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.

Is India Legally Prepared for the proposed changes in FDI in the Retail Sector?

The background research for this CLIF session was put together by Surabhi Rajpal, Teaching Associate for the Corporate Law courses here at NLS.

We started with a timeline of the proposed FDI changes - the discussion on this issue has been going on for well over ten years. The first instance was that of the Task Force set up under MS Ahluwalia in 1999 which focused on enhanced FDI limits in the retail sector as a means of achieving greater economic growth to the Parliamentary Standing Committee Report in 2009 which stated that the social impact of these measures had not been taken into account.

What distinguishes FDI is that it purports to create a "lasting interest" in the productive assets of the economy. It also allows for influence over management in the entity that is being invested in. India has a sector-specific FDI policy, which is governed by inter alia, the Foreign Exchange Management Act and the regulations thereunder. Other legal instruments that may be taken into account are the press notes and circulars by the Department of Industrial Policy and Promotion under the Ministry of Commerce and Industry. These circulars are usually notified by the RBI. Parliamentary approval is not necessary for the proposed changes, but the UPA government's idea was to create more legitimacy for this move.

The following issues were brought up to assess India's "legal" preparedness:

(a) under the constitutional scheme, the implementation of this policy would be the prerogative of the state governments (List II, Entry 27 in the Seventh Schedule) - does this move take the state governments into confidence?

(b) India's labour law situation is miserable - 95% of the labour force is unorganised sector; loss of jobs inevitable. Are our labour laws stringent enough to meet the challenge of violations in short term contracts & employment by MNCs?

(c) the megastores that invariably result from the opening up of these markets require huge tracts of land - under our land laws, acquisition for a "fair price" is allowed. Will acquisition proceed in a just fashion for private entities? How do we address the question of conversion of agricultural to non-agricultural land?

(d) will any of these measures fall foul of our obligations under GATS? Once investment is allowed, it will be difficult to regulate activity e.g. Thailand.

Our discussions on these questions brought up the following issues - (a) will it encourage innovation amongst the smaller vendors and thereby keep them in business? (b) what would be the role of the Competition Commission in this regard? (c) will greater regulation for e.g. limiting the number of players in a given geographical area like they did in China solve the problem? (d) Would minimum pricing as was the case in Germany when Walmart entered the market solve the problem? (e) what explains the attitude of the big domestic retailers?

Although the plans have been shelved for the time being because of political opposition, it was evident that India seemed legally unprepared for a move of this nature.

Temple Treasures and the Supreme Court

We discussed legal issues surrounding the 'treasure' discovered at the Sree Padmanabhaswamy temple in Trivandrum. Having first read through the decision of the Kerala High Court in January 2011, the discussants were familiar with the history of the litigation, the temple's administration and the issues that had been raised in appeal before the Supreme Court.

One of the two writ petitioners in the case were Uthradam Thirunal Marthanda Varma, the brother of the last ruler of Travancore, Chithira Thirunal Balarama Varma. The issues before the Kerala High court were a] who could manage the temple and b] in what manner is this administration to be carried out? This in turn hinged upon an interpretation of the term 'ruler' in the Travancore-Cochin Hindu Religious Institutions Act read with Article 366 (22) of the Constitution.

The case was apparently filed because Uthradam Thirunal had apparently made a comment during a press interview to a leading Malayalam daily that the assets of the temple 'belonged' to the Travancore royal family. The civil courts in Trivandrum were approached by concerned devotees and the case ultimately came before the Kerala High Court. The High Court upheld the

claim of the state government, stating the administration of the temple, after the demise of the last recognised ruler of Travancore vested with the state government. Meanwhile, Uthradam Thirunal, after the death of Chithira Thirunal in 1992, had continued with appointing people to the temple administrative bodies. The Supreme Court was approached, seeking the writ of quo warranto in this respect.

Some of the issues that we discussed were:

1. Does Uthradam Thirunal have a viable claim to be ruler under the TC Hindu Religious Institutions Act? The majority of the discussants felt, upon a reading of the relevant Sections, Articles 366 (22), 363A, 295 and 296 of the Constitution that the administration vests with the state. This is in line with the reasoning of the High Court, although there appears to be a genuine legal lacuna in terms of who will continue to administer the temple, given that the State Government seems unwilling to take this up. The High Court's suggestion was that a statutory body or a trust should be created afresh, while respecting the rights of the royal family / denomination to worship freely.

2. Can the wealth of the temple be legally claimed by the royal family? This appears to be a non-argument, since idols are juristic persons under Hindu law, who can hold property and be taxed.

3. Are there problems with the way in which an ostensibly secular state such as India is implicated in the running of religious institutions like temples? We discussed the distinction between administration of temples as a religious matter and the religious practices themselves as a religious matter. Some of us argued that this was an artificial distinction (along the lines of the distinction between religion and religious practice in Article 25 cases).

4. In re the opening of Vault B, should courts take into account faith and belief? The question was one of public legitimacy too, some argued. The courts cannot go completely against public opinion. On the other hand, it cannot also be a situation where legal procedure is completely ignored.

We also discussed at some length the decisions in (a) N. Muraleedharan Nair (1991 - Ker HC), (b) M.P. Gopalakrishnan Nair (2005 - SC) and (c) G. Raman Nair (2005 - Ker HC) which deal with the question of whether elected representatives who are to be part of the Devasom Boards have to believe in temple worship themselves.

SC orders in the Salwa Judum Case

We discussed the recent directions issued by the Supreme Court in the Salwa Judum case (Nandini Sundar and ors. v. State of Chhattisgarh) and the following broad issues:

1. Is the reasoning of the Court as far as Articles 14 and 21 are concerned unnecessarily convoluted? The reasoning of the court, in the case of Article 14 seems to be that the SPOs, appointed under the Chhattisgarh Police Act, 2007 (read with May 2011 rules) seem to be facing risks incommensurate with the skills training that they receive. Their service conditions are inadequate, again, for those purpotedly involved in a counter-insurgency operation. The second part of the Article 14 reasoning pertains to the fact that given that many of the appointments are of tribal youth, some of whom have had only limited schooling. This does not allow them to exercise proper judgment, given the particular conditions that they are facing. Q: Could this case have been wrapped up just by noting the lacunae of rules at the time of appointment?

The manner in which 'dignity', particularly, has been discussed in the context of Articles 14 and 21 seems to be a novel approach adopted by the Supreme Court. The order discusses this in the context of the Directive Principles (equitable distribution and sustainable development, among others) were "principles fundamental to the governance of the state'. Previously, it has been noted by the SC in the context of Article 21 (life as being more than mere animal existence).

2. Why was the implication of the Central Government in these orders important? The Central Government had submitted that beyond specifying the maximum number of SPOs who could be appointed and from supplying the funds required for the honararium, the Central Government pleaded ignorance of the situation. We discussed how historically the role of the Ministry of Home Affairs is deeply involved in the "management" of internal conflict, particularly on Naxalite violence. There is blatant disbelief expressed at the Government's affidavits in the order. Q: Apart from more obvious reasons why there is this disbelief, is the involvement of the Central Government important from the compensation for the SPOs affected by Naxalite violence (that the petitioners had asked for?)

3. Does this case demonstrate the limitations of the PIL model? The order is particularly concerned about the security of the SPOs who would be disarmed, and asks the very Government which was complicit in these unconstitutional appointments to ensure their safety.

4. The original petition (250/2007) had asked to stop the appointments of SPOs who were minors. Apart from the reference to tribal "youths" or "youngsters", the Court does not look at the impact of minority in any detail. Perhaps it is assumed. In one part of the order, the Court discusses how the "informed consent" of those who had received such limited training / skills could not be presumed, even if they were not above the age of eighteen.

Note that the decision has not completely negated the use of SPOs in Chhattisgarh, but has only restricted their deployment in case of natural / manmade disasters where relief work is necessary or to regulate traffic. Essentially the idea seems to place them in non-combatant positions.

We also discussed the use of SPOs in other states - particularly, Karnataka and Kashmir, and what the manner of regulation was in these instances. It appears that the SC's interpretation also takes cognisance of the peculiar nature of the Chhattisgarh situation, without buying into the argument by the Government that it was an exceptional situation which demanded "extraordinary" measures.

5. Were all the reliefs that were asked for addressed in the order? Notably, the case does not address the question of compensation even though a rehabilitation scheme has been proposed by the petitioners during the course of litigation. Further, the evacuation of the schools and hospitals is still being monitored. The CBI has also been directed by the Court to look into the burning of villages.

6. What were the consequences of the order? We briefly looked into how the disarming of SPOs was immediately carried out, but that there were some disquieting responses in and around the villages. The order specifically noted how the Court had ordered that the security of the SPos be ensured. Perhaps the disarming was immediate, proof of the SC's growing legitimacy as a public institution. In this context, we also discussed the not-so-immediate responses in the Right to Food cases or the deletrious effects of some of the orders from the Forest Bench.

7. Should the first few pages of the order (discussing constitutional visions and the ill effects of globalisation etc.) be ignored? Some expressed the idea that these might be necessary to convince the presiding judges of the gravity of the situations. Others shared experiences where the observations in a case (as opposed to the ratio of the case) had been cited before other benches in order to get a favourable order! While rhetoric in and of itself would not be useful without a legally reasoned order, it does play an important supplemental role. We also noted how cases such as Olga Tellis are cited and used to press constitutional arguments on say, dignity of

citizens, although the final order in the case was not favourable to the petitioner. Another example in this regard seems to be Menaka Gandhi.

There was also a brief discussion on the role of the Supreme court and judicial overreach and why citizens approach the appellate courts rather than use avenues open to approach the legislature. We also discussed a few initiatives where this scenario appears to be changing.

We're thinking of reviving CLIF over the course of the next trimester at NLS! CLIF this year will be different because it will carry no course credit, it will be a discussion group in which people can voluntarily participate! Do write in with suggestions as to what you are interested in thinking through.

On an aside, we recently had a small group discussion on the rise and fall of the jury trial in India, using material from Gyan Prakash's new book, Mumbai Fables and the events surrounding Nanavati case. Issues that were raised included the role of laypersons in adjudication, the role of media in 'deciding' court verdicts and contemporary trials that have captured public imagination. More on this later. Watch this space!

NLS Reservations Case: Issues for Discussion

Find below, issues for discussion for tomorrow's session, as identified by this week's group:

1. Discussing the history and purpose for the policy of reservation in India and analysing whether the judgment fulfils the underlying rationale to be achieved.
2. Can NLS, being a "national institute" but not one of "national importance" extended its reservation to SCs and STs at the all India level?
3. What is the rationale behind the Karnataka High Court's decision against National Law School?
4. What is the nature of Article 341 and the Presidential Order of 1950 and what are their implications for reservation made by a state for SCs at the national level?
5. What is ‘real equality’?
6. What kind of interpretation has the court given the phrases ‘with relation to the state’ and ‘for the purpose of the Constitution’ in Art 341(1)?
7. Has the court in the given case followed precedent with regards to the above two issues?
8. Questioning the constitutionality of the reservation policy formed after the judgement. Is it in accordance to Art 14 and Art 19(1)(e) of the Constitution?
9. The effect of judgement on admissions to NLSIU next year.
10. Is our reservation policy faulty? Should we rather adopt a method like that in the US or South Africa? Or is their policy not applicable under our circumstances?