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.
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