May 2012 – Haj subsidy order copy
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE
JURISDICTION
SPECIAL LEAVE PETITION (CIVIL) NO.28609 OF 2011
UNION OF INDIA & ORS.
PETITIONER (S)
VERSUS
RAFIQUE SHAIKH BHIKAN & ANR.
RESPONDENT(S)
WITH
SPECIAL LEAVE PETITION (CIVIL) NOS.33190-33217 OF 2011
RAFIQUE SHEIKH BHIKAN ETC. PETITIONER (S)
VERSUS
GOVERNMENT OF INDIA & ORS. RESPONDENT(S)
WITH
TRANSFER PETITION (CIVIL) NO.191 OF 2012
MOHAMMAD SHAMS RABBANI PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
WITH
TRANSFER PETITION (CIVIL) NO.192 OF 2012
MUBARAK HUSSAIN PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
WITH
TRANSFER PETITION (CIVIL) NO.196 OF 2012
HAJI ABDUL SALEEM KOOKA PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
WITH
TRANSFER PETITION (CIVIL) NO.197 OF 2012
MOHAMMAD EMAD UDDIN PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
WITH
TRANSFER PETITION (CIVIL) NO.198 OF 2012
MOHD. ASLAM PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
AND
TRANSFER PETITION (CIVIL) NO.199 OF 2012
SYED INTESAR MEHDI PETITIONER (S)
VERSUS
UNION OF INDIA & ANR. RESPONDENT (S)
O R D E R
Aftab Alam, J.
SLP (CIVIL) NO.28609/2011
This special leave petition has been filed by the Union of India
against an order passed by Bombay High Court on October 5, 2011 in a
batch of writ petitions challenging the Government of India 2011 Haj
Policy that required a private operator/travel agent to have “minimum
office area of 250 sq. ft.” as one of the eligibility conditions for
registration for ferrying pilgrims for Hajj. The High Court rejected
the challenge but gave directions to the Government of India to
allocate certain seats to some of the writ petitioners from the eight
hundred seats from the Central Government quota that had not been
allocated to anyone till the time of passing of the order by the
court. Aggrieved by the directions given by the High Court, the Union
of India filed this special leave petition and by order dated October
14, 2011 this Court stayed the operation of the directions given by
the High Court. In any event, by the time the matter came before this
Court, the directions could not be acted upon as there was very little
time left for the commencement of Hajj for that year.
By a subsequent order dated February 17, 2012 this Court
declared its intent to examine the Haj policy of the Government in all
its aspects and not to limit the matter to the issue of Private Tour
Operators (PTOs).
As directed by the Court, the Government of India has filed its
affidavit enclosing, among other documents, its Haj Policy for the
year 2012 (2012 Haj Policy). A number of intervention petitions are
filed in which many issues are raised; IAs are also filed in very
large numbers on behalf of private operators/ travel agents (either
individually or through associations) in which objections are raised
against one or the other condition for eligibility for registration as
PTOs for ferrying Hajj pilgrims.
By this interim order, we propose to deal with some of the
issues arising from the 2012 Haj Policy on a priority basis leaving
others to be dealt with in due course.
THE PTOs
The dispute between private operators/travel agents and the
Government of India for registration as PTO for carrying Hajj Pilgrims
is of a recent origin but is tending to become an annual feature. It
is, therefore, necessary to address the issue and to conclusively
resolve it.
In order to clearly understand the context in which the dispute
arises a few facts are required to be taken into account. Under a
bilateral agreement signed between the Government of India and the
Kingdom of Saudi Arabia every year, the latter Government assigns a
fixed number of pilgrims that are permitted to visit Saudi Arabia for
performing Hajj. Out of the overall number, a relatively small portion
is specified for the PTOs and the rest for the Haj Committee of India.
Before 2002, the PTOs were allocated Hajj seats directly by the
Kingdom of Saudi Arabia and there was, therefore, no involvement of
the Government of India in the allocation of any Hajj quota to the
PTOs. After Hajj 2001, the Kingdom of Saudi Arabia made it mandatory
for the PTOs to come through their respective Governments. From 2002,
therefore, the Government of India was obliged to evolve a system
under which private operators/travel agents would be registered as
PTOs and following the registration would be allocated quotas from the
overall number of pilgrims specified for PTOs. It is, thus, to be
seen that a private operator/travel agent needs first to get
registered as PTO and it would then get a fixed number of pilgrims for
carrying for Hajj. For registration of a private operator/travel
agent as PTO, the Government of India frames policy laying down
conditions subject to which registration would be given. It further
frames a policy for allocation of quotas to the registered PTOs from
the overall number of pilgrims assigned to PTOs in the bilateral
agreement with the Kingdom of Saudi Arabia. As noted above, this
arrangement began from 2002 when the Kingdom of Saudi Arabia made it
mandatory for the PTO to come through their respective Governments.
Initially, there were not many private operators/travel agents coming
forward to claim any share in the seats allocated in the bilateral
agreements for the PTOs but around the year 2006 more and more private
operators/travel agents started claiming allocation from the Hajj
seats reserved for PTOs. It appears that it took three or four years
for the people in this line of business to realize that this was the
opening up of a new highly lucrative commercial venture. It is, thus,
to be seen that though for the past four or five years the number of
pilgrims reserved for PTOs in the bilateral agreement has slightly
gone down, there has been a large increase in the number of registered
PTOs and an even larger increase in the number of applications for
registration as PTOs. This would be evident from the following chart:-
|Sl. No. |Haj Year |Number of PTOs |Total seats for |
| | | |PTOs |
|1 |2005 |239 |35,960 |
|2 |2006 I |277 |45,455 |
|3 |2006 II |293 |46,930 |
|4 |2007 |297 |47,000 |
|5 |2008 |298 |47,080 |
|6 |2009 |615(*) |47,405 |
|7 |2010 |602(**) |45,637 |
|8 |2011 |567(***) |45,441 |
|9 |2012 |- |45,000 |
(* comprising 297 old PTOs and 315 new ones)
(** 13 PTOs were disqualified in 2010 because of adverse reports on
them)
(*** excluding Duplication of one PTO).
It is stated in the affidavit filed by the Union of India that
for Hajj 2011, 1322 applications were received from private
operators/travel agents, out of which, only 567 were found eligible
and the 45,491 seats were distributed to them as per the PTO policy
for Haj 2011. Some of the private operators/travel agents who failed
to get registration approached the Bombay High Court in a batch of
Writ Petitions in which the High Court passed the order from which
this special leave petition arises.
From these facts, it is not difficult to deduce that the dispute
between the private operators/travel agents and the Government of
India in regard to registration as PTOs arises from a conflict of
object and purpose. For most of the private operators/travel agents
registration as PTOs is mainly a question of more profitable business.
Under the bilateral agreement no PTO can be given a quota of less than
fifty pilgrims. Normally, a quota of fifty pilgrims would mean, on an
average and by conservative standards, a profit of rupees thirty five
to fifty lakhs. This in turn means that any private operator/travel
agent, successful in getting registered as a PTO with the Government
of India would easily earn rupees thirty five to fifty lakhs in one
and a half to two months and may then relax comfortably for the rest
of the year without any great deal of business from any other source.
For the Government of India, on the other hand the registration of the
PTOs, is for the purpose to ensure a comfortable, smooth and trouble-
free journey, stay and performance of Hajj by the pilgrims going
through the PTOs.
The pilgrim is actually the person behind all this arrangement.
For many of the pilgrims Hajj is once in a life time pilgrimage and
they undertake the pilgrimage by taking out the savings made over a
life time, in many cases especially for this purpose. Hajj consists of
a number of parts and each one of them has to be performed in a rigid,
tight and time-bound schedule. In case due to any mismanagement in the
arrangements regarding the journey to Saudi Arabia or stay or
traveling inside Saudi Arabia any of the parts is not performed or
performed improperly then the pilgrim loses not only his life savings
but more importantly he loses the Hajj. It is not unknown that on
landing in Saudi Arabia a pilgrim finds himself abandoned and
completely stranded.
It is, thus, clear that in making selection for registration of
PTOs the primary object and purpose of the exercise cannot be lost
sight of. The object of registering PTOs is not to distribute the Hajj
seats to them for making business profits but to ensure that the
pilgrim may be able to perform his religious duty without undergoing
any difficulty, harassment or suffering. A reasonable profit to the
PTO is only incidental to the main object.
In Prem Printing Press v. Bihar State Text Book Publishing
Corporation Ltd. & Ors., 2001 (4) PLJR 311 relating to the grant of
contract for printing of text books by the Bihar State Text Book
Publishing Corporation Ltd., coming up before Patna High Court one of
us (Aftab Alam J.) considered question of the importance of the work
and its objective in granting contracts by statutory bodies and made
the following observations:
“3. During the past three decades a substantial amount of case
law has accumulated on the question of award of government
contracts and a lawyer with sufficient skills may without
difficulty press into service certain observations from the
earlier decisions in any dispute relating to the award of
government contracts. But while hearing learned arguments from
the counsel appearing for the parties I was unable to keep out
of my mind for a moment the fact that the contract in dispute
was for printing of school text books for the academic year 2001
and though two out of the three parts of the year is already
over, the school children are yet to receive the books intended
for them. While lengthy arguments were advanced on the plea of
upholding the rights-of the individual and much reliance was
placed on a number of Supreme Court decisions, I was unable to
relinquish the thought that the contract for printing of school
text books for a particular academic year was basically
different from and could not be viewed in the same way as a
contract for ten years for extraction of resin from forests
(Kasturi Lal; (1980) 4 SCC 1) or the contract for the supply of
fresh milk for the Military Farms (Harminder Singh Arora; (1986)
3 SCC 247) or the contract for allotment of damaged stocks of
rice (Food Corporation of India; A.I.R. 1993 SC 1601) or the
grant of licence for the operation of ‘Cellular Mobile Telephone
Service’ (Tata Cellular: A.I.R. 1996 SC 11) or the contract for
publication of telephone directories of Mahanagar Telephone
Nigam Limited (Sterling Computers Ltd; A.I.R. 1996 SC 51) or the
contract for development and exploration of oil fields (Centre
for Public Interest Litigation; A.I.R. 2001 SC 80).
4. To my mind, upholding of individual rights and the
enforcement of the individual’s rights by the intervention of
the writ court is undoubtedly important but in doing so the
court must not over look the damage that might be caused to a
larger public cause, as in this case. Speaking for myself I
would not have entertained this writ petition and thrown it out
at the very threshold, indeed leaving it open for the Petitioner
to claim damages by bringing an action against the Corporation
before a Civil Court. Such a course would not have rendered the
Petitioner remediless and at the same time it would also have
saved this Court from finding itself in a position where it may
be seen as causing obstruction in the expeditious and timely
supply of text books to school children.”
(emphasis
added)
In another case Ranjit Kumar Ghosh v. State of Bihar and Others
[2004 (3) BLJR 2242] dealing with the purchase of indelible ink by the
Election Commission for proper conduct of election Aftab Alam J. (once
again as a judge of Patna High Court) made the following observations:-
“15. What was observed in the case of printing of text-
books applies with greater force to this case. Democracy is
basic to and inseparable from our constitutional scheme. The
survival of democracy depends upon proper conduct of elections
and the importance of indelible ink is quite obvious for the
proper conduct of elections. The purchase of indelible ink
therefore cannot be taken in the same way as the purchase of
other common materials such as office furniture, stationary and
other articles of ordinary use by the Election Commission.
Putting the purchase of indelible ink at par with the other
regular purchases would throw the field open to private players
and one predictable out-come of it would be that the purchase of
indelible ink would inevitably get embroiled in Court cases. On
each occasion one or the other of the unsuccessful tenders would
drag the dispute with regard to the grant of the supply order to
Court. This would be at a time when elections are very near and
all the resources and attention of the Election Commission
should be focussed on holding the elections properly. At that
stage a notice from the Court to meet the objections of the
unsuccessful tenders in the matter of purchase of ink would
naturally have a debilitating effect on the Commission and it
may also be reflected in the conduct of elections by it. Such a
situation, the Court would like to avoid at all costs.
16. What is discussed above are important considerations in
the matter of purchase of indelible ink for holding elections.
Nevertheless, this Court should have put aside these
considerations, howsoever, weighty, had it been satisfied that
the present arrangement for the purchase of the ink was tainted
with arbitrariness or unreasonableness or it had the slightest
tinge of mala fide but on an over all examination of the matter
the Court feels satisfied that the arrangement does not suffer
from any of those vices. The arrangement was evolved by the
Election Commission, with the aid of Government controlled
agencies when the constitutional republic of India was only
twelve years old and when no private trader might have come
forward to help the commission in its work on his expenses. The
Commission has stuck to the arrangement that was evolved forty
years ago. The arrangement does not confer any material benefits
upon anyone and it does not lead to the profiteering by any
individual person, inasmuch as, M/s. Mysore Paints and Varnishes
Ltd. is a Government concern. In these circumstances, the
purchase of indelible ink by the Commission from the Government
owned company cannot be described as distribution of any largess
by the State.”
In Tata Cellular v. Union of India (1994) 6 SCC 651, a three
Judge Bench of this Court in paragraph 70 of the judgment made the
following observations:-
“It cannot be denied that the principles of judicial review
would apply to the exercise of contractual powers by Government
bodies in order to prevent arbitrariness or favouritism.
However, it must be clearly stated that there are inherent
limitations in exercise of that power of judicial review.
Government is the guardian of the finances of the State. It is
expected to protect the financial interest of the State. The
right to refuse the lowest or any other tender is always
available to the Government. But, the principles laid down in
Article 14 of the Constitution have to be kept in view while
accepting or refusing a tender. There can be no question of
infringement of Article 14 if the Government tries to get the
best person or the best quotation. The right to choose cannot
be considered to be an arbitrary power. Of course, if the said
power is exercised for any collateral purpose the exercise of
that power will be struck down.”
(emphasis added)
In a more recent decision in Union of India and another v.
International Trading Co. and another (2003) 5 SCC 437, relating to
the renewal of the permit granted under the provisions of the Maritime
Zones of India (Regulation of Fishing by Foreign Vessels) Act, 1981,
while reversing the decision of the High Court, this Court, in
paragraphs 22 and 23 of the judgment, held and observed as follows:-
“22. If the State acts within the bounds of
reasonableness, it would be legitimate to take into
consideration the national priorities and adopt trade policies.
As noted above, the ultimate test is whether on the touchstone
of reasonableness the policy decision comes out unscathed.
23. Reasonableness of restriction is to be determined in
an objective manner and from the standpoint of interests of the
general public and not from the standpoint of the interests of
persons upon whom the restrictions have been imposed or upon
abstract consideration. A restriction cannot be said to be
unreasonable merely because in a given case, it operates
harshly. In determining whether there is any unfairness
involved; the nature of the right alleged to have been
infringed, the underlying purpose of the restriction imposed,
the extent and urgency of the evil sought to be remedied
thereby, the disproportion of the imposition, the prevailing
condition at the relevant time, enter into judicial verdict.
The reasonableness of the legitimate expectation has to be
determined with respect to the circumstances relating to the
trade or business in question. Canalisation of a particular
business in favour of even a specified individual is reasonable
where the interests of the country are concerned or where the
business affects the economy of the country. (See Parbhani
Transport Coop. Society Ltd. v. Regional Transport Authority,
AIR 1960 SC 801, Shree Meenakshi Mills Ltd. v. Union of India
(1974) 1 SCC 468, Hari Chand Sarda v. Mizo District Council, AIR
1967 SC 829 and Krishnan Kakkanth v. Govt. of Kerala, (1997) 9
SCC 495.”
(emphasis added)
Seen in the light of the aforesaid decisions, no objection can
be taken to high standards and stringent conditions being set up for
registration as PTOs and the court’s interference would be called for
only if it is shown that any condition(s) was purely subjective or
designed to exclude any individual or group of private
operators/travel agents, i.e., bordering on malice.
After this rather long preface, we now proceed to examine the
conditions laid down for registration of PTOs in the 2012 Haj Policy.
First of all a young lady appearing-in-person, stated before us
that she worked as a private operator/travel agent and she was
aggrieved by clause 4 of the press release for registration of Private
Tour Operators – Hajj 2012, that put a restriction over more than one
member of a family getting registration as PTO. Clause 4 of the press
release reads as under:-
“4. In case more than one member of a family applies
which includes wife and dependent children, only one member of
such family will be eligible for registration for Hajj-2012.”
The lady submitted that though her husband was also in the same
business but she worked as private operator/travel agent separately
and independently from her husband. She further submitted that simply
because her husband was also in the same business, there was no reason
to deny her registration as PTO.
In response to the lady’s apprehension, the learned Attorney
General in his most amiable manner assured the lady and the Court that
in case more than one member of a family satisfied the eligibility
conditions and one of them was a woman, she would be given preference
for registration to the exclusion of others and if there was no woman,
preference would be given to the member of the family who was oldest
in the business.
In regard to clause 4, another objection was raised that it does
not define “family” comprehensively and the Court was asked to give
direction for a comprehensive definition of the term “family”. There
is no substance in the objection and we find that there is sufficient
clarity as to what means “family”. In case anyone makes a complaint
that in the process of registration he/she was eliminated arbitrarily
and in a mala fide way by abusing the restrictive provision of clause
4, that complaint may be examined on its own merits.
Minimum requirement of 250 sq. ft. office area (carpet)
A number of individuals and groups joined in the objection
against the condition that requires a minimum office area (carpet) of
250 sq. ft. and submitted that the condition was arbitrary and was
aimed at excluding the smaller operators. It was submitted that the
requirement of having such a large area for office was quite harsh
especially for a place like Mumbai.
This condition must also be viewed keeping the interest of the
pilgrim as paramount. Learned Attorney General submitted that
according to the Saudi Regulations, a PTO must be allotted a minimum
of 50 pilgrims. He further pointed out that Hajj is a pilgrimage on
foreign soil and it comprises a number of rituals. Since a majority of
the pilgrims would be going for Hajj for the first time, the PTO needs
to extensively brief the pilgrims about the rituals and the procedure
to be followed during Hajj. Separate classes for briefing the pilgrims
need to be conducted by the PTO. Individual agreements are required to
be made with the pilgrims by the PTO for which the pilgrims need to
visit the office of the PTO. All logistics including ticketing,
accommodation, visa processing etc. has to be made by the PTO for
which they need the presence of pilgrims. Further, this condition is
laid down to make sure that only genuine operators approach the
Ministry for Hajj quota, i.e. those who have a proper and well
maintained office and who are genuinely interested in taking the
pilgrims to Saudi Arabia. The condition was further meant to
scrutinize the PTOs who sell their quota to other PTOs. The Attorney
General stated that during the 2010 Hajj, the Ministry got complaints
from various quarters regarding black marketing of seats by some of
the PTOs. It was informed that some of the PTOs after getting
registration and allocation of seats instead of carrying the pilgrims
themselves sold the seats to other PTOs. The Ministry decided to take
action against such unscrupulous PTOs but it found that many of them
had no offices at all. The addresses furnished by them were fake and
they were all fly by night operators. A genuine PTO should be having
an office with a reasonable area. The condition is provided to protect
the interests of the pilgrims.
On a consideration of submissions made on behalf the parties, we
see no arbitrariness and unreasonableness in the requirement of a
minimum office area (carpet) of 250 sq. feet.
Annual turnover of Rs.1 crore.
Many objections were raised against the requirement to furnish
documents showing minimum annual turnover of Rs.1 crore for the years
2009-2010 or 2010-2011.
Mr. N. Rao, senior advocate appearing for a group of private
operators/ travel agents, in course of his submissions, admitted that
the turnover on the basis of a quota of 50 Hajj pilgrims alone would
not be less than Rs.75 lakhs. This means that if a private
operator/travel agent is asking for a readymade business package worth
Rs.75 lakhs in turn over he/she should at least show a turn over of
rupees one crore from his own business. Seen, thus, the turn over
fixed in the Government policy appears to be a modest figure.
Security deposit of Rs.25 lakhs
What is stated above in regard to the annual turnover would
equally apply in respect of the refundable security deposit of Rs.25
Lakhs.
In addition, the learned Attorney General pointed out that in
case any unforeseen situation arises during Hajj, the PTO should be
financially sound enough to face it. The Attorney General further
informed the Court that it was often seen in the past that PTOs left
the pilgrims in Kingdom of Saudi Arabia and what is worse left them
unattended even while hospitalised in Kingdom of Saudi Arabia. There
were instances when pilgrims who met with an accident during their
stay in Kingdom of Saudi Arabia were not given any medical aid or any
kind of help or assistance. In many cases the PTOs did not provide
even the promised facilities and this condition was, therefore,
necessary to keep them under a check.
We see no unreasonableness in the condition.
Court cases
The learned Attorney General clarified that a court case against
a private operator/travel agent that would disqualify him/her for
registration did not mean a case instituted by him/her for enforcement
of any constitutional or legal rights. The court case that might
render a private operator/travel agent ineligible for registration
means a case instituted against the private operator/travel agent as
an accused or in regard to some liability against him.
On-line applications
It may be recorded here that the learned Attorney General
accepted one of the suggestions made by Mr. P.S. Narasimha, learned
senior counsel appearing for a group of private operators/ travel
agents, that applications may be made on-line, subject to the
condition that the on-line application must be complete in all
respects.
On hearing all sides on the conditions for registration, we are
satisfied that none of the conditions can be said to be arbitrary or
unreasonable and the conditions prescribed in the Government of India
2012 Haj Policy do not warrant any interference by this Court. The
2012 Haj Policy for registration of PTO as contained in Annexure P5 to
the affidavit filed on behalf of the Union of India is, accordingly,
approved for the 2012 Hajj.
The grant of approval to Annexure P5, however, is not to say
that there is no scope for improvement in the policy of registration
for PTOs. We feel that there is a serious omission in the policy in
that it does not require the applicants for registration to disclose
the kind of arrangements they proposed to offer to the pilgrims and
the charges they would levy from the pilgrims. We realize that at the
stage of applying for registration the applicant may give only a basic
idea of the standard of arrangements and an approximate quotation of
charges but even that would provide some check against fixing inflated
and arbitrary prices on seats once registration is granted.
We would further like to point out that there is another way of
looking at the process of registration. The Government of India has
presently adopted an open ended approach under which any private
operator/travel agent who satisfies the conditions in the Haj Policy
is found eligible and granted registration. Now, it is undeniable that
the number of PTOs cannot exceed 900, because in that case the number
of seats allotted to each of them would go below 50, which is
impermissible under the bilateral agreement. In other words, there is
an inbuilt ceiling on the number of PTOs. If that be so, why cannot
the ceiling be put on a more manageable number such as 600 to 700 and
selection be made from the applicants on a competitive basis applying
a uniform criteria.
THE HAJJ SUBSIDY
As regards the Hajj subsidy, from the figures for the past 19
years given in the affidavit filed by the Union of India, it appears
that the amount of subsidy has been increasing every year. This is on
account of increase both in the number of pilgrims and the travel
cost/air fare. In the year 1994, the number of pilgrims going for
Hajj from India was as low as 21035; in 2011, the number of pilgrims
increased to 125000. In the year 1994, the cost of travel per pilgrim
was only Rs.17000.00; in the year 2011, it went up to Rs.54800.00. As
a result, the total Hajj subsidy that was Rs.10.51 crores in the year
1994 swelled up to Rs.685 crores in the year 2011.
The Union of India has justified the grant of subsidy stating,
in paragraph 21 of the affidavit, as follows:
“The Ministry of Civil Aviation floats a tender to select
an airline to get a competitive fare to ferry the Haj pilgrims.
For the year 2010, the fare per pilgrim was Rs.47,675/- and in
2011 was Rs.54,800/-. The higher fares charged by the Airlines
during the Haj period vis-à-vis other times of the year is due
to regulations imposed by the Saudi Arabian Authorities during
the Haj period. The norm is that the Airline should carry
pilgrims to Jeddah and return with zero load and vice versa.
This forces the Airlines to increase the fares, which otherwise
come to around Rs.25,000/. Therefore, the Government thought it
fit to collect a reasonable fare from the pilgrim and the
additional fare charged because of the Haj specific logistics is
paid by the Government to the airline. The Government also
decided not to pass on and burden the additional amount charged
by the airline, purely on logistics, to the pilgrims. During
the Haj of 2011, each pilgrim was charged Rs.16,000/- towards
airfare and the additional amount of Rs.38,000/- per Haji is
what is termed “subsidy”. It is submitted that the subsidy is
given only to those pilgrims who go through the Haj Committee of
India.”
It is further stated in paragraph 24 that the grant of Hajj
subsidy by the Government of India was challenged before this Court in
a petition under Article 32 of the Constitution of India registered as
Writ Petition (Civil) No.1 of 2007 (Prafull v. Union of India). This
Court by a reasoned judgment and order dated January 28, 2011,
dismissed the writ petition upholding the constitutional validity of
the Haj Committee Act, 2002 and the grant of subsidy by the Government
of India in the air fare of the pilgrims.
From the statement made in paragraph 21 of the affidavit, as
quoted above, it is clear that the Government of India has no control
on the cost of travel for Hajj. The air fare to Jeddah for traveling
for Hajj is increased by airlines to more than double as a result of
the regulations imposed by the Saudi Arabian Authorities. It is
illustratively stated in the affidavit that in the year 2011, the air
fare for Hajj was Rs.58,800/- though the normal air fare to and from
Jeddah should have been around Rs.25,000/. In the same paragraph, it
is also stated that for the Hajj of 2011, each pilgrim was charged
Rs.16,000/- towards air fare. In other words, what was charged from
the pilgrims is slightly less than 2/3rd of the otherwise normal fare.
We see 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.
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).”[1]
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.
Before leaving the issue of Hajj subsidy, we would like to point
out that as the subsidy is progressively reduced and is finally
eliminated, it is likely that more and more pilgrims would like to go
for Hajj through PTOs. In that eventuality the need may arise for a
substantial increase in the quota for the PTOs and the concerned
authorities would then also be required to make a more nuanced policy
for registration of PTOs and allocation of quotas of pilgrims to them.
For formulating the PTO policy for the coming years, the concerned
authorities in the Government of India should bear this in mind. They
will also be well advised to invite and take into account suggestions
from private operators/ travel agents for preparing the PTO policy for
the future.
THE GOODWILL HAJJ DELEGATION
The issue of the Goodwill Hajj Delegation raises two questions;
one in regard to the reasonableness and justification for sending an
official delegation on the occasion of Hajj and the other about its
composition and the manner in which people are nominated as members of
the official delegation. In the affidavit of the Union of India, it is
stated that the Goodwill Delegation was first sent to Saudi Arabia in
the year 1967 and since then the delegation is being sent every year.
The primary purpose of the delegation, according to the affidavit, is
“to convey goodwill on the auspicious occasion of Hajj to the
Government of Saudi Arabia as well as to the Indian Pilgrims”. It is
further stated that the delegation interacts with the Hajj pilgrims
from India, understands their issues and takes up the same with the
Saudi Arabian authorities. The delegation addresses these issues in
their meeting with the Minister of Hajj, Saudi Arabia and the Governor
of Makkah. The delegation also has regular meetings with the Indian
Hajj mission and the Hajj authorities of Saudi Arabia. A report is
submitted to the Government about the conduct of Hajj and
recommendations for a better Hajj in the ensuing year.
In the affidavit, it is further stated that a similar but much
smaller delegation comprising no more than five to eight members is
sent by Bangladesh. The Bangladesh delegation usually consists of
Minister of Hajj, Secretary (Hajj), people working in the Islamic
Organizations and one or two standing members of Parliamentary
Committee relating to Hajj/Religious Affairs. The number of Hajj
pilgrims from Bangladesh in the year 2011 was one lakh fifty
thousands. Pakistan does not send any official Hajj Delegation.
As to the size of the delegation and the manner of nomination of
its members, from the affidavit it appears that in 1967 the Goodwill
Delegation consisted of three members. Till 1973, there was no
material increase in its size and till 1987 the number of its members
remained under ten. Thereafter, the delegation started steadily
increasing in size and in 1997 the Goodwill Delegation was of 31
members. In the year 2005, there were 36 members in the delegation and
in the year 2010 the number of its members was 30. In the year 2011,
the number was marginally reduced to 27.
In pursuance of our direction, the affidavit also gives a list
of the members of the Goodwill Hajj Delegation for the years 2002 to
2011. The affidavit does not disclose any criteria or guidelines on
the basis of which persons are selected for being included in the
Goodwill Delegation. From the list of the members of the Goodwill
Delegation for a period of 10 years no rational basis is discernible
for selecting members for the delegation. The list shows a disparate
group of persons randomly put together from various professions and
walks of life. What is more surprising is that there are some people
who were able to go as member of the Goodwill Delegation more than
once, some even three or four times. In the absence of a reasonable
basis the nomination to the Goodwill Delegation evidently works on
patronage and granting of favours. On the basis of the materials
brought to our notice we have no doubt that the way people are
nominated as members of the Goodwill Delegation is in complete
violation of Article 14 of the Constitution.
Now coming back to the reasonableness and
justification for sending an official Goodwill Delegation for Hajj, it
is noted above that the first such delegation was sent in the year
1967. The sending of the Goodwill Hajj Delegation from India for the
first time in the year 1967 was not by accident or chance and those
whose memory goes back to that year would recall the circumstances in
which the official Goodwill Delegation on the occasion of Hajj was
first sent to the Kingdom of Saudi Arabia. It is no secret that after
the 1965 war Pakistan tried to use even the Hajj pilgrimage for anti-
India propaganda and the purpose of sending the Goodwill Delegation
was to meet the anti-India propaganda.
The reason for which the delegation was first sent has long
ceased to exist and Pakistan is no longer sending any official
Goodwill Hajj Delegation to Saudi Arabia. It may, however, be
contended that with the passage of time the purpose of the delegation
has changed in the changed circumstances the delegation serves other
objects and purpose. As a matter of fact in the affidavit filed by the
Union of India the sending of the Goodwill Hajj Delegation is
justified on two other counts (1) to convey goodwill to the Government
of Saudi Arabia as well as to the Indian pilgrims and (2) to oversee
and facilitate reason the arrangements made for pilgrims that go for
Hajj through the Haj Committees. Dealing first with the second reason,
we are constrained to say that it appears quite unconvincing. In the
earlier paragraph of the affidavit of the Union of India, it is stated
that Hajj is one of the most complex organizational tasks undertaken
by Government of India outside its borders. It is further stated that
all arrangements for the Hajj of pilgrims are coordinated by the
Consulate General of India, Jeddah and the Embassy of India, Riyadh.
Haj Committee of India, established under the Haj Committee Act, 2002
is responsible for making the arrangements for pilgrims performing
Hajj through them. It is, thus, to be noted that the making of
arrangements for the pilgrims is the duty and responsibility of Haj
Committee of India, a statutory body constituted under an Act of the
Parliament. The arrangements are further over seen by the Consulate
General of India, Jeddah and the Embassy of India, Riyadh. The
arrangements are, thus, looked after by competent professional people
and any intervention by a disparate group of persons themselves going
to Saudi Arabia for the first time is bound to create more confusion
than being of any help in making any proper arrangements for the
ordinary pilgrims numbering over 125,000. We are unable to accept the
second reason given as justification for sending the Goodwill Hajj
Delegation.
Coming now to the first reason, that is, to convey goodwill to
the Government of Saudi Arabia as well as to the Indian pilgrims, we
fully appreciate the idea of the people of India extending their
goodwill to the Kingdom of Saudi Arabia on the auspicious occasion of
Hajj but we completely fail to see how even that purpose can be served
by sending such a large, unwieldy, amorphous and randomly selected
delegation.
On a careful consideration of the issue we are quite clear that
the present practice of sending Goodwill Hajj Delegation must come to
stop. If the Government of India wishes to send a message of goodwill
to the Kingdom of Saudi Arabia on the occasion of Hajj it may send a
leader and a deputy leader and if there be any need to present any
group from India for any formal event in the course of Hajj the leader
may, in consultation with the Indian Ambassador and Consul General,
constitute a group of ten Indians from among the very large number of
Indian pilgrims who are there at their own expense. It is to be kept
in mind that over a lakh and fifty thousand pilgrims go for Hajj
paying for their own expenses. The Indian Ambassador in Saudi Arabia
and perhaps more than him, the Consul General at Jeddah would know
about the arrival of many distinguished, learned and important Muslims
among them and with the assistance of the Ambassador and the Consul
General, the leader of the two member official team would be able to
form a far more appropriate and representative Indian team from
amongst them than a motley delegation whose members are selected on
irrelevant considerations.
In this interim order we have primarily dealt with the issues of
PTOs, Hajj Subsidy and the Goodwill Hajj Delegation. There are other
issues which we propose to deal with in due course.
In the affidavit filed on behalf of the Union of India, it is
stated that from the overall number of 1,70,000 pilgrims fixed under
the bilateral agreement, the Government of India sets apart a quota of
11,000 seats to be reserved for the following categories:-
“(i) Khadim-ul-Hujjaj (to assist Pilgrims in Saudi Arabia)
selected by the State Haj Committees (300)
(ii) Mehram (women who get selected in the Qurrah but must
have an accompanying male member as per Saudi Law)
(400)
iii) The community of Bohras (2,500)
iv) States/ Union Territories on special consideration
e.g., Jammu and Kashmir (1,500) and Lakshadweep (239)
v) States/Union Territories with Hajj applications in
excess of Quota (2,500),
vi) Haj Committee of India (500) and
vii) Government of India (3,061)”
We would like to know in greater detail how the special quotas under
the heads (i) to (vii) are allocated. It may be noted that in
paragraph 8 of the affidavit it is stated that the quota of Government
of India (3061 for this year) is allocated to unselected/waitlisted
applicants before the Haj Committees on recommendation by dignitaries
and eminent persons. We have some initial reservations on allocation
of seats on recommendation by dignitaries and eminent persons.
We direct the Union of India to file further affidavit stating
in greater detail the way the quota of 11,000 seats is being allocated
for 2012 Hajj.
We would also like to know in greater detail the procedure
followed by the Haj Committee of India and the state Haj committees in
making selection for sending pilgrims for Hajj. We would specially
like to examine the functioning of the Haj Committees of the States
where the number of applicants exceed the quota allotted for the
state.
We direct the Haj Committee of India to file a detailed
affidavit giving full details of the process of selection of pilgrims
from the applications made to the State Haj Committees. The affidavit
should also give details of the charges realized from the pilgrims and
the facilities made available to them.
Haj Committees of the States of Maharashtra, Kerala and
Karnataka are directed to be impleaded as respondents. Let notice go
to them with a direction to file affidavits giving details of the
selection process and stating stage wise how selections are being made
for sending pilgrims for the 2012 Hajj, what amounts are charged from
each pilgrim and what facilities are provided to them.
The affidavits, as directed above, must be filed within two
months from today.
Put up on July 23, 2012.
SLP(C) Nos. 33190-33217 of 2011
In view of the order passed in SLP(C) No.28609/2011, these
special leave petitions have become infructuous and are disposed of as
such.
IAs by private operators.
In view of the order passed in SLP(C) No.28609/2011, all
interlocutory applications filed by private operators/travel agents
raising objections to the Government of India 2012 Haj Policy stand
disposed of.
TP(C) Nos.191/2012, 192/2012, 196/2012, 197/2012, 198/2012, 199/2012.
In view of the order passed in SLP(C) No.28609/2011, the
transfer petitions are rendered infructuous and stand disposed of
accordingly.
………………………………….……J.
(Aftab Alam)
…………………………………….…J.
(Ranjana Prakash Desai)
New Delhi;
May 08, 2012.
———————–
[1] The Noble Qur’an (English Translation of the meaning and commentary)
published by The Ministry of Islamic Affairs, Endowments, Da’wah and
Guidance of the Kingdom of Saudi Arabia which supervises King Fahd Complex
For The Printing of The Holy Qur’an in Madinah Munawwarah.
On being asked the meaning of the word “Al Sabeel’ occurring in the verse,
the Prophet is reported to have said, ‘provisions for journey and the means
of transport’ (Bulughul Muram by Ibne Hajr, 667 & 713: Jassas Razi, Ahkam-
ul-Quran, Darul-Kitab-ul-Arabi Vol. 2 Page 23: also in Tafseer Ibne Kaseer
published by Tameer-e-Insaniyat, Urdu Bazar, Lahore , Vol. 1 Pages 458-
459).
On being asked when Hajj becomes obligatory, the Prophet is reported to
have said when the provisions of journey and the mode of transport are
available. (Tirmizi 813).
It is related that people from Yaman used to come for pilgrimage without
any provisions with them, saying that they were people trusting in God and
when they came to Makkah, they resorted to begging: The holy Qur’an thus
addressed this issue in Verse 197 Surah 2. Al-Baqarah (Bukhari, 1523).
197. The Hajj (pilgrimage) is (in) the well-known (lunar year) months
(i.e. the 10th month, the 11th month and the first ten days of the
12th month of the Islamic calendar, i.e. two months and ten days).
So whosoever intends to perform Hajj therein (by assuming Ihram),
then he should not have sexual relations (with his wife), nor
commit sin, nor dispute unjustly during the Hajj. And whatever
good you do, (be sure) Allah knows it. And take a provision (with
you) for the journey, but the best provision is At-Taqwa (piety,
righteousness). So fear Me, O men of understanding!
Hajj is obligatory when one has control over expenses of traveling and
mode of transport whether as owner or on hire. Borrowing or using the
means owned by someone else is impermissible. If someone offers gift for
going for Hajj one is within rights to accept or reject the offer. The
expenses of traveling and mode of transport means that one should have,
besides a house for residence, clothes, household articles, sufficient
money for traveling to Makkah and for coming back; if there are any
loans, to repay them and to leave behind sufficient money for expenses on
those dependent upon him.
(Fatawa-e-alamgiri edited and corrected by Abdul Latif Hasan Abdul Rehman
Darul Kutubul Ilmiya Beirut, Lebanon 2000 Vol. 1 Page 240).
See also: the Religion of Islam by Maulana Mohammad Ali S. Chand and
Company Pages 525-526.
See also: Kitab-ul-Fiqh by Abdul Rehman Al Jazeeri translated by Mr.
Manzoor Ahsan Abbassi, published by Mehqama Auqaf Punjab, Lahore, 1977
Pages 1034-1035.
See also: Qamusool Fiqh by Khalid Saifulla Rehmani, Kutubkhana Naiyeemya
Deoband 206, Vol. 3 Pages 195-196.
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