Minority Judgement
By Nasiruddin Haider Khan
17 April, 2007
Countercurrents.org"The court finds that Muslims have ceased to be a minority religious community in the state of Uttar Pradesh on consideration of the materials on record which includes various census reports of 1951 and 2001 and, therefore, directs the state of Uttar Pradesh to treat any member of Muslim community equal to other non minority religious communities…"
This is the line of the famous and important judgment given by the Allahabad high court on April 5, 2007. The Judgment, if implemented can have far reaching implications. This judgment was stayed the very next day, but the way judgment was given and its timing, raised many questions. The ruling came just two days before the first round of elections for the Uttar Pradesh Assembly. A news channel has shown in its exit poll results that Muslim voters have been influenced by this judgment. At the same time, the Bhartiya Janta Party is in trouble over the controversy of a CD. The contents of this controversial CD cover many issues including the population/numbers and appeasement of Muslims.
About the timing of the judgment, in its opening paragraph the honorable judge S. N. Srivastava remarked, "Since I am scheduled to sit at the Lucknow Bench of this court from 9th April, 2007, I consider it appropriate to pronounce the operative part of the judgment of the writ petition."
"But why was he in a hurry? There was no emergency in delivering this judgment." asked noted legal and constitutional expert Prof. Tahir Mahmmood.
The matter that was set before the court did not require a decision to be made as to whether a community is in minority or not. It was a matter related to recognition and grant to a Madarsa filed by Anjuman Madarsa Noorul Islam of Dehra Kalan, Ghazipur. The Madarsa had applied for its recognition before the Minority welfare and Waqf department, so that it could get a grant. The Manager of the Madarsa alleged in this petition that the department was asking for money for the recognition. It was also alleged that the secretary of the department, who is also respondent in this case, had taken money from two other madarsas for a grant.
Prof. Mahmood says "the issue of being a minority or majority was not the case set before the court. The Court went beyond the subject area to pass the judgment." That is why he comments that judgment has a smell of bias and confusion.
"We must have a clear idea about the definition of a minority. The expression 'minority' has been derived from the Latin word 'minor' and the suffix 'ity' which means 'small in number'. The most obvious definition of minorities and majorities is in terms of numbers. According to Encyclopedia Britannica, 'minorities' is defined as "groups held together by ties of common descent, language or religious faith and feeling different in these respects from the majority of the inhabitants of a given political entity." A minority is a group that is numerically smaller than the majority in society."
-Prof. Faizan MustafaAnother comment on this ruling comes from, noted constitutional expert and teacher of law, Prof. Faizan Mustafa of Aligarh Muslim University. He says, 'the decision of the Allahabad High Court is constitutionally wrong, legally untenable and politically incorrect. It is also contrary of consistent rulings of the Supreme Court of India.'
While the court has only this to say regarding the reasoning behind the ruling "applying twin criteria, i.e. population and strength of a religious community as laid down by founding fathers of the constitution of India as is clear from proceedings of constituent Assembly to determine any religious community as a religious minority. The court finds that Muslim have ceased to be religious minority…" In view of Prof. Mahmood's words, this isn't a strong enough reason. It only takes a simple mathematical calculation to figure out who is in the majority or minority.
Prof. Faizan, who also happens to be the registrar ar AMU, gives a constitutional opinion on the above observation of the honorable high court "The expression "minorities" has been employed only at four places in the Indian Constitution. The head note of Article 29 uses the word minorities. Then again the expression minorities or minority has been employed in the head note of Article 30 and clauses (1) and (2) of Article 30. Interestingly, no definition of the term minority has been given in the Constitution and that probably is the reason of Allahabad High Court's anxiety.'
Quoting the judgments given by the Supreme Court in 1957 on the Kerala Education Bill and 11 bench judges in 2002 on the TMA Pai Foundation case, He says, "The Supreme Court of India has repeatedly held that the 'state' is to be taken as a unit for defining minority. No High Court can go against the Supreme Court."
Professor Faizan makes another point,"It is also possible that in a state, no group will be in the majority and all the inhabitants will have the minority status. For instance, in Kerala, all communities are minorities. The Less than 50% rule is also internationally recognized. It may also be noted that in a given situation even a majority community may also be given protection as a minority if in the power structure of the given society, it has what is being termed as "powerlessness." For instance, in the apartheid of South Africa, the black community which is in majority had a minority status."
The Court also asked the central government and Uttar Pradesh "to take the appropriate steps to modify the notification dated 23 .10.93, which was issued by the Union of India, accordingly." Prof. Mahmood, pointing to this directive of the judgment said "While delivering the judgment on UP, the court has given the directives to the centre. This means that the court is of the view that Muslims are also not a minority in the country as a whole."
But the advocate of the Mumbai High court and activist Flavia Agnes, gives a new dimension to the whole judgment. She says that now the judiciary has an individual and globalized perspective. They have little focus on social issues. According to Flavia, the judgment on the reservation for OBCs in higher education shows the same thing. Their Americanized to see the socially relevant issues. And this is a very grave situation. She points out that the Sachar committee has shown very clearly the backwardness and deprivation of the Muslims. In this situation, if a judgment like this comes, it will push a community towards ghettoisation.
Prof. Mahmood has a suggestion too; He says that it is high time to re-think the processes and procedures of the appointment of judges.
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