2 comments on “Discard all Muslim Reservations in Bharat. Hindusthan for Hindus, not for the propagators of Shariat or for the perpetrators of another Pakistan.”

1. Yogesh Saxena, Adv. Allahabad High Court.

   October 16, 2012

   

   Historical Back Ground of Muslim Minority and Threat of Muslim Reservation in India. PART- I

   Compiled by Jogesh Saxena, Advocate, Allahabad High Court, Supreme Court of India.

   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. This application of adjudication in reality is also maintainable throughout the State of India.

   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 dogged resistance 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 ‘idolaters’ of Arabia. His example was followed by the turk-afghan rulers of Delhi in their dealings with the Hindus. The latter were not treated as full-fledged citizens of ‘the Islamic state’ 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 thought for the authoritative interpretation of sharia 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 idolaters’ 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 intense 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 political 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 threefold idea of one scripture, one sovereign and one nation; script was the holy 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.
   ‘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 dirhams or more were considered to be wealthy; those who had less than ten thousand but more than two hundred dirhams were classified as belonging to the middle class, those who had less than two hundred dirhams but enough, in addition to the cost of maintaining themselves and their dependants, to pay the tax were considered to be poor. The first category was required to pay forty-eight dirhams 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 dirham 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 Nadir shah 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 majority 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 jiziyah 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 jiziyah 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 commonness 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 multinational-ism 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 jiziyah tax, but the same was re-imposed later on by Aurangjeb.

   Read PART -II in continuation.

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2. yogeshsaxena

   October 16, 2012

   

   Historical Back Ground of Muslim Minority and Threat of Muslim Reservation in India. PART – II

   Compiled by Jogesh Saxena, Advocate, Allahabad High Court, Supreme Court of India.

   Absurdity to claim Muslim minority status or Muslim Reservation.
   During the period of Muslim Rule for about one thousand year, no member of Muslim community claimed any minority rights. The Britishers thereafter took over 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 non-dominant 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 propounded that India consited of two nations, Hindu and Moslem. 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 social, 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…..”
   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 Buddhist 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 judgement 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 Buddhist 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 Assembly.
   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
   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 them 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 thousand years (712 AD – 1757 AD , but India was never under any Complete Islamic Rule) 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 the various Islamic Political Parties and Fundamental Groups claimed themselves as Muslim minority and protection under Articles 29 and 30 of the Constitution of India, any judicious application must express 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 the filthy Muslim mind is expressing their demand to divide India again.
   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.
   At present, Muslims in India is controlling Politics (through vote bank – minority appeasement policy of the all political parties), Finance (Arab dollars – Islamic banks) and Under World (Muscle power-fire arms-narcotics). Who will tame them.
   With Muslim Reservation they are trying to fortify their Islamic Castle, rather Islamic Expansion in Indian Politics and Society.
   Muslim Reservation is a most dangerous threat in front of Majority Hindus in India.

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