Sunday, May 27, 2012

The Haj Subsidies Case

The Haj Subsidies case Rafique Bhikan v. Union of India was filed as an Special Leave Petition in the Suprme Court. The Supreme Court transferred a number of other cases with similar issues to itself. The UOI challenged the order of the Bombay High Court, where earlier, petitioners who were private tour operators, had challenged some of the eligibility criteria under the 2011 Haj Policy. The SC stayed the directions to allocate a certain number of seats in October 2011 and decided to examine the Haj Policy in detail. The orders were issued by Justice Aftab Alam. The Bench comprised Justice Alam and Justice Desai. 

The Haj Policy

The order places the welfare of the Haj pilgrim as the primary consideration for the government while granting recognition and registration to private tour operators. It draws a distinction between government contracts where commercial interests are at stake and whether there is a "larger public cause". Justice Alam draws upon earlier decisions rendered by him where a larger public cause was at stake - printing of government school textbooks, supply of indelible ink to the Election Commission. If so, court interventions are justified only if the criteria used are completely subjective or there is demonstrable malice.

The order then examines various eligibility criteria under the 2012 Haj Policy and approves it. None of the criteria are found to be unreasonable. The pilgrim's welfare is seen as central to the case at hand.

The GoI, the Haj Committees at the Central and State level were asked to report on a) selection of pilgrims b) charges applied to them and c) facilities provided within a period of two months. 

The Haj Subsidy 

It further goes on to issue a number of suggestions with respect to the Haj Subsidy given by the Government of India. Its constitutional validity had already been upheld in a previous case i.e. Prafull Gordia v. Union of India. (2011) 2 SCC 568. Here, Justice Alam states that there is no justification for charging the pilgrims a much lower fare than the cost of a return journey from Jeddah. Justice Alam uses an interpretation of the Quran to state that borrowing or using other people's means to carry out the Haj was impermissible. The implication is that if one were a "good" Muslim, then they would be uncomfortable with the Haj subsidy. It asks the Government to progressively reduce the subsidy and eliminate it within a period of ten years. 

The Goodwill Haj Delegation

The Goodwill Haj Delegation was examined for reasonableness. One of the GoI's reasons was to spread goodwill to the Kingdom of Saudi Arabia and to the Indian pilgrims. Examining the composition of the delegation over the years, the Court found no reasonable selection criteria. Some persons had gone three or four times. It was held that this was a violation of Article 14 of the Constitution. 

Further, the GoI affidavit had stated that one of the reasons for the Delegation was to oversee the welfare of the pilgrims. The Court held that the Haj Committee of India, the Consulate General in Jeddah and the Indian embassy in Riyadh were responsible for the same. 

It directed that the practice of a goodwill delegation must come to an end. 

We discussed among other things, the version of secularism that advocates "principled distance" of the state from all religions. We discussed Justice Alam's position on secularism, referring to his published pieces. [e.g. 2009 10 SCC (Journal) 60.] We discussed the consequences of principled distance, especially in relation to the state's economic involvement vis-a-vis religious communities (for instance, as in Article 27) as opposed to the "reform" question that is addressed in Article 25. For instance, what was troubling the Court here - the quantum of the subsidy or the subsidy itself? We discussed the earlier legal landmarks such as Shah Bano and the Sachar Committee Report, where the government specifically addressed the Muslims (in relation to Justice Alam's comment that the SC in the case was not trying to speak on behalf of all Muslims). Finally, we discussed the use of religious texts by the Supreme Court in its reasoning. 

Regulation of Media by the Supreme Court?

On 17 May 2012, we discussed the issue of judicial regulation of media in the context of the Sahara India Constitution Bench. Please note that the SC has reserved its judgment on this issue.

The proceedings happened in the course of  Sahara India Real Estate Corporation v. SEBI [C.A. No. 9813/2011] A news channel CNBC TV-18 had reported on its financial strategy made before SEBI. Sahara India made an interlocutory application before the Court asking that the media be restrained from publishing this material. Fali Nariman was representing Sahara in this matter and made the application. Arvind Datar and Pratap Venugopal, appearing for SEBI, pleaded ignorance about how this material had got into the hands of the new channel. Earlier, according to a news report in Mint, the eligibility criteria for journalists was sought to be tightened in the light of the Vodafone tax dispute, but journalists made a representation to the Court's Press Committee (offically known as the Law Reporting Council) headed by former Justice Dalveer Bhandari  and the norms were relaxed. The Bench consisted of Chief Justice SH Kapadia and Justices D. K. Jain, S. S. Nijjar, Ranjana Prakash Desai, and J. S. Khehar. A notice was saying that anyone who wished to intervene could. Note that The CJ also heads the Law Reporting Council now. Several newspapers, the Press Council of India and so on intervened. Soli Sorabjee and KK Venugopal were amici. Several of the lawyers, including Fali Nariman and Prashant Bushan made the submission that this would result in curbing freedom of the press. They said that witness statements as well court proceedings were freely reportable. Harish Salve on the other hand, supported the move by saying that media reporting would result in a chilling effect on the press.  The SC reserved its verdict. The next listing for final hearing is on 30 May 2012. 

We discussed the important precedent in the case of Naresh Sridhar Mirajkar v. State of Maharashtra (1966), a 9 judge bench of the Supreme Court held that the High Court had inherent powers to ask that a witness testimony in a particular case be postponed from reporting. This has been cited in the course of arguments. In this case, the witness had pleaded that it would hurt his business interests. The dissent by Justice Hidayatullah noted that if it was a public trial in general, there was no reason why a part of the trial could be made in camera. The majority judgment by Justice Gajendragadkar has fairly specious reasoning. But notably, postponement of publication was expressly held not to violate the freedom of speech and expression since it was only theincidental effect of a judicial order. Following which, by 1972, Bennett Coleman (1972) 2 SCC 788, decides that the pith and substance test does not apply to restrictions on newspapers, although Justice Mathew's dissent holds that the Mirajkar majority was right.

We also looked at Rajendra Sail v. M.P. High Court Bar Association (2005) 6 SCC 109, where Justice YK Sabharwal observed that fair criticism of a court judgment was alright, since judgments were public documents. However, since judges cannot reply to some of this criticism, every effort must be made to be doubly careful. The integrity of the Court should preserved - and this involves not attributing bias or personal motives of judges deciding the question. If so, the journalist can be hauled up for contempt. Here, since the parties had tendered unconditional apologies, they were let off. The Court took into account 24 hour news channels, and said that they should engage in sensationalism. However, this did not relate to a sub-judice matter.

By framing "guidelines", is the SC approving of pre-censorship by other means? Most recently, in the BMW case (RK Anand v. Delhi High Court (2009) 8 SCC 106 ), the Court held that NDTV's sting operation would not amount to trial by media. This is not a licence for the media to publish anything, but it definitely does not mean that guidelines can be formulated. This would amount to pre-censorship which the court does not endorse.

Suggestions for self-regulation have been successful in the SC in the past. The observations in Ajay Goswami v. Union of India (2007) 1 SCC 243 by Justice AR Lakshmananare also interesting - "the regulation of television broadcasting should not be that adults should watch what is fit for children." It was important to keep in mind that norms on regulation of media already exist. S.14 of the Press Council Act, 1978 was sought to be amended, since it addressed this question. Derecognition of newspapers or removal of accreditation of a journalist possibly could address this issue The Court also highlighted the provisions of the Indecent Representation of Women Act. The notion ofself-regulation of media was approved here - with respondents Times of India and Hindustan Times being commended for their in-house mechanisms.

We looked at the stances adopted by the various intervenors in the case. It was interesting to note that in spite of the distinction between print media and other forms of media have been made, the reporting guidelines sought to be framed in this case are only for the print media. It would be interesting to investigate decisions made by the Law Reporting Council of the Supreme Court. We also discussed whether this violated the the right to know recognised by the SC under Article 19(i)(a). We also had a general discussion on the role of "new media" and courts.