Govt subsidy for Haj,other pilgrimages not unconstitutional:SC

The apex court rejected the argument that grant of subsidy for Muslims undertaking the Haj amounts to violation of Articles 14 (equality),15 b(non-discrimination) and 27 (no public taxing for promoting any religion).

A bench of justices Markandeya Katju and Gyan Sudha Mishra said in an order that nothing was unconstitutional if a small portion of public money is used for subidising pilgrimage.

"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," the bench said in the ruling.

The apex court made the remarks while dismising a petition filed by former BJP MP Prafull Goradia challenging the constitutional validity of the Haj Committee Act 1959 on the ground that it was violative of the Constitution particulary, Article 27.

The petitioner had contended that he is a Hindu but part of direct and indirect taxes proceeds go for the Haj pilgrimage, which is done only by Muslims.

He quoted Article 27 which prohibits payment of taxes for promotion of any particular religion.

Rejecting the argument, the apex court said "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".

The apex court also took into consideration the affidavit of the central government and UP government which stated that similar expenditure was being incurred for the Kumbh Mela, facilitation of pilgrimages to Manasarovar in China for Hindu pilgrims.

Similarly, it said some state governments provide facilities to Hindu and Sikh pilgrims to visit temples and gurudwaras in Pakistan, which are very small expenditures in proportion to the entire tax collection in the country.

Moreover, the Centre said it is not averse to the idea of granting support to the pilgrimage conducted by any community.

"In our opinion, we must not be too rigid in these matters and must give some free play to the joints of the state machinery. A balanced view has to be taken here and we cannot say that even if one paisa of government money is spent for a particular religion, there will be violation of Article 27.

"There is also no violation of Articles 14 and 15 because facilities are also given, and expenditures incurred, by the central and state Governments in India for other religions. Thus, there is no discrimination," the bench said.

The apex court said India is a country of "tremendous diversity", and the founding fathers of the Constitution thought it fit to keep the country secular which was most appropriate for a nation of diverse religions and cultures.

"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," the bench said.

According to the apex court, 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," the bench said.

The apex court also cited the observation of Justice Holmes, the celebrated Judge of the U.S. Supreme Court, who held that "the interpretation of constitutional principles must not be too literal. We must remember that the machinery of the government would not work if it were not allowed a little play in its joints.