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 refugees moving about with their children and I find them at railway stations, shops, hotels, bakeries and at numerous other places. The men of these bakeries abduct these women and children. There should be legislation to stop this. I would request you that an early move should be made to stop all this and millions of people would be saved.

I submit that we cannot now tolerate things of this nature. We are being attacked and we do not want that India's population, the numerical strength of the Hindus and other communities should gradually diminish, and after ten years the other people may again say that "we constitute a separate nation". These separatist tendencies should be crushed.
Therefore, I request that section 17 may be retained in the same form as is recommended by the Advisory Committee."

In Constituent Assembly debate dated 27th August, 1947 Sri B. Pocker Sahib Bahadur, a Representative of Muslim from Madras made following statement:_
".....At present the Muslims are strong and well-organised. Now, if they are made to feel that their voice cannot even be heard in the Legislature, they will become desperate. I would request you not to create that contingency...." (Page 214 of the Constituent Assembly Debates)
Aforesaid statement of a Muslim representative was made in the Constituent Assembly debates after partition of the country has taken place.

Participating in the debate of the Constituent Assembly, Sri M. Ananthasayanam Ayyangar, a representative of Madras in his speech before the Constituent Assembly stated as follows:-
"....In my part of the world, the Madras Presidency, though the Muslims are in a minority, they also joined in this move for separating the country. Have you a responsible for it? Have you a paralled to this carriage that is going on in the Punjab whoever may be responsible for it."

Replying the debates, the President of the Advisory Committee on Minority has made a speech, relevant part of which is being reproduced below:-
"My friends the Mover of this amendment says the Muslim community today is a strong-knit community. Very good, I am glad to hear that, and therefore I say you have no business to ask for any props (Cheers). Because there are other minorities who are not well-organised, and deserve special consideration and some safeguards, we want to be generous to them...."

This was the situation at the time immediately after partition coupled with the finding recorded by the Apex Court that Muslim minorities were never regarded as weaker and unprivileged section of the society, but only for a sense of security and confidence minorities were given special treatment. In Paragraph 246 of the Eleven Judges' Bench judgment of the Apex Court in T.M.A. Pai Foundation and others v. State of Karnataka case reported in AIR 2003 SC 356, word minority was defined and it means 'a non-dominant' group. It is a relative term and is referred to, to represent the smaller of two numbers.

Considering the controversy of Muslim minority in its entirety, this Court feels it appropriate to consider whether the Muslims in India or in State of Uttar Pradesh are non-dominant group which is the intention of the Constitution of India as held by the Apex Court in Eleven Judges' Bench Judgment in T.M.A. Pai Foundation case (supra) followed by the judgments of the Apex Court reported in 2005 (3) ESC 373, (2003) SCC (6) 697, Islamic Academy of Education and another v. State of Karnataka and others.

The Apex Court while considering the case of Jain community claiming as minority has laid down certain principles relating to minority and made observations that such demands may lead to multi-nationalism.
In this regard Paragraphs 10, 14, 20, 21, 22, 23, 25, 32, 33, 34, 36 of Three Judges' Judgment of the Apex Court in Bal Patil and another v. Union of India and others reported in AIR 2005, SC, 3172 are very relevant, same are being reproduced below:-
"10. The expression 'minority' has been used in Article 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith and worship'. Group of Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantees for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving communities who happen to be in majority and like to gain political power in a democratic form of Government based on election.
14. On considering the general functions of the Commission enumerated under section 9 which are only illustrative and not exhaustive, the Commission cannot be said to have transgressed its authority in entertaining representation, demands and counter-demands of members of Jain community for the status of 'minority'. Keeping in view the provisions of the Act, the recommendation made by the Commission in favour of the Jains is in the nature of advice and can have no binding effect. The power under Section 2(c) of the Act vests in the Central Government which alone, on its own assessment, has to accept or reject the claim of status of minority by a community.
20. The history of the struggle for Independence of India bears ample testimony of the fact that the concept of 'minorities' and the demands for special care and protection of their religious and cultural rights arose after bitter experience of religious conflicts which intermittently arose in about 150 years of British Rule. The demand of partition gained momentum at the time the Britishers decided to leave by handing over self-rule to Indians. The Britishers always treated Hindus and Muslims as two different groups of citizens requiring different treatment. To those groups were added Anglo-Indians and Christians as a result of large scale inter-marriages and conversions of several sections of communities in India to Christianity. Prior to passing of the Independence Act of India to hand over self-rule to Indians, Britishers in the course of gradually conceding some democratic right to Indians, contemplated formation of separate constituencies on reservations of certain seats in Legislature in proportion to the population of Hindus and Muslims. That attempt was strongly resisted by both prominent Hindu and Muslim national leaders who had jointly and actively participated in the struggle for independence of India.
21. The attempt of the Britishers to form separate electorates and make reservations of seats on the basis of population of Hindus and Muslims, however, ultimately led to revival of demand for reservation of constituencies and seats in the first elected Government to be formed in free India. Resistance to such demands by Hindu and some Muslim leaders ultimately led to partition of India and formation of separate Muslim State presently known as Pakistan.
22. Many other revelations concerning competing claims for reservation of seats on religious basis can be gathered from the personal diary of prominent national leaders late Abdul Kalam Azad. The diary was made public, in accordance with his last wish only after 25 years of independence. The publication of Azad's diary made it necessary for constitutional expert H.M. Seervai to re-write his chapter under caption 'Partition of India - Legend and Reality' in his book on 'Constitutional Law of India'. Many apprehensions and fears were expressed and disturbed the minds of the Muslims. They thought in democracy to be set up in India, the Hindus being in majority would always dominate and retain political power on the basis of their voting strength. There were also apprehensions expressed by many prominent Muslim leaders that there might be interference with and discouragement to their cultural, religious and educational rights. Abdul Kalam Azad acted as mediator in negotiations between the national leaders of the times namely late Nehru and Patel on one side and late Jinnah and Liaqat Ali on the other. Nehru and Patel insisted that in the new Constitution, there would be one united India belonging to people of various religious faiths and cultures with all having full freedom of their social, cultural religious and other constitutional rights. They advocated one single citizenship to every Indian regardless of his language or religion. The opposing group of Muslim leaders, in the interest of members of their community, insisted on providing to them participation in democratic processes proportionate to their ratio of population and thus counter-balance the likely domination of Hindu majority. They also insisted that separate electorate constituencies based on their population be formed and seats be reserved for them in different parts of India. Late Abdul Kalam Azad tried his utmost to find a midway and thus break the stalemate between the two opposing groups but Nehru and Patel remained resolute and rejected the proposal of Jinnah and Liaqat Ali. The tragic result was that provinces with the highest Muslim population in the erstwhile States of Sindh, Punjab and Baluchistan had to be ceded to form a separate theocratic nation - Pakistan. See the following paragraph 1,314 at pg. 153 of 'Constitutional Law of India' by H.M. Seerval, Fourth Edition, Vol. I:-
"1,314. Azad passionately believed in Hindu-Muslim unity, but he found that from the mid-twenties Gandhi had lost interest in Hindu-Muslim unity and took no steps to secure it. Further, Azad had played a leading part in providing a framework for the Constiution of a free and united India on which the Cabinet Mission Plan was largely based, a Plan which offered India her last chance to remain united. However, Gandhi accepted partition instead, Azad did his utmost to prevent the partition of India, but he failed to persuade Nehru and Gandhi not to accept partition."
23. It is against this background of partition that at the time of giving final shape to the Constitution of India, it was felt necessary to allay the apprehensions and fears in the minds of Muslims and other religious communities by providing to them special guarantee and protection of their religious, cultural and educational rights. Such protection was found necessary to maintain unity and integrity of free India because even after partition of India, communities like Muslims and Christians in greater numbers living in different parts of India opted to continue to live in India as children of its soil.
25. Parsis constituted a numerically smaller minority. They had migrated from their native State Iran and settled on shores of Gujarat adopting the Gujarati language, customs and rituals thus assimilating themselves into the Indian population.
32. We have traced the history of India and its struggle for independence to show how the concept of minority developed prior to and at the time of framing of Constitution and later in the course of its working, History tells us that there were certain religious communities in India who were required to be given full assurance of protection of their religious and cultural rights. India is a country of people with the largest number of religions and languages living together and forming a Nation. Such diversity of religions, culture and way of life is not to be found in any part of the world. John Stuart Mill described India as "a world placed at closed quarters". India is a world in miniature. The group of Articles 25 to 30 of the Constitution, as the historical background of partition of India shows, was only to give a guarantee of security to the identified minorities and thus to maintain integrity of the country. It was not in contemplation of the framers of the Constitution to add to the list of religious minorities. The Constitution through all its organs is committed to protect religious, cultural and educational rights of all. Articles 25 to 30 guarantee cultural and religious freedoms to both majority and minority groups. Ideal of a democratic society, which has adopted right of equality as its fundamental creed, should be elimination of majority and minority and so-called forward and backward classes. Constitution has accepted one common citizenship for every Indian regardless of his religion, language, culture or faith. The only birth in India. We have to develop such enlightened citizenship where each citizen of whatever religion or language is more concerned about his duties and responsibilities to protect rights of the other group than asserting his own rights. The constitutional goal is to develop citizenship in which everyone enjoys full fundamental freedoms of religion, faith and worship and no one is apprehensive of encroachment of his rights by others in minority or majority.
33. The constitution ideal, which can be gathered from the group of articles in the Constitution under Chapters of Fundamental Rights and Fundamental Duties , is to create social conditions where there remains no necessity to shield or protect rights of minority or majority.
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. If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensure. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In 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 multi-nationalism in various sections of people of Bharat.
36. These concluding observations were required after the eleven-Judges' Bench in TMA Pai Foundation case (supra) held that claims of minorities on both linguistic and religious basis would be each State as unit. The country has already been reorganized in the year 1956 under the States Reorganization Act on the basis of language. Differential treatments to linguistic minorities based on language within the State is understandable but if if the same concept for minorities on the basis of religion is encouraged, the whole country, which is already under class and social conflicts due to various divisive forces, will further face division on the basis of religious diversities. Such claims to minority status based on religion would increase in the fond hope of various sections of people getting special protections, privileges and treatment as part of constitutional guarantee. Encouragement to such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based multi-nationalism. Our concept of secularism, to put it in a nut-shell, is that 'State' will have no religion. The States will treat all religions and religious groups equally and with equal respect without in any manner interfering with their individual rights of religion, faith and worship."

In view of the judgment of the Apex Court in Bal Patil case (supra) after considering T.M.A. Pai Foundation case, it is clear that intention to provide minority status was to remove sense of insecurity and lack of confidence in the mind of Muslim and other religious communities at the time of partition of India and further the Apex Court cautioned the country not to create a theocratic State based on multi-nationalism and refused to recognise Jain as a minority.

Considering the matter in its entirety, criterion for minority, i.e., population and strength and also judgments of the Apex Court referred above that the intention was to provide protection to a non-dominant group, this Court is of the view that at present Muslim religious community in U.P. is not a religious minority as there is no sense of insecurity or lack of confidence prevailing amongst them in present scenario. According to the finding of the Apex Court in T.M.A. Pai Foundation case (supra) that Muslim minority is not weaker or unprivileged section of the society.

Historical Back Ground of Muslim Minorityb

Muslim community started claiming as religious minority only just before independence. Islam came in India in 712 A.D. through foreign invaders. First invasion was made by Mohd. Bin Qasim and thereafter a series of invasions were made by Mohd. Gajni and Mohd. Gori etc. Mohd. Bin Qasim established Islamic Rule in Sindh and Multan in 712 A.D. After Mohd. Gori, Mohd. Qutubbuddin Aibak, Akram Shah, Altmus, Gyasuddin Blaban, Razia Sultan, Jalaluddin Khilji, Alauddin Khilji, Firoz Shah Tughlak, IbrahimmLodhi and other Sultans ruled India and thereafter Babar established Moghul rule in 1526 followed Humaun, Akbar, Jahangir, Shahjahan, Aurangjeb and other Moghul rulers and lastly by Bahadur Shah Zafar in greater India. Indian society other than Muslim minority was ruled by Muslim Rulers for about one thousand years over most parts of India. For all these years Indian society other than Muslim minority was subjected to pay Jezia Tax in most parts of India to remain as Hindus and to perform their cultural and religious rites.

Relevant Paragraphs at page 50 of a Book 'Advanced Study in the History of Medieval India (Vol. III: Medieval Indian Society and Culture) by J.L. Mehta is relevant in the present context, the same is being reproduced below:-

"Mohd. Bin Qasim, who laid the foundation of the Muslim Rule in Sindh and Multan (711-12), secured the status of Zimmis for his hindu subjects from the caliph and accorded protection to their lives and property on the receipt of jaziya. Obviously, this step was necessitated as a matter of political expediency because in spite of the loss of independence, the hindu masses, in general offered odgged resistence to forced conversions. It was physically impossible for Qasim and handful of his Arab followers to compel the vanquished multitude 'to choose between Islam and death', particularly, when they were 'armed to the teeth'. Recognition of hindu 'idolators' of Arabia. His example was followed by the turkaofghan rulers of Delhi in their dealings with the hindus. The latter were not treated as full-fledged citizens of 'the Islamic stte' albeit they received status of zimmis-'the second-class' or 'inferior' citizens, which denied them all political rights and made them suffer from certain socio=religious and economic disabilities so as 'to prevent them from growing strong. In the words of Jadu Nath Sarkar,
"The very term zimmi is an insulting title. It connotes political inferiority and helplessness like the status of a minor proprietor, perpetually under a guardian; such protected people could not claim equality with the citizens of the Muslim theocracy."
There developed, with the passage of time, four schools of though for the authoritative interpretation of shara or 'the Islamic law'; these were known as Malakite, Shafite, Hanbalite and Hanafite after the names of their founders-Malik Ibn Anas (715-95 A.D.), Ash-Shafi (767-820), Ahmad Bin Hanbal (780-855) and Abu Hanifah (699-766), Doctors of the first three schools offered no other alternative but death to 'the idolators' including the hindus, on their refusal to embrace Islam. It were the exponents of the Hanifah school alone who permitted their existence in the Islamic state as zimmis. That explains the intesne hatred of the non-muslims by the orthodox muslims fanatics, in general; whenever a muslim ruler fell under the spell of such orthodox ulema, he adopted the policy of religious intolerance and persecution of his hindu subjects. It created a permanent gulf between the hindus and muslims which could not be bridged effectively for a long time. According to an observation, 'the politcal and religious condition under which the hindus were forced to live in a muslim state raised a great barrier between the two communities. The political supremacy of muslims was absolute; the hindus not only enjoyed no political status in practice, but could not even aspire to it under Islamic theory'. While living in their own country and in possession of their own hearths and homes, the hindus were reduced to the status of inferior citizens of 'an Islamic state' as the sultanate of Delhi was usually styled. On the other hand, the muslims, though in microscopic minority, constituted the privileged or the most favoured children of the state who enjoyed the bounties and benefited from all the public welfare and other state enterprises."

Relevant paragraph at page 42 of the Book 'Advanced Study in the History of Medieval India (Vol. III: Medieval Indian Society and Culture) by J.L. Mehta is also relevant, the same is being quoted below:-
"Thus, Islam does not separate religion from politics; in fact, the concept of religion in Islam emerged first, the state was 'an after-thought'. The additional Islamic law does not acknowledge 'the independent existence of state, nor is state regarded as a primary condition of human society. It makes the State completely subservient to the religion of the Prophet. According to the Islamic law, the state is only an instrument to serve the creed in the attainment of its objectives or fulfilment of ideals of the muslim brotherhood. The Islamic theory of state was, therefore, based on a three fold idea of one scripture, one sovereign and one nation; scriptu was the hly Quran, sovereign was the imam (leader), also called Khalifa (the caliph)- political successor to the Prophet, and nation was the millat-the muslim brotherhood. The basic feature of the state, according to this theory, was its 'indivisibility' in all the three aspects. It contemplated the establishment of a theocratic state based on the Islamic law, and recommended only one sovereign, the caliph, to rule over the whole of the muslim world. The caliph was styled as the amir ul momnin-'the leader of the faithful'; his office was thus a political institution based on Islamic injunctions. The sovereignty resided in the millat which elected their imam or the caliph, and the latter was under religious obligation to implement the Islamic law on and for the benefit of his muslim subjects. The Islamic government was, therefore, one which was composed of the muslims, by the muslims and existed for the happiness and welfare of the muslims alone."
This paragraph has references of Books such as Arnol J Toynbee, A Study of History: 12 vols; OUP, 4th impression, 1948, IV, p. 230, Wolseley Haig, CHI,III, p.-10, A.B.M. Habibullah, Foundation of Muslim Rule in India; Allahabad, 2nd ed; 1961, p.2., Toynbee, Study of History, pp.clt; VI, p. 285, Toynbee, Study of History, pp.clt; IV, p. 98, Toynbee, Study of History, pp.clt; VI, pp.98-100, Toynbee, Study of History, pp.clt; VI, p.5,129, 131-132, 245-60.

Pt Jawahar Lal Nehru in his Book titled as 'Glimpses of World History' (Published by Oxford University Press) has given detailed this in Chapter 66. Relevant passage finds place at page 214 of the Book, the same is being quoted below:-
".....Meanwhile, the people of the country, the Hindus, were being slowly converted to Islam. The process was not rapid. Some changed their religion because Islam appealed to them, some did so because of fear, some because it is natural to want to be on the winning side. But the principal reason for the change was economic. People who were not Muslims had to pay a special tax, a poll tax-jezia, as it was called. This was a great burden on the poor. Many would change their religion just to escape it. Among the higher classes desire to gain Court favour and high office was a powerful motive....."

How the assessment of amount of jezia tax was payable by Hindu population is clear from the Book titled as 'The Administration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi. The relevant passage is being quoted below:-
"...The assesses were divided into three categories in accordance with their wealth. Those in possession of ten thousand dirhems or more were considered to be wealthy; those who had less than ten thousand but more than two hundred dirhems were classified as belonging to the middle class, those who had less than two hundred dirhems but enough, in addition to the cost of maintaining themselves and their dependents, to pay the tax were considered to be poor. The first category was required to pay forty-eight dirhems per annum; the second twenty-four; and the third twelve. These seem to have been the rates for the urban areas; in the countryside the government levied a flat charge of four per cent of the state demand upon agricultural produce. If the agents of government failed to collect the jiziyah from any one for an entire year, he could not be charged the sum later. A dirhem was roughly 550 English grains of silver..."

The history further makes it clear that population of any community played a vital role for affecting India's polity as well as Geography. Afghanistan was part of Greater India as Gandhar. It was also part of Greater India up to 1739 A.D. and Buddhism was a dominant religion in Afghanistan. Conversion of Buddhists into Islam in Afghanistan started process of separation which completed in 1739 AD when Nadirshah separated Afghanistan from India and merged in his empire. After death of Nadirshah Afghanistan became an independent Muslim State. Due to Islamic Rule for more than one thousand years in Sindh, Punjab, North Western Frontier Provinces and Bengal Hindu majority were converted into Muslim. In the year 1945, the percentage of Muslim population was 54 per cent and Hindus were 45 per cent and others were 1 per cent in Bengal only. Due to certain privileges to Muslims in India Greater India was partitioned in 1947 on the basis of two nations theory that the Muslims and Hindus constitute two nations. Present problem in Kashmir valley is also problem of Majority Muslim population whereas there is no such problem in Jammu and Laddakh where Hindus and Buddhists are in majority. History also makes it clear that due to special privileges to Muslims for more than one thousand years during Muslim Rule, though they were in microscopic minority and special separate rights to Muslims were given by Britishers also after 1906 upto Inidia was actually partitioned on the basis of Muslim population in undivided India. It is clear that population coupled with special rights awarded to Muslims, detailed above, played a greater role in changing history and geography of this country.
As has already been discussed above which is a historical fact that majority of Muslims were converted Hindus and has origin of Hindus ancestors who adopted Muslim religion for various reasons during the period of more than one thousand years of Islamic Rule in the country and the majority of conversion took place due to economic reason of poor who could not pay Jezia Tax compulsorily made payable by Hindu population. Historic Book 'Glimpses of World History' written by Pt. Jawahar Lal Nehru makes it clear that conversion from Hindu community to Muslim religion during muslim Rule took place mostly due to poverty and due to non-payment of Jezia Tax. It is only after the end of the Muslim rule, Hindus and Muslims jointly fought against Britishers in 1857 AD-the first war of independence against foreigners to re-establish India's own rule. This common-ness and nationhood lasted not for more than 50 years, when Muslim League was established in 1906 which started claiming separate rights on the ground of religion which was conceded by Congress as well as British Parliament which ultimately resulted in division of the country on the basis of religion and changed Geography of India.
The above careful study of the history makes it clear that minority rights were given for protecting their right and not to claim any privilege or special rights in comparison to Hindus, but to remove sense of insecurity and lack of confidence in minority, who opposed partition of India, but this minority right was misinterpreted by certain quarters and inspite of the fact that at present the population of Muslim Religious group is more than 18.5 per cent, they are still claiming themselves as religious minority community, though neither there is any insecurity nor there is any lack of confidence in Muslims whereas Muslim Religious group has now become single largest religious dominant group on the basis of population & strength affecting all walks of life including democratic process. It is further clear that in some States of India Muslim population is about 25 per cent and at least more than 13.8% on all India basis. In this backdrop, now Muslims have become a dominant group in all respects and have ceased to be a Religious minority community. As the matter before the Court is relating to Uttar Pradesh, hence the Court is expressing opinion only with regard to Muslim Religious community in Uttar Pradesh. This Court has taken note of historical background, judgments of Apex Court and debates of Constituent Assembly and is of the view that any further recognition of Muslims as a religious minority community will necessarily give rise to multinationalism in India and as such the State of Uttar Pradesh as well as Central Government may consider and pass appropriate orders to delete entry of Muslims as a religious minority community in India.
The above discussions made it clear that ancestors of present Hindu society fought and saved their religion, civilization and culture even by paying Jezia Tax for continuing as Hindu in Islamic Rule in different parts of India and present Indian generation should be grateful for saving their religion, culture and civilisation even under such odd situation.

It is further clear from the History that it was Akbar who did not impose any Jezia tax, but the same was re-imposed lateron by Aurangjeb.

During the period of Muslim Rule for about one thousand year, no member of Muslim community claimed any minority rights. The Britishers thereafter tookover the administration of India. First war of Independence in 1857 was fought by both Hindus and Muslims jointly. After 1857, first war of independence, certain social, political and religious awakening took place in the Indian society. A number of social reformers and religious leaders emerged who worked in the Indian Society some of them were Swami Dayanand Sarswati who established Arya Samaj, Sri Raja Ram Mohan Rai, Swami Vivekanand and various other awakening and political changes also took place in the Indian society towards their rights in this era.

From the Book 'Discovery of India' by Pt. Jawahar Lal Nehru following facts are borne out that how concept of minority was developed in pre independence era:-

Indian National Congress was also established in 1885 and thereafter in 1906, Indian Muslim League was established by some Muslim leaders. Under the banner of Indian National Congress, Hindus and Muslims both participated in the national movement of Independence under the leadership of national leaders belonging to both the communities and ultimately under the leadership of Mahatma Gandhi movement for independence gained momentum. But, Muslim League started claiming separate electorate/franchise for Muslims even prior to 1935.

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

The above historical background makes it clear that the Muslim Religious Community was a privileged class in comparison to Non-Muslim religious communities during Muslim Rules and also continuing as such during British Rule which developed a complex in Muslim Religious Community and in order to revive aforesaid privilege the Muslim Religious Community claimed partition of India. Pakistan, Bangladesh and Afghanistan which were part of ancient India were separated from it and are Islamic States and non-muslim religious communities are compelled to reside under the Islamic Rules.

The intention of Founding Fathers of the Constitution of India was not to create any privilege to minority religious community while introducing Articles 29 and 30 of the Constitution of India. This was just a protection given to minorities due to meagre population and strength treating such religious groups as non-dominant groups/communities. Constituent Assembly has categorised these non-dominant religious groups in three classes in the Schedule, i.e., 1/2%, less than 1-1/2% and above 1-1/2%. This was the criteria fixed by the Constituent Assembly for determining religious or linguistic minority. According to the Apex Court it is the region or the State which is the criteria for determining a religious or linguistic minority. Muslim Religious community is at present more than 18.5% of population in Uttar Pradesh is a dominant religious community and no sense of insecurity or lack of confidence exist amongst them at present. The claim of any religious group/community as privileged class may give rise to other community to make such demands which may be detrimental to nation's unity and integrity.

Pt Jawahar Lal Nehru in his Book 'Discovery of India' at page 382 had described minority in India as under:-
" ....Minorities in India, it must be remembered are not racial or national minorities as in Europe; they are religious minorities. Racially India is a patchwork and a curious mixture, but no racial questions have arisen or can arise in India. Religion transcends these racial differences, which fade into one another and are often hard to distinguish. Religious barriers are obviously not permanent, as conversions can take place from one religion to another, and a person changing his religion does not thereby lose his racial background or his cultural and linguistic inheritance. Latterly religion, in any real sense of the word, has played little part in Indian political conflicts, though the word is often enough used and exploited. Religion differences, as such, do not come in the way, for there is a great deal of mutual tolerance for them. In political matters religion has been displayed by what is called communalism, a narrow group mentality basing itself on a religious community but in reality concerned with political power and patronage for the interested group...."

In his Book 'Discovery of India' at page 392, Pt Jawahar Lal Nehru further noted as follows:-

"Mr. Jinnah's demand was based on a new theory he had recently propunded that India consited of two nations, Hindu and Mislem. Why only two. I do not know, for if nationality was based on religion, then there were many nations in India....."

Above observations of Pt Jawahar Lal Nehru that the question of minority was raised by Muslim leaders in order to gain their political powers would be clear from Chapter II of the Book 'The Administration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi published in 1973 and reprinted in 1973. The relevant part of Chapter II, pages 22 and 23 are being reproduced below:-
"ISLAM takes a comprehensive view of life and does not separate politics from religion....."

"By the time of the Prophet's death, the Muslim state was already strong and well consolidated. IN its essence it was the organized Muslim community functioning as a religious entity to preserve and propagate its beliefs and to provide the facilities to practise them, confronted with socia, economic and political needs to sustain its life as an independent society, hence organized into a state without which its prime object of maintaining its Islamic character could jeopardized. This need could be felt by any religious group, but in Islam religion was not merely a matter of prayer and belief but it also embraced the external behaviour of man to a degree that such a conception of the Islamic community was inevitable. The Muslim thinkers have mostly upheld this conception of the Islamic State. Their legal thinking also has been affected by this belief; indeed this conception is so deeply immersed in the Islamic doctrine that it would be difficult to separate it from religious thought....."

Founding Fathers of Constitution never expected any such privileged and expected to make India a secular State, but given some protection to some of the religious communities having population about 1-1/2% of total population as religious minority community. The History of Minority narrated above also confirms the same.

Upto 1941, Muslim community never claimed any minority rights. The Hindu and Muslim population ratio available on record makes it clear that Muslim population never gone beyond 12.58% prior to 1941.

Following are the details showing percentage of Hindu and Muslim population according to Census of 1921, 1931 and 1941:-
Census of 1921
Hindu - 84.40%
Muslims -9.57%
Census of 1931
Hindu - 84.34%
Muslims -9.86%

Census of 1941
Hindu - 75.89%
Muslims -12.58%

In 1940, Muslim League started claiming separate nation for Muslims on the ground that Muslims constitute a separate nation and Hindus and Muslim could not live together. Muslim leaders at that time were of the view that after independence perhaps Muslims would be ruled by Hindus, though Muslims were rulers prior to British Rule and majority Hindu population was being ruled by Muslim rulers and after independence there would be dominance of Hindus in administration. Muslims were so dominant in 1941 that on the strength of their population which was 12.58% only compelled the people of India to get a separate country for themselves and Islamic State of Pakistan came into existence.

Census of 1951 makes it clear that inspite of the division of India on the ground that Muslims and Hindus form two separate nations with support of Muslim population residing in every State of India supporting the demand of partition of the country, Pakistan was formed and India was divided, it was expected that except very few nationalist Muslims, who opposed partition of India would remain in India. For protection of those nationalist Muslims minority status was granted to them apart from other minority communities, but the majority of Muslim population did not go to Pakistan and remained in India, i.e., 9.09%, according to 1951 Census report, did continue to remain in India. Population of Muslims played an active role in dividing the country in two nations which shows that at any point of time strength & population of Muslim religious community played a vital role in deciding the fate of the India and that is why Sri Pocker Mohammed, a member of Constituent Assembly while delivering his speech rightly said that the Muslims are a strongly knitted community and also that if special rights are not given to them they will become desperate. Muslim religious group at present has become a major dominant force in democratic India on the basis of their population, voting rights and strength in getting elected their representative and own Government on the basis of their voting power.

Out of 5,37,61,925 of rest of population in 1951 Census the Muslims population was 90,58,992 in U.P. which constituted about 1/6th of total population. Census of 2001, makes it clear that out of total population of U.P. 16,61,57,921, 13,39,79,263, was Hindu population and the Muslims population was 3,07,40,158 which is about 1/4th. It is worthy to notice here that population of Muslims throughout India in 1951 was 3,54,10,123 which is almost equivalent to All India population of Muslims of 1951 at present only in Uttar Pradesh.

A perusal of the chart of the Census available on record also makes it clear that in a number of provinces the population of Muslims is more than 25%. In case Muslim community was in a dominant position at the time of partition only on the basis of 12.58% population and only 3% of Muslim population transferred to Pakistan after partition as is clear from the census of the 1951, though most of the population belonging to Muslim Religious Community throughout India supported partition and achieved their goal as is clear from the Constituent Assembly Debates. Such Religious group has now become a majority group again on the basis of their increased strength & population and if proper Training & Education of patriotism and secularism is not given and are left with any religious elements, it may give rise to multi-nationalism in India. This caution was made by the Apex Court in Bal Patil's case (supra) and as such this Court of the firm view that if in 1941, 12.58% population of Muslims was so powerful that they succeeded in dividing the country how the present population of 18.5% of muslims in the State of Uttar Pradesh could be treated as a religious minority community and a non-dominant group.

Following Chart of the Muslim population in some of the Districts of State of Uttar Pradesh shows the strength of Muslim community which appears to be only dominant religious community which could affect the democratic set up of the country:-

Census -2001, U.P.
Districts Hindu s Muslims

Saharanpur 17,23,226 11,32,919
Muzaffarnagar 21,51,009 13,49,629
Bijnor 17,66,391 13,06,329
Moradabad 20,52,014 17,35,381
Rampur 9,05,062 9,45,277
Jyotiba Phule Nagar 8,97,785 5,90,308
Meerut 19,64,504 9,75,715
Baghpat 8,54,718 2,87,871
Ghaziabad 24,61,008 7,82,915
Gautam Buddha Nagar 10,28,937 1,56,415
Bulandshahr 22,85,976 6,13,660
Aligarh 24,38,496 5,31,956
Budaun 24,02,152 6,54,797
Bareilly 23,45,325 12,26,386
Pilibhit 11,73,317 3,90,337
Shahjahanpur 20,28,913 4,55,049
Kheri 24,82,852 6,12,638
Lucknow 28,52,721 7,48,687
Farrukhabad 13,26,118 2,32,599
Kannuj 11,64,479 2,19,104
Kanpur Nagar 34,48,024 6,53,881
Kaushambi 11,16,223 1,74,698
Allahabad 82,84,834 6,27,735
Barabanki 20,72,421 5,89,197
Sultanpur 26,76,468 5,24,642
Bahraich 15,37,177 8,29,361
Shrawasti 8,72,653 3,01,117
Balrampur 10,58,676 6,17,675
Siddharthnagar 14,28,543 6,00,336
Basti 17,62,973 3,06,540
Sant Kabir Nagar 10,73,646 3,41,154
Maharajganj 17,93,304 3,57,822
Kushinagar 23,94,602 4,87,674
Deoria 23,98,395 3,08,731
Azamgarh 33,32,711 5,93,907
Mau 14,94,344 3,53,003
Jaunpur 34,84,557 3,99,186
Ghazipur 27,22,780 3,00,327
Varanasi 26,27,565 4,97,516
Sant Ravidas