practice of sending Goodwill Hajj Delegation

Page 1 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)
1Page 2
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)
2Page 3
  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
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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
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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,
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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).
6Page 7
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
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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
8Page 9
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
9Page 10
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
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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
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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
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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
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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
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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
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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
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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.
17Page 18
   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.
18Page 19
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.
19Page 20
   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
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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
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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
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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
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 10
th month, the
11
th month and the first ten days of the 12
th 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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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
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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
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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
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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
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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
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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
29Page 30
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
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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
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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)
32Page 33
…………………………………….…J.
(Ranjana Prakash
Desai)
New Delhi;
May 08, 2012.
33