Legal basis of Haj subsidy abolition by Supreme Court

Legal basis of Haj subsidy abolition by Supreme Court

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Last week (May 8, 2012), a two-judge bench of the Supreme Court (Justice Aftab Alam and Justice Ranjana Desai) directed the Government of India to gradually reduce and abolish haj subsidy in a period of 10 years. The first impression after reading media reports about this direction appeared to be as if the Supreme Court might have issued this direction keeping in view the secular character of our Constitution. However, a close reading of this Supreme Court decision belies this impression and it is seen that while the actual direction of the Supreme Court is in keeping with the secular character of the Constitution, the reasoning given by it for this direction, in fact, turns out to be rather on the opposite side of what a secular Constitution would require. It is interesting to analyse this decision for this limited purpose (i.e., other issues covered in this decision are not being discussed here). A copy of this decision (Union of India v. Rafique Shikh Bhikan) is being made available for download on Tilak Marg site for the benefit of its esteemed readers.
The Preamble to the Constitution of India clearly states that India is a secular state. The word “secular” did not originally exist in the Preamble when the Constitution came into being in the year 1950. This word was introduced in the Preamble in the year 1976 by the 42nd Constitutional Amendment. However, what was made explicit by this Amendment was already implicit in the Constitution, and it was already well established that India is a secular state under its Constitution. For example, in the case of Kesavananda Bharati  v. State of Kerala, (1973) 4 SCC 225 : AIR 1973 SC 1461 : 1973 Supp SCR 1, the Supreme Court had already declared that “secularism” is a basic feature of the Constitution.
Now, what does secular mean? This word is not defined in the Constitution. However, the word secular has a specific meaning in the context of Indian Constitution. It means the state has no official religion. It means state neutrality in all religious matters. The state will not identify itself with any particular religion. All religions enjoy the same protection under the Constitution without any favour or discrimination. The state is required to treat all religions and religious groups equally. It cannot show favour to a particular religion. Moreover, under Articles 25 to 28 of the Constitution, certain fundamental rights relating to freedom of religion have been conferred not only on all citizens but also on all persons in India.
It is in this background that one has to consider the question whether the Government of a secular India can spend public money on subsidising pilgrimage of a particular religion. More on this a slightly later.
Let us first consider a few facts of the aforesaid Rafique Shikh Bhikan case decided by the Supreme Court. It is mentioned in the said decision that during 2011, about 125,000 pilgrims from India went for Haj, and the total Haj subsidy was Rs. 685 crore. In the year 2011, each Haj pilgrim was charged Rs. 16,000/- for the to-and-fro air fare for Jeddah (in Saudi Arabia). On the other hand, the Government actually spent an amount of Rs. 58,800/- for each such air fare. However, the normal air fare should have been Rs. 25,000/-, but due to some stringent regulations imposed by the concerned authorities of Saudi Arabia, the actual air fare turned out to be Rs. 58,800/-. Thus, there are two parts of the subsidy provided by the Government on the air fare to each Haj pilgrim.
The Supreme Court observed that the amount of Rs. 16,000/- charged towards air fare from each Haj pilgrim was slightly less than 2/3rd of the otherwise normal fare of Rs. 25,000/-. The court observed that there was no justification for “charging from the pilgrims an amount that is much lower than even the normal air fare for a return journey to Jeddah”.
Now, speaking about the other part of the subsidy (Rs. 58,000/- minusRs. 25,000/-), the Supreme Court observed as under:
“As regards the difference between the normal air fare and increased fare, we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulation imposed by the Saudi Arabian Authorities. We also take note of the fact that the grant of subsidy has been found to be constitutionally valid by this Court. We are also not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of state funds and state resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with.” This Court has no claim to speak on behalf of all the Muslims of the country and it will be presumptuous for us to try to tell the Muslims what is for them a good or bad religious practice. Nevertheless, we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government. We remind ourselves that the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as under:
“ 97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Hajj (pilgrimage to Makkah) to the House (Ka’bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one’s conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists).”
We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today. The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development.” [emphasis is as found in the said judgment itself]
So, it is clear from the above extracts that abolition of Haj subsidy by the Supreme Court is not to uphold the principle of secularism. On the other hand, it is on the ground that the holy Quran mandates that only those Muslims should go for Haj pilgrimage who can afford the expenses for their conveyance, provision and residence. Therefore, instead of being based on the “secular” character of the Constitution, this Supreme Court decision is in fact based on the religious text of a particular religion. I’m forced to ask myself a question, how can the highest court of a secular country nullify an administrative action merely on the ground of religious text of a particular religion? Do the religious scriptures govern the Supreme Court? Further, while the Supreme Court mentioned that it “has no claim to speak on behalf of all the Muslims of the country”, what in fact has been done by it is to apply the religious text contained in the holy Quran. The judgment is completely silent as to which law is violated by Haj subsidy. On the other hand, the Supreme Court mentioned that the grant of Haj subsidy had already been found to be constitutionally valid by that Court. So, how can it set aside the executive policy of the Haj subsidy in such a situation? If it did not violate any law, how this subsidy came to be abolished? Was it not on the ground ONLY of the religious text contained in the holy Quran? If so, is it permissible for the Court to do so? With great respect, I’m not convinced with the reasoning given by the Supreme Court, to say the least.
Moreover, once the Supreme Court comes to a conclusion that the Haj subsidy is a bad policy and needs to be set aside, can it allow the same to continue for another 10 years by phasing it out only in instalments? Once the Haj subsidy is considered to be against the religious text of the holy Quran, and this subsidy is abolished by the Court, how can it continue the same for 10 years, only to be phased out slowly? Does it not mean that a Haj pilgrim will continue to receive the Haj subsidy even though the holy Quran does not permit it? Is it being permitted only because most of the Haj pilgrims are not aware of the religious text in this regard, as the Supreme Court itself mentioned in this judgment, “…we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government”.
More astonishing is the fact that having directed abolition of the Haj subsidy, in the same breath, the Supreme Court further suggested (directed?) to the Government as under:
“The subsidy money may be more profitably used for upliftment of the community in education and other indices of social development” (emphasis is supplied by me).
What does “the community” mean here? Does it mean “the Muslim community” or does it mean the society as a whole (i.e., ALL communities)? If it means “the Muslim community” (as the context implies), what power does the Supreme Court have under the Constitution to tell the Government to spend the amount of Rs. 685 crore on the upliftment of a particular community only, when the Constitution speaks of a SECULAR state? Is it constitutionally valid? What is the legal basis or the ground(s) or the reason(s) on which the Supreme Court came to the conclusion that this amount needs to be spent only on a particular community? In the absence of any such legal basis, can the Supreme Court decide policy issues which are in the exclusive domain of the executive?
In my respectful submission, these problems arise when the courts start deriving inspiration from religious texts instead of from the provisions of the Constitution. So, while the end result may be alright, the basis on which the end result was achieved does not reveal a happy situation since instead of applying the principle of secularism found in the Constitution, religious text has been applied by the highest court of a secular country to set aside an administrative policy. It sets a bad precedent.
Before I conclude, let me point out that as noted above, the Supreme Court has mentioned in the aforesaid decision that the grant of Haj subsidy had already been found to be constitutionally valid by that Court. Well, the reference here appears to be to the Supreme Court decision in the case of Prafull Goradia v. Union of India, (2011) 2 SCC 568, which was decided recently on January 28, 2011, by a bench of Justice Markandey Katju and Justice Gyan Sudha Misra. In my respectful opinion, this is another unsatisfactory judgment, and I’ll try to make detailed submissions in this regard in a separate article which will be placed on this site shortly, due to which I’m not going into the details of that judgment here to avoid duplicity.

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  • Gour Mohanty

    Thank you Dr Dhamija for your critical analysis of the Judgement of the Apex Court on Haj subsidy. It appeared to me that the  Judgement of the learned judges of the Supreme Court is supremely confusing..The ten year  respite  has diluted the issue and left the Government with an option to pursue their apeasement policy with renewed vigour inventing a plea of changed circumstances.(We have enough precedents where  a benefit granted for a ten year term  gets extended  ad nauseum ) .I had genuine doubts regarding the  genuine motive of the learned Judges  , that prima facie smacked of a tacit approval(with due respect to the Lordships).I shall be thankful to see the earlier Judgement on P.Goradia’s appeal and your kind analysis on it , where The S>C>has approved the Haj subsidy.

  • Thank you Dr Dhamija for your critical analysis of the Judgement of the Apex Court on Haj subsidy. It appeared to me that the  Judgement of the learned judges of the Supreme Court is supremely confusing..The ten year  respite  has diluted the issue and left the Government with an option to pursue their apeasement policy with renewed vigour inventing a plea of changed circumstances.(We have enough precedents where  a benefit granted for a ten year term  gets extended  ad nauseum ) .I had genuine doubts regarding the  genuine motive of the learned Judges  , that prima facie smacked of a tacit approval(with due respect to the Lordships).I shall be thankful to see the earlier Judgement on P.Goradia’s appeal and your kind analysis on it , where The S>C>has approved the Haj subsidy.

  • Zulfi

    If the matter concerns safety then tinted glasses with 30% & 50% tint for front and side respectively allowed whereas a sun control film doing exactly the same not allowed. How archaic is this?