While ruling on a very vexed legal issue with far reaching implications, we saw how none other than the Delhi High Court itself has in a most learned, laudable, landmark and latest oral judgment titled Al Tawaf Hajj And Umrah Travel And Tourism vs Union of India And Other Connected Matters in 2023 : DHC : 4137 and in W.P.(C) 8412/2023 that was pronounced as recently as on June 7, 2023 has explicitly mandated that the Haj pilgrimage falls within the ambit of religious practice and is protected under Article 25 of the Constitution of India. The Single Judge Vacation Bench comprising of Hon’ble Mr Justice Chandra Dhari Singh forthrightly propounded that, “Haj Pilgrimage and the ceremonies involved therein and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic. The religious freedom of the person is guaranteed by the Constitution of India under Article 25.” It must be mentioned here that the Court made the observations while hearing a batch of pleas moved by various private Haj Group Organizers challenging the suspension of their registration certificates and quota published in the “Consolidated List of Allocation of Haj quota for Haj-2023” by the Union Government on May 25. It must be also noted that the Court stayed the comments that were made in the consolidated list against the Haj Group Organizers to ensure that the pilgrims are not obstructed from completing their Haj journey.CM APPL. 32068/2023 (Exemption)
At the very outset, this brief, brilliant, bold and balanced oral judgment authored by the Single Judge Vacation Bench comprising of Hon’ble Mr Justice Chandra Dhari Singh sets the ball rolling by first and foremost putting forth in the opening para that, “Subject to the petitioner filing the clear, original and legible/typed copies of any dim documents on which the petitioner may seek to place reliance, within four weeks from today, exemption is granted for the present. The application is disposed of.”
CM APPL. 32069/2023 (Stay)
As we see, the Bench then states aptly in para 1 that, “The instant application has been filed challenging the suspension of the Registration Certificate and Quota of the Haj Group Organizer (HGOs) as published on 25th May, 2023 of the petitioner in the Consolidated List of Allocation of Haj quota for Haj-2023 and the Show Cause Notice subsequently issued against the petitioner/HGO on 26th May 2023 by the respondent.”
To put things in perspective, the Bench envisages in para 20 that, “In the instant case, it has been alleged that there has been a gross misrepresentation of facts by the petitioner HGOs, which has come to light during the visit of a team of officials from the respondent to the office premises of the petitioner HGO. It has also been stated on record that the Government is contemplating serious penal action, which would include blacklisting and cancelling of registration of the HGO. It has been submitted by the learned senior panel counsel for the respondent that the Government is not willing to take the risk of placing the fate of these pilgrims in the hands of these non-compliant HGO. It has been stated that the Haj Committee of India has been mandated to make arrangements for 1, 40,000 pilgrims for Haj 2023 as per their guidelines based on the quota allocated by KSA. As per the bilateral agreement entered into between the Government of India and the KSA, for Haj 2023, a total quota of 1,75,025 pilgrims (1,40,000 pilgrims for HCoI and 35,025 pilgrims for the HGOs) has been allocated by the KSA to India.”
Most significantly, the Bench is gracious enough to forthrightly expound in para 21 that, “Upon having considered the arguments and contentions of the parties, this Court is of the prima facie opinion that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs may be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage. This Court is of the view that such an action would defeat the purpose of the current Haj Policy and is in derogation of Article 25 of the Constitution of India. Article 25 of the Constitution of India guarantees the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens. Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic. The religious freedom of the person is guaranteed by the Constitution of India under Article 25. The right under Article 25 of the Constitution of India has been discussed in the judgment of Indian Young Lawyers Assn. (Sabarimala Temple-5J.) v. State of Kerala, (2019) 11 SCC 1 as follows:“98. Now adverting to the rights guaranteed under Article 25(1) of the Constitution, be it clarified that Article 25(1), by employing the expression “all persons”, demonstrates that the freedom of conscience and the right to freely profess, practice and propagate religion is available, though subject to the restrictions delineated in Article 25(1) itself, to every person including women.
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176.1. Article 25 recognises a fundamental right in favour of “all persons” which has reference to natural persons.
176.2. This fundamental right equally entitles all such persons to the said fundamental right. Every member of a religious community has a right to practise the religion so long as he does not, in any way, interfere with the corresponding right of his co-religionists to do the same.
176.3. The content of the fundamental right is the fleshing out of what is stated in the Preamble to the Constitution as “liberty of thought, belief, faith and worship”. Thus, all persons are entitled to freedom of conscience and the right to freely profess, practice and propagate religion.
176.4. The right to profess, practice and propagate religion will include all acts done in furtherance of thought, belief, faith and worship.
176.5. The content of the right concerns itself with the word “religion”. “Religion” in this Article would mean matters of faith with individuals or communities, based on a system of beliefs or doctrines which conduce to spiritual wellbeing. The aforesaid does not have to be theistic but can include persons who are agnostics and atheists.
176.6. It is only the essential part of religion, as distinguished from secular activities, that is the subject matter of the fundamental right. Superstitious beliefs which are extraneous, unnecessary accretions to religion cannot be considered as essential parts of religion. Matters that are essential to religious faith and/or belief are to be judged on evidence before a court of law by what the community professing the religion itself has to say as to the essentiality of such belief. One test that has been evolved would be to remove the particular belief stated to be an essential belief from the religion—would the religion remain the same or would it be altered? Equally, if different groups of a religious community speak with different voices on the essentiality aspect presented before the Court, the Court is then to decide as to whether such matter is or is not essential. Religious activities may also be mixed up with secular activities, in which case the dominant nature of the activity test is to be applied. The Court should take a common-sense view and be actuated by considerations of practical necessity.””
Most forthrightly, the Bench enunciates in para 22 that, “This Court is an interpreter of the Constitution as well as the custodian of the rights of citizens, therefore this Court must exercise its powers under Article 226 of the Constitution to give effect to its provisions and the guarantees therein, lest they shall remain only in the black and white in the text but not in its application. An alternative must be sought and put into effect so that with the law taking its course, the same should not become a hurdle for the noble-intentioned citizens of this country who are seeking to undertake the Haj.”
Most remarkably, the Bench lays bare in para 23 stating that, “The Haj pilgrimage is a five-day religious pilgrimage to Mecca and nearby Holy places in Saudi Arabia. As per the Holy Quran, all Muslims who are physically and financially sound must perform the Haj pilgrimage at least once in their lives. Haj takes place only once a year in the twelfth and final month of the Islamic lunar calendar. Haj is one of the five duties of a Muslim and has been discussed by the Hon’ble Supreme Court in the judgment of Aishat Shifa v. State of Karnataka (SLP (Civil) No. 5236/2022) dated 13th October 2022 as follows:“Still further, five duties have been laid down for the Muslims by the Prophet, the same are reproduced as under:
“(i) Kalma :- It is the duty of every Muslim to recite kalma. Kalma implies certain Hymns proclaiming the unity of God accepting Mohammed as the Prophet.
(ii) Namaz :- Every Muslim must say prayers (Namaz) five times a day and on every Friday he must offer his afternoon prayer at the Mosque.
(iii) Zakat :- It is the duty of every Muslim to offer Zakat or charity to the poor and needy.
(iv) Ramzan :- The most pious duty of every Muslim is to observe fasts in the holy month of ‘Ramzan’.
(v) Haj :- Every Muslim, should go for Haj or pilgrimage to Mecca at least once in his lifetime.”
The Haj pilgrimage is undertaken by thousands of pilgrims from India annually. In order to enable the Indian Muslims willing to undertake the Haj pilgrimage, every year a bilateral treaty is executed between India and the Kingdom of Saudi Arabia. In terms of the said agreement, a quota of some pilgrims is allotted to India. The pilgrimage can be undertaken from India only either through the Haj Committee of India (for short, ‘the Haj Committee’) or the HGOs. HGOs usually act as tour operators for pilgrims, and provide a complete package right from the start of the journey from various places in India to Saudi Arabia, covering their accommodation in Saudi Arabia, arranging and making available food, transportation in Saudi Arabia, providing foreign exchange in the form of Saudi Riyals and their return to India. The majority of Haj pilgrims are taken care of by the Haj Committee, and only a limited number of pilgrims can undertake the Haj pilgrimage through HGOs as per the quota of the respective HGO.”
While citing the relevant case law, the Bench observes in para 24 that, “This Court refers to the judgment of Union of India and Others v. Rafique Shaikh Bhikan and Another (2012) 6 SCC 265 wherein this Court emphasized that the main purpose of the Haj Policy was to ensure that pilgrims must be able to perform their pilgrimage duty without undertaking any difficulty, harassment or suffering:“11. The pilgrim is actually the person behind all this arrangement. For many of the pilgrims Haj is once in a lifetime pilgrimage and they undertake the pilgrimage by taking out the savings made over a lifetime, in many cases especially for this purpose. Haj 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 travelling 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 Haj. 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 the 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 Haj 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.”
Most remarkably, the Bench clearly holds in para 25 that, “In the present petition, the Court is at this stage is primarily concerned with the pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same. Travelling to Haj is not merely a holiday but is a medium of practicing their religion and faith which is a fundamental right. This Court being the protector of the right of the pilgrims shall take the necessary steps in this regard.”As a corollary, the Bench directs in para 26 that, “Accordingly, to ensure that the pilgrims are not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25th May, 2023 by the respondent which reads as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” is stayed.” Most graciously, the Bench directs in para 27 that, “The respondents shall ensure that the pilgrims who have been affected by the defaults on the part of the petitioner, do not suffer and are able to undertake the Haj Pilgrimage without any obstruction.” Further, the Bench directs in para 28 that, “The respondents may proceed with the investigation in pursuance of the show cause notice issued to the petitioner.” Finally, the Bench concludes by holding in para 30 that, “Dasti. W.P.(C) 8412/2023 List before the Roster Bench on 3rd August, 2023.” In short, the Delhi High Court has very clearly propounded that the Haj pilgrimage falls within the ambit of religious practice and is thus protected under Article 25. What has been laid down in this most brilliant judgment must be implemented in totality. No denying it!</code></pre></li>
Sanjeev Sirohi
