All About Haj- Through Various Judgements

KEY TAKEAWAYS

• Haj is a once in a lifetime pilgrimage for the Muslims.
• The Indian Government incurred the expenses of the Muslims who went on Haj pilgrimage.
• The Haj Committee Act was given constitutional validity.
• Still, minimal subsidy is being given to the Muslim Haj pilgrims.
• The Supreme Court will hear the plea regarding levying of service tax on the pilgrimage.

INTRODUCTION

India is a secular country. Although majority of the population comprises of Hindus, it views, respects and celebrates every religion equally. Islam is the second largest religion present in India. This makes India the largest country having a Muslim population apart from the Muslim-majority countries. Islam has existed in India since a long time. Starting from the trade between Arab and India, the relation between India and Islam bloomed. Even in the pre-Islamic period, the ports of Southeast Asia had links with Arab traders through the Konkona-Gujarat coast and Malabar Coast. Haj, the annual Muslim pilgrimage to Mecca, is the mandatory religious duty that every Muslim must carry out at least once in their lifetime. It takes place in the last month of the year and is considered to be the fifth of the fundamental practices of Muslims.

BACKGROUND

The pilgrimage for Haj was introduced during the period of prophet Ibrahim. But Haj, as we see now, was established by Islamic Prophet Muhammad around 632 CE. He made reforms to the pre-Islamic pilgrimage of the pagan Arabs. In India, Haj is being held as a ritual since the day Haj Committee Act has been passed.

Bombay has long been associated with Haj pilgrimage. During the British rule, Muslims proceeded for Haj through the sea route. Their holy journey started from the sea-port of Bombay. From the records of the Haj Committee, one can know that Haj existed in India even in the year 1927. Then, a Haj Committee was set-up which consisted of the then Commissioner of Police Mr. D. Healy, Esq., as its President. Other prominent Muslim public representatives consisted of its Members. The first formal meeting by the members of Haj Committee, Bombay was held on 14th April, 1927. It was only on 1st October, 1932, that the Port Haj Committees Act of 1932 was passed.

LAWS RELATED TO HAJ PILGRIMAGE

1. PORT HAJ COMMITTEE ACT- 1932

The commencement of the Port Haj Committees Act of 1932 established committees in the principal ports of pilgrim traffic. It was made to assist the Muslim pilgrims while going to Hedjaz. It consisted of the Port Haj Committee, Calcutta and the Port Haj Committee, Bombay. There were 19 members from each of the two Presidencies. The Port Haj Committee of Bombay worked under the Presidentship of Commissioner of Police, Bombay till April, 1939. The Port Haj Committee, Bombay looked after the necessary services for the pilgrims proceeding for Haj till 1959.

2. HAJ COMMITTEE ACT- 1959

On 17th December, 1959, the Haj Committee Act, 1959 came into being. It was established in order to form a Committee in the Port of Bombay which would assist Muslim pilgrims to Saudi Arabia, Syria, Iraq, Iran & Jordan and for matters connected therewith. The Act envisaged the constitution of a Haj Committee of India. After the Haj Committee was constituted under the Haj Committee Act 1959, Mr. Mustafa Fakih was elected its first Chairman. Being a global phenomenon, the passengers travelling by ships slowly declined. Then people opted for travelling by air. Air travel was gradually introduced for Haj Pilgrims. Till the year 1994, around 5,000 pilgrims travelled by ship from the sea port of Bombay and about 19,000 pilgrims used to travel by air for performing Haj. However, from the year 1995, the sea-route travel for the Haj pilgrims was discarded completely and all the pilgrims travelled through air. After that, it was no more necessary for all the Haj pilgrims to reach Bombay anymore.

3. THE HAJ COMMITTEE ACT, 2002

On 11th June 2002, the Haj Committee Act 2002 was passed. It established a Haj Committee in India and State Haj Committees for different states which would look after the arrangements for the pilgrimage of Muslims for Haj, and for matters connected therewith.

HAJ SUBSIDY IN INDIA

The Haj subsidy is a religion based subsidy based given to Haj pilgrims by the Government of India. It is provided in form of discounted air fares, food accommodation and insurance so that a pilgrim can fly to Mecca for performing Haj. This program began during the British colonial era. After Independence, in post-colonial era, the Government of India then expanded the program in 1959 with the Haj Committee Act.

This has become a topic of discussion since then. The Haj subsidy has faced a lot of criticism and opposition. It was then, that in a meeting by the Central Haj Committee, held on November 2017, it was decided that Haj subsidy would be completely stopped in 2018 and those funds would be utilised on educational programmes especially for girl children of the minority community.

In May 2012, a two judge Bench of the Supreme Court of India, consisting of Altamas Kabir and Ranjana Desai, ordered the Government to end the practice by 2022. The Bench said, "We 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 can be more profitably used for the upliftment of the community in educational field and other indices of social development." The Court said that it would be presumptuous to tell the Muslims what was a good or bad religious practice for them, even though it is clearly cited in the Quran that Haj pilgrimage was mandatory only for those who could afford the expenses for travelling with food and accommodation.

INDIAN JUDGEMENTS ON HAJ SUBSIDY AND PILGRIMAGE

1. Dr. Ankur Kumar (P.I.L) vs Union Of India Thr. Secy. Minority on 5 December, 2013

In this case, the Division Bench consisting of Justice D.Y. Chandrachud and Justice Devendra Kumar Arora, upheld the fact that Haj Committee Act 2002, conferred statutory duties on the State Government. The Haj Committee is constituted under this Act and the State Government is also duly empowered to make a grant or loan, as per the case, to the Committee. And this grant or loan which is contemplated by the provisions of Section 32 cannot be equated with the subsidy that the Supreme Court has directed to be phased out for the Haj pilgrims. By contemplating Section 32(2) of the Haj Committee Act, 2002, the Court further said that, both of them stand on completely different footing. The subsidiary being given to the Haj pilgrims is not a subsidy which is governed by an administrative decision of the Government of India or State Government, but something which is statutorily provided for in Section 32 (ii).

2. Union Of India & Ors vs Rafique Shaikh Bhikan & Ors on 16 April, 2013

In this case, the Constitutional Bench of the Apex Court, consisting of Justices Aftab Alam and Ranjana Prakash Desai, directed the Centre to gradually reduce the funds that are used as subsidies that given to the Haj pilgrims. The Supreme Court further told that the subsidies must be eliminated within 10 years, so that those funds can be used for the “upliftment of the community in education and other social indices of social development.” The Court observed that, every year the Haj subsidies were rising along with the rise in the air fare and pilgrim numbers. The Bench further said that Haj subsidy can be best used if it is put to some other work. They decided to end this practice by sending a Haj delegation to conclude in goodwill.

3. Prafull Goradia vs Union Of India on 28 January, 2011

This case challenged the constitutional validity of the whole Haj Committee Act, 1959. But the Apex Court upheld the constitutionality of the Haj Committee Act, 1959 which was replaced by the Haj Committee Act, 2002. It was challenged on the grounds that it violated Articles 14, 15 and 27 of the Constitution of India. It was also alleged that part of the direct and indirect taxes was also used for providing subsidy for the purpose of Haj pilgrimage is only done by Muslims. While the Apex Court dismissed the writ petition, it held that there was no violation of Articles 14 and 15 because facilities were given, and expenditures were incurred by the Central and State Governments in India for other religions as well. It further said that the Government also incurs some expenditure for the Kumbh Mela or for facilitating Indian citizens going on pilgrimage to Mansarovar, etc. Thus, there is no discrimination. It is not judicious or practical for the Court to insist on absolute equality when India is such a diverse country. A balanced view must be taken in these types of cases and it is absolutely not possible to say that if one paisa of Government’s money is spent for a particular religion, there will be violation of Article 27. The Apex Court further said that it is due to the wisdom of our Founding Fathers that the Constitution of India is secular and caters and holds to the tremendous diversity.

4. Kul-Hind Tanzeem Khuddamul Vs. Union Of India And Ors. On 21 January, 2003

In this case, the petitioner claimed that the "Haj Committee" was involved in siphoning away considerable amount to go for subsidies for air-tickets and that return air ticket to Jeddah is charged exorbitantly by the "Haj Committee". As these primary grievances and allegations of the petitioner filed in the writ petition were related to the corrupt management of the "Haj Committee", therefore the petition was treated as public interest litigation. The Apex Court also observed that till the arrival of the new Act or Ordinance and appropriate arrangements made under the Act or Ordinance for the Haj pilgrimage, the Foreign Secretary in the Ministry of External Affairs will control, supervise and oversee the performance of the present "Haj Committee" and it will be. It will be his discretion to nominate, in the place of members that are indicated in Section 4(1)(a) to (f), such persons of merit and high integrity as would be useful in the proper management of Haj affairs of the Committee so that the "lack of adequate arrangements do not allow the Haj pilgrims to suffer.”

5. All India Haj Umrah Tour Organizer Association, Mumbai Vs. Union of India &. Ors on 10 March, 2021

In this ongoing case, the Supreme Court is due to hear a plea seeking direction to the Centre to not levy service tax on Hajis who perform their Haj pilgrimage through Haj Group Operators (HGO) and further exempt them from service tax category as performing Haj is a religious activity. In the writ petition that has been filed, it seeks inter alia, a writ/ order/ direction stating that the levy of service tax for those who undertake religious pilgrimage of Haj and Umrah in the Kingdom of Saudi Arabia is unconstitutional, and is infringing Fundamental Rights of the Hajis enshrined in Articles 14, 19, 21 and 25 of the Constitution. It this case, the petitioner demands that no service tax be levied on the Hajis for performing the Haj/ Umrah and in any event, the said service is exempted from taxation. This would make the HGOs are not liable to collect and pay service tax.

CONCLUSION

Although the Courts have ordered the Government to stop the subsidy for the Haj pilgrims, it has not become effective yet. But there was a drastic and remarkable change in the finance department. The cost per person of Haj pilgrim was reduced by more than half. It has decreased from Rs. 685 crore in 2011 to Rs 200 crore by 2017. But the ongoing pandemic is also affecting it. Even though the practice of Haj got the constitutional validity but it is on the verge of completely getting stopped.

We will get to know more about the future of service tax on the Haj pilgrimage after the Supreme Court hears the case and gives verdict on it till the next hearing date.