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Muslim Religious minority

The intention of Founding Fathers of the Constitution of India was not to create any privilege to
minority religious community while introducing Articles 29 and 30 of the Constitution of India. This
was just a protection given to minorities due to meagre population and strength treating such religious
groups as non-dominant groups/communities. Constituent Assembly has categorised these non-
dominant religious groups in three classes in the Schedule, i.e., 1/2%, less than 1-1/2% and above 1-
1/2%. This was the criteria fixed by the Constituent Assembly for determining religious or linguistic
minority.
Historical Back Ground of Muslim Minority
Muslim community started claiming as religious minority only just before independence. Islam came in
India in 712 A.D. through foreign invaders. First invasion was made by Mohd. Bin Qasim and
thereafter a series of invasions were made by Mohd. Gajni and Mohd. Gori etc. Mohd. Bin Qasim
established Islamic Rule in Sindh and Multan in 712 A.D. After Mohd. Gori, Mohd. Qutubbuddin
Aibak, Akram Shah, Altmus, Gyasuddin Blaban, Razia Sultan, Jalaluddin Khilji, Alauddin Khilji, Firoz
Shah Tughlak, IbrahimmLodhi and other Sultans ruled India and thereafter Babar established Moghul
rule in 1526 followed Humaun, Akbar, Jahangir, Shahjahan, Aurangjeb and other Moghul rulers and
lastly by Bahadur Shah Zafar in greater India. Indian society other than Muslim minority was ruled by
Muslim Rulers for about one thousand years over most parts of India. For all these years Indian society
other than Muslim minority was subjected to pay Jezia Tax in most parts of India to remain as Hindus
and to perform their cultural and religious rites.
Relevant Paragraphs at page 50 of a Book 'Advanced Study in the History of Medieval India (Vol. III:
Medieval Indian Society and Culture) by J.L. Mehta is relevant in the present context, the same is being
reproduced below:-
"Mohd. Bin Qasim, who laid the foundation of the Muslim Rule in Sindh and Multan (711-12), secured
the status of Zimmis for his hindu subjects from the caliph and accorded protection to their lives and
property on the receipt of jaziya. Obviously, this step was necessitated as a matter of political
expediency because in spite of the loss of independence, the hindu masses, in general offered odgged
resistence to forced conversions. It was physically impossible for Qasim and handful of his Arab
followers to compel the vanquished multitude 'to choose between Islam and death', particularly, when
they were 'armed to the teeth'. Recognition of hindu 'idolators' of Arabia. His example was followed by
the turkaofghan rulers of Delhi in their dealings with the hindus. The latter were not treated as full-
fledged citizens of 'the Islamic stte' albeit they received status of zimmis-'the second-class' or 'inferior'
citizens, which denied them all political rights and made them suffer from certain socio=religious and
economic disabilities so as 'to prevent them from growing strong. In the words of Jadu Nath Sarkar,
"The very term zimmi is an insulting title. It connotes political inferiority and helplessness like the
status of a minor proprietor, perpetually under a guardian; such protected people could not claim
equality with the citizens of the Muslim theocracy."
There developed, with the passage of time, four schools of though for the authoritative interpretation of
shara or 'the Islamic law'; these were known as Malakite, Shafite, Hanbalite and Hanafite after the
names of their founders-Malik Ibn Anas (715-95 A.D.), Ash-Shafi (767-820), Ahmad Bin Hanbal (780-
855) and Abu Hanifah (699-766), Doctors of the first three schools offered no other alternative but
death to 'the idolators' including the hindus, on their refusal to embrace Islam. It were the exponents of
the Hanifah school alone who permitted their existence in the Islamic state as zimmis. That explains the
intesne hatred of the non-muslims by the orthodox muslims fanatics, in general; whenever a muslim
ruler fell under the spell of such orthodox ulema, he adopted the policy of religious intolerance and
persecution of his hindu subjects. It created a permanent gulf between the hindus and muslims which
could not be bridged effectively for a long time. According to an observation, 'the politcal and religious
condition under which the hindus were forced to live in a muslim state raised a great barrier between the
two communities. The political supremacy of muslims was absolute; the hindus not only enjoyed no
political status in practice, but could not even aspire to it under Islamic theory'. While living in their
own country and in possession of their own hearths and homes, the hindus were reduced to the status of
inferior citizens of 'an Islamic state' as the sultanate of Delhi was usually styled. On the other hand, the
muslims, though in microscopic minority, constituted the privileged or the most favoured children of
the state who enjoyed the bounties and benefited from all the public welfare and other state enterprises."

Relevant paragraph at page 42 of the Book 'Advanced Study in the History of Medieval India (Vol. III:
Medieval Indian Society and Culture) by J.L. Mehta is also relevant, the same is being quoted below:-
"Thus, Islam does not separate religion from politics; in fact, the concept of religion in Islam emerged
first, the state was 'an after-thought'. The additional Islamic law does not acknowledge 'the independent
existence of state, nor is state regarded as a primary condition of human society. It makes the State
completely subservient to the religion of the Prophet. According to the Islamic law, the state is only an
instrument to serve the creed in the attainment of its objectives or fulfilment of ideals of the muslim
brotherhood. The Islamic theory of state was, therefore, based on a three fold idea of one scripture, one
sovereign and one nation; scriptu was the hly Quran, sovereign was the imam (leader), also called
Khalifa (the caliph)- political successor to the Prophet, and nation was the millat-the muslim
brotherhood. The basic feature of the state, according to this theory, was its 'indivisibility' in all the
three aspects. It contemplated the establishment of a theocratic state based on the Islamic law, and
recommended only one sovereign, the caliph, to rule over the whole of the muslim world. The caliph
was styled as the amir ul momnin-'the leader of the faithful'; his office was thus a political institution
based on Islamic injunctions. The sovereignty resided in the millat which elected their imam or the
caliph, and the latter was under religious obligation to implement the Islamic law on and for the benefit
of his muslim subjects. The Islamic government was, therefore, one which was composed of the
muslims, by the muslims and existed for the happiness and welfare of the muslims alone."
This paragraph has references of Books such as Arnol J Toynbee, A Study of History: 12 vols; OUP,
4th impression, 1948, IV, p. 230, Wolseley Haig, CHI,III, p.-10, A.B.M. Habibullah, Foundation of
Muslim Rule in India; Allahabad, 2nd ed; 1961, p.2., Toynbee, Study of History, pp.clt; VI, p. 285,
Toynbee, Study of History, pp.clt; IV, p. 98, Toynbee, Study of History, pp.clt; VI, pp.98-100,
Toynbee, Study of History, pp.clt; VI, p.5,129, 131-132, 245-60.

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%.
Anglo-Indians ,Parsees ,Plains' tribesmen in Assam (other than Tea Gardens' tribesmen) , Indian
Christians ,Sikhs Budhists may urged claiming himself to be minority institution being that Budhist is
a minority group on the basis of population below 50%.
The questions arose to be considered who is minority, whether muslims 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.
On behalf of the National Commission for Minorities and Registrar General, Census. U.P. Minority
Commission, Lucknow is questions came up for consideration being founded by religious Muslim
Minority.
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. 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".

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 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.
(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.
Several questions are framed about definition and recognition of minority group under the Constitution
of India. It is brought to the notice that a notification dated 23.10.93 was issued by Government of India
recognising Muslims, Christians, Sikhs, Buddhists, Jain and Parsees as minorities.
It is also brought to the notice 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 are not recognised as minority by Constituent Assemply.
Group-A consists of population less than percent in the Indian Dominion omitting States
1.Anglo-Indians
2.Parsees
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 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, 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).
It is urged that the Muslims are not rightly recognised as religious minority group as the population of
Muslims is about 50% in comparison to the majority population in India. The 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. It is 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.
It is 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.

In view of undisputed facts and claim about, 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, 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.
Under Section 2(c) of the National Commission for Minorities Act, 1972 and Muslims, Sikhs, Budhists,
Parsees and Christians were recognised as religious minorities. 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. 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.
Whether 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.
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.
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:-
1.Muslims,
2.Christians,
3.Sikhs,
4.Buddhists and
5.Zoroastrians
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.
Historical Back Ground of Muslim Minority
Muslim community started claiming as religious minority only just before independence. Islam came in
India in 712 A.D. through foreign invaders. First invasion was made by Mohd. Bin Qasim and
thereafter a series of invasions were made by Mohd. Gajni and Mohd. Gori etc. Mohd. Bin Qasim
established Islamic Rule in Sindh and Multan in 712 A.D. After Mohd. Gori, Mohd. Qutubbuddin
Aibak, Akram Shah, Altmus, Gyasuddin Blaban, Razia Sultan, Jalaluddin Khilji, Alauddin Khilji, Firoz
Shah Tughlak, IbrahimmLodhi and other Sultans ruled India and thereafter Babar established Moghul
rule in 1526 followed Humaun, Akbar, Jahangir, Shahjahan, Aurangjeb and other Moghul rulers and
lastly by Bahadur Shah Zafar in greater India. Indian society other than Muslim minority was ruled by
Muslim Rulers for about one thousand years over most parts of India. For all these years Indian society
other than Muslim minority was subjected to pay Jezia Tax in most parts of India to remain as Hindus
and to perform their cultural and religious rites.
Relevant Paragraphs at page 50 of a Book 'Advanced Study in the History of Medieval India (Vol. III:
Medieval Indian Society and Culture) by J.L. Mehta is relevant in the present context, the same is being
reproduced below:-
"Mohd. Bin Qasim, who laid the foundation of the Muslim Rule in Sindh and Multan (711-12), secured
the status of Zimmis for his hindu subjects from the caliph and accorded protection to their lives and
property on the receipt of jaziya. Obviously, this step was necessitated as a matter of political
expediency because in spite of the loss of independence, the hindu masses, in general offered odgged
resistence to forced conversions. It was physically impossible for Qasim and handful of his Arab
followers to compel the vanquished multitude 'to choose between Islam and death', particularly, when
they were 'armed to the teeth'. Recognition of hindu 'idolators' of Arabia. His example was followed by
the turkaofghan rulers of Delhi in their dealings with the hindus. The latter were not treated as full-
fledged citizens of 'the Islamic stte' albeit they received status of zimmis-'the second-class' or 'inferior'
citizens, which denied them all political rights and made them suffer from certain socio=religious and
economic disabilities so as 'to prevent them from growing strong. In the words of Jadu Nath Sarkar,
"The very term zimmi is an insulting title. It connotes political inferiority and helplessness like the
status of a minor proprietor, perpetually under a guardian; such protected people could not claim
equality with the citizens of the Muslim theocracy."
There developed, with the passage of time, four schools of though for the authoritative interpretation of
shara or 'the Islamic law'; these were known as Malakite, Shafite, Hanbalite and Hanafite after the
names of their founders-Malik Ibn Anas (715-95 A.D.), Ash-Shafi (767-820), Ahmad Bin Hanbal (780-
855) and Abu Hanifah (699-766), Doctors of the first three schools offered no other alternative but
death to 'the idolators' including the hindus, on their refusal to embrace Islam. It were the exponents of
the Hanifah school alone who permitted their existence in the Islamic state as zimmis. That explains the
intesne hatred of the non-muslims by the orthodox muslims fanatics, in general; whenever a muslim
ruler fell under the spell of such orthodox ulema, he adopted the policy of religious intolerance and
persecution of his hindu subjects. It created a permanent gulf between the hindus and muslims which
could not be bridged effectively for a long time. According to an observation, 'the politcal and religious
condition under which the hindus were forced to live in a muslim state raised a great barrier between the
two communities. The political supremacy of muslims was absolute; the hindus not only enjoyed no
political status in practice, but could not even aspire to it under Islamic theory'. While living in their
own country and in possession of their own hearths and homes, the hindus were reduced to the status of
inferior citizens of 'an Islamic state' as the sultanate of Delhi was usually styled. On the other hand, the
muslims, though in microscopic minority, constituted the privileged or the most favoured children of
the state who enjoyed the bounties and benefited from all the public welfare and other state enterprises."

Relevant paragraph at page 42 of the Book 'Advanced Study in the History of Medieval India (Vol. III:
Medieval Indian Society and Culture) by J.L. Mehta is also relevant, the same is being quoted below:-
"Thus, Islam does not separate religion from politics; in fact, the concept of religion in Islam emerged
first, the state was 'an after-thought'. The additional Islamic law does not acknowledge 'the independent
existence of state, nor is state regarded as a primary condition of human society. It makes the State
completely subservient to the religion of the Prophet. According to the Islamic law, the state is only an
instrument to serve the creed in the attainment of its objectives or fulfilment of ideals of the muslim
brotherhood. The Islamic theory of state was, therefore, based on a three fold idea of one scripture, one
sovereign and one nation; scriptu was the hly Quran, sovereign was the imam (leader), also called
Khalifa (the caliph)- political successor to the Prophet, and nation was the millat-the muslim
brotherhood. The basic feature of the state, according to this theory, was its 'indivisibility' in all the
three aspects. It contemplated the establishment of a theocratic state based on the Islamic law, and
recommended only one sovereign, the caliph, to rule over the whole of the muslim world. The caliph
was styled as the amir ul momnin-'the leader of the faithful'; his office was thus a political institution
based on Islamic injunctions. The sovereignty resided in the millat which elected their imam or the
caliph, and the latter was under religious obligation to implement the Islamic law on and for the benefit
of his muslim subjects. The Islamic government was, therefore, one which was composed of the
muslims, by the muslims and existed for the happiness and welfare of the muslims alone."
This paragraph has references of Books such as Arnol J Toynbee, A Study of History: 12 vols; OUP,
4th impression, 1948, IV, p. 230, Wolseley Haig, CHI,III, p.-10, A.B.M. Habibullah, Foundation of
Muslim Rule in India; Allahabad, 2nd ed; 1961, p.2., Toynbee, Study of History, pp.clt; VI, p. 285,
Toynbee, Study of History, pp.clt; IV, p. 98, Toynbee, Study of History, pp.clt; VI, pp.98-100,
Toynbee, Study of History, pp.clt; VI, p.5,129, 131-132, 245-60.

Pt Jawahar Lal Nehru in his Book titled as 'Glimpses of World History' (Published by Oxford
University Press) has given detailed this in Chapter 66. Relevant passage finds place at page 214 of the
Book, the same is being quoted below:-
".....Meanwhile, the people of the country, the Hindus, were being slowly converted to Islam. The
process was not rapid. Some changed their religion because Islam appealed to them, some did so
because of fear, some because it is natural to want to be on the winning side. But the principal reason
for the change was economic. People who were not Muslims had to pay a special tax, a poll tax-jezia,
as it was called. This was a great burden on the poor. Many would change their religion just to escape
it. Among the higher classes desire to gain Court favour and high office was a powerful motive....."

How the assessment of amount of jezia tax was payable by Hindu population is clear from the Book
titled as 'The Administration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi. The
relevant passage is being quoted below:-
"...The assesses were divided into three categories in accordance with their wealth. Those in possession
of ten thousand dirhems or more were considered to be wealthy; those who had less than ten thousand
but more than two hundred dirhems were classified as belonging to the middle class, those who had
less than two hundred dirhems but enough, in addition to the cost of maintaining themselves and their
dependents, to pay the tax were considered to be poor. The first category was required to pay forty-
eight dirhems per annum; the second twenty-four; and the third twelve. These seem to have been the
rates for the urban areas; in the countryside the government levied a flat charge of four per cent of the
state demand upon agricultural produce. If the agents of government failed to collect the jiziyah from
any one for an entire year, he could not be charged the sum later. A dirhem was roughly 550 English
grains of silver..."
The history further makes it clear that population of any community played a vital role for affecting
India's polity as well as Geography. Afghanistan was part of Greater India as Gandhar. It was also part
of Greater India up to 1739 A.D. and Buddhism was a dominant religion in Afghanistan. Conversion of
Buddhists into Islam in Afghanistan started process of separation which completed
in 1739 AD when Nadirshah separated Afghanistan from India and merged in his empire. After death
of Nadirshah Afghanistan became an independent Muslim State. Due to Islamic Rule for more than one
thousand years in Sindh, Punjab, North Western Frontier Provinces and Bengal Hindu major
ity were converted into Muslim. In the year 1945, the percentage of Muslim population was 54 per
cent and Hindus were 45 per cent and others were 1 per cent in Bengal only. Due to certain privileges
to Muslims in India Greater India was partitioned in 1947 on the basis of two nations theory that the
Muslims and Hindus constitute two nations. Present problem in Kashmir valley is also problem of
Majority Muslim population whereas there is no such problem in Jammu and Laddakh where Hindus
and Buddhists are in majority. History also makes it clear that due to special privileges to Muslims for
more than one thousand years during Muslim Rule, though they were in microscopic minority and
special separate rights to Muslims were given by Britishers also after 1906 upto Inidia was actually
partitioned on the basis of Muslim population in undivided India. It is clear that population coupled
with special rights awarded to Muslims, detailed above, played a greater role in changing history and
geography of this country.
As has already been discussed above which is a historical fact that majority of Muslims were converted
Hindus and has origin of Hindus ancestors who adopted Muslim religion for various reasons during the
period of more than one thousand years of Islamic Rule in the country and the majority of conversion
took place due to economic reason of poor who could not pay Jezia Tax compulsorily made payable by
Hindu population. Historic Book 'Glimpses of World History' written by Pt. Jawahar Lal Nehru makes
it clear that conversion from Hindu community to Muslim religion during muslim Rule took place
mostly due to poverty and due to non-payment of Jezia Tax. It is only after the end of the Muslim rule,
Hindus and Muslims jointly fought against Britishers in 1857 AD-the first war of independence against
foreigners to re-establish India's own rule. This common-ness and nationhood lasted not for more than
50 years, when Muslim League was established in 1906 which started claiming separate rights on the
ground of religion which was conceded by Congress as well as British Parliament which ultimately
resulted in division of the country on the basis of religion and changed Geography of India.
The above careful study of the history makes it clear that minority rights were given for protecting their
right and not to claim any privilege or special rights in comparison to Hindus, but to remove sense of
insecurity and lack of confidence in minority, who opposed partition of India, but this minority right
was misinterpreted by certain quarters and inspite of the fact that at present the population of Muslim
Religious group is more than 18.5 per cent, they are still claiming themselves as religious minority
community, though neither there is any insecurity nor there is any lack of confidence in Muslims
whereas Muslim Religious group has now become single largest religious dominant group on the basis
of population & strength affecting all walks of life including democratic process. It is further clear that
in some States of India Muslim population is about 25 per cent and at least more than 13.8% on all
India basis. In this backdrop, now Muslims have become a dominant group in all respects and have
ceased to be a Religious minority community. As the matter before the Court is relating to Uttar
Pradesh, hence the Court is expressing opinion only with regard to Muslim Religious community in
Uttar Pradesh. This Court has taken note of historical background, judgments of Apex Court and
debates of Constituent Assembly and is of the view that any further recognition of Muslims as a
religious minority community will necessarily give rise to multinationalism in India and as such the
State of Uttar Pradesh as well as Central Government may consider and pass appropriate orders to
delete entry of Muslims as a religious minority community in India.
The above discussions made it clear that ancestors of present Hindu society fought and saved their
religion, civilization and culture even by paying Jezia Tax for continuing as Hindu in Islamic Rule in
different parts of India and present Indian generation should be grateful for saving their religion, culture
and civilisation even under such odd situation.
It is further clear from the History that it was Akbar who did not impose any Jezia tax, but the same was
re-imposed lateron by Aurangjeb.
During the period of Muslim Rule for about one thousand year, no member of Muslim community
claimed any minority rights. The Britishers thereafter tookover the administration of India. First war of
Independence in 1857 was fought by both Hindus and Muslims jointly. After 1857, first war of
independence, certain social, political and religious awakening took place in the Indian society. A
number of social reformers and religious leaders emerged who worked in the Indian Society some of
them were Swami Dayanand Sarswati who established Arya Samaj, Sri Raja Ram Mohan Rai, Swami
Vivekanand and various other awakening and political changes also took place in the Indian society
towards their rights in this era.
From the Book 'Discovery of India' by Pt. Jawahar Lal Nehru following facts are borne out that how
concept of minority was developed in pre independence era:-
Indian National Congress was also established in 1885 and thereafter in 1906, Indian Muslim League
was established by some Muslim leaders. Under the banner of Indian National Congress, Hindus and
Muslims both participated in the national movement of Independence under the leadership of national
leaders belonging to both the communities and ultimately under the leadership of Mahatma Gandhi
movement for independence gained momentum. But, Muslim League started claiming separate
electorate/franchise for Muslims even prior to 1935.
The above history of Muslim Religious Community in India makes it clear that though Muslims were
always in microscopic minority, but constituted the privileged class or were most favoured children of
the State who enjoyed all the benefits from the public welfare and other State enterprises during Muslim
Rule. The other non-muslim communities for about centuries under the Islamic Rules were
underprivileged, weak and nondominant group of the Indian society. Muslim community was dominant
upto partition of the India in all spheres of life including polity. The History itself speaks that abnormal
growth of Muslim population proved to be a weapon for Muslim community for getting political power
and to re-establish the Government in power of their own choice in the democratic process by using
their voting rights in one side or the other prior and after partition in India.
The above historical background makes it clear that the Muslim Religious Community was a privileged
class in comparison to Non-Muslim religious communities during Muslim Rules and also continuing as
such during British Rule which developed a complex in Muslim Religious Community and in order to
revive aforesaid privilege the Muslim Religious Community claimed partition of India. Pakistan,
Bangladesh and Afghanistan which were part of ancient India were separated from it and are Islamic
States and non-muslim religious communities are compelled to reside under the Islamic Rules.
The intention of Founding Fathers of the Constitution of India was not to create any privilege to
minority religious community while introducing Articles 29 and 30 of the Constitution of India. This
was just a protection given to minorities due to meagre population and strength treating such religious
groups as non-dominant groups/communities. Constituent Assembly has categorised these non-
dominant religious groups in three classes in the Schedule, i.e., 1/2%, less than 1-1/2% and above 1-
1/2%. This was the criteria fixed by the Constituent Assembly for determining religious or linguistic
minority. According to the Apex Court it is the region or the State which is the criteria for
determining a religious or linguistic minority. Muslim Religious community is at present more than
18.5% of population in Uttar Pradesh is a dominant religious community and no sense of insecurity or
lack of confidence exist amongst them at present. The claim of any religious group/community as
privileged class may give rise to other community to make such demands which may be detrimental to
nation's unity and integrity.
Pt Jawahar Lal Nehru in his Book 'Discovery of India' at page 382 had described minority in India as
under:-
" ....Minorities in India, it must be remembered are not racial or national minorities as in Europe; they
are religious minorities. Racially India is a patchwork and a curious mixture, but no racial questions
have arisen or can arise in India. Religion transcends these racial differences, which fade into one
another and are often hard to distinguish. Religious barriers are obviously not permanent, as
conversions can take place from one religion to another, and a person changing his religion does not
thereby lose his racial background or his cultural and linguistic inheritance. Latterly religion, in any
real sense of the word, has played little part in Indian political conflicts, though the word is often
enough used and exploited. Religion differences, as such, do not come in the way, for there is a great
deal of mutual tolerance for them. In political matters religion has been displayed by what is called
communalism, a narrow group mentality basing itself on a religious community but in reality concerned
with political power and patronage for the interested group...."
In his Book 'Discovery of India' at page 392, Pt Jawahar Lal Nehru further noted as follows:-
"Mr. Jinnah's demand was based on a new theory he had recently propunded that India consited of two
nations, Hindu and Mislem. Why only two. I do not know, for if nationality was based on religion, then
there were many nations in India....."
Above observations of Pt Jawahar Lal Nehru that the question of minority was raised by Muslim
leaders in order to gain their political powers would be clear from Chapter II of the Book 'The
Administration of the Moghul Empire' written by a Historian Ishtiaq Husain Qureshi published in 1973
and reprinted in 1973. The relevant part of Chapter II, pages 22 and 23 are being reproduced below:-
"ISLAM takes a comprehensive view of life and does not separate politics from religion....."
"By the time of the Prophet's death, the Muslim state was already strong and well consolidated. IN its
essence it was the organized Muslim community functioning as a religious entity to preserve and
propagate its beliefs and to provide the facilities to practise them, confronted with socia, economic and
political needs to sustain its life as an independent society, hence organized into a state without which
its prime object of maintaining its Islamic character could jeopardized. This need could be felt by any
religious group, but in Islam religion was not merely a matter of prayer and belief but it also embraced
the external behaviour of man to a degree that such a conception of the Islamic community was
inevitable. The Muslim thinkers have mostly upheld this conception of the Islamic State. Their legal
thinking also has been affected by this belief; indeed this conception is so deeply immersed in the
Islamic doctrine that it would be difficult to separate it from religious thought....."
Founding Fathers of Constitution never expected any such privileged and expected to make India a
secular State, but given some protection to some of the religious communities having population about
1-1/2% of total population as religious minority community. The History of Minority narrated above
also confirms the same.
Upto 1941, Muslim community never claimed any minority rights. The Hindu and Muslim population
ratio available on record makes it clear that Muslim population never gone beyond 12.58% prior to
1941.
Following are the details showing percentage of Hindu and Muslim population according to Census of
1921, 1931 and 1941:-
Census of 1921
Hindu - 84.40%
Muslims -9.57%
Census of 1931
Hindu - 84.34%
Muslims -9.86%

Census of 1941
Hindu - 75.89%
Muslims -12.58%
In 1940, Muslim League started claiming separate nation for Muslims on the ground that Muslims
constitute a separate nation and Hindus and Muslim could not live together. Muslim leaders at that time
were of the view that after independence perhaps Muslims would be ruled by Hindus, though Muslims
were rulers prior to British Rule and majority Hindu population was being ruled by Muslim rulers and
after independence there would be dominance of Hindus in administration. Muslims were so dominant
in 1941 that on the strength of their population which was 12.58% only compelled the people of India to
get a separate country for themselves and Islamic State of Pakistan came into existence.
Census of 1951 makes it clear that inspite of the division of India on the ground that Muslims and
Hindus form two separate nations with support of Muslim population residing in every State of India
supporting the demand of partition of the country, Pakistan was formed and India was divided, it was
expected that except very few nationalist Muslims, who opposed partition of India would remain in
India. For protection of those nationalist Muslims minority status was granted to them apart from other
minority communities, but the majority of Muslim population did not go to Pakistan and remained in
India, i.e., 9.09%, according to 1951 Census report, did continue to remain in India. Population of
Muslims played an active role in dividing the country in two nations which shows that at any point of
time strength & population of Muslim religious community played a vital role in deciding the fate of the
India and that is why Sri Pocker Mohammed, a member of Constituent Assembly while delivering his
speech rightly said that the Muslims are a strongly knitted community and also that if special rights are
not given to them they will become desperate. Muslim religious group at present has become a major
dominant force in democratic India on the basis of their population, voting rights and strength in getting
elected their representative and own Government on the basis of their voting power.
Out of 5,37,61,925 of rest of population in 1951 Census the Muslims population was 90,58,992 in U.P.
which constituted about 1/6th of total population. Census of 2001, makes it clear that out of total
population of U.P. 16,61,57,921, 13,39,79,263, was Hindu population and the Muslims population was
3,07,40,158 which is about 1/4th. It is worthy to notice here that population of Muslims throughout
India in 1951 was 3,54,10,123 which is almost equivalent to All India population of Muslims of 1951 at
present only in Uttar Pradesh.
A perusal of the chart of the Census available on record also makes it clear that in a number of
provinces the population of Muslims is more than 25%. In case Muslim community was in a dominant
position at the time of partition only on the basis of 12.58% population and only 3% of Muslim
population transferred to Pakistan after partition as is clear from the census of the 1951, though most
of the population belonging to Muslim Religious Community throughout India supported partition and
achieved their goal as is clear from the Constituent Assembly Debates. Such Religious group has now
become a majority group again on the basis of their increased strength & population and if proper
Training & Education of patriotism and secularism is not given and are left with any religious
elements, it may give rise to multi-nationalism in India. This caution was made by the Apex Court in
Bal Patil's case (supra) and as such this Court of the firm view that if in 1941, 12.58% population of
Muslims was so powerful that they succeeded in dividing the country how the present population of
18.5% of muslims in the State of Uttar Pradesh could be treated as a religious minority community and
a non-dominant group.
Following Chart of the Muslim population in some of the Districts of State of Uttar Pradesh shows the
strength of Muslim community which appears to be only dominant religious community which could
affect the democratic set up of the country:-
Census -2001, U.P.
Districts Hindu s Muslims
Saharanpur 17,23,226 11,32,919
Muzaffarnagar 21,51,009 13,49,629
Bijnor 17,66,391 13,06,329
Moradabad 20,52,014 17,35,381
Rampur 9,05,062 9,45,277
Jyotiba Phule Nagar 8,97,785 5,90,308
Meerut 19,64,504 9,75,715
Baghpat 8,54,718 2,87,871
Ghaziabad 24,61,008 7,82,915
Gautam Buddha Nagar 10,28,937 1,56,415
Bulandshahr 22,85,976 6,13,660
Aligarh 24,38,496 5,31,956
Budaun 24,02,152 6,54,797
Bareilly 23,45,325 12,26,386
Pilibhit 11,73,317 3,90,337
Shahjahanpur 20,28,913 4,55,049
Kheri 24,82,852 6,12,638
Lucknow 28,52,721 7,48,687
Farrukhabad 13,26,118 2,32,599
Kannuj 11,64,479 2,19,104
Kanpur Nagar 34,48,024 6,53,881
Kaushambi 11,16,223 1,74,698
Allahabad 82,84,834 6,27,735
Barabanki 20,72,421 5,89,197
Sultanpur 26,76,468 5,24,642
Bahraich 15,37,177 8,29,361
Shrawasti 8,72,653 3,01,117
Balrampur 10,58,676 6,17,675
Siddharthnagar 14,28,543 6,00,336
Basti 17,62,973 3,06,540
Sant Kabir Nagar 10,73,646 3,41,154
Maharajganj 17,93,304 3,57,822
Kushinagar 23,94,602 4,87,674
Deoria 23,98,395 3,08,731
Azamgarh 33,32,711 5,93,907
Mau 14,94,344 3,53,003
Jaunpur 34,84,557 3,99,186
Ghazipur 27,22,780 3,00,327
Varanasi 26,27,565 4,97,516
Sant Ravidas Nagar 11,87,835 1,61,962
Bhadohi
Considering the historical background discussed above and the proceedings of Constituent Assembly, it
is clear that population and strength was the only norm basis of recognising any community as religious
minority community in India. If India could be partitioned in two nations on the basis of 12.58%
population of Muslims at the time of partition, the present population of 18.5% of Muslims in State of
Uttar Pradesh are more dominant group in comparison to any other religious community according to
strength & population and cannot be treated as religious minority community.
As stated above at the cost of repetition that Muslims in India were always in microscopic minority
even during Muslim Rule for more than a century and British Rule, but they never claimed any minority
right at any point of time. As in the present case, controversy relates to only religious minority, as
petitioners and Opp. Party nos. 4 to 6 claimed themselves as Muslim minority and protection under
Articles 29 and 30 of the Constitution of India, this Court is expressing opinion about religious minority
and not about linguistic minority. It is also made clear that question of backwardness of any community
has no nexus and if any group claims backwardness, it has nothing to do with the minority rights under
Articles 29 and 30 of the Constitution of India and all the citizens of India may be considered for the
purposes of backwardness in accordance with the Constitution of India. It is also made clear that as
Muslim Religious community has throughout been remained as a privileged class for centuries, how
they became backward and if Muslim religious community claims any special/minority right being
backward, who is to be blamed is not a controversy involved in the present case and as such this Court
is not expressing any opinion.
Sri Pocker Mohammed, a member of Constituent Assembly participating in the proceeding of
Constituent Assembly rightly said that the Muslims are a strongly knitted community, therefore, if
special rights are not given to them they will become desperate. Data given above makes it clear that
Muslim religious group is now a dominant political force in democratic India on the basis of their
population, voting rights in election and strength in getting elected their representative and in electing
their own Government of their dominating choice on the basis of their population.
This Court is of the view that on the basis of population Muslim religious community is only single
Religious Majority in democratic India and could not be recognised as a religious minority community.
In India after enforcement of the Constitution, the people of India including muslim are also free to
perform their religious and cultural rites. Constitution of India makes it very clear, as held by the Apex
Court in T.M.A. Pai Foundation case (supra) that minority status was given for protection to non-
dominant group.
The Constituent Assembly first met on 9th December, 1946 and adopted Constitution of India on 26th
November, 1949, but continued upto 24th of January, 1950.
People of India adopted Constitution of India for them. In constitutional democracy sovereign power
vests in the citizens of India and by exercising right to franchise citizens elect Legislators and the
Government in which only population of any community plays a major role. If 12.58% of muslim
population dominated and got partitioned India, 18.50 per cent of muslim population in State of U.P.
which is equivalent to national population of Muslims in India after partition of India at present are
more dominant force in Indian society and democratic political system.
At present, from State of Uttar Pradesh, 18 Members of Muslim Religion community are in Parliament,
nine Members in Legislative Council and 45 Members Members in Legislative Assembly (From
Information Diary, 2007 of Government of State of Uttar Pradesh, Published by Information and Public
Relation Department). India has also elected three Presidents of India belonging to Muslim Religion
community. In India in the communities other than Muslims there are about 6400 casts and sub-castes,
more than 100 religious groups of different thoughts and belief and several ethnic groups and all other
religious groups/communities are reduced to minority and no other religious group/community, except
Muslim community is dominant in India. It is also clear from the Census report of 2001 that Muslims
who were 18.50% in 2001, by now after six years in 2007, must have gone above 18.50%, are at
present single dominating religious group in comparison to other religious communities in India. In
most of the Districts of Uttar Pradesh, Muslims are a dominant religious group constituting population
from 20% to 50% according to Census Report of 2001 and in some Districts Muslim population is more
than the population of all other religious group. Taking together Muslims at present are a dominant
religious majority community affecting all walks of life of Indian society including political scene in the
State of U.P. as well and are only dominant religious force/community in comparison to other religious
group in India. Neither any sense of insecurity at present is in Muslim Religion Community nor
Muslims lack confidence in any field in India. To the contrary as is clear from the Constituent
Assembly debates and other materials, members of other remaining religious community were
described as deaf and dumb and peace-loving as stated by some of members of Constituent Assembly
and have no dominance. It is also clear from the Census Report, 2001 that in Bihar population of
Muslims is 1,37,22,048 and Hindu population is 6,90,076,919, in West Bengal Muslim's population was
2,02,40,543 and Hindu population was 5,81,04,835 and in Kerala Hindu population was 1,78,,83,449,
Muslim population was 78,63,842 and Christian population was 60,057,427. Similar is the position in
other States also. In all India basis also, population of Muslim Religion community constitute 13.60%
and they are dominant group in all respects, i.e., strength and population in comparison to other
religious groups in India, but in the State of Uttar Pradesh Muslims are no more religious minority
group requiring any minority status.
The next question arises to be considered would be once a group recognised as religious minority in the
Constitution as minority group ceased to be recognised as a religious minority group in the changed
circumstances, i.e., on the basis of strength, population and domination.
that a religious group may continue to be a religious minority of the total population up to population
49.99% of the total population. In this regard he urged that in India majority consists of Hindu
Religious group population and 50% of the total population may be calculated to Hindu population.
The percentage of different religion groups considered by the Constituent Assembly for minorities
were in three Groups, i.e., Group A- less than 1/2%, Group B- less than 1-1/2% and Group C- above 1-
1/2%. Muslims at that time were above 1-1/2%. The Constituent Assembly fixed criteria for
above 1-1/2% which may be interpreted as not more than 2% otherwise Constituent Assembly may
have mentioned it less than 5%, but Constituent Assembly considered only above 1-1/2% in the
Schedule which was adopted by the Constituent Assembly for recognising a religious community as
minority. It is worthy to notice here that Constituent Assembly was constituted before partition of the
country. It was expected at the time of partition of India on the basis of two nations theory that most of
Muslim population, which led agitation for dividing the country in united India (as is clear from
Constituent Assembly Debates) would go to Pakistan and only a small group of such nationalist
Muslims who supported Congress and opposed partition would remain in India and appropriate
protection was required to be given to such Muslims only. Protection to minority in the Constitution
was given to different religious groups, i.e., Anglo Indians and Christians who were attached with the
Britishers as dominant religious groups and after leaving Britishers from India being an insignificant
group in the matter of population and were not in a position to affect democratic process were protected
in the matter of religion, culture and educational institutions, though Christians in some States are now a
major dominant religious force and also affects the democratic process such as North Eastern States,
Kerala and some other States. Similarly, Parsees who were small in number were also provided
protection in regard to religion and culture etc. in view of the fact that they were not in a position to
affect/dominate politics in India. Sikhs were also given protection of minority as India was partitioned
and lakhs of Sikhs lost their lives and some migrated from Pakistan to India and they constituted
population at that time less than 1-1/2 per cent. But so far as Muslims are concerned, the assessment
was that the total population of Muslims who would not leave India would be slightly above 1-1/2
percent as is clear from the Schedule prepared by the Advisory Committee on Minority headed by
Sardar Vallabh Bhai Patel adopted by Constituent Assembly. Had the Constituent Assembly visualised
this fact that after partition of India and after exchange of Hindu and Muslim population, substantial
population of such Muslims who led agitation in different parts of India for partition of the country and
divided the country would remain in India even after partition of the country and major part of Muslims
population would not migrate to Pakistan, the Constituent Assembly would not have fixed the criteria
mentioned above. That is why Constituent Assembly had fixed 1-1/2% criteria otherwise it would have
fixed 5% or 10%.As held by the Apex Court in T.M.A. Foundation(supra) case that the provision of
special rights to minorities was introduced to remove their sense of insecurity and lack of confidence,
the provision of minority was not intended to create any privilege to any section of the society in the
name of minority institutions over and above rights of majority group (other than Muslims). It was to
remove inequality vis-a-vis other communities and that is why 1-1/2% was fixed so far as Indian
Muslims who adopted Indian citizenship after partition as Indians are concerned. As stated
above, Schedule prepared by the Advisory Committee on Minority was accepted by the Constituent
Assembly which mentioned population of Muslims above 1-1/2% after partition and thus it was made
the basis for determining religious minority of Muslims under Constitution.
As the entire material on record relating to population immediately after enforcement of of Constitution
in 1951 is available on record, it is necessary to look into the matter on this aspect with the details of the
Census as contained in Annexure-1 to the Affidavit filed on 27.2.2007, i.e., Census Report of 1951
makes it clear that total population of India at that time was 35 crores 68 lacs out of which Hindus
consisted about 30 crores 67 lacs, Sikhs were 68 lacs, Jains were 16 lacks, Budhists 2 lacs, Zoroastrian
1 lac Christians 82 lacs, Muslims 3 crores 54 lacs, Other Religion Returns (Tribal)-17 lacs and Other
Religion Return (Non-Tribal) - 1 lac. The population of Hindu at that time was about 85%, Sikhs
1.74%, Jains .45%, Buddhist-.6%, Zoroastrian- 1%, Christians 2.3%, Muslims 9%, Other Religion
Returns (Tribal)-.47 and Other Religion Return (Non-Tribal) - .3%. The total population of undivided
India in 1941 was 31 crores 41 lacs out of which Muslim at that time constituted 3 crores 96 lacks, i.e.,
12.5.% excluding Jammu & Kashmir. In 1951, the total population of India at that time was
35,68,79,394 out of which population of Uttar Pradesh was 6,32,15, 942.
Controversy relates to Uttar Pradesh in 1951 & 2001 total population of Hindus and Muslims in the
State of Uttar Pradesh was as under:-
1951 2001
Total 63215742 Total 166197921
Religion Male Female Hindu-133979283
Sikhs 1,10,947 86,665 Muslim- 3,7440158
Jains 51,651 46,063
Buddhists 1,968 1,253
Zoroastrian 678 580
Muslims 9058982
Christians 64,799 59,083
Jews 33 1
Hindu 53760925
Assistant Director of Census Operation, Uttar Pradesh, dated 19th March, 2007 makes out
demographic changes on the basis of 2001 Census. Out of total population of India of 1,028,610,328 at
present Muslims population was 13,81,88,240, Sikhs are 1,92,15,730, Christians are 2,40,80,016,
Buddhists are 79,55,207 and Jains are 42,25,053. List of such States where Hindus were reduced to
minority after independence of India is as under:-
State Total Population Hindus
Jammu and Kashmir 1,014,3700 30,05,349
Arunachal Pradesh 1,097,968 3,79,936
Nagaland 19,90,036 1,53,162
Manipur 21,66,788 9,96,894
Mizoram 8,88,573 31,562
Meghalaya 23,18,822 3,07,822
Lakshadweep 60,650 2,281
Punjab 2,43,58,999 8997942
As matter relates to religious minority, argument of 50% of the total population presupposes two
groups, i.e., above 50% and less than 50%. In a multi religious society how this 50% would be
calculated and which religious group could be recognised as religious minority group in comparison to
which religious group will be considered in succeeding part of the judgment.

Apex Court in T.M.A. Pai Foundation case (supra) in support of his contention and urged that even if
population of Muslim religious minority group reaches 49.9%, i.e., less than 50%, it shall continue as a
religious minority group. This calculation may be made on the basis of all India basis or and State of
Uttar Pradesh basis. He further urged that Hindus are in majority and the calculation should be made in
comparison to Hindus as a religious entity
question further arises to be considered is whether Hinduism is a religion for the purposes of
consideration of Religious minority.
The first case in which Hinduism was considered by the Constitution Bench of the Apex Court is the
judgment reported in AIR 1966 SC 1119, Sastri Yagnapunushadji v. Muldas Bhudardas Vaishya,
relevant part of which is being quoted below:-
"Who are Hindus and what are the broad features of Hindu religion, that must be the first part of our
enquiry in dealing with the present controversy between the parties. The historical and etymological
genesis of the word 'Hindu' has given rise to a controversy amongst indologists; but the view generally
accepted by scholars appears to be that the word "Hindu" is derived from the river Sindhu otherwise
known as Indus which flows from the Punjab. "That part of the great Aryan race", says Monier
Williams, "which immigrated from Central Asia, through the mountain passes into India, settled first in
the districts near the river Sindhu (now called the Indus). The persian pronounced this word Hindu and
named heir Aryan brethren Hindus. This Greeks, who probably gained their first ideas of India from
the Persians, dropped the hard aspirate, and called the Hindus 'Indoi' ("Hinduism" by Monier Will
Hams. P.1)
The Encyclopedia of Religion and Ethics, Vol VI, has described 'Hinduism' as the title applied to that
form of religion which prevails among the vast majority of the present population of the Indian Empire
(p.686). As Dr. Radhakrishnan has observed, "The Hindu civilization is so called, since its original
founders earliest followers occupied the territory drained by the Sindhu the (the Indus )river system
corresponding to the North West Frontier Province and the Punjab. This is recorded in the Rig which
give their name to this period Indian history. The people on the Indian side of the Sindhu were called
Hindu by the Persian and the later western invadors." (The Hindu view of Life" by Dr. Radhakrishnan.
P.12). That is the genesis of the word "Hindu".
When we think of the Hindu religion, we find it difficult, if not impossible to define Hindu religion or
even adequately describe it. Unlike other religion in the world, the Hindu religion does not claim any
one prophet; it does not worship any one God; it does not subscribe to any one dogma; it does not
believe in any one philosophic concept; it does not follow any one set of religious rites or performances;
in fact, it does not appear to satisfy the narrow traditional feature of any religion or creed. It may
broadly be described as a way of life and nothing more.
............The term 'Hindu', according to Dr. Radhakrishnan, had originally a territorial and not a credal
significance. It implied residence in a well-defined geographical area. Aboriginal tribes, savage and
half-civilized people, the cultured Dravidians and the Vedic Aryans were all Hindus as they were the
sons of the same mother. The Hindu thinkers reckoned with the striking fact that the men and women
dwelling in India belonged to different communities, worshipped different gods, and practised different
rites (Kurma Purana) (Ibid p.12)
Monier Williams has observed that "it must be borne in mind that Hinduism is far more than a mere
form of theism vesting on Brahmanism. It presents for our investigation a complex congeries of creeds
and doctrines which in its gradual accumulation may be compared to the gathering together of the
mighty volume of the Ganges, swollen by a continual influx of tributary rivers and rivulets, spearding
itself over an every-increasing area of country and finally resolving itself into an intricate Delta of
tortuous steams and jungly marshes...The Hindu religion is reflection of the composite character of the
Hindus, who are not people but many. It is based on the idea of universal receptivity. It has ever aimed
to accommodating itself circumstances, and has carried on the process of adaptation through more than
three thousand years. It has first borne with and then, so to speak, swallowed, digested, and assimilated
something from all creed". (Religious Thought & Life in India" by Monier Williams, P. 57).
We have already indicated that the usual tests which can be aplied in relation to any recognised religion
or religious creed in the wordld turn out to be inadequate in dealing with the problem of Hindu religion.
Normally, any recognised religion or religious creed subscribes to body of set philosophic concepts
and theological beliefs. Does this test aply to the Hindu religion? In answering this question, we would
base ourselves mainly on the exposition of the problem by Dr. Radhakrishnan in his work on Indian
Philosophy . ("Indian Philosophy" by Dr. Radhakrishnan. Vol. I, pp.22-23). Unlike other countries,
India can claim that philosphy in ancient India was not an auxiliary to any other science or art, but
always held a prominent position of independence..... "In all the fleeting centuries of history", says Dr.
Radhakrishnan, "in all the vicissitudes through which India has passed, a certain marked identity is
visible. It has held fast to certain psychological traits which constitute its special heritage and they will
be the characteristic marks of the Indian people so Loungsri as they are privileged to have a separate
existence". The history of Indian thought emphatically brings out the fact that the development of
Hindu religion has alrways been inspired by an endless quest of the mind for truth based on the
consciousness that truth has many facts. Truth is one, but wise men describe it differently.(...) The
Indian mind has, consistently through the ages, been exercised over the problem of the nature of
godhead the problem that faces the spirit at the end of life, and the interrelation between the individual
and the universal soul. "If we can abstract from the variety of opinion', says Dr. Radhakrishnan, "and
observe the general spirit of Indian though, we shall find that it has a disposition to interpret life and
nature in the way of monistic idealism, though this tendency is so plastic, living and manifold that it
takes many forms and expresses itself in even mutally hostile teachings."(..)
.....Naturally enough, it was realised by Hindu religion from the very beginning of its career that truth
was many-sided and different views contained different aspects of truth which no one could fully
express. This knowledge inevitably bred a spirit of tolerance and willingness to understand and
appreciate the opponent's point of view. That is how "the several views set forth in India in regard to
the vital philosophic concepts are considered to be the branches of the self-same tree. The short cuts
and blind alleys are somehow reconciled with the main road of advance to the truth." (..) When we
consider this broad sweep of the Hindu philosophic concepts, it would be realised that under Hindu
philosophy, there is no cope for ex-communicating any notion or principle as heretical and rejecting it
as such.
The development of Hindu religion and philosphy shows that from time to time saints and religious
reformers attempted to remove from the Hindu thought and practices elements of corruption and
superstition and that led to the formation of different sects. Buddha started Budhism; Mahavir founded
Jainsim; Basava became the founder of Lingayat religion; Dnyaneshwar and Tukaram initiated the
Varakari cult; Guru Nanak inspired Sikhism, Dayananda founded Arya Samaj, and Chaitanya began
Bhakti cult; and as a result of the teachings of Ramrksohin and Vivekananda, Hindu religion flowered
into its most attractive, progressive and dynamic form. If we study the teachings of these saints and
religious reformers, we would notice an amount of divergence in their respective views; but underneath
that divergence, there is a kind of subtle indescribable unity which keeps them within the sweep of the
broad and progressive Hindu religion.
......It is somewhat remarkable that this broad sweep of Hindu religion has been eloquently described by
Toynbee. Says Tonbee; "When we pass from the plane of social practice to the plane of intellectual
outlook, Hinduism too comes out well by comparison with the religions and ideologies of the South-
West Asian group. In contrast to these Hinduism has the same outlook as the pre-Christian and pre-
Muslim religions and philosophies of the Western half of the old world. Like them, Hinduism takes it
for granted that there is more than one valid approach to truth and to salvation and that these different
approaches are not only compatible with each other..but are not only compatible with Day Experiment
in Western Civilisation" by Toynbee, pp. 48-49).
The Constitution-makers were fully conscious of this broad and comprehensive character of Hindu
religion; and so, while guaranteeing the fundamental right to freedom of religion, Explanation II to
Article 25 has made it clear that in sub-clause (b) of clause (2) the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jains or Budhist religion, and the
reference to Hindu religious institutions shall be construed accordingly."
In order to consider what is the Hinduism, the judgment of the Apex Court reported in AIR 1996 SC
1113, Dr. Ramesh Yeshwant Prabhoo v. Prabhakar Kashinath Kunte and others is very relevant.
Paragraphs 38, 39 and 40 of the judgment are being quoted below:-
"38. These Constitution Bench decisions, after a detailed discussion, indicate that no precise meaning
can be ascribed to the terms 'Hindu', 'Hindutva' and 'Hinduism'; and no meaning in the abstract can
confine it to the narrow limits of religion alone, excluding the content of Indian culture and heritage. It
is also indicated that the term 'Hindutva' is related more to the way of life of the people in the sub-
continent. It is difficult to appreciate how in the face of these decisions the term 'Hindutva' or
'Hinduism' per se, in the abstract, can be assumed to mean and be equated with narrow fundamentalist
Hindu religious bigotry, or to be construed to fall within the prohibition in sub-section 3 and/or (3A)of
S. 123 of the R.P. Act.
39. Bharucha, J. in Dr. M. Ismali Faruqui v. Union of India, (1994) 6 SCC 360: (1994 AIR SCW
4897), (Ayodya case), in the separate opinion for himself and Ahmadi, J. (as he then was), observed as
under:
".......Hinduism is a tolerant faith. It is that tolerance that has enabled Islam, Christianity,
Zoroastriansim, Judaism, Buddhism, Jainism, and Sikhism to find shelter and support upon this land...."

(at page 442) (of SCC): (at p. 4971, para 159 of AIR)
40. Ordinarily, the Hindutva is understood as a way of life or a state of mind and it is not to be equated
with, or understood as religious Hindu fundamentalism. In "Indian Muslims - The Need For A Positive
Outlook" by Maulana Wahiduddin Khan, (1994), it is said:
"The strategy worked out to solve the minorities problem was, although differently worded, that of
Hindutva or Indianisation. This strategy, briefly stated, aims at developing a uniform culture by
obliterating the differences between all the cultures co-existing in the country. This was felt to be the
way of coomunal harmony and national unity. It was though that this would put an end once and for all
to the minorities problem".
(at page 19)
The above opinion indicate that the word 'Hindutva' is used and understood as a synonym of
'Indianisation',e.e. Development of uniform culture by obliterating the differences between all the
cultures co-existing in the country."
A judgment reported in 1993 ALL.L.J., 1379, Smt. Indumatee Koorichh v. The Family Court, Lucknow
and another of the learned Single Judge of this Court has also 'Hindu' religion. Relevant party of
Paragraph 27 of the judgment is being reproduced below:-
"27......expression 'Hindu' under the acts has been taken to mean and include in itself every person man
or woman or child who is not a Muslim, Christian, Parsi or Jew and also such person, who being
Muslim, Christian, Parsis or Jew when, he gets himself converted into the Hindu way of life either as a
Vaishnavait, Shivait, Buddhist, Sikh or the like cults of Hindu faith and religion. Those religions, as
have got their origination in foreign land or lands other than mother India, the great Hindustan, and, as
such, their followers are not included in phrase Hindu. Thus considered in wider horizon or sense of
connotation a person born in India or Hindustan or whose parents have taken birth in India or Hindustan
the land surrounded by Himalayan range on the north and Sindhu the Sea known as Indu sarovar in the
south and having faith and allegiance with this land and its culture may be called a Hindu irrespective of
difference of approach towards one truth and one goal."
This definition of Hindu has further been defined by a Constitution Bench judgment of the Apex Court
reported in AIR 1971, 1737, D.A. V. College, Jullundur etc. v. The State of Punjab and others.
Paragraphs 12, 13 and 16 of the said judgment are being reproduced below:-
"12. For the purposes of Art. 29(1) even though it may not be necessary to enquire whether all the
Hindus of Punjab as also the Arya Smajis speak Hindi as a spoken language, nonetheless there can be
no doubt that the script of the Arya Samajis is ditinct from that of Sikhs who form the majoirty. It is
claimed that while the Sikhs have Gurumukhi as their script the Arya Samajis have their own script
which is the Devnagri script. Their Claim to be a religious minority with distinct script of their own
seems to us to be justified as would appear from the following:
13. The Arya Samaj is a reofrmist movement, believes in one God and in the Vedas as the books of true
knowledge. It holds that it is the duty of every Arya Samaji to read the Vedas and have them read, to
teach or preach them to others. It has a distinct organisation, the membership of which is open to all
those who subscribe to its aims and objects. The Arya Samajis worship before the vedic fire and it
begins with the burning of incence (the homa 'sacrifice') accompanied by the chanting of Vedic verses.

16. The passage read above show beyond doubt that the Arya Samaj by "rejecting the manifold
absurdities found in Smriti and in tradition and in seeking a basis in the early literature for a purer and
more rational faith" can be considered to be a religious minority, at any rate as part of the Hindu
religious minority in the State of Punjab.
In this regard, constitution of Hindu Society and what is Hindu religion has been considered by the
Apex Court in Bal Patil v. Union of India case (supra). Paragraphs 26, 27, 28 and 30 of the Judgment
are being reproduced below:-
"26.The so-called minority communities like Sikhs and Jians were not treated as national minorities at
the time of framing the Constitution. Sikhs and Jains, in fact, have throughout been treated as part of
the wider Hindu community which has different sects, sub-sects, faiths, modes of worship and religious
philosophies. In various codified customary laws like Hindu Marriage Act, Hindu Succession Act,
Hindu Adoptions and Maintenance Act and other laws of pre and post Constitution period, definition of
'Hindu' included all sects, sub-sects of Hindu religions including Sikhs and Jains.
27. The word 'Hindu' conveys the image of diverse groups of communities living in India. If you search
for a person by name Hindu, he is unidentifiable. He can be identified only on the basis of his caste as
upper caste Brahmin, Kshatriya or Vaish or of lower caste described in ancient India as Shudras. Those
who fall in the Hindu class of 'Shudras' are now included in the Constitution in the category of
Scehduled castes with special privileges and treatment for their upliftment. This was found necessary to
bring them at par with upper castes in Hindu society. The aboriginals, who have no caste were
considered as distinct from four castes or Varnas of Hindu society. They have been treated favourably
in the Constitution as Scheduled Tribes. For them also there are provisions for special treatment and
grant of special privileges to bring them on level with the other castes from the main advanced streams
of Indian society.
28. There is a very serious debate and difference of opinion between religious philosophers and
historians as to whether Jains are of Hindu stock and whether their religion is more ancient than the
vedic religion of Hindus. Spiritual philosophy of Hindus and Jains in many respect is different but the
quintessence of the spiritual thought of both the religions seems to be the same. The influence of Hindu
vedic religion is quite apparent in the custom, style of living belief and faith of Jains. Jains do not
worship images or idols of Gods but worship their Tirathankars meaning their ideal personalities who
have attained human perfection and excellence by a process of self-improvement. The literal meaning
of the word 'Jain' is one who has attained 'victory'. It signifies a person who has attained victory over
himself by the process of self-purification. 'Jain' is a religious devout who is continuously striving to
gain control over his desires, senses and organs to ultimately become master of his ownself.
30. Thus, 'Hinduism' can be called a general religion and common faith of India whereas 'Jainsim' is a
sepcial religion formed on the basis of quintessence of Hindu religion. Jainism places greater emphasis
on non-violence ('Ahinsa') and compassion ('Karuna'). Their only difference from Hindus is that Jains
do not believe in any creator like God but worship only the perfect human-being whom they called
'Tirathankar'. Lord Mahavir was one in the generation of Tirathankars. The Tirathankars are
embodiments to perfect human-beings who have achieved human excellence at mental and physical
levels. In philosophical sense, Jainism is a reformist movement amongst Hindus like Brahamsamajis.
Arasamajis and Lingayats. The three main principles of Jainsim are Ahinsa, Anekantvad and
Aparigrah. (See:-1) Encyclopedia of Religion and Ethcis, Vol. 7 pg.465;2) History of Jains by
A.K.Roy, pgs. 5 to 23: and Vinoba Sahitya, Vol.7 pg. 27 to 284)."
It is settled now that Hinduism is not a religion but is a way of life and combination of different
religions and represents a culture and is a combination of various religions founded and developed by
the different saints, philosophers propounded by different philosophy relating to worship, thoughts,
ways of worship of the Almighty/God. The details have already been discussed above. In fact
Hindusim represents all thoughts, beliefs and way of worship borne in India.
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 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 brought up 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,
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
eproduced 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."
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.