Considering the various judgments of the Apex Court and High Court, Hinduism represents Indian culture and not a religion, which includes Sikhism, Jainism, Buddhism, Arya Samaj, Kabir Panth, Radha Swamy, Dhan Nirankar and Lingayats etc., the philosophy and thoughts and belief in which Lord, Ram, Lord Krishna, Shaivismwere considered God and a number of other Religions founded by a number of Saints, Acharyas or Panths and several other Philosophers. Each and every tribal, castes, sub-castes have their own God or Goddess, different way of life, different beliefs and thoughts and most of them have different way of worship, all Tribals have different religion with different God and Goddess.
Bhaktimarg, Philosophy of Rama Krishna Panth and Vivekanand Karmayog, Shaivists, thoughts of Gita and several Religions founded by Philosphers and Thinkers such as OSO by Acharya Rajnish, ISCON, who believes in Lord Krishna only. The propounders in the Gyan Yog founded by Saints, philosophers and religious thoughts, Kabirpanthis, and thousands of such thoughts, way of worship and Beliefs.
Basic concept of Hinduism is that way of reaching to the eternal truth and to the Almighty is manifold and has given freedom to all the members of the society to reach to the Almighty through their own way as thoughts, belief the way of worship may be different. Such freedom in the field of religion on Indian soil is derived from thousands of philosophies, Thoughts and different ways of worship, traditions and belief from time to time throughout the history of India. Combination of such religion, thought, belief or way to reach to the eternal truth is Hinduism. Hinduism cannot be equated as religion but it represents a civilization & culture and way of life born and brought up on Indian soil and as such the arguments of Sri N.A. Khan that Muslims minority may be considered 50% to the largest religious community, i.e., Hindu is totally unsustainable in law. Every religion, thought, belief way of worship born and broughtup on Indian soil is altogether different/distinct from each other within the fold of Indian culture which assimilate in Hindu culture. In view of the discussions made above that more than several hundred religions within the fold of Hindu culture constitute a separate and distinct religion and each religion group is a religious minority in India. Thus, all religious groups within the Hindu culture are religious minority in comparison to single muslim religious majority of having population of 18.50% in State of U.P. and 13.80% in all India basis.
It is surprising that Union of India by Notification dated 23.10.1993 recognized Sikhism, Jainism and Buddhism as minorities and did not consider any other religion like Bahabi, Sufism, Aryasamaj, Kabirpanthi, Aghorpath and other religions born and broughtup in India as minorities, though the Apex Court in the case of Arya Samaj has considered as Arya Samajis as a religious minority group in the State of Punjab. The State of U.P. and Union of India by issuing the notification under the National Minority Act, 1992, have not applied mind as to any other Religious group at all. In fact, Buddhism and Jainism are also part of the Indian culture. They were born and developed as a reformative religion in Indian society. The Apex Court in Bal Patil and another V. Union of India and others (supra) referred above considered question of minority and laid down law.
As stated (supra) that neither Union of India nor State of Uttar Pradesh or Minority Commission of India or State Minority Commission brought any material to show that what are the norms for declaring any community as religious minority community, this Court on consideration of proceedings of Constituent Assembly and judgments of the Apex Court considered the question of religious minority and its various aspects, particularly, when Sri S.M.A. Qazmi, learned Advocate General, State of Uttar Pradesh did not give any assistance to the Court, though being Advocate General of the State of U.P. he was expected to render assistance to the Court, but he only chose to depute Sri B.N. Yadav and Sri Jai Krishna Tiwari, learned Standing Counsel, for assistance of the Court, though hearing of the case continued for about three months.
Thus the Constituent Assembly while framing Articles 29 and 30 of the Constitution of India was to provide equality of minority and majority and not to give any privilege based on inequality.
Constituent Assembly provided protection to Religious Minority Communities to ensure equality with rest of the society which was felt necessary by the framers of Constitution of India taking into consideration the circumstances prevailing at that time.
In Ahmedabad St. Xaviers' College Society Vs. State of Gujarat, (1974) 1 SCC 717, in paragraph 9', the Apex Court has held that:
"9. Every section of the public, the majority as well as minority has rights in respect of religion as contemplated in Articles 25 and 26 and rights in respect of language, script, culture as contemplated in Article 29. The whole object of conferring the right on minorities under Article 30 is to ensure that there will be equality between the majority and the minority. If the minorities do not have such special protection they will be denied equality."
Thus, the Constituent Assembly introduced Articles 29 and 30 of the Constitution of India to provide such rights to minority to maintain equal right to them with majority and not to create any privilege or inequality.
In (2005) 6 SCC 537, P.A. Inamdar and others Vs. State of Maharashtra and others, (Seven Judges Bench), the Supreme Court of India in Paragraph 95, has defined and considered the question of minority and held linguistic and religious minority being a non-dominant group or numerically less. Paragraph 95 of P.A. Inamdar case (Supra) is quoted as follows:
"Minority" and "minority educations institutions"
"95. The term "minority" is not defined in the Constitution. Chief Justice Kirpal, speaking for the majority in T.M.A.Pai Foundation Vs. State of Karnataka, (2002) 8 SCC 481 took a clue from the provisions of the States Reorganisation Act and held that in view of India having been divided into different linguistic States, carved out on the basis of the language of the majority of persons of that region, it is the State, and not the whole of India, that shall have to be taken as the unit for determining a linguistic minority vis-a-vis Article 30. Inasmuch as Article 30(1) places on par religions and languages, he held that the minority status, whether by reference to language or by reference to religion, shall have to be determined by treating the State as a unit. The principle would remain the same whether it is a Central legislation or a State legislation dealing with a linguistic or religious minority, Khare, J. (as His Lordship then was), Quadri, J. and Variava and Bhan, JJ. In their separate concurring opinions agreed with Kirpal, C.J. According to Khare, J., take the population of any State as a unit, find out its demography and calculate if the persons speaking a particular language or following a particular religion are less than 50% of the population, then give them the status of linguistic or religious minority. The population of the entire country is irrelevant for the purpose of determining such status. Quadri, J. opined that the word "minority" literally means "a non-dominant" group. Ruma Pal, J. defined the word "minority" to mean "numerically less". However, she refused to take the State as a unit for the purpose of determining minority status as, in her opinion, the question of minority status must be determined with reference to the country as a whole. She assigned reasons for the purpose. Needless to say, her opinion is a lone voice. Thus, with the dictum of Pai Foundation, it cannot be doubted that a minority, whether linguistic or religious, is determinable only by a reference to the demography of a State and not by taking into consideration the population of the country as a whole."
This Court after considering all the materials in its entirety is of the view that so far as the linguistic minority is concerned, 50% of the total population may be considered for recognising any group as religious minority as after re-organisation of the States on linguistic basis, the States may be considered for determining the linguistic minority, but so far as religious minority is concerned, India is a secular State and the States were not formed on the basis of religion, therefore, the question further arises to be considered how population of 50% of the religious minority or minority may be considered.
In view of the discussions made above, as this Court has already described two kinds of religions (i) born on foreign land and brought in India by foreigners, i.e., Islam, Christianity, Zoroastrian, Parsees, Yahudis and (ii) born and broughtup in India, i.e., Buddhism, Jainsim, Arya Samaj, Radha Swamy and several hundred other religious groups having different God and Goddess with different thoughts, beliefs and way of life and different way of worship discussed in the preceding Paragraphs of judgment (supra) and any of such religions do not individually constitute a religious majority group, but in fact reduced to minority. Only Muslim Religious Community with 18.50% population in 2001 in State of Uttar Pradesh constitutes single religious majority community. In 2001, Muslim Religious Community having population of 3,07,40,198 is only single largest religious group in the State of Uttar Pradesh which constitute majority religious group. There is no other single religious community in Uttar Pradesh having such population, strength and dominance. As has been discussed above that Hindu culture and civilisation consists of several hundred religions and the Hindu Society is divided in caste, creed and several ethnic groups and as such each and every religious group forming Hinduism constitutes a minority religious group in comparison to Muslims. It appears that the relevant part of report of Advisory Committee on Minority (of Constituent Assembly) fixing percentage of the population of religious minority groups on the basis of population & strength was not brought to the notice of Apex Court, which fixed above 1-1/2% necessarily not more than 2%. Even if considering the religious population, the Indian society within the fold of Hindu culture consists of several hundreds of religious groups, castes, sub-castes and several ethnic groups having different beliefs, different thoughts, different way of worship and different way of life are individually less than 50% and, thus, these religious groups also constitute minority in comparison to Muslim Religious community. Some religious communities believe Sri Ram as God, Lord Sri Krishna as God, Shiva as God, Durga and Kali as Goddess, Pustimarg, Adwaitwad philosophy of Shankaracharya, Sufism, Bahabi, Arya Samaj, Brahma Samaj, Rama Krishna Paramhans, Radha Swami and several other religions discussed above (supra) following different thoughts, beliefs and way of worship and considering their population and strength they also constitute religious minority and are entitled to be recognised as religious minority groups and protection under Articles 29 and 30 of the Constitution of India.
All religions other than Muslims mentioned above (supra) in vogue in State of Uttar Pradesh constitute religious minority group and as such the argument of learned counsel for the petitioners that all other religious groups should be taken into account together and religious minority could be considered in the context of entire Hindu Culture and Civilisation while considering the Muslim religious minority is not acceptable, as has been held by the Apex Court in Bal Patil's case (supra) that Hindu Society is divided in different castes, sub-castes and different ethnic groups.
This Court is of the firm view that Muslim Religious Community now are not entitled to get any protection under Article 29 and 30 of the Constitution of India as a religious minority community in Uttar Pradesh. The recent judgment reported in (2007) 2, SCC 1, I.R. Colho (dead) by Lrs Vs. State of T.N of Nine Hon'ble Judges Bench of the Apex Court has laid down that power exercised by the Constituent Assembly was a constituent power given by the people of India. This Court after taking into consideration proceedings of Constitutional Assembly as well as the report of Advisory Committee on Minority is further of the firm view that the notification dated 23.10.1993 under the National Commission of Minority Act, 1992 issued by the Union of India declaring Muslim as minority is liable to be amended as Muslim Religious community is the only single largest Religious majority group in comparison to other religious groups and is not entitle to get any protection under Articles 29 and 30 of the Constitution of India.
A Constitution Bench judgment of the Apex Court in Islamic Academy of Education and another v. State of Karnataka following T.M.A. Pai Foundation case (supra) has discussed the law relating to minority in Paragraphs 107 and 118 of the judgment, same are being reproduced below:-
"107. The question, thus, has to be considered keeping in view the fact that every Indian may be a minority, either based on religion or language, in one part of the country of the other. The right of a citizen as a minority in one part of the country cannot be higher than his right as a member of majority in another part of the country.
118.......If a measure tends to perpetuate inequality and makes the goal of equality a mirage, such measure should not receive the approval of the Court. The Court, in such circumstances, has to mould the relief by indicating what would be the reasonable measure or action which furthers the object of achieving equality. The concept of equality is not a doctrinaire approach. It is a binding thread which runs through the entire constitutional text. An affirmative action may, therefore, be constitutionally valid by reason of Articles 15(4) and 16(4) and various directive principles of State policy, but the Court cannot ignore the constitutional morality which embraces in itself the doctrine of equality. It would be constitutionally immoral to perpetuate inequality among majority people of the country in the guise of protecting the constitutional rights of minorities and constitutional rights of the backward and downtrodden. All the rights of these groups are part of the right to social development which cannot render national interest and public interest subservient to right of an individual or right of a community."
Further, Paragraphs 42, 48 and 54 of a judgment of the Apex Court in I.R. Ceolho (Dead) by Lrs. v. State of Tamil Nadu, (2007) 2 SCC, p.1, also supports my view that in order to get basic foundation of a doctrine, the Court may go to the root and get the intention of Constitution makers from the debates of the Constituent Assembly as Constituent Assembly was given constituent power by the people of India. This Court has already discussed judgments on minority as well as debates of Constituent Assembly.
Paragraphs 42, 48 and 54 of a judgment of the Apex Court in I.R. Ceolho (Dead) by Lrs. v. State of Tamil Nadu (supra) are being reproduced below:-
"42. The Constitution is a living document. The constitutional provisions have to be construed having regard to the march of time and the development of law.
48. There is a difference between parliamentary and constitutional sovereignty. Our Constitution is framed by a Constituent Assembly which was not Parliament. It is in the exercise of law-making power by the Constituent Assembly that we have a controlled Constitution. Articles 14, 19, 21 represent the foundational values which form the basis of the rule of law.
54. The distinction is drawn by the author between the making of a Constitution by a Constituent Assembly which was not subject to restraints by any external authority as a plenary law-making power and a power to amend the Constitution, a derivative power derived from the Constitution and subject to the limitations imposed by the Constitution. No provision of the Constitution framed in exercise of plenary law-making power can be ultra vires because there is no touchstone outside the Constitution by which the validity of provision of the Constitution can be adjudged...."
In T.M.A. Pai Foundation case (supra), it has been settled by the Apex Court that that Articles 14, 19 and 21 of the Constitution of India stands for equality and rule of law and are part of basic structure of the Constitution and cannot be abrogated. It was further held that Article 21 is the heart of the Constitution of India. Articles 15, 21 read with Articles 14 and 19 of the Constitution of India if allowed to be abrogated would completely change basic structure of the Constitution of India.
Thus, on the discussion made above, the Court's conclusions are as follows:
1. Protection under Articles 29 and 30 of the Constitution of India was not a privilege, but was a protection to the Religious minority communities to attain equality with other religious groups of India.
2. Protection under Articles 29 and 30 of the Constitution of India was given to such minorities categorised in three categories by the Constituent Assembly on the basis of population & strength which were non-dominant groups in India at the time of partition of India, i.e., (i) having 1/2 per cent population and strength, (ii) having population and strength less than 1-1/2% and (iii) having population and strength above 1-1/2%. That will be the basis of to determine minority.
3. The Muslims religious communities in India in 2001 constituted 13.80 percent of the total population of India and 18.50 percent of total population in the State of Uttar Pradesh and is now a dominant group dominating all other religious groups in Uttar Pradesh in all walk of life including the constitutional democratic process.
4. The Muslims religious community has throughout been a well-organized and strongly knitted community and not a weak religious community. It was never regarded as weaker section or underprivileged section of the society. Considering the religious population in India as well as in the State of Uttar Pradesh, Muslims are only majority religious community in comparison with other religious communities in India and other religious communities are in minority in comparison to the Muslims.
5. 'Hinduism' did not represent a religion and represents culture or civilization of India. The combination of such religious groups including Sikh, Jain, Buddhist, Sufis, each and every tribal having separate God and Goddess and Hindu Society divided on caste, creed and other religions mentioned in the preceding paragraphs of the judgment (supra) which cannot be considered one religious group according to the definition of the religion decided by the Apex Court and as such the Muslims religious community constitute only single largest religious majority in Uttar Pradesh. The Constitution never intended to create a religious group based on theocracy in the name of religion but its intention was to give protection to the religions, population of which were about one and half percent or slightly above at the time of partition and to equate them with other members of the society.
In view of the discussions made above, the Court holds that as follows:-
(a) Muslims have now ceased to be religious minorities in India and in any case in State of Uttar Pradesh on the basis of their population & strength.
(b) Muslims also constitute an important part of the citizenry of India and has a important role to play in developing India as a strong nation. It is necessary that all citizens must be assimilated as citizenry of India who are also liable to perform their duties towards the nation and society at large as contemplated under Article 51-A of the Constitution of India.
(c) As the Muslim Community are part and parcel of the society and part of Indian citizenry, the Madarsas established by them are entitled to have equal treatment in comparison to other Schools/institutions established by other citizens of India.
To develop good temperament, humanism and sense of equality to preserve rich heritage and India's composite culture and to develop patriotism in the citizenry of India, it is a necessity that all Schools/Institutions including Madarsas are liable to teach fundamental duties and Moral Education (not religious) to their students who are future citizens of the country to make India a strong and developed in the World. Union of India and State of Uttar Pradesh are directed to take necessary steps accordingly to make education of fundamental duties and Moral Education as compulsory subjects in all the Schols and Institutions established by all religious communities including Madarsas so that the citizenry of India and younger generation may be developed according to the dream of the Constituent Assembly which gave us Constitution of India. This Court is further of the view that in order to develop India as a strong, developed and powerful nation, the fundamental duties under Article 51-A of the Constitution of India may be made enforceable. The U.P. Board of High School and Intermediate Education has made fundamental duties one of the compulsory teaching subjects from the Session 2007-2008.
Constitution of India which is a living document adopted by the people of India for social, economic, political justice and for secularism and for democracy. Each and every citizen of India has liberty of thought, belief, faith, worship and equality of status and as such the petitioners or the opposite parties no. 4 to 6 or any member of the Indian society have got a right to perform the religious rites but are not entitled to get any privilege under Articles 29 and 30 of the Constitution of India. Every citizen of India is also liable to perform certain duties as enshrined under Article 51-A of the Constitution of India, the same is being quoted below:-
"51-A. Fundamental duties.- It shall be the duty of every citizen of India-
(a) to abide by the Constitution and respect its ideals and institutions, the National Flag and the National Anthem;
(b) to cherish and follow the noble ideals which inspired our national struggle for freedom;
(c) to uphold and protect the sovereignty, unity and integrity of India;
(d) to defend the country and render national service when called upon to do so;
(e) to promote harmony and the spirit of common brotherhood amongst al the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women;
(f) to value and preserve the rich heritage of our composite culture;
(g) to protect and improve the natural environment including forests, lakes, rivers and wild life, and to have compassion for living creatures;
(h) to develop the scientific temper, humanism and the spirit of inquiry and reform;
(i) to safeguard public property and to abjure violence;
(j) to strive towards excellence in all spheres of individual and collective activity so that the nation constantly rises to higher levels of endeavour and achievement;
(k) who is a parent or guardian to provide opportunities for education to his child or, as the case may be, ward between the age of six and fourteen years."
In the writ petition, allegations and counter allegations have been made about the entitlement of the petitioners for getting grant-in-aid for their Madarsa. The counter allegations in the counter affidavits are that the petitioners have already embezzled huge amount of the scholarship in the garb of Muslim minority Institution and the matter is pending before the courts. The allegations of petitioners as to the opposite parties no. 4 to 6 in the various affidavits are that it is not for the benefit of entire Muslim society but it is for the benefit of particular families who founded this Institution for the benefit of their own families where all the posts were held and occupied by the petitioners' family members. In view of the allegation and counter allegations made in the writ petition, it is urged by the parties that this is the normal situation in some of the Madarsas.
Paragraphs 9 and 10 of the Supplementary Affidavit dated 1.2.2007 filed by Zulfikar Ahmad, Manager, Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur, are also very relevant in the matter of granting recognition to Madarsas founded by Muslim religious community by the State of Uttar Pradesh, same are being reproduced below:-
"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...."
It has been stated in Paragraphs 9 and 10 of the supplementary affidavit of Zulfikar Ahmad that the recognition was granted to Madarsa after receiving illegal gratification of 5 lakhs for the grant-in-aid and a demand of 8 lakhs was made from petitioners also. The State has prepared a list of 100 more institutions and Madarsa to recognise for grant-in-aid. In view of the serious nature of allegations made in the Supplementary Affidavit of Zulfikar Ahmad, this Court considers it appropriate that an enquiry may be institute in the matter of recogntion of Madrasas for Grant-in-Aid. This Court directs the Chief Secretary of Uttar Pradesh to institute an enquiry by an Officer not below rank of Principal Secretary of Government of U.P. in the matter in which grant-in-aid was given to Madarasas from the year 2003 up to now. The State fund is created by contribution from all citizens belonging to all the religions of the country. Since India is a secular country, State fund should be utilised for secular purposes. Such funds could be given to all the Institutions including Madarsas.
In the end this Court is of the opinion that Muslims have accepted India as their own Mother Land as citizens at the time of partition and contributed a lot in almost in all the fields in development of India and also a dominant force in politics and other fields, not on the basis of any religious group, but as citizens of India. They are also bound to perform all such duties towards the country under Article 51-A of the Constitution of India like other citizens of India for their more effective role in making India a very strong and great nation forming part of citizenry of India.
In such a situation and in view of the law laid down by the Apex Court, proceedings of Constituent Assembly and others relevant materials discussed above, this Court is of the firm view that the Muslims whose population was 18.5% per cent in the year 2001 constitutes the only religious majority group in comparison to other religious group in State of U.P. and they have already ceased to be a religious minority group and they are entitled to get equal treatment as the other non-minority religious groups are being treated. This Court after considering each and every material and law has come to the conclusion that in view of the discussions made above now Muslims have ceased to be a religious minority and they are entitled to be treated like other citizens of India. All protections given under Articles 29 and 30 of the Constitution of India are not available to them.
For the reasons detailed above, this Court passed the operative part of the judgmenton 5.4.2007 which runs as follows:-
"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."