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Thursday, 5 September 2013


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. 
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:- 
4.Buddhists and 

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