The scrapping of Hajj subsidy by the Indian Government to perform annual Hajj in Saudi Arabia is a boon in disguise for the Muslim community for two reasons. It is, in fact, good riddance. However, what is intriguing is that it was done abruptly defying the Supreme Court’s 2012 directive to do it in a phased manner over 10 years i.e. by 2022.

Firstly, the Hajj subsidy which was started in the year 1954 has been a myth all along. The un-stated need of declaring subsidies was the requirement of the Central government to keep the government owned national air-carrier Air India afloat. Time and again the Muslims have been stating that the subsidy helps Air India and not the Muslims. But the Hajj subsidy was always used to embarrass the community by many who felt it was Muslim minority appeasement.

It is believed that scrapping of Hajj subsidy was done in a huff in the backdrop of crucial Vidhan Sabha elections in a number of states followed by Lok Sabha polls to please the Hindutva forces which are hell bent to instil fear in the Muslim community by indulging in cow vigilantism, lynching, hate mongering, bigotry, love-jehad etc.

Secondly, it is the religious aspect that Muslims feel relieved from scrapping Hajj subsidy. They from day one had been averse to Hajj subsidy because in Islam Hajj, which is the fifth pillar of Islam, should only be performed by able-bodied Muslims who are financially sound and that too once in their life time. As such scrapping the subsidy will not be a big issue among Muslims since this ritual act is mandatory only for those who are physically and financially fit.

Dr Syed Zafar Mahmood, a retired IRS and chairman of Zakat Foundation of India, says in an article that it needs to be borne in mind that Hajj is a sacred religious duty having no place for instincts like tourism or recreation. It is a delicate worship and must be performed with the required spirit. The first message Hajj conveys is of self-sacrifice that is submitting one’s existence to the Creator’s pleasure. The fundamental methodology of pleasing God is to raise the level of one’s spirit above the materialistic requirements of the body. Thus, a pilgrim should become an epitome of qahhari, ghaffari, quddusi and jabroot, i.e. power of self-control, magnanimity to forgive, purity of thought and envisioning divine glory all around.

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Historic verdict

A historic verdict was pronounced by Justice Markandey Katju and Justice Gyan Sudha Mishra of Supreme Court in 2011, upholding the constitutionality of Hajj subsidy. The bench of Justice Aftab Alam and Justice Ranjana Prakash in 2012 did take note of it. Justice Alam observed that “we also take note of the fact that the grant of the subsidy has been found to be constitutionally valid by this court. We are 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 Hajj subsidy is something that is best done away with.” Thus, Justice Alam has not overturned Katju’s judgment. In fact, a two-judge bench cannot overrule a judgment of another two-judge bench.

Moreover, why did Justice Alam not say anything about phasing out state expenditure on other religious events? As a matter of fact, in this case, private tour operators had challenged the provision of the government’s Hajj policy that required them to have at least 250 square feet of office space. The court on its own added the issue of Hajj subsidy, which was unnecessary because just a year ago the court had upheld its constitutionality. In any case, policy matters are the exclusive domain of the government and courts should ideally stay out of it. If a policy is constitutional, non-discriminatory and non-arbitrary, courts have no business to direct the government to change its policy.

In fact, Justice Alam undertook this exercise by quoting the Quran, which mandates Muslims to undertake the pilgrimage if they can afford it in terms of conveyance, provision and residence. He said the obligation to go for Hajj is only on rich Muslims, though many poor people do go on the pilgrimage by spending their life’s savings.

No ‘direction’ from a ‘Constitution bench’

Prof Faizan Mustafa, Vice-Chancellor, NALSAR University of Law, Hyderabad, says the point to stress is that there exists no “direction” from a “Constitution bench” and that the practice was never considered bad in law or unconstitutional. Katju’s judgment really involved the interpretation of Article 27 of the Constitution, which explicitly stipulates that no person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in the payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

Justice Katju observed that Article 27 would be affected only if a substantial part of the entire income tax collected or a major portion of the entire central excise or the customs duties or sales tax or a substantial part of any other tax were to be used for the promotion of any particular religion. Since the petitioner in this case did not contend that a substantial part of any tax collected in India is utilised for the purpose of Hajj, the Hajj subsidy was held as constitutional. If the total size of the Union government’s budget is taken into account, the Hajj subsidy will indeed be a very small fraction of it.

Author Meenaz Banu writes that the Supreme Court in 2012 had directed the Centre to gradually reduce the amount of subsidies being given to Hajj pilgrims so that within 10 years it is eliminated, and the money be used for the “uplift of the community in education and other indices of social development.” Accordingly the government reduced Hajj subsidy gradually in the last few years but now suddenly scrapped it mid-way of the 10-year time limit suggested by the Supreme Court. But as per the judgement the difference amount should have been used on the recommended purpose, but it has not been done in all these years.

A subsidy is a fiscal aid or at best a compensatory amount to make some fee or price affordable for the consumers. But the amount claimed to be given as subsidy looks fishy because only Air India was allowed to ferry the Hajj pilgrims and no other airline. If it was a subsidy then the amount should have been given to pilgrims directly and they could have been left free to choose whichever airlines they wanted.

Air India was beneficiary

Though the Hajj tickets are booked in advance and in bulk, yet the Air India charges almost double the normal fare. Usually for the bulk purchases and pre-booking tickets airways always make the fare much lower. But, for the Hajj pilgrims it did not happen and on the contrary the pilgrims paid higher than the normal fares. By inviting international tenders price could have been reduced with competition and the false impression of Government subsidy for Hajj pilgrimage could have been avoided.

Moreover, the pilgrims who go via the Indian Hajj Committee have to cook themselves and are accommodated in far away and cheap hotels which make the Hajj expenses very low compared to other private Hajj packages. And when we consider these facts and compare the amounts paid by Hajj pilgrims to the Central Hajj Committee, (CHC), of India and the actual expenses incurred, there remains a balance amount which is over and above the actual expenses. So where does this money go? Is it not a scam in the name of Hajj subsidy, Meenaz argues?

For example, let us take a stock of the Hajj Committee costs, considering the quality services for the tour. Even if we consider the lowest amount a Hajj pilgrim pays to the Hajj Committee i.e. Rs.2,10,000 and add the alleged subsidy as Rs.45,000 (which is maximum), the total cost  would be  Rs.2,55,000. Let us deduct the amount which would be given to a Hajj pilgrim through Hajj Committee as they reach Saudi i.e. Rs.35,000 and other expenses such as 80,000 for hotels for 45 days (as it is 4-person per room), Rs. 30,000 for food, and Rs.10,000 for transportation and Rs.60,000 for air ticket (Air India) there would still remain a balance of unaccounted Rs.40,000 per person. So if we consider 1,00,000 Hajj pilgrims, it becomes Rs.400 crore. Moreover, the amount is transferred to the Hajj Committee bank account by the Hajj pilgrims almost a year in advance. So where does the interest of such a huge amount go?  Where does this money go? Obviously it goes to the Central Hajj Committee. The Hajj Committee is an undertaking of the Government of India; so the money goes to the Government.

Muslims performing ‘Tawaf’ of Ka’aba in Makkah (File photo)

There are many questions of which we need to find the answer to understand the agenda behind scrapping of Hajj subsidy. First, was the Hajj subsidy demanded by the Muslims? Why was the subsidy not given directly to each pilgrim? And if we take the subsidy loss in an affirmative manner, considering the Government had to give subsidy through Air India then also the question arises why then the air fares of Air India were much costlier than the air fare of other Airways? Why did the Hajj pilgrims have to pay double the normal airfares compared to other airlines? Why not India calls for international Hajj tender which would help pilgrims to go to Hajj with low cost without taking any help from the Government? When the Supreme Court had ordered in 2012 to abolish the Hajj subsidy by 2022, why the Government did take an immediate decision to scrap it four years prior, asks Meenaz?

Muslims never wanted the subsidy for Hajj. It was the Union Government which introduced the system to encourage Hajj pilgrims to opt for Air route in place of the traditional sea route. The amount was just to compensate a part of the difference between air ticket and ship fare. In 1995, the option of the ship journey was altogether abandoned. The Government continued the “subsidy” to assist the otherwise loss-making Indian Airlines. All the money went to Airlines and Hajj passengers were charged heavily inflated rates.

Muslims not averse

According to journalist Syyed Mansoor Agha, Muslims had never been averse to doing away with the myth of subsidy, but just after four months of announcing Hajj policy for the year 2018, this supplementary policy decision smokes something filthy. It seems a knee-jerk action, like demonetisation.  After a shocking failure of getting instant Triple Talaq Bill cleared in Rajya Sabha, this seems to be an essay in bigotry to appease fanatics and satisfy biters of the Muslims.

Agha says Union Minister for Minority Affairs Mukhtar Abbas Naqvi’s assertion, while announcing scrapping of Hajj subsidy, that the subsidy is being stopped under the court’s direction is on the face a false alibi. This government has been dreadful in reversing SC orders as was done in the case of ‘Right of Inheritance’ by the repeated issuance of “Enemy Property Ordinance”.  That bigotry construed huge disrespect to the Supreme Court which has held re-promulgation of ordinances as ‘fraud on Constitution’. Same is the case of Jallikattu. Actually deriving force in abolishing subsidy at the moment was not due to respect to the law and the Supreme Court’s orders, but the appeasement of Hindutva elements.

Naqvi also wanted to take credit for ensuing use of the money thus saved for the benefit of the community, as “part of our policy to empower minorities with dignity and without appeasement”. Actually, this is a part of the court directions. The Telegraph (May 9, 2012) reported, that the court has directed the government to use the money saved from the subsidy for “the uplift of the community in education and other indices of social development.”

The court directed “to gradually reduce the amount of subsidies so that within 10 years it is eliminated.” The UPA Government immediately acted and informed the court that the Government intends to abolish entire subsidy by 2017 and that only first-time Hajj pilgrims will be entitled to the relief. And so, in spite of the increase in numbers of Hajj pilgrims the amount reduced from 837 crore in 2012 to 680 crore in 2013, 577 crore in 2014, 530 crore in 2015, 405 crore in 2016 and 200 crore in 2017. The Afzal Amanullah Committee recommendation and the Hajj Policy 2018-2022 also said that it will be gradually phased-out. No valid legal or policy decision supports this claim of abrupt withdrawal.

While, many Muslim organisations in the backdrop of withdrawal of Hajj subsidy, have urged the Union Government to set up a Hajj Corporation along the lines of Lembaga Tabung Haji of Malaysia, which is Malaysian Hajj pilgrims fund board. It facilitates savings for the pilgrimage to Mecca through investment in Shariah-compliant vehicles. Then float a global tender to hire private airlines for cheaper airfare. Normal airfare from Delhi to Jeddah, when booked in advance and in bulk return ticket costs around Rs.30,000/- while CHC charges Hajj pilgrims around Rs.65,000. So providing relief for Hajj pilgrims is a myth.

Take a ‘considerate view’

Meanwhile, the Delhi High Court has directed the Central Government to take a “considerate view” and examine grievances raised in a plea seeking an independent Muslim body to look into arrangements for Hajj pilgrims.

A bench of Acting Chief Justice Gita Mittal and Justice C. Hari Shankar directed the Centre and the concerned ministries to examine and take an expeditious view on the petition filed by Delhi-based advocate Shahid Ali.

Ali, in his plea, referred to the end of subsidy on flights for the pilgrimage and said since this had happened, there was no need for a government-controlled panel to manage its affairs. He also wanted an end to the Hajj Committee Act and to formulate an independent agency to deal with the issues.

*Views expressed in this article are the author’s own.