ISLAM EXPOSED: HIGH COURT OF JUDICATURE AT ALLAHABAD Part - 2

Reserved 
Court No.19 

Civil Misc. Writ Petition No.34892 of 2004 
Committee of Management, 
Anjuman Madarsa Noorul Islam Dehra Kalan, 
Ghazipur through its Manager & others.......................Petitioners 

Vs. 

State of U.P. Through Secretary, 
Minority Welfare and Waqf Department, 
U.P., Lucknow and others..........................................Respondents 

Hon. S.N. Srivastava, J. 

By way of this writ petition, the petitioner No. 1- Committee of Management of Anjuman Madarsa Noorul Islam Dehra Kalan, Ghazipur (hereinafter referred to as the 'Madarsa'), and the petitioner No. 2, is the Manager of the Madarsa, pray for quashing the impugned order dated 17.5.2004 passed by the State of U.P., recognzing 67 Madarsas for grant-in-aid. They further prayed for to issue a writ of mandamus commanding the State of U.P. to recognise the petitioners' Madarsa for Grant-in-Aid and any other further suitable relief which this Court deems proper. 

In the year 1995-96, out of 204 Madarsas which were founded and recognized by the Muslims minority were recommended for grant-in-aid, out of which 68 Madarsas were recognized for grant-in-aid. By an order dated 17.5.2004, 67 other remaining Madarsas were again recognised for grant-in-aid. In 2006 out of remaining 66, 32 Madarsas were recognised for grant-in-aid. The grievance of the petitioners is that though petitioners' Madarsa was also founded by Muslim religion minority and was permanently recognised altogether, but the State of U.P. refused this for grant-in-aid, though it fully satisfies all the norms. It was further pleaded by the petitioners that the opposite parties no. 4 to 6 are such Madarsas which do not satisfy the criteria for recognition for grant-in-aid and are private Madarsa in which all the family members of the Manager are teachers and employees and other requirements are also not satisfied. It was further pleaded that though the Madarsa at Sl. Nos. 12, 13, 16, 17, 19, 20, 22, 29 and 29 in the list of recognised minority institutions for Grant-in-Aid are also founded by the Muslim minority but they also did not fulfil any norms, but were wrongly recognised for grant-in-aid, ignoring the petitioners' Madarsa. 

Learned counsel for the parties were heard on 3.11.2006 and the matter was placed on 7.11.2006 for further hearing. During the course of the arguments certain questions relating to minority arose. As the petitioners and the opposite parties no. 4 to 6 were claiming themselves as minority institutions founded by the Muslim religion minority notified under Section 2(c) of the National Minority Commission Act, 1992 by Notification dated 23.10.1993, the question arose to be considered what is the definition of Minority and who could be recognised as religious minority and its criteria for recognition. This Court by a detailed order dated 18.12.2006 framed certain issues and also issued notices to the Union of India, Registrar General, Census, New Delhi and National Commission for Minority, New Delhi. The order dated 18.12.2006 passed by this Court is being reproduced as follows:- 

"Sri N.A. Khan, learned counsel for petitioner states that petitioner has moved an application on 23rd November, 2006 to the competent authority, but no communication has been made so far to from the competent authority as to the order passed on the application. 

On the other hand, Sri S.C. Dwivedi, learned counsel representing opp. Parties, states that for the purpose of determining whether petitioner is an minority institution and is entitled to inclusion as such in the list of aided institutions, a Committee has been constituted and an enquiry in this regard is going on about all the Institution which are claiming grant-in-aid as minority institutions. As petitioner and other Institutions are claiming benefit of Minority Institutions being a group of Muslim community and a similar controversy is also involved in Writ Petition No. 42265 of 2006, this writ petition is also connected with Writ Petition No. 42265 of 2006. 

In Writ Petition No. 42265 of 2006, this Court on 11th December, 2006 has framed certain issues, which are as under:- 

(i) What is the definition of minority? 

(ii) Who could be recognized as a member of minority religion and what would be the criteria for recognizing minority?, 

(iii) Whether minority could be recognized at national level, provincial level or at regional level? and 

1.Whether a community having more than 5% of the total population in the country could be recognized as minority?" 

Learned Standing Counsel referred judgment of the Apex Court reported in AIR 2003 SC, p. 355, T.M.A. Pai Foundation V. State of Karnataka. He also placed before me another case law of the Apex Court reported in AIR 2005 S.C., 3172, Bal Patil and another V. Union of India and others, Paragraph 34 of which makes it clear that every group in India is minority. Paragraph 10,11 and 34 of the judgment of the Apex Court are being reproduced below:- 

"10. The expression 'minority' has been used in Article 29 and 30 of the Constitution but it has nowhere been defined. The Preamble of the Constitution proclaims to guarantee every citizen 'liberty of thought, expression, belief, faith and worship'. Group of Articles 25 to 30 guarantee protection of religious, cultural and educational rights to both majority and minority communities. It appears that keeping in view the constitutional guarantee for protection of cultural, educational and religious rights of all citizens, it was not felt necessary to define 'minority'. Minority as understood from constitutional scheme signifies an identifiable group of people or community who were seen as deserving protection from likely deprivation of their rights by other communities who happen to be in majority and likely to grain political power in a democratic form of Government based on election. 

11. In the back ground of constitutional scheme, the provisions of the Act therefore instead of giving definition of 'minority' only provide for notifying certain communities as 'minorities' who might require special treatment and protection of their religious, cultural and educational rights. The definition of 'minority' given under the Act in section 2(c) is in fact not a definition as such but only a provision enabling the Central Government to identify a community as a 'minority' which in the considered opinion of the Central Government deserves to be notified for the purpose of protecting and monitoring its progress and development through the Commission. 

34. The above-mentioned constitutional goal has to be kept in view by the Minorities Commissions set up at the Central or State levels. Commissions set up for minorities have to direct their activities to maintain integrity and unity of India by gradually eliminating the minority and majority classes. It, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of minority is considered and conceded, there would be no end to such claims in a society as multi-religious and multi-linguistic as India is. A claim by one group of citizens would lead to a similar claim by another group of citizens and conflict and strife would ensue. As such, the Hindu society being based on caste, is itself divided into various minority groups. Each caste claims to be separate from the other. In a caste-ridden Indian society, no section or distinct group of people can claim to be in majority. All are minorities amongst Hindus. Many of them claim such status because of their small number and expect protection from the State on the ground that they are backward. If each minority group feels afraid of the other group, an atmosphere of mutual fear and distrust would be created posing serious threat to the integrity of our Nation. That would sow seeds of multi-nationalism in India. It is, therefore, necessary that Minority Commission should act in a manner so as to prevent generating feelings of multinationalism in various sections of people of Bharat." 

In view of the judgment of the Apex Court, the question arises whether there is any such identifiable group of people or community who were seen as deserving protection from likely deprivation of their rights by other communities who happen to be in majority and likely to gain political power in a democratic form of Government based on election. 

As held by the Apex Court that the concept of minority was introduced to given protection to some groups from likely deprivation of rights of minority by other communities who happen to be in majority and likely to grain power in democratic form of the Government, whether at present there is any such likelihood of deprivation of any group or minority and they are entitled to get protection under Articles 25 to 30 of the Constitution of India and whether under such protection any institution instituted and founded by any minority group, including petitioner, is entitled to get benefit under the Constitution of India. The question further arises to be considered is that if this was the intention of the Constituent Assembly to make provision of Articles 25 to 30 of the Constitution of India due to feeling of afraid atmosphere, mutual fear and distrust which was created at the time of partition of the country which has already come to an end, any such protection will not create sow seeds of multinationalism in India. In order to consider all these questions, this Court also considers it appropriate to implead Union of India, through Secretary, Ministry of Home, New Delhi, National Commission for Minority of India, New Delhi through its Chairman and the Registrar General, Census Department, New Delhi. They shall also file their respective affidavits along with such materials as mentioned in the order dated 11th December, 2006 and also to the following facts. 

(i) What was the total number of population of India on the date the Constitution of India came into existence, 

(ii) The total population of all the minority communities including Budhist Muslims and Christians etc. on the date the Constitution of India came into force. 

(iii) What is the total population of minority communities in the latest census of 2001. 

(iv) In case Census was conducted as regard the other minority groups on the caste basis, the details of the same shall also be produced and 

(v) The Government of India shall also produce before the Court report of the Justice Sachchar Committee which according to learned Standing Counsel is also relevant in the matter. 

Dr. Asho Nigam, learnd Additional Solicitor General of India has accepted notice on behalf of Secretary, Ministry of Home, New Delhi and Registrar General Census Department, New Delhi. 

Let notices be issued by the Registry of this Court to National Commission for Minority, New Delhi through its Chairman. 

The State of U.P. shall also file counter affidavit on the facts stated above. 

Put up on 22nd January, 2007 for further arguments. 

Registry is directed to serve certified copies of this order to Dr. Ashok Nigam, learned Additional Solicitor General of India, learned Chief Standing Counsel, State of Uttar Pradesh and learned counsel for the petitioner within three days. Registry is also directed to send certified copy of this order along with the notice to National Commission for Minority, New Delhi through its Chairman within a week." 

The case was again heard on 22.1.2007 and on 28.2.2007 and this Court passed the following orders. 

22.1.2007 

"Sri Ch. N.A. Khan, learned counsel for the petitioners states that petitioners' application has not been decided so far. He has made certain allegations. He prays for and is granted upto 29th January, 2007 to file supplementary affidavit making specific allegation, if any. 

Put up this petition on 31.1.2007. 

By an order dated 18.12.2006, Registry was directed to serve copy of order to Dr. Ashok Nigam, learned Additional Solicitor General of India on behalf of Secretary, Ministry of Home, New Delhi and Registrar General Census Department, New Delhi and notices were issued to National Commission for Minority, New Delhi through its Chairman. 

From perusal of report dated 21.12.2006 it transpires that order was received by Additional Solicitor General of India and a copy was sent to National Commission for Minority, New Delhi through Chairman, but Registry has not submitted report of compliance while impleading all necessary parties in the writ petition. 

List this case on 31.1.2007 showing the name of Dr. Ashok Nigam, learned Additional Solicitor General of India along with counsels for other opposite parties. 

Registry will also explain why it has not impleaded opposite parties as directed by this Court dated 18.12.2006 and submit compliance report by 25th January, 2007 in Chambers. 

Learned counsel for Central Government has not filed any affidavit in compliance to the order passed by this Court on 18.12.2006. 

Copy of this order shall be made available to Sri Bhola Nath Yadav, learned Standing Counsel as well as learned counsel for the Central Government. 

28.2.2007 

Sri Shashi Shekhar Tiwari, learned counsel for Union of India has filed affidavits of Sri R.S. Meena, Assistant Director of Census Operations, Uttar Pradesh, Lucknow and Sri Puranjay Sharma, Legal Officer in National Commission for Minorities, 5th Floor, Lok Nayak Bhawan, Khan Market, New Delhi giving details of census report of 1951 and 2001 as well as Notification dated 23.10.1993 under clause (c) of Section 2 of the National Commission for Minorities Act, 1992 same are taken on record. Sri Ch. N.A. Khan, learned counsel for petitioner may file rejoinder affidavit, if any, by that date. 

Dr. Ashok Niam, learned Additional Solicitor General assisted by Sri S.S. Tiwari,Advocate, prayed for some more time to furnish remaining information as directed by earlier order. 

U.P. State Minorities Commission represented by Sri J.K. Tiwari, who has filed Vakalatnama today, is impleaded as opposite party no. 10. 

As prayed, put up this case on 14.3.2007. 

Let copy of this order be issued by the Registry to Sri Shashi Shekhar Tiwari, learned counsel for the Union of India, Sri J.K. Tiwari, learned counsel for the State and learned counsel for the petitioner within 3 days." 

After hearing the parties and on perusal of the record a detailed order was passed on 14.2.2007. Order dated 14.3.2007 runs as follows:- 

"Heard learned counsel for the parties. 

Parties are claiming certain rights as being muslim minority to run minority institution on grant-in-aid. In the connected case, Bahuri Alp Sankhyak Balika Inter College one Phool Chand Yadav claiming himself as Buddhist, praying for recognising a minority institution. Several questions were framed by an order dated 18.12.2006 about definition and recognition of minority group under the Constitution of India. It was brought to the notice of this Court that a notification dated 23.10.93 was issued by Government of India recognising Muslims, Christians, Sikhs, Buddhists, Jain and Parsees as minorities. 

It was also brought to the notice of this Court that that Constituent Assembly debates make it clear that minorities were recognised according to their strength and their population. Above minorities were divided in 3 groups i.e. A, B, and C as mentioned in the schedule prepared by a Committee on Minority Rights. Besides that, Buddhists were not recognised as minority by Constituent Assemply.