The recent judgment of the Supreme Court pronounced by a Bench comprising Justices Aftab Alam and Ranjana Desai about Haj subsidy is truly remarkable. One of the issues before the court was about the validity of the conditions imposed on Private Tour Operators (PTO) who transported Haj pilgrims to Saudi Arabia. The Supreme Court found that the condition that the minimum annual turnover of the PTO should be `1 crore and about a refundable subsidy deposit of `25 lakh were valid. In this context, the Supreme Court noticed certain disturbing facts. It transpired that PTOs after transporting the pilgrims to Saudi Arabia left them unattended even while hospitalised in Saudi Arabia. There were instances when pilgrims who met with an accident during their stay in Saudi Arabia were not given any medical aid or any kind of assistance. In many cases the PTOs did not provide even the promised facilities. The court observed that a private operator/travel agent who is successful in getting registered as a PTO “would easily earn `35 lakh to `50 lakh in one-and-a-half to two months and then relax comfortably for the rest of the year”. The court emphasised that the object of registering PTOs is not to distribute to them the Haj seats for making profits but to ensure that the pilgrim may be able to perform his religious duty without undergoing any difficulty. A reasonable profit to the PTO is only incidental to the main object.
The composition of the Goodwill Hajj Delegation, which has been sent to Saudi Arabia since 1967, was severely criticised. The court found that there were no criteria on the basis of which persons are selected for inclusion in the Goodwill Delegation. The list of members produced before the court showed “a disparate group of persons randomly put together from various professions and walks of life” and that a person was able to go to Saudi Arabia three to four times.
The Bench noted that 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 was upheld by the Supreme Court in its judgment dated
January 28, 2011. Therefore, the Bench did not go into the vexed question whether a secular State can expend directly or indirectly public funds for the assistance and benefit of members of a particular religious community contrary to the underlying spirit of Article 27 of the Constitution. Why did the court direct that Haj subsidy should be eliminated within 10 years? The court’s reasoning is that verse 97 in Surah 3, Al-e-Imran in the Holy Quran inter alia states that only those who can afford the expenses for one’s
conveyance, provision and residence may undertake the Haj pilgrimage. Justice Alam observed that if all the facts are made known, a good many of the pilgrims would not be very comfortable in the knowledge that their Haj is funded to a substantial extent by the government. The Bench observed that although the grant of subsidy has been found to be valid, it is of the view that Haj subsidy is something that is best done away with within a period of 10 years in view of the facts mentioned and reasons stated in the judgment.
One may theoretically argue about the propriety of reference to the Quranic verse. The heartening fact is that a vast majority of people, including Muslims, have welcomed the judgment because it strikes at the heart of a dysfunctional management system that is run in the interest of politicians and self-styled community leaders and not for the benefit of the average pilgrim who is conveniently forgotten. The real merit of the judgment lies in focusing on the Haj pilgrim who is the raison d’être of the Haj subsidy and stating the true purpose of the Haj pilgrimage.
The opinions expressed in this column are the author’s own
Soli J Sorabjee is a former Attorney General of India