Secular nod to Haj subsidy - Small amount doesn't violate Constitution: Court

New Delhi, Jan. 28: The Supreme Court has upheld the subsidy given to Haj pilgrims, saying the diversion of a small amount from taxes does not violate the Constitution and pointing out that India is a secular state unlike Pakistan.

Such a diversion does not violate Article 27 of the Constitution that bars any person from being compelled to pay any tax that can be used for any particular religion, the court said.

The Supreme Court was disposing of a petition filed by Prafull Goradia, a former BJP MP in the Rajya Sabha who is no longer associated with the party.

He had challenged the Haj Committee Act on the ground that it violated Articles 14, 15 and 27. Goradia had claimed that although he is a Hindu he has to pay direct and indirect taxes, part of which fund the Haj pilgrimage undertaken only by Muslims.

Upholding the legality of the subsidy, the court said that Article 27 would have been violated if a substantial part of the entire income tax or excise or customs duties or sales tax, or any other tax, were to be utilised for promotion of any particular religion.

Suppose 25 per cent of the entire income tax collected was used for promoting or maintaining any particular religion or religious denomination, it would violate Article 27, the bench said.

“… if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27. It is only when a substantial part of the tax is utilised for any particular religion that it would be violated,” the two-judge bench said.

In Parliament last year, foreign minister S.M. Krishna had put the Haj subsidy at Rs 611 crore for 2009-10. The figure is just 0.13 per cent of the Rs 4.65 lakh crore (revised estimates) the Centre collected in taxes in the same year.

The Supreme Court bench noted that the central and state governments also incur some expenditure for Kumbh Mela and the pilgrimage to Mansarovar.

Some states provide facilities to Hindu and Sikh pilgrims to visit temples and gurdwaras in Pakistan. “These are very small expenditures in proportion to the entire tax collected,” the court said.

The court lauded the central government’s stand that it was not averse to the idea of granting support to any 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 27,” the bench said.

There was “no discrimination”, the court observed, as facilities are also given and expenditures incurred by Central and state governments for other religions, too.

The bench then referred to the origins of the Indian nation state in 1947 to drive home the point that the founding fathers of the country had consciously chosen to declare India a secular state while Pakistan declared itself a Muslim state.

“It is because of the wisdom of our founding fathers that we have a Constitution which is secular in character, and which caters to the tremendous diversity in our country,” Justices Markandey Katju and Gyan Sudha Misra said.

“…when India became independent, there were partition riots in many parts of the subcontinent, 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,” the bench noted.

“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 (it became an Islamic republic in 1956) and hence there must have been tremendous pressure on 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.

“This is why despite all its tremendous diversity India is still united. In this subcontinent, with all its tremendous diversity (because 92 per cent of the people 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, etc,” the court counselled.

The bench iterated the sentiments expressed in an earlier decision which said: “Since India is a country of great diversity, it is absolutely essential if we wish to keep our country united to have tolerance and equal respect for all communities and sects.”