court that the concept of minority was introduced to given protection to some groups from likely deprivation of rights of minority by other communities who happen to be in majority and likely to grain power in democratic form of the Government, whether at present there is any such likelihood 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 and founded by any minority group, including petitioner, is entitled to get benefit under the Constitution of India. The question further 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, mutual fear and distrust which was created at the time of partition of the country which has already come to an end, any such protection will not create sow seeds of multinationalism in India. In order to consider all these questions, this Court also considers it appropriate to implead Union of India, through Secretary, Ministry of Home, New Delhi, National Commission for Minority of India, New Delhi through its Chairman and the Registrar General, Census Department, New Delhi. They shall also file their respective affidavits along with such materials as mentioned in the order dated 11th December, 2006 and also to the following facts.

(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 of the same shall also be produced and
(v) The Government of India shall also produce before the Court report of the Justice Sachchar Committee which according to learned Standing Counsel is also relevant in the matter.

Dr. Asho Nigam, learnd Additional Solicitor General of India has accepted notice on behalf of Secretary, Ministry of Home, New Delhi and Registrar General Census Department, New Delhi.

Let notices be issued by the Registry of this Court to National Commission for Minority, New Delhi through its Chairman.

The State of U.P. shall also file counter affidavit on the facts stated above.

Put up on 22nd January, 2007 for further arguments.

Registry is directed to serve certified copies of this order to Dr. Ashok Nigam, learned Additional Solicitor General of India, learned Chief Standing Counsel, State of Uttar Pradesh and learned counsel for the petitioner within three days. Registry is also directed to send certified copy of this order along with the notice to National Commission for Minority, New Delhi through its Chairman within a week."

The case was again heard on 22.1.2007 and on 28.2.2007 and this Court passed the following orders.
22.1.2007
"Sri Ch. N.A. Khan, learned counsel for the petitioners states that petitioners' application has not been decided so far. He has made certain allegations. He prays for and is granted upto 29th January, 2007 to file supplementary affidavit making specific allegation, if any.
Put up this petition on 31.1.2007.
By an order dated 18.12.2006, Registry was directed to serve copy of order to Dr. Ashok Nigam, learned Additional Solicitor General of India on behalf of Secretary, Ministry of Home, New Delhi and Registrar General Census Department, New Delhi and notices were issued to National Commission for Minority, New Delhi through its Chairman.
From perusal of report dated 21.12.2006 it transpires that order was received by Additional Solicitor General of India and a copy was sent to National Commission for Minority, New Delhi through Chairman, but Registry has not submitted report of compliance while impleading all necessary parties in the writ petition.
List this case on 31.1.2007 showing the name of Dr. Ashok Nigam, learned Additional Solicitor General of India along with counsels for other opposite parties.
Registry will also explain why it has not impleaded opposite parties as directed by this Court dated 18.12.2006 and submit compliance report by 25th January, 2007 in Chambers.
Learned counsel for Central Government has not filed any affidavit in compliance to the order passed by this Court on 18.12.2006.
Copy of this order shall be made available to Sri Bhola Nath Yadav, learned Standing Counsel as well as learned counsel for the Central Government.

28.2.2007
Sri Shashi Shekhar Tiwari, learned counsel for Union of India has filed affidavits of Sri R.S. Meena, Assistant Director of Census Operations, Uttar Pradesh, Lucknow and Sri Puranjay Sharma, Legal Officer in National Commission for Minorities, 5th Floor, Lok Nayak Bhawan, Khan Market, New Delhi giving details of census report of 1951 and 2001 as well as Notification dated 23.10.1993 under clause (c) of Section 2 of the National Commission for Minorities Act, 1992 same are taken on record. Sri Ch. N.A. Khan, learned counsel for petitioner may file rejoinder affidavit, if any, by that date.

Dr. Ashok Niam, learned Additional Solicitor General assisted by Sri S.S. Tiwari,Advocate, prayed for some more time to furnish remaining information as directed by earlier order.

U.P. State Minorities Commission represented by Sri J.K. Tiwari, who has filed Vakalatnama today, is impleaded as opposite party no. 10.

As prayed, put up this case on 14.3.2007.

Let copy of this order be issued by the Registry to Sri Shashi Shekhar Tiwari, learned counsel for the Union of India, Sri J.K. Tiwari, learned counsel for the State and learned counsel for the petitioner within 3 days."

After hearing the parties and on perusal of the record a detailed order was passed on 14.2.2007. Order dated 14.3.2007 runs as follows:-
"Heard learned counsel for the parties.
Parties are claiming certain rights as being muslim minority to run minority institution on grant-in-aid. In the connected case, Bahuri Alp Sankhyak Balika Inter College one Phool Chand Yadav claiming himself as Buddhist, praying for recognising a minority institution. Several questions were framed by an order dated 18.12.2006 about definition and recognition of minority group under the Constitution of India. It was brought to the notice of this Court that a notification dated 23.10.93 was issued by Government of India recognising Muslims, Christians, Sikhs, Buddhists, Jain and Parsees as minorities.
It was also brought to the notice of this Court that that Constituent Assembly debates make it clear that minorities were recognised 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. Besides that, Buddhists were not recognised as minority by Constituent Assemply.

Group-A consists of population less than � percent in the Indian Dominion omitting States

1.Anglo-Indians
2.Parsees
3.Plains' tribesmen in Assam (other than Tea Gardens' tribesmen)

Group B- Population not more than 1 � percent.
4. Indian Christians
5. Sikhs

Group - C consists of population exceeding 1 � percent.
1. Muslims
According 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 is a 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 of the 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 of notified minorities under the Act, should suggest ways and means to help create social conditions where the list of notified minorities is gradually reduced and done away with altogether.

Apex Court further held that -

"Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy".

According to Census of 2001 submitted through the affidavit of Mohd. Akram, Secretary of U.P. Commission for Minorities, Lucknow, the regional proportion on the basis of census of U.P. , the total percentage of different minorities communities are as follows: -

Muslims : 18.50
Christians : 0.1
Sikh : 0.4
Buddh : 0.2
Jain : 0.1

It further appears from the religion proportion of minorities of different districts of the State of U.P. on the basis of 2001 census.

District Muslims Christians Sikhs Buddhists Jain

Saharanpur 39.11 0.17 0.71 0.13 0.37
Muzaffarnagar 39.09 0.09 0.54 0.07 0.49
Bijnor 41.71 0.11 1.56 0.11 0.08
Moradabad 45.54 0.23 0.23 0.06 0.06
Rampur 49.14 0.38 3.21 0.12 0.08
Jyotiba Phule Nagar 39.38 0.28 0.37 0.02 0.04
Meerut 32.55 0.25 0.88 0.09 0.63
Baghpat 24.73 0.09 0.09 0.03 1.54
Ghaziabad 23.79 0.27 0.64 0.10 0.36
Bulandshahr 21.07 0.13 0.16 0.07 0.05
Budaun 21.33 0.11 0.09 0.16 0.02
Bareilly 33.89 0.26 0.80 0.20 0.02
Pilibhit 23.75 0.11 4.59 0.11 0.01
Lucknow 20.52 0.34 0.63 0.12 0.11
Barabanki 22.04 0.08 0.12 0.09 0.11
Bahraich 34.83 0.09 0.32 0.14 0.04
Shrawasti 25.60 0.05 0.07 0.05 0.00
Balrampur 36.72 0.08 0.08 0.18 0.01
Siddharthnagar 29.43 0.06 0.06 0.39 0.00
Sant Kabir Nagar 24.02 0.05 0.04 0.27 0.00

Considering the facts detailed above, learned counsel for the parties are also required to assist the Court apart from other points arises to be considered in this case whether list of minorities 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 constitution as held by Apex Court in Bal Patil and another vs. Union of India and others case (supra).
Sri Yashwant Verma, learned advocate is appointed as Amicus Curiae to assist the Court.
On the request of learned counsel for the parties, put up day after tomorrow for further arguments".

On 16.3.2007, the parties were again heard and a detailed was passed. The copy of the order passed on 16.3.2007 is also reproduced as follows:-

"Chaudhary N.A. Khan, learned counsel for the petitioners has been heard at great length.
He urged that the Muslims were rightly recognised as religious minority group as the population of Muslims is less than 50% in comparison to the majority population in India. He relied upon judgments of Apex Court in T.M.A. Pai Foundation v. State of Karnataka reported in AIR 2003 SC p. 355, P.A. Inamdar and others vs. State of Maharashtra and others case reportedin 2005 (3) E.S.C. 373 and in Islamic Academy of Education and others v.State of Karnataka and others case reported in (2003) 6 SCC,page 697 in support of his case. He further urged that the Muslims, Christians, Sikhs, Budhists,Jains, Jews are minority in comparison to Hindus under the notification of the Government of India dated 23.10.1993. He further urged that the calculation of 50% will be made on the basis of Hindu religion (the way of worship) 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 are members of one religious or identity or are a combination of various religious groups born and brought up in India from time to time including Budhism, Janim,Araya Samajis, Brahm Samajis, Lingayats, Shakts, Shaivs, Escons (Worshippers of Lord Krishna), Sikhism, Kabirpanthis, followers of Shankaracharya, Rmanujacharyas and the group of followers who are involved worship of Lord Krishna and 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 India could 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, rest of religion groups born and brought up in India if taken separately may be treated in minority in comparison 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%. All these questions require consideration considering the historical back ground where in the British Rule the census was made from 1851 up to 1941 on the basis of all religious groups separately and were never considered to be part of one religion.

Sri Sanjay Kumar Srivastava, learned counsel appearing on behalf of petitioner-Phool Chand Yadav, Manager Bahuri Alp Sankhyak Balika Inter College, Taruvanava, Patkhauli, District, Kushi Nagar in connected Writ Petition No. 42265 of 2006 claiming himself to be minority institution being Budhists urged that Budhist is a minority group on the basis of population below 50%.

Chaudhary N.A. Khan counsel for the petitioners, prays for and is granted to study the matter and argue the case on 21st March, 2007.

As prayed, put up on 21st March, 2007.

All the teachers and employees who are getting salary shall be paid salary for the month March, 2007 payable in April, 2007."

The case was finally heard on 21.3.2007 and the judgment was reserved.
Sri N.A. Khan, learned counsel for the petitioners, Sri S.C. Dwivedi, learned counsel for Opp. Party nos. 4 to 6,Sri Bhola Nath Yadav, learned Standing Counsel as well as Sri J.K. Tiwari, learned Standing Counsel, appearing on behalf of the U.P. Muslim Minority Commission and Sri Shashi Shekhar Tiwari, learned Standing Counsel for the Union of India, National Commission for Minorities and Registrar General, Census, New Delhi were heard at great length.
Though from the pleading of the parties, both the parties claimed that they founded their institutions as religious minority institutions and are entitled to be recognised for grant-in-aid, but the questions arose to be considered who is minority, whether petitioners or Opp. Parties nos. 4 to 6, who claim themselves as religious minority and whether anybody who is claiming as religious Muslim minority could be recognised for grant-in-aid by the State of Uttar Pradesh being religious minority and what would be the basis for such recognition.

All these parties have already filed their respective affidavits, counter affidavits, rejoinder affidavits, in support of their cases on merits as well as on the issues framed by this Court. Affidavits have also been filed on behalf of the National Commission for Minorities and Registrar General, Census. U.P. Minority Commission, Lucknow is also represented through Jai Krishna Tewari, learned Standing Counsel. It is surprising that such an important issue was involved and the hearing took place on several dates and detailed orders were passed and all the parties were asked to assist the Court. The learned Advocate General did not rendered any assistance of any kind during such prolonged hearing of about three months. He appeared before the Court only on 17.10.2006. On that date the case was adjourned due to ailment of the learned counsel for the petitioners.

The competence of Court to try the questions of public importance which arose in the case while hearing the case was also challenged.

Though initially questions came up for consideration was for grant-in-aid of petitioners' Madarsa being founded by religious Muslim Minority, but during the course of hearing some important questions/matters arose and as such issues were framed on those questions and all the concerned parties were heard on the questions whether the Court is competent to decide the issue of public importance which arose in a case where initially the matter in issue was in the nature of private dispute.

I have gone through the judgment of the Apex Court reported in 2003 (7) SCC 546, Guruvayoor Devaswom Managing Committee and another v. C.K. Rajan and others and I am of the view that according to the law laid down by the Apex Court in this judgment, the Court can try this issue.

In the judgment of Guruvayoor Devaswom Managing Committee and another Vs. C.K. Rajan and others (supra), the Apex Court observed as follows:
VIII. However, in an appropriate case, although the petitioner might have moved a court in his private interest and for Redressal of personal grievances, the court in furtherance of the public interest may treat it necessary to enquire into the state of affairs of the subject of litigation in the interest of justice. (See Shivajirao Nilangekar Patil Vs. Dr. mahest Madhav Gosavi).

This view was further reiterated by 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 interest may 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 Prahlad Singh 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, Kisan Sahkari Chini Mills Limited, Sultanpur, U.P. versus Satrughna Nishad. Again similar matter came up for 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 Court dealing with the habeas corpus petition framed certain issues of public importance involved in the case and referred the matter to Hon. The Chief Justice to register as P.I.L. to be decided by the appropriate court. The Chief Justice, Allahabad High Court, treating it as a Public Interest Litigation constituted a Full Bench. The Full Bench considering the case of Ashok Lanka and another (Supra) held that it was within the domain of the Court even to enquire the facts of public importance suo moto if exigency so requires 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 that this Court is fully competent to enquire into the matter of public importance whether the Madarsas founded 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 and other 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 Prakash Chand and others, 2001 (4) AWC 2688, Prof. Y.C. Simhadri, Vice Chancellor, B.H.U. and others versus Deen Bandhu Pathak, Student and 2001 (1) AWC 383, Chandra Bhushan Tewari versus State of U.P. and others, as this Bench was allocated the work to decide matters relating to Education it had the jurisdiction to decide the case.

On 3.11.2006, this Court was allocated jurisdiction to deal with the education matters and the case was listed before the Court by the order of Hon. The Chief Justice. Since the hearing was continuing, this Court heard parties' arguments to decide the case and questions arise to be considered.

Further, the question whether Muslims constitute religious minorities in India, though initially did not arise, but arose during the course of hearing as parties are claiming minority status being Muslim, could be decided by the Court by framing issues. The law is well 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 the element of public interest is involved and to take up and entertain the same as public interest litigation and pronounce upon such issues exercising the jurisdiction which the Constitution does vest in the High Court but that has to be done by following the established rules of practice and procedure consistently with the rules of natural justice. The High Court, if convinced, should have framed specific issues with which it proposed to deal with in public interest and then should have put the State on specific notice inviting 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 interest and far-reaching implications should not have been dealt with so lightly, casually and hurriedly as the High Court has done".

In view of undisputed facts and claim about Muslim Religious minority, the Court framed questions and issued notices to afford opportunities to the State of U.P., National Minority Commission, U.P. Minority Commission, Union of India and the Registrar General, Census and opposite parties no. 4 to 6. Full opportunity of hearing was given from 3.11.2006 to 21.3.2007.

The other Writ Petition No. 42265 of 2006 was filed by one Phool Chandra Yadav claiming as religious minority having adopted Budhism and applied for recognition of his institution under the U.P. Intermediate Education Act. The same was refused and thereafter he filed another application for recognition. In that case the question of grant-in-aid was not involved and was also not a case relating to Madarsa. In that case various orders were passed directing the State of U.P. not to pass any order about recognition and it was further directed to constitute Board of High School Intermediate which has not been constituted since 1982 during a span of three months period. Various other interim orders altogether not connected with this case were also passed. The issues involved in Writ Petition No. 42265 of 2006 were altogether different to the issues involved in the present case. The only common question involved was what is the definition of Minority. The parties were not heard on 21.3.2007 in writ petition no. 42265 of 2006 as parties prayed for adjournment. On 21.3.2007, the case was adjourned for 26.3.2007 on the request of learned Standing Counsel. On that date the following order was passed.

"Sri Bhola Nath Yadav, learned Standing Counsel produced before me the order dated 21.3.2007, passed by Special Appeal Bench in Special Appeal No.321 of 2007. The same is being quoted below:-
"It is vehemently urged that the Hon'ble Single Judge in the order dated 11.12.2006, against which primarily this appeal has been preferred, has gone beyond the pleadings and the issue involved or raised by either parties. The learned Advocate General has placed relieance on the judgment of the Hon'ble Apex Court in the case of U.P. Gram Panchayat Adhikari Sangh and others vs. Daya Ram Saroj and others (2007) 2 SCC 138 and submitted that there was no reason for the Hon'ble Single Judge to go beyond the pleadings and the issue involved in the writ petition.
Shri Sanjay Kumar Srivastava, learned counsel appearing for the petitioner-respondent fairly admitted before us that these are not the issues involved nor he sought any such relief in the writ petition.
Admit.
No notice is required to be issued as the sole respondent is represented by its counsel.
List the appeal for hearing before the appropriate Bench in the week commencing 14.5.2007.
Considering the submissions and looking to the facts of the case, it is provided that further proceeding in Civil Misc. Writ Petition No.42265 of 2006, pending before the Hon'ble Single Judge, shall remain stayed until further orders."
From perusal of the aforesaid order, it transpires that special appeal was preferred against order dated 11.12.2006.
In view of the interim order dated 21.3.2007, further proceedings in writ petition shall remain stayed.
This writ petition is disconnected with other writ petition."

Neither the State of U.P. nor any party to the present writ petition raised any objection on the hearing or prayed to postpone the hearing. Learned counsel for the parties participated in the hearing and were heard at great length and after hearing concluded, the judgment was reserved.

After the judgment was reserved, this Court after careful consideration of the case tried to decided by pronouncing judgment. In the meantime this Court was scheduled to sit at Lucknow from 9th April, 2007 till further orders. After considering the entire material on record and following the constitution Bench judgment reported in (2005) 7 Supreme Court Cases 625, Rameshwar Prasad and others (V) Versus Union of India and another and in view of the fact that several questions of public importance were involved, the Court decided to pronounce only the operative portion of the judgment on 5.4.2007 following procedure of pronouncement of judgment indicated in the judgment of the Apex Court to be followed by a detailed reason . Paras 8 and 9 of the judgment in the case of Rameshwar Prasad and others (V) (Supra), are quoted below:-
8. Keeping in view the questions involved, the pronouncement of judgment with detailed reasons is likely to take some time and, therefore, at this stage, we are pronouncing this brief order as the order of the Court to be followed by detailed reasons later.
9. Accordingly, 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 unconstitutional.
2.Despite the unconstitutionality of the impugned proclamation, but having regard to the facts and circumstances of the case, the present is not a case where in exercise of discretionary jurisdiction the status quo ante deserves to be ordered to restore the Legislative Assembly as it stood on the date of the Proclamation dated 7.3.2005 whereunder it was kept under suspended animation.

As far as possible, normally, the reserved judgments are normally pronounced with the complete details, but as the Court was schedule to sit at Lucknow from 9th April, 2007 till further orders, considering the difficulty of pronouncing the judgment reserved at Allahabad at Lucknow reserved at Allahabad in which matters of public importance were involved the Court decided to pronounce operative part of the judgment to be followed by detailed reasons.

In view of the above backdrop, now the Court is considering the arguments raised by the parties and assigning the reasons.

Sri N.A. Khan, learned counsel for the petitioners, urged that the the petitioners are entitled to be taken on Grant-in-Aid as religious minority institution as minority has already been notified by the Union of India by notification dated 23.10.1993 issued under Section 2(c) of the National Commission for Minorities Act, 1972 and Muslims, Sikhs, Budhists, Parsees and Christians were recognised as religious minorities. He further urged that as the Muslim population is less than 50% of the total population of India, they were rightly recognised as minorities. Notification dated 23.10.1993 recognising Muslims and other religious groups as minorities was rightly issued. It was urged by Sri Khan, learned counsel for the petitioners, that petitioners are entitled to get Grant-in-Aid as a Muslim minority institutions as they fulfil all the conditions for Grand-in-Aid as Muslim minority Institution and the Institutions mentioned in the list of Grant-in-Aid which are recognised Minority Institutions were wrongly recognised on Grant-in-Aid as Minority Institutions. He further urged, on the strength of Paragraph-9 of the Supplementary Affidavit of Zulfqkar Ahmad-petitioner no.2 dated 31st January, 2007, that the respondent in collusion to the Secretary Sri Chandra Prakash by taking illegal gratification of Rs. 5 lacs has taken certain more institutions on grant including Madarsa Khanam Zan of Varanasi and Madarsa Ahle Sunnat Ateequia, Gonda. He further referred to Paragraph-10 of the Supplementary Affidavit and urged that the same demand is being made from petitioners' Institution and a demand of Rs.8 lacs is being made in respect of other newly prepared 100 institutions whereas the consideration for grant-in-aid to Madrsas recognised in the year 1996 is being refused. He further urged that the orders recognising any institution or Madarasa on Grant-in-Aid against norms as minority institutions and refusal to recognise petitioners' institution for Grant-in-Aid as Muslim Minority Institution due to non payment of illegal gratification are vitiated in law and are liable to be quashed.

Learned Standing Counsel, urged that any religious group is declared as religious minority by the Central Government, the State has to follow the same. He further urged that the religious Minority was declared under the notification dated 23.10.1993 under Section 2(c) of the National Minority Commission Act, 1992 and the State is recognising the same. In the State of U.P., U.P. Minority Commission was also formed for the welfare of the Minority communities consisting of various religious groups in accordance with the Constitution of India.

Sri Shashi Shekhar Tiwari, learned counsel appearing for Union of India and National Commission for Minority of India, New Delhi through its Chairman and the Registrar General, Census Department, New Delhi urged that the notification dated 23.10.1993 was rightly issued and these religious groups including Muslims were rightly recognised as religious minority communities. Inspite of Court's direction, he could not produce any material disclosing basis of declaring any community as religious minority.Justice Sachchar Committee's report called for by the Court was also not filed by the learned counsel for the Union of India, though Union of India, National Commission for Minority of India, New Delhi and State Minority Commission have filed their respective affidavits and the Registrar General, Census Department, New Delhi has also filed details of various Census data including 1951 and 2001 on all India basis as well as Districtwise Data of State of U.P. on religious basis which are on record. Inspite of best efforts neither State nor Central Minority Commission filed any document to show the basis for declaration of any group as minority community.

Sri S.C. Dwivedi, learned counsel for Opp. Party nos. 4 to 6, urged that Opp. Party nos. 4 to 6 were rightly recognised as religious minority institutions on Grant-in-Aid being founded by Muslims minority community. The writ petition by which the petitioners prayed for quashing the order recognising Opp. Party nos. 4 to 6 and other institution taken on Grant-in-Aid as religious Muslim minority institution is liable to be dismissed.

As parties are claiming recognition for Grant-in-Aid for the Madarsas founded by religious Muslim Minority community, this Court will deal with first question what is religion?

The word 'religion' has not been defined in the Constitution of India. The first case considered by the seven Judges' Bench of 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. In Paragraph-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 necessarily theistic. There are well known religions in India like Budhism and Jainism which do not believe in God or in any Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which 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 only lay 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 and observances 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 to religious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitution itself has laid down. Under Art. 26(b), therefore, a religious denomination or organisation enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according 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. Union of India further considered what is the religion. In Paragraph-12 of the judgment, Apex Court observed as follows:-
"12.............The Constitution considers Religion as a matter of though, expression, belief, faith and worship, 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 AIR 1954 SCR, p. 388, Ratilal Panachand Gandhi v. State of Bombay, AIR 1961 SC 1402, Durgah Committee Ajmer v. Syed Hussain Ali Brothers, AIR 1963 SC, 1638, Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, AIR 1964 SC, 1501, Birakishore v. State of Orissa and AIR 1966 SC 1119, Sasti Yagnapurushdasji 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 and Phrases", 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 impose of 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 to moral questions, only a recognition of a conscious duly to obey restraining principles of conduct. In such 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 as source 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; and apprehension, 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 or worship.
"'The term 'religion' as used in tax exemption law, simply includes (1) a belief, not necessarily referring to supernatural powers; (2) a cult, involving a gregarious association openly expressing the belief; (3) a system of moral practice directly resulting from an adherence to the belief; and (4) an organisation within 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 beings capable of exercising power over the human race, as commonly accepted it means the formal recognition 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 the use 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 an adjustment of human activities to the requirements of that power as may enable the individual believer to exist more happily is common to all 'religions'. The term 'religion' has reference to one's views on his relations to his Creator, and to the obligations they impose on reverence for His being and character and obedience to his will.
"The term 'religion' has reference to one's view of his relations to his Creator, and to the obligations they impose of reverence for his being and character, and of obedience to his will. With obligations he may 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 secure its 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, moral obligation 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 two kinds 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 are Buddhism, 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 Chaitanya Mahaprabhu, ISCON, Saint Nimbarkacharya, Philosophy of Saint Ramanand, Theosophical Society of India, Nirankaris, Panth founded by Swami Vivekanand on the basis of philosophy of Rama Krishana Paramhans, Religion beleiving Lord Rama as God, Religion believing Lord Krishna as God, Aghorpanth, Sufism, Saint Ravidas, Saint Tukaram and other different beliefs, thoughts and religions and different religions believing on different God and Goddess, Tribals who worship the Nature, Tribals have their own God/Goddess in India, hundreds of such Tribal groups who worship different God/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 and Madhya Pradesh. Considering the definition of religion as defined by the Apex Court, all these are religions born, developed and existing in India.

It was argued by learned counsel for the parties that Islam, Christianity and other religions notified as religious minority under the notification dated 23.10.1993 and all these religions were rightly declared as religious minority communities in comparison to majority, i.e., Hindus.

It was further urged by Chaudhary N.A. Khan, learned counsel for the petitioners, that in view of the minority in comparison to the Hindus, petitioners as well as entire 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 and petitioners' Madarsa is also entitled to get recognition for Grant-in-Aid as religious minority institution.
All the parties were heard on this question also.
On consideration of arguments of learned counsel for the parties and relevant provisions of National Commission of Minorities Act and notification dated 23.10.1993, the Court is considering this question as follows:-
Our Parliament has enacted National Commission for Minorities Act, 1992 (Act No. 19 of 1992). By a notification dated 23rd October, 1993, in exercise of power under Section 2(c) of the National Commission for Minority Act, 1992, the Central Government notified follower religious communities as minority communities:-
1.Muslims,
2.Christians,
3.Sikhs,
4.Buddhists and
5.Zoroastrians

Though this Court by a specific direction directed Union of India and other Opp. Parties to inform the Court what are the basis or reasons or criterion for declaring any community as religious minority community, but neither Union of India not the State of Uttar Pradesh brought any material on record to show 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 the proceedings of the Constituent Assembly and various judgments of Apex Court and other Court. 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 of Karnataka, AIR 2003 SC 356 has also considered report of the Advisory Committee on minority placed in 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 considered inequitable. All the people of India are not alike, and that is why preferential treatment to a special section 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 and confidence, even though the minorities cannot be per se regarded as weaker sections or underprivileged segments of the society."
Paragraphs 158, 159 and 160 of the judgment of the Apex Court is also very relevant to the controversy involved 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 minor languages and dialects. The essence of secularism in India can best be depicted if a relief map of India is made in mosaic, where the aforesaid one billion people are the small pieces of marble that go into the making 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 the different 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 in making of the whole. The variations of the colours as well as different shades of the same colour in a map is the result of these small pieces of different shades and colours of marble, but even when one small piece of marble is removed, the whole map of India would be scarred, and the beauty would be lost.

159. Each of the people of India has an important place in the formation of the nation. Each piece has to 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 among the people of India, but it gives equal importance to each of them, their differences notwithstanding, for only then can there be a unified secular nation. Recognizing the need for the preservation and retention of different pieces that go into the making of a whole nation, the Constitution, while maintaining, inter alia, the basic principle of equality, contains adequate provisions that ensure the preservation of these different pieces."

One of the Hon'ble Judge in Eleven Judges' Bench of the Apex Court in Paragraphs 169, 170 and 184 observed as follows:-

"169. Dr. B.R. Ambedkar while intervening in debate in regard to amendment to draft Art.23 which related to the rights of religious and linguistic minorities stated that "the term 'minority' was used therein 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 the services and so on." According to him, the word minority is used not merely to indicate, the minority in technical sense of the word, it is also used to cover minorities which are not minorities in the technical sense but which are nonetheless minorities in the cultural and linguistic sense. Dr. Ambedkar cited following example which runs as under:

"For instance, for the purposes of this Art. 23, if a certain number of people from Madras came and settled 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 settled in Bengal, although they may not be minorities in technical true sense, they would be cultural and linguistic minorities in Bengal.
The Article intends to give protection in the matter of culture, language and script not only to a minority technically, but also to a minority in the wider sense of the term as I have explained just now. That is the reason why we dropped the word minority because we felt that the word might be interpreted in the narrow 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 not minorities but minorities nonetheless." (See Constituent Assembly Debates Official Report reprinted by Lok Sabha Secretariat).

170. The draft article and the Constituent assembly Debates in unambiguous terms show that minority status of a group of persons has to be determined on the basis of population of a State or Union Territory.
184. In view of what has been stated above, my conclusion on the question who are minorities either religious 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 linguistic group who are less than fifty per cent, of total population of the State in which educational institution is established 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), The Ahmedabad 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 on the minorities (linguistic or religious. The word 'minority' is not defined in the Constitution but literally it means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of two numbers, sections or group called 'majority'. In that sense, there may be political minority, religious minority, 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 the minority institution cannot have such conditions attached to it, which will in any way dilute or abridge the rights of the minority institution to establish and administer that institution. The conditions that can normally be permitted to be imposed, on the educational institutions receiving the grant, must be related to the proper utilization of the grant and fulfilment of the objectives of the grant. Any such secular conditions so laid, such as a proper audit with regard to the utilization of the funds and the manner in which the funds are to be utilized, will be applicable and would not dilute the minority status of the educational institutions. Such conditions would be valid if they are also imposed on other educational institutions receiving the grant."

The Apex Court in T.M.A. Pai Foundation case (supra) has recoded a finding in Paragraph-158 that India 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 that Muslims are neither unprivileged nor weaker section of the Indian society, but the protection of minority 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 basis of two nations theory India was partitioned on the ground that Hindus and Muslims constitute two nations, most of the Muslims were expected to go to Pakistan and only few nationalist Muslims were expected to remain in India who were insecure or lacking confidence at the time of partition. The questions arise to be considered Whether sense of insecurity and lack of confidence prevailing at the time of partition still continuing in 2007 and Muslim community are still continuing as minority and how 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 of Constituent 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 Assembly appointed an Advisory Committee on minority, which submitted a report on minority rights before the Constituent 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 minorities according to their strength and population and prepared a Schedule in three parts, the same is being reproduced below:-
"...We have divided the minorities according to their strength or according to their population. In the Schedule the three parts are set out and dealt with separately because they require separate consideration proportion to their strength...."

The Court is considering of only such religious minorities mentioned in the Schedule of Advisory Committee on Minority, notified in notification dated 23.10.1993 issued by Government of India under Section 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.
1.Anglo-Indians.
2.Parsees.

B- Population not more than 1-1/2 per cent.
3.Indian Christians.
4.Sikhs
C- 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 the subsequent section may fit in and therefore this is merely a formal matter. There is no controversy about 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 some special rights including proportionate representation of Muslims. Deliberations made in Constituent Assembly 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 do not do anything to spoil the good effect. I would like to assure them on behalf of us all that they will never have any occasion to repent what they have conceded. It should always be remembered that we are, speaking the bare truth, a highly charitable and liberal-minded people. Some of our Muslim friends, mostly as a result of the British policy, painted us as tyrants and majority-made oppressors. I have never found any justification for such an accusation, but an unjust and untrue charge was repeated ad nauseium and somehow sustained throughout the last so many years. It is upon those false foundations 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 that no minority is going to try any more to deprive others of what legitimately belongs to them. For many years past, it was the majority that has been tyrannized. Unfortunately, the so-called majority is dumb and deaf and although many of us try always to speak in their name, I have no hesitation in stating that we have completely failed in translating our words into action. May I ask, Sir, what place has been given 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. What place have we assigned to them except to visualize that they will as heretofore blindly, meekly and religiously vote for any one we will choose for them. From this point of view, the situation is gloomy even today...."

Mr. H.J. Khandekar, one of the members of the Constituent Assembly while replying the same on 28th August, 1947 made following speech:-
".....Speaking plainly it means that he desires separate electorates in a different form. I may explain to you the effects of separate electorates in this country. It was because of Lord Mortley Minto that Muslims got separate electorates and the result was that our country was divided into two. The same separate electorates are being brought before us in the form of percentage. If this is accepted either for Harijans 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 Pakistan within India. Much suffering has been caused already. India has been divided into two. Brother Muslims have got what they wanted and was for their benefit. Having got that, they should be good enough not to try to create Pakistan within India and should not bring an amendment of this sort in this House......"

Mr. Naziruddin Ahmad and other speakers also wanted some reservation for muslim community in the Constitution of India, which was refused by the Constituent Assembly and Honourable Sardar Vallabhbhai J. Patel, President of Advisory Committee while replying for such demands of members of the minorities made following speech in the Constituent Assembly, relevant part of which is being quoted below:-

"....I thought that our friends of the Muslim League will see the reasonableness of our attitude and allow themselves to accommodate themselves to the changed conditions after the separation of the country. But I now find them adopting the same methods which were adopted when the separate electorates were first introduced in this country, and in spite of ample sweetness in the language used there is a full dose of poison in the method adopted. (Hear, Hear). Therefore, I regret to say that if I lose the affection 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 may see 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 remember that history. In Congress history this is known as the Mohammad Ali Formula. Since the introduction of 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 the representatives of the Muslim League. There was considerable tension on this question and at one time there 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 by that settlement? No. We now have got the division of the country. In order to prevent the separation this 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 and you say, let us introduce it again and have another separation. I do not understand this method of affection. Therefore, although I would not have like to say anything on this motion, I think it is better that we know our minds perfectly each other, so that we can understand where we stand. If the process that was adopted, which resulted in the separation of the country, is to be repeated, then I say: Those who want that kind of thing have a place in Pakistan, not here (Applause). Here, we are building a nation and we are laying the foundations of One Nation, and those who choose to divide again and sow the 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 have seen your affection. Why talk of it? Let us forget the affection. Let us face the realities. Ask yourself whether you really want to stand here and cooperate with us or you want again to play disruptive tactics. Therefore, when I appeal to you, I appeal to you to have a change in your heart, not a change in the tongue, because that won't pay here. Therefore, I still appeal to you: "Friends, reconsider your attitude and withdraw your amendment". Why go on saying "Oh, Muslims were not heard; Muslim amendment was not carried". If that is going to pay you, you are much mistaken, and I know how it cost me to protect the Muslim minorities here under the present condition and in the present atmosphere. Therefore, I suggest that you don't forget that the days in which the agitation of the type you 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 and remember, you are the people who were responsible for it, and not those who remain in Pakistan. You led 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 me and ask me to say for the purpose of securing the affection of the younger brother that I must agree to the same, thing again to divide the country again in the divided part. For God's sake, understand that we 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 towards you, but there must be reciprocity. If it is absent, then you take it from me that no soft words can conceal what is behind your words. Therefore, I plainly once more appeal to you strongly that let us forget and let us be one nation....."

The amendment proposed by the Muslim members were refused by the Constituent Assembly on the reservation 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 be recognised".

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, all sorts of efforts are being made to increase the population of a particular section in this country, so that once again efforts may be made to further divide the country. There is ample proof, both within this House and outside that many who live in this country are not prepared to be the citizens of this country. 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