How the Hajj subsidy ended, and no, it was not to uphold secularism

The Constitution of India is supposed to be secular in character. But those who ruled the country and the Supreme Court, which is supposed to uphold the Constitution of India, have not applied it in its true spirit on many occasions. The Hajj issue is one of those instances where the constitution has been twisted and misinterpreted to further the goals of pseudo-secularism.

The issue of Hajj Subsidy has been a contentious social, economic and political issue in India in recent times. Socially, this policy is argued to be discriminatory against non-Muslims, Economically it is a burden on the taxpayers, and Politically it continued to be a symbol of Muslim appeasement and vote bank politics.

It was reported earlier today that the Hajj subsidy was likely to be fully withdrawn from this year. This was done following a Supreme Court order in 2012, which asked the government to withdraw the subsidies in 10 years. While it may appear to be a ‘secular’ decision by the apex court, the honourable court had relied on the Holy Quran on many occasions while asking the government to phase out the Hajj subsidy.

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Chronology of birth and end of Hajj subsidy policy

1932 : British colonial government enacted The Port Haj Committees Act. It provided for government funded Haj Committee and named Bombay and Calcutta as two embarkation points for Haj.

1959:  Indian Parliament repealed the 1932 Act and enacted Haj Committee Act, 1959

2002 : The Haj Committee act 1959 was amended

2011 : A bench of two judges Markandey Katju and Gyan Sudha Misra upheld the Haj policy in the case Prafull Goradia vs Union Of India. It said that Haj policy did not violate Article 27 of the constitution, which says that No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination.

2012:  Responding to various petitions, some of which by tour operators that claimed that their business was impacted by Hajj policy, the court ruled that the Hajj policy was in violation of the Holy Quran. It subsequently asked the government to phase out the policy within a period of 10 years from the date of judgement in the case Union Of India & Ors vs Rafique Shaikh Bhikan & Anr.

Justice Katju & Misra fail to find Hajj subsidy ‘unconstitutional’

Prafull Gorodia, a former Rajya Sabha MP from the BJP petitioned filed a writ petition under the Article 32 of the Indian constitution. Article 32 empowers every citizen of India to approach the Supreme court directly if any of the fundamental rights are violated by the state. Mr Gorodia stated that Haj policy was in violation of Article 27.

What does the Article 27 say? It says :

Freedom as to payment of taxes for promotion of any particular religion: No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religions denomination

The taxpayer must not be made to pay for expenses for the promotion or maintenance of any religion. Hajj is an essential part of Islam and a Muslim in mandated to undertake this pilgrimage to maintain his or faith. Thus the petitioner claimed that the Haj Committee act, 2002 violated this article. But justice Katju and Misra had some other logic. In their judgement they said (emphasis added):

In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilized for promotion or maintenance of any particular religion or religious denomination.

In other words, suppose 25 per cent of the entire income tax collected in India was utilized for promoting or maintaining any particular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution. […]

Thus, it is nowhere mentioned in the Writ Petition as to what percentage of any particular tax has been utilized for the purpose of the Haj pilgrimage. [..]

In our opinion, if only a relatively small part of any tax collected is utilized for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilized for any particular religion that Article 27 would be violated.

As per their understanding, Article 27 would be violated only if the state used a substantial part of the taxes to fund a religion and it would not violate the constitution if it consumed a small part.

This line of argument is frankly saddening. They went on to say that that “secularism as espoused by Nehru is intact”, before signing their judgement (emphasis added):

It may be mentioned that when India became independent in 1947 there were partition riots in many parts of the sub-continent, and a large number of people were killed, injured and displaced. Religious passions were inflamed at that time, and when passions are inflamed it is difficult to keep a cool head. It is the greatness of our founding fathers that under the leadership of Pandit Jawaharlal Nehru they kept a cool head and decided to declare India a secular country instead of a Hindu country. This was a very difficult decision at that time because Pakistan had declared itself an Islamic State and hence there must have been tremendous pressure on Pandit Jawaharlal Nehru and our other leaders to declare a Hindu State. It is their greatness that they resisted this pressure and kept a cool head and rightly declared India to be a secular state.

This is why despite all its tremendous diversity India is still united. In this sub-continent, with all its tremendous diversity (because 92 per cent of the people living in the sub continent are descendants of immigrants) the only policy which can work and provide for stability and progress is secularism and giving equal respect to all communities, sects, denominations, etc.

Why the Supreme Court asked to withdraw the subsidy

After the judgment by Justice Katju and Misra, it appeared as if the Hajj subsidy was to stay for longer time. However, there were other petitions, some by Hajj tour operators, which talked about issues other than ‘secularism’ or what Article 27. These petitions were admitted by the apex court, which went on to analyse various aspects of the subsidy.

In the 2012 judgement given by Justices Aftab Alam, Ranjana Prakash Desai (authored by Justice Aftab Alam), they ask the government to phase out the Haj subsidy in a matter of 10 years. But the reasons they cited were more about the Holy Quran than the Constitution of India. In the judgement of the case Union Of India & Ors vs Rafique Shaikh Bhikan & Anr, they write (emphasis added):

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).”

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.

It should be noted that the judgement doesn’t mention the Article 27 even once. Further it asks the government to use the money for welfare of a particular community, and not for any ‘secular’ development work.

Not surprisingly, the decision was well received by almost every party, including radical Muslim leaders like Asaduddin Owaisi, while the overt news of ‘Hajj subsidy withdrawn’ was well received by the Hindu groups. Today also the government reiterated that the subsidy amount will be used for educating Muslim girls and women and other schemes to empower the community.

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