1. Challenge to eligibility conditions, specifically turnover requirements, in the policy for registration and allocation of quotas for Haj Group Organisers. (Para 2 , 3 )
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2019 Supreme(SC) 107
SUPREME COURT OF INDIA
A.K. SIKRI, S. ABDUL NAZEER, M.R. SHAH, JJ.
FEDERATION HAJ PTOS OF INDIA – PETITIONER
VERSUS
UNION OF INDIA - RESPONDENT(S)
WRIT PETITION (CIVIL) NO. 4 OF 2019 WITH WRIT PETITION (CIVIL) NO. 26 OF 2019 WRIT PETITION (CIVIL) NO. 33 OF 2019 A N D WRIT PETITION (CIVIL) NO. 93 OF 2019
Decided On : 04-01-2019
Important Points
IMPORTANT POINT
Courts should not interfere in policy decisions of the Executive unless it is against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide.
Courts should not interfere in policy decisions of the Executive unless it is against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide.
Subject
Haj Policy - Eligibility Criteria
Act Referred
Headnote
Administration of law – Policy decisions – Should be best left to the Executive – Public authorities must have liberty and freedom in framing the policies – Courts should not interfere unless it is against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide – Instantly that not being the case, no interference warranted. (Para 18, 19, 21)
(1972) 2 SCC 788; (1984) 4 SCC 27; (1986) 4 SCC 566 – Relied upon
(2013) 4 SCC 699; (2012) 6 SCC 265 – Referred
Facts of the case:
These petitions assail some provisions of the Haj Policy 2019-23.
Finding of the Court:
Courts should not interfere in policy decisions of the Executive unless it is against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide.
Result: Petitions disposed of.
Legal Category Hierarchy
Advocates Appeared:
Mr. Sulaiman Mohd. Khan, Adv. Mr. Mohd. Ainul Ansari, Adv. Ms. Taiba Khan, Adv. Mr. Sunil Khatwani, Adv. Mr. Kripa Shankar Prasad, AOR Mr. Pardeep Jatav, Adv. Mr. Gaurav Yadav, Adv. Mr. Gaurav Agrawal, AOR Mr. Santosh Krishnan, AOR, for the Appearing Parties.
Mr. Sulaiman Mohd. Khan, Adv. Mr. Mohd. Ainul Ansari, Adv. Ms. Taiba Khan, Adv. Mr. Sunil Khatwani, Adv. Mr. Kripa Shankar Prasad, AOR Mr. Pardeep Jatav, Adv. Mr. Gaurav Yadav, Adv. Mr. Gaurav Agrawal, AOR Mr. Santosh Krishnan, AOR, for the Appearing Parties.
Table of Contents
2. Petitioners argue high turnover requirements are unreasonable and ignore experience; the government contends financial strength is essential to ensure pilgrim safety and avoid hardship. (Para 13 , 14 , 15 , 16 , 17 )
3. Policy decisions based on expert data and stakeholder consultation are not manifestly arbitrary; courts cannot substitute their own wisdom for executive policy in complex matters. (Para 16 , 18 , 19 )
4. Judicial review of executive policy is limited to cases where the decision is against statute, offends the Constitution, or is manifestly arbitrary, capricious, or mala fide. (Para 18 , 19 )
5. Policy challenges dismissed; one petitioner's turnover for a specific year to be reconsidered by the competent authority due to prior wrongful denial of registration. (Para 24 , 25 )
6. What is the scope of judicial review regarding executive policy decisions?
Judicial review is limited; courts will not interfere with the wisdom of a policy unless it is against a statute, offends the Constitution, or is manifestly arbitrary, capricious, or mala fide. (Para 18 , 19 )
7. How does the court view policies formulated based on expert data and stakeholder input?
Such policies are generally not considered manifestly arbitrary or unreasonable, as they are based on factual data compiled by expert bodies and a consultative process with stakeholders. (Para 16 , 18 )
8. Can the government prioritize financial strength over experience in eligibility criteria for service providers?
Yes, particularly when financial strength is crucial to prevent public hardship or safety risks, such as ensuring pilgrims are not stranded in a foreign country due to inadequate funding. (Para 16 )
JUDGMENT
A.K. SIKRI, J.
Petitioners in Writ Petition (Civil) Nos. 4 and 33 of 2019 are the Federation/Association of the Private Tour Operators (PTOs)/ Haj Group Organisers (HGOs) who have taken up the cause on behalf of their members, namely, various PTOs/HGOs. Other two writ petitions are filed by the PTOs themselves. The issue raised in all these petitions is common. For this reason these petitions were clubbed together and counsel for all the parties were heard. We now proceed to decide the controversy by this common judgment.
2) For Muslims, place of birth of Hazrat Muhammed, i.e. Saudi Arabia, is the most sacred place. Visiting that place is pilgrimage for Muslim community, which is known as performing ‘Haj’. It is the desire of every person of Muslim faith, living anywhere in this world, to visit Saudi Arabia for performing Haj, which is normally during the last month of the Islamic calendar being eleven days shorter than the Gregorian calendar since the dates cannot be fixed in the latter. As the number of pilgrims during this period is unbounded, the Kingdom of Saudi Arabia has regulated and restricted, in public interest and for the safety of the pilgrims themselves, the number of persons who can visit Saudi Arabia and perform Haj, from time to time. In the process, number of persons from each country to visit Saudi Arabia has also been restricted. Towards this end, a bilateral agreement is signed between the Government of India and the Kingdom of Saudi Arabia whereby the latter Government assigns a fixed number of pilgrims that are permitted to visit and perform Haj. Since the share of Indian pilgrims is limited by numbers, based on such a bilateral agreement, the Government of India also formulates its Haj Policy for smooth operations, particularly keeping in mind the interest of these pilgrims (who are known as Hajjis). This Haj Policy, inter alia, provides for eligibility and registrations of PTOs and HGOs as well who act as tour operators for these pilgrims. Purpose is to ensure complete package from the start of journey from defined places in India to Saudi Arabia, their arrangements for stay and performance of Haj and their smooth and safe return back to India. Out of the overall number of pilgrims, relatively small portion is assigned for PTOs and the rest of the pilgrims are taken care of by the Haj Committee of India.
3) The Haj Policy, which is formulated by the Government of India from time to time, lays down various eligibility conditions for registration for ferrying pilgrims for Haj. It has, however, been noticed that PTOs/HGOs normally feel aggrieved by one or the other conditions for registrations in such Haj Policies. Similar kind of dispute has now arisen in respect of HGOs Policy 20192023 dated December 20, 2018 (hereinafter referred to as ‘Haj Policy’) captioned as ‘Policy for Haj Group Organisers for Haj 2019-23 – Registration and allocation of Haj quota for Haj – 2019’.
4) We may mention at this stage that before formulating a particular Haj Policy the Government of India normally invites suggestions/ improvements from the PTOs/HGOs. In respect of the aforesaid Haj Policy as well, such suggestions were invited which were given by the Federation and Association of these PTOs/HGOs. However, the petitioners still felt aggrieved by some of the eligibility conditions and other provisions contained in this Haj Policy.
5) It may also be mentioned at this very stage that the earlier policy for PTOs for Haj 2013-17 was framed after a lengthy process of discussion on which detailed arguments were heard by this Court and it was ultimately approved vide judgment dated April 16, 2013 which is reported as Union of India and Others v. Rafique Shaikh Bhikan and Another, (2013) 4 SCC 699. It remained valid for five years and thereafter the PTO Policy was reviewed by a Haj Policy Review Committee constituted for the purpose and they suggested new framework for Haj 2018-22. Meanwhile, during the pendency of the f
