New Delhi: Government subsidy to Muslims
for Haj pilgrimage or similar benefits for other religions is
not violative of the Constitution, the Supreme Court on Friday
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
"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
"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 dismissing 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
particularly, 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
"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.
First Published: Friday, January 28, 2011, 19:12