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Thursday, 5 September 2013


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

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. 

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