It may be noted here that earlier this year, the Allahabad High Court had delivered another ruling impacting on minority affairs when it ruled that Aligarh Muslim University could not claim 'minority' institution status. The ruling was later challenged by the Central which amended the law to protect AMU minority 'character'.
The fraught verdict elicited contrasting responses from the political spectrum. Congress made plain its discomfort with the order even as senior government sources asserted that it would soon be challenged in the Supreme Court. Congress spokesperson Abhishek Singhvi said : There are sufficient grounds to challenge the court order, the last word on the verdict had not been heard. Bhartiya Janta Party, however, appeared to have no quarrel with it, even though the party said it would come out with a detailed response only after it had gone through the court order.
However, Party said We always hold that State funds should be used on non-discriminatory basis. Given that Congress attaches a critical weightage to Muslim support to its plans to better its electoral for tunes, the pain factor in withdrawing subsidies is considerable. Parties which aggressively woo Muslim support-apart from bodies like All-India Muslim Personal Law Board and vocal clerics like Delhi's Imam Bukhari-are unlikely to support any move to discontinue subsidies. The ruling will, however, prompt BJP to engage 'secular' parties in a debate over minority 'appeasement'. BJP was opposed to Haj subsidy but had to persist with it while in power out of deference to the wishes of NDA partners. In fact, they raised the quantum of subsidy, and the step towards its rationalization by excluding the 'creamy layer' did not materialize. On Friday, when the Bench took up the matter for hearing, petitioner's counsel informed that respondents had been directed to submit a counter affidavit but till date none was forthcoming.
The court observed that the petition 'prima facie' needed hearing. After which the Bench admitted the petition and issued notice to respondents-Central and State governments. But the judges said the respondents didn't need to be served copies of the petition as it had already been done. The Bench granted six weeks' time to respondents for filing a counter-affidavit and thereafter six weeks for rejoinder-affidavit to the petitioner and directed to list the case on October 10. Meanwhile the Centre on September,1 decided to approach the Allahabad High Court to seek review of its order restraining the Union government and State government from providing funds or financial subsidies to Haj pilgrims and pilgrimages of any other community.
It may be noted that the government has to spend over Rs.300 crore over one lakh Hajis. Special flights are run. A.C Haj houses have been built across the country. They are provided free food and lodging during their trip. However, no such subsidy is given to others. A Hindu does not get a subsidy to visit Amarnath or Mansarovar. Sikhs don't get special assistance to visit Nankana Sahib. Buddhists get no help for visiting Sarnath and Christians, too, do not get anything to visit Rome. Then why only Muslims? The reason-all the political parties believe in vote bank politics. Critics may say special arrangements are made by the government for Kumbh Mela, Amar Nath yatra etc. But the fact is, the government only looks after the administrative arrangements, which it does for all festivals irrespective of religion. It is the duty of the government to maintain law and order. Every visitor to Kumbh Mela has to buy a ticket. The free kitchens are run privately. Special trains and buses are run for Kumbh Mela, but people have to buy tickets for traveling. It is not subsidies. Even Islamic countries do not give subsidies for Haj. There would have been no issue if similar subsidies were given to non-Muslims, including those whose religious places are situated outside India. Some may argue that the Haj subsidy is actually a discount, as the government-owned air-lines get bulk business.
Then why is such a discount not given to others who travel in large numbers during their pilgrimage season? Haj subsidy is only for Muslim appeasement. Politicians are out to appease them. It's evident from the way they organize iftar parties. Ironically, no one is ever seen hosting lunches for little girls during Navratri. However, some Muslim critics opined that opposition to subsidy for Haj pilgrims derives from the secular credo of separation of State and religion. It's held that in a secular State, religion is relegated to the private realm. Hence, the subsidy for Haj pilgrims should be abolished. Unless one is particularly predisposed against Muslims, any discussion on Haj subsidy should be done after considering whether the State has adhered to this secular credo. Pursuing the philosophy of sarva dharma sambhav, the government has been investing resources on supporting the religious practices of all communities.
For example, everytime Kumbh Mela is held, the State builds infrastructure for the pilgrims. It organizes Amarnath and Mansarovar Yatras. And doles out compensation for pilgrims who lose their life during pilgrimage. Moreover, during Chhat Puja, municipal authorities in Bihar clean up water bodies for people to take a dip. Trains run from different parts to take kawariyas for a holy dip at Devgarh. Every year, the government creates facilities for Ramlila. The district magistrate-a representative of the secular State-fires the arrow to set Ravana's effigy ablaze. All these is done at a great cost to the exchequer. Except for the Sikhs, and to some extent Jains, whose own religious bodies spend on the processions they take out to commemorate anniversaries of gurus, all other communities depend on the government to support their pilgrimages and festivities.
Position in Indian Constitution:To maintain the secular character of the Indian polity, not only does the Constitution guarantee freedom of religion to individuals and to groups, but it is also against the general policy of the Constitution that any money be paid out of the public funds for the promotion or maintenance of any particular religion or religious denomination. Accordingly, Article 27 lays down that no person shall be compelled to any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. Apart from this article, Articles 14, 15 and 17 of the Constitution provide equal status to all Indians. These Articles also restrict the government from giving benefits to a particular faith at the cost of others.
In the wake of the modern trend to impose governmental supervision over the administration of religious trusts, a general practice has come to be to provide in the relevant law that the trusts make a contribution to the government for services rendered to them by way of State supervision. Such a levy by a State could not be valid as a tax as there is no such entry in List II or List III. Only Parliament could levy such a tax. A State can levy only a fee on religious trusts under entry 47 of List III.
The order of the Lucknow Bench of Allahabad High Court banning subsidy on all pilgrimages has been interpreted by the Muslim clerics and religious leaders in the State in different ways. This order will affect only the Hij pilgrims as they are the only ones who get a subsidy from the government. The clerics were unanimous in their opinion that the subsidy did not go against the Quaranic belief that a Haji should finance his pilgrimage on his own. Opinion and interpretations of the Muslim clerics and leaders varied from a shade of remorse to finding other ways of aiding the Haj pilgrims. Zafaryab Jilani, member, All-India Muslim Personal Law Board (AIMPLB), said , There is no issue about removing the subsidy for Haj pilgrims. The government was only giving subsidy on the air fair. It can allow us to use other airlines-instead of Air India-who are more than ready to give discounts.
The government spends huge sums on religious events like Kumbh Mela, Amarnath Yatra and so on, he added. Fazlu Rehman, Imam of Tille Wali masjid, however, said that it was bad for the Muslims. We respect the court and would not say anything against it but the subsidy on Haj pilgrimage was a great help to the Muslims. The Muslim clerics and leaders denied that enjoying a subsidy on Haj pilgrimage is against the tenets of Islam. The Quran says that the expenditure incurred by a Haj pilgrim should be borne by the person himself or his close relatives. Imam Fazlu Rehman said that the subsidy is like somebody giving you something as a gift on your way to the pilgrimage. Qureshi argued that the subsidy was in the form of gifts that are given to those going on a pilgrimage. It is just like the biscuit, water and other provisions provided by the people of Hajis. Some Muslims fundamentalists argued that its seems as if in this country Muslims have no claims over State resources. Indeed, some people do see Muslims as lesser citizens, so they want the Haj subsidy to go. Such squint-eyed vision has no place in a secular State.
What about insurance cover to hajis? The Muslim intelligentsia has reacted cautiously to Darul Uloom's reported fatwa against insurance policies. According to the Fatwa (number 837/zeem) issued by Darul Ifta of Deoband, the supreme body at Deoband : Life insurance is not permissible as it comprises elements of interest and gambling which are illegal under the Shariat. The fatwa was issued in response to a question asked by one Saleem Chisti of Lucknow. He sought Deoband's opinion after being approached by an insurance agent. The response, issued on August 7, by Mahammad Zafeeruddin in consultation with two muftis of Darul Uloom, Deoband, maintained that the interest earned on bank deposits as well as insurance of life are illegal as per Shariat-the supreme law for Muslims. When asked to comment on the issue, member, All India Muslim Personal Law Board, Zafaryab Jilani, said, Fatwa was a religious opinion and comparable to a simple answer to a question.
It should be seen in the light of the question. Insurance is a very vast subject and confining it to a mere definition would be unjust, he said. Giving an example, he said, insurance had a different meaning with reference to those going on Haj or working in government departments. They tend to get an automatic insurance. Thus it is very difficult to fix the legality or illegality of insurance as per Shariat. He concluded. Other clerics explain it by saying sood(interest) and jua (gambling) are illegal in Shariat so it is better to stay away from them.
After foregoing discussion, it may be noted that in a recent development the Supreme Court on September 12, 2006 advanced by a week the hearing on the Centre's appeal challenging an order of Allahabad High Court, which has restrained the government from subsidizing all religious pilgrimages. Explaining the disastrous effect of the subsidy ban order on Haj pilgrimage, for which preparations are in an advanced stage, Solicitor General G.E.Vahanvati requested a Bench comprising Justices B.N.Agrawal, P.P. Naolekar and L.S.Panta for an immediate stay on the High Court order. Vahanvati said that the Union government has already entered into an agreement with its Saudi counterpart as well as Saudi Airlines for transporting the pilgrims and any change of plan at this eleventh hour could result in a loss of face as well as revenue for India. Further he said that the High Court order of August 25 was passed without application of mind to the ground realities. Further, Supreme Court on September 18 staying Allahabad High Court interim order restraining govt. from subsidsing Haj. A Bench comprising CJI Sabharwal and Justices A.R.Lakshamanan and C.K.Thakkar made it clear that the stay on the August 25 order of the High Court was only for the November Haj as the Centre is in an advanced stage of preparation. The Bench also cited the Constitutional provision that mandates the government not to discriminate on the basis of religion.
If India is to remain a secular country, the State must refrain from privileging any religion over another. Accommodation of minorities must not turn into minority communalism. The new ruling of Allahabad High Court would be difficult for the Centre to implement as Haj subsidies are seen to be an integral part of the UPA's outreach to Muslims. Moreover, as long as the State continues to act on the premise that it is its business to be involved in the religious affairs of its citizens, withdrawal of the subsidy would seriously compromise its secular credentials. Until the government withdraws completely from religious realm and leaves the communities to foot the bill for their own activities, Muslims are as much entitled to favoured treatment as others.
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