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. 


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