Read Time: 11 minutes

Synopsis

The Delhi High Court on Wednesday observed that Haj pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India.

The vacation bench of Justice Chandra Dhari Singh held, “Haj Pilgrimage and the ceremonies involved therein fall within the ambit of a religious practice, which is protected by the Constitution of India. Religious freedoms are one of the most cherished rights guaranteed and enshrined under the Constitution in line with the vision of the founding fathers of the Modern Indian Republic. The religious freedom of the person is guaranteed by the Constitution of India under Article 25”.

The single-judge bench was hearing a batch of petitions filed by various private Haj Group Organizers (HGOs) challenging the suspension of their registration certificates and quota published in the “Consolidated List of Allocation of Haj quota for Haj-2023” by the Union Government on May 25.

The court stayed the Union Government's decision to suspend the registration of certain HGOs and keep their Haj Quota at abeyance.

“Accordingly, to ensure that the pilgrims are not obstructed from completing their journey and undertake Haj, the comments in the consolidated list of allocation of Haj Quota for HAJ-2023 issued on 25th May 2023 by the respondent which reads as “Registration Certificate & Quota Kept in abeyance till finalization of proceedings in complaint related matter” is stayed”, the court ordered.

The counsel for the petitioners argued that their registration certificate and Haj quota had arbitrarily been ordered to be kept in abeyance till the finalization of proceedings in a complaint-related matter. It was contended that the petitioner had already taken booking from the Pilgrims and the pilgrims had paid in advance for the same, and the decision of the government was completely arbitrary and in blatant violation of the fundamental rights of the petitioner, as well as the rights of the pilgrims, as enshrined under Articles 14,19 and 21 of the Constitution of India.

On the contrary, the counsel for the Centre submitted that the HGOs' respective registration had been ordered to be kept in abeyance due to their wilful misrepresentation and misreporting of facts to the Ministry, based on which they were registered as HGOs in the first place. The counsel argued that there had been a gross misrepresentation of facts, by the petitioner HGOs, which had come to light during the visit of a team of officials from the Ministry to the office premises of the petitioner HGOs.

The counsel stated that the Government is contemplating serious penal action, which would include blacklisting and canceling of registration of these HGOs. The Counsel also submitted that the Government is not willing to take the risk of placing the fate of these pilgrims in the hands of these non-compliant HGOs. Moreover, allowing these HGOs to take the pilgrims to the Kingdom of Saudi Arabia (KSA) after the revelation of serious violations of the law, would not be in the spirit of the bilateral agreement which put the onus of ensuring that the only compliant and verified HGOs would be registered, the government counsel argued. 

Justice Singh opined that although restrictions and conditions to the issuance of the Registration Certificate as well as to the Quota allotted to the petitioners/HGOs may be imposed, the same should not be held against the pilgrims who, in good faith, registered with the petitioners/HGOs to undertake the pilgrimage.

“This Court is of the view that such an action would defeat the purpose of the current Haj Policy and is in derogation of Article 25 of the Constitution of India. Article 25 of the Constitution of India guarantees the freedom of conscience and the freedom to profess, practice and propagate religion to all citizens”, the court said.

The court added that being an interpreter of the Constitution as well as the custodian of the rights of the citizens, an alternative must be sought by the court and put into effect so that with the law taking its course, the same should not become a hurdle for the “noble-intentioned citizens” of this country who are seeking to undertake the Haj.

The court noted that the Haj pilgrimage is undertaken by thousands of pilgrims from India annually and in order to enable the Indian Muslims willing to undertake the Haj pilgrimage, every year a bilateral treaty is executed between India and the Kingdom of Saudi Arabia.

“In the present petition, the Court is at this stage primarily concerned with the pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same. Traveling to Haj is not merely a holiday but is a medium of practicing their religion and faith which is a fundamental right. This Court being the protector of the right of the pilgrims shall take the necessary steps in this regard”, the court said.

Court directed the Centre to ensure that the pilgrims who have been affected by the defaults on the part of the petitioner, do not suffer and are able to undertake the Haj Pilgrimage without any obstruction. Furthermore, the court directed that the respondents may proceed with the investigation in pursuance of the show cause notice issued to the petitioner.

Case Title: Al Tawaf Hajj and Umrah Travel and Tourism v. UOI (a batch of petitions)