Union Of India And Others v. Rafique Shaikh Bhikan And Another

Aftab Alam, J.—

SLP (Civil) No. 28609 of 2011

1. This special leave petition has been filed by the Union of India against an order passed by the Bombay High Court on 5-10-2011 WP (L) No. 1945 of 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 Haj. 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.

2. Aggrieved by the directions given by the High Court, the Union of India filed this special leave petition and by an order dated 14-10-2011 SLP (C) No. 28609 of 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 Haj for that year. By a subsequent order dated 17-2-2012 SLP (C) No. 28609 of 2011 this Court declared its intent to examine the Haj Policy of the Government in all its aspects and not to limit the matter to the issue of private tour operators (PTOs).

3. 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 the eligibility for registration as PTOs for ferrying Haj 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

4. The dispute between private operators/travel agents and the Government of India for registration as PTO for carrying Haj 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.

5. 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 that are permitted to visit Saudi Arabia for performing Haj. Out of the overall number, a relatively small portion is specified for the PTOs and the rest for the Haj Committee of India.

6. Before 2002, the PTOs were allocated Haj seats directly by the Kingdom of Saudi Arabia and there was, therefore, no involvement of the Government of India in the allocation of any Haj quota to the PTOs. After Haj 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 Haj.

7. 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 PTOs to come through their respective Governments. Initially, 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 Haj seats reserved for PTOs. It appears that it took three or four years for the people in this line of business to realise that this was the opening up of a new highly lucrative commercial venture.

8. 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 615a 47,405 7. 2010 602b 45,637 8. 2011 567c 45,441 9. 2012 - 45,000

9. It is stated in the affidavit filed by the Union of India that for Haj 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 WP (L) No. 1945 of 2011 from which this special leave petition arises.

10. 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 trouble-free journey, stay and performance of Haj by the pilgrims going through the PTOs.

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.

12. 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.

13. In Prem Printing Press v. Bihar State Text Book Publishing Corpn. Ltd. (2001) 4 PLJR 311 relating to the grant of contract for printing of textbooks by the Bihar State Text Book Publishing Corporation Ltd., coming up before the Patna High Court, one of us (Aftab Alam, J.) considered the question of the importance of the work and its objective in granting contracts by the statutory bodies and made the following observations: (PLJR pp. 312-13, paras 3-4)

“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 textbooks 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 (sic) the thought that the contract for printing of school textbooks 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 (1993) 1 SCC 71) or the grant of licence for the operation of ‘Cellular Mobile Telephone Service’ (Tata Cellular (1994) 6 SCC 651) or the contract for publication of telephone directories of Mahanagar Telephone Nigam Ltd. (Sterling Computers Ltd. (1993) 1 SCC 445) or the contract for development and exploration of oil fields (Centre for Public Interest Litigation (2000) 8 SCC 606).

4. To my mind, upholding of individual rights and the enforcement of the individual's rights by the intervention of the writ court is undoubtedly important but in doing so the court must not overlook 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 textbooks to school children.”

(emphasis added)

14. In another case, Ranjit Kumar Ghosh v. State of Bihar (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 the Patna High Court) made the following observations: (BLJR pp. 2245-46, paras 15-16)

“15. What was observed in the case of printing of textbooks 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, stationery and other articles of ordinary use by the Election Commission. Putting the purchase of indelible ink on a par with the other regular purchases would throw the field open to private players and one predictable outcome 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 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 fides but on an overall 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.”

15. In Tata Cellular v. Union of India (1994) 6 SCC 651 a three-Judge Bench of this Court in para 70 of the judgment made the following observations:

“70. 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 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. (emphasis in original) 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)

16. In a more recent decision in Union of India v. International Trading Co. (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 AIR 2002 Del 488 of the High Court, this Court, in paras 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 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. RTA 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)

17. Seen in the light of the aforesaid decisions, no objection can be taken to the 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 the registration of PTOs in the 2012 Haj Policy.

18. 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—Haj 2012, that put a restriction over 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 Haj 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.

19. 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.

20. 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 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)

21. 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.

22. This condition must also be viewed keeping the interest of the pilgrim as paramount. The 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 Haj is a pilgrimage on foreign soil and it comprises a number of rituals. Since a majority of the pilgrims would be going for Haj for the first time, the PTO needs to extensively brief the pilgrims about the rituals and the procedure to be followed during Haj. 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 Haj 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 scrutinise the PTOs who sell their quota to other PTOs.

23. The Attorney General stated that during the 2010 Haj, 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.

24. On a consideration of the submissions made on behalf of the parties, we see no arbitrariness and unreasonableness in the requirement of a minimum office area (carpet) of 250 sq ft.

Annual turnover of Rs 1 crore

25. 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.

26. Mr N. Rao, Senior Advocate appearing for a group of private operators/travel agents, in the course of his submissions, admitted that the turnover on the basis of a quota of 50 Haj 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 turnover he/she should at least show a turnover of rupees one crore from his own business. Seen, thus, the turnover fixed in the Government policy appears to be a modest figure.

Security deposit of Rs 25 lakhs

27. 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 Haj, 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 the Kingdom of Saudi Arabia and what is worse left them unattended even while hospitalised in the Kingdom of Saudi Arabia. There were instances when pilgrims who met with an accident during their stay in the 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.

28. We see no unreasonableness in the condition.

Court cases

29. 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.

Online applications

30. 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 online, subject to the condition that the online application must be complete in all respects.

31. 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 P-5 to the affidavit filed on behalf of the Union of India is, accordingly, approved for the 2012 Haj.

32. The grant of approval to Annexure P-5, 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 on the pilgrims. We realise 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.

33. 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.

The Haj subsidy

34. As regards the Haj 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/airfare. In the year 1994, the number of pilgrims going for Haj from India was as low as 21,035; in 2011, the number of pilgrims increased to 1,25,000. In the year 1994, the cost of travel per pilgrim was only Rs 17,000.00; in the year 2011, it went up to Rs 54,800.00. As a result, the total Haj subsidy that was Rs 10.51 crores in the year 1994 swelled up to Rs 685 crores in the year 2011.

35. The Union of India has justified the grant of subsidy stating, in Para 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 it 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 and the additional amount of Rs 38,000 per Haji is what is termed as ‘subsidy’. It is submitted that the subsidy is given only to those pilgrims who go through the Haj Committee of India.”

(emphasis supplied)

36. It is further stated in Para 24 that the grant of Haj subsidy by the Government of India was challenged before this Court in a petition under Article 32 of the Constitution of India registered as Prafull Goradia v. Union of India (2011) 2 SCC 568. This Court by a reasoned judgment and order dated 28-1-2011, 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 airfare of the pilgrims.

37. From the statement made in Para 21 of the affidavit, as quoted above, it is clear that the Government of India has no control on the cost of travel for Haj. The airfare to Jeddah for travelling for Haj is increased by the 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 airfare for Haj was Rs 58,800 though the normal airfare to and from Jeddah should have been around Rs 25,000. In the same paragraph, it is also stated that for the Haj of 2011, each pilgrim was charged Rs 16,000 towards airfare. 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 charging from the pilgrims an amount that is much lower than even the normal airfare for a return journey to Jeddah.

38. As regards the difference between the normal airfare and increased fare, we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulations 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 Haj subsidy is something that is best done away with.

39. 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 Haj 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 Haj is funded to a substantial extent by the Government.

40. We remind ourselves that the Holy Qu'ran in Verse 97 in Surah 3, Al-Emran ordains as under:

97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Haj (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 Haj (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). Lebanon 2000

(emphasis supplied)

41. 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.

42. Before leaving the issue of Haj 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 Haj through PTOs. In that eventuality the need may arise for a substantial increase in the quota for the PTOs and the authorities concerned 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 authorities concerned 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 Haj Delegation

43. The issue of the Goodwill Haj Delegation raises two questions; one in regard to the reasonableness and justification for sending an official delegation on the occasion of Haj 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 delegation is being sent every year.

44. The primary purpose of the delegation, according to the affidavit, is “to convey goodwill on the auspicious occasion of Haj to the Government of Saudi Arabia as well as to the Indian pilgrims”. It is further stated that the Delegation interacts with the Haj 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 Haj, Saudi Arabia and the Governor of Makkah. The Delegation also has regular meetings with the Indian Haj Mission and the Haj Authorities of Saudi Arabia. A report is submitted to the Government about the conduct of Haj and recommendations for a better Haj in the ensuing year.

45. 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 the Minister of Haj, the Secretary (Haj), people working in the Islamic organisations and one or two standing members of the Parliamentary Committee relating to Haj/religious affairs. The number of Haj pilgrims from Bangladesh in the year 2011 was one lakh fifty thousand. Pakistan does not send any official Haj delegation.

46. As to the size of the Delegation and the manner of nomination of its members, from the affidavit it appears that in 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.

47. In pursuance to our direction, the affidavit also gives a list of the members of the Goodwill Haj 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 the Constitution.

48. Now coming back to the reasonableness and justification for sending an official Goodwill Delegation for Haj, it is noted above that the first such Delegation was sent in the year 1967. The sending of the Goodwill Haj 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 Haj was first sent to the Kingdom of Saudi Arabia. It is no secret that after the 1965 war Pakistan tried to use even the Haj pilgrimage for anti-India propaganda and the purpose of sending the Goodwill Delegation was to meet the anti-India propaganda.

49. The reason for which the Delegation was first sent has long ceased to exist and Pakistan is no longer sending any official Goodwill Haj Delegation to Saudi Arabia. It may, however, be contended that with the passage of time the purpose of the Delegation has changed and 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 Haj 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 the arrangements made for pilgrims that go for Haj through the Haj Committees.

50. 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 Haj is one of the most complex organisational tasks undertaken by the Government of India outside its borders. It is further stated that all the arrangements for the Haj of pilgrims are coordinated by the Consulate General of India, Jeddah and the Embassy of India, Riyadh. The Haj Committee of India, established under the Haj Committee Act, 2002 is responsible for making the arrangements for pilgrims performing Haj through them.

51. It is, thus, to be noted that the making of arrangements for the pilgrims is the duty and responsibility of the Haj Committee of India, a statutory body constituted under an Act of Parliament. The arrangements are further overseen by the Consulate General of India, Jeddah and the Embassy of India, Riyadh. The arrangements are, thus, looked after by the 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 1,25,000. We are unable to accept the second reason given as justification for sending the Goodwill Haj Delegation.

52. Coming now to the first reason, that is, to convey goodwill to the Government of Saudi Arabia as well as to the Indian 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 Haj but we completely fail to see how even that purpose can be served by sending such a large, unwieldy, amorphous and randomly selected delegation.

53. On a careful consideration of the issue we are quite clear that the present practice of sending Goodwill Haj 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 Haj 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 Haj 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 Haj paying for their own expenses.

54. 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 than a motley delegation whose members are selected on irrelevant considerations.

55. In this interim order we have primarily dealt with the issues of PTOs, Haj subsidy and the Goodwill Haj Delegation. There are other issues which we propose to deal with in due course.

56. 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 (2500),

(iv) States/Union Territories on special consideration e.g Jammu and Kashmir (1500) and Lakshadweep (239),

(v) States/Union Territories with Haj applications in excess of quota (2500),

(vi) Haj Committee of India (500), and

(vii) Government of India (3061).”

57. 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 Para 8 of the affidavit it is stated that the quota of the 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 Haj.

58. 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 Haj. 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 realised from the pilgrims and the facilities made available to them.

59. The Haj Committees of the States of Maharashtra, Kerala and Karnataka are directed to be impleaded as the respondents. Let notice go to them with a direction to file affidavits giving details of the selection process and stating stagewise how selections are being made for sending pilgrims for the 2012 Haj, what amounts are charged from each pilgrim and what facilities are provided to them.

60. The affidavits, as directed above, must be filed within two months from today. Put up on 23-7-2012.

SLPs (C) Nos. 33190-217 of 2011

61. In view of the order passed in SLP (C) No. 28609 of 2011, these special leave petitions have become infructuous and are disposed of as such.

IAs by private operators

62. In view of the order passed in SLP (C) No. 28609 of 2011, all the interlocutory applications filed by the private operators/travel agents raising objections to the Government of India 2012 Haj Policy stand disposed of.

TPs (C) Nos. 191-92, 196-99 of 2012

63. In view of the order passed in SLP (C) No. 28609 of 2011, the transfer petitions are rendered infructuous and stand disposed of accordingly.