UNION OF INDIA V. RAFIQUE SHAIKH BHKAN (GOVERNMENT OF INDIA HAJ POLICY CASE) 2012

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FACTS OF THE CASE: The Government of India assigns a fixed number of pilgrims that are permitted to visit Saudi Arabia for performing Hajj, under a bilateral agreement signed with the Kingdom of Saudi Arabia every year.  A small portion is allotted to PTOs whereas rest is for the Hajj Committee of India. Before the Kingdom of Saudi Arabia made it mandatory, in 2002, for the PTOs to come through their respective Governments, the Hajj seats were directly allocated to them by the Kingdom of Saudi Arabia. Therefore, the Government of India made the policy under which the PTOs need to get themselves registered for the allocated quotas from the overall number of pilgrims as specified for the PTOs. Then it would get a fixed number of pilgrims for carrying for Hajj. The government of India frames policy to lay down conditions subject to which registration would be given. It later frames the policy in the bilateral agreement with the Kingdom of Saudi Arabia.

The Bombay High Court passed an order, in 2011, that challenged the Government of India 2011 Haj Policy that a private operator/travel agent to have “minimum office area of 250 sq. ft.” as one of the eligibility conditions for registration for ferrying pilgrims for Hajj. However, The High Court rejected the challenge but gave directions to the Government of India to allocate certain seats to some of the writ petitioners from the eight hundred seats from the Central Government quota that had not been allocated to anyone till the time of passing of the order by the court. The special leave petition was filed by the Union of India against this order as aggrieved by the directions of the High Court. The Supreme Court stayed the direction given by the High Court. But, the directions could not be acted upon as there was very little time left for the commencement of Hajj for the year 2011.  

By subsequent order in February 2012, the Court declared its intent to examine the Haj policy of the Government in all its aspects and not to limit the matter to the issue of Private Tour Operators (PTOs).

ISSUES RAISED:                                                           

  1. Whether the conditions of eligibility for registration as PTOs for ferrying Hajj pilgrims were in the public interest?
  2. Whether the condition to have a minimum of 250sq. feet carpet area was arbitrary?
  3. Whether the restrictions were reasonable to have an annual turnover of one crore?

RATIO OF THE CASE: In view of the fact that the majority of pilgrims go Hajj for the first time, it is the responsibility of the PTO to extensively brief the pilgrims about the rituals and procedures to be followed during Hajj. They should conduct separate classes for briefing the pilgrims and for which the pilgrims need to visit the office of PTO. The PTO looks after all logistics including ticketing, accommodation, visa, processing, etc. and for this, they need the presence of the pilgrims. Therefore, the Court held that the Hajj policy of the Union of India requiring a private operator/ travel agent for registration to have a minimum of 250 sq. feet carpet area to be not arbitrary. Further, the requirement to have a minimum turnover of Rs. One crore was not unreasonable as it was admitted that the turnover on the basis of a quota of 50 Hajj pilgrims alone should not be less than Rs 75 lakhs. Regarding the refundable security of Rs. 25 lakhs, Court held that what is stated in regards to annual turnover, the same would be equally applied in the respect of security deposit. Merely because in a given case, it operates harshly a restriction cannot be said to be unreasonable.