Haj travel is not ‘mere holiday but falls within ambit of religious practice’, says Delhi HC

The order was passed in a batch of pleas moved by over 13 Haj Group Organisers (HGOs) who had challenged the suspension of the Registration Certificate and Quota of the HGOs as published on May 25 in the “Consolidated List of Allocation of Haj quota for Haj-2023” by the Centre. They had also challenged a Show Cause Notice subsequently issued against some of the petitioner/HGOs on May 26 by the Centre. The HC was hearing interim applications moved by the HGOs in their main writ petitions.

It had been alleged by the Centre that the registration of the petitioner HGOs has been suspended due to their “wilful misrepresentation and misreporting of facts” to the Ministry of Minority Affairs, based on which they were registered as HGOs in the first place. It was submitted that the Ministry shall have the right to suspend/cancel the registration in case of non-compliance of any of the terms and conditions.

The court said that at this stage, it is primarily concerned with the “pilgrims who intend to travel on Haj Pilgrimage and have paid in advance to the petitioners for the same”. “Travelling 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. 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,” Justice Singh said.

The court further directed the Centre to ensure that the pilgrims who have been affected by the defaults on the part of the petitioner HGOs, do not suffer and are able to undertake the Haj Pilgrimage without any obstruction. “The respondents may proceed with the investigation in pursuance of the show cause notice issued to the petitioner,” the HC said, while listing the main pleas on August 3.

The HC said that evidently the Registration and allocation of Haj Quota to private tour operators is subject to certain terms and conditions for registration as HGOs. The registration of HGOs not found to be complying with the HGO Policy is liable to be cancelled, the court said.

Perusing through the terms and conditions the HC said that the same makes it clear that registration of the HGOs is an “absolute right rather than a privileged right” that is bestowed upon the concerned HGO based on the fulfilment of certain conditions as laid out under the HGO Policy.

The HC after considering the arguments was of the “prima facie opinion” 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,” Justice Singh said.

The court also noted that the Haj Committee of India has been mandated to make arrangements for 1,40,000 pilgrims for Haj 2023 as per their guidelines based on the quota allocated by the Kingdom of Saudi Arabia. The court said that Haj pilgrimage is a five-day religious pilgrimage to Mecca and nearby Holy places in Saudi Arabia and as per “the Holy Quran, all Muslims who are physically and financially sound must perform the Haj pilgrimage at least once in their lives”.

The HC further noted that the Haj pilgrimage is undertaken by thousands of pilgrims from India annually and every year a bilateral treaty is executed between India and the Kingdom of Saudi Arabia. As per this, a quota of some pilgrims is allotted to India and the pilgrimage can be undertaken either through the Haj Committee of India or the HGOs. HGOs usually act as tour operators for pilgrims, and provide a complete package right from the start of the journey from various places in India to Saudi Arabia, covering their accommodation in Saudi Arabia, arranging and making available food, transportation in Saudi Arabia, providing foreign exchange in the form of Saudi Riyals and their return to India. The majority of Haj pilgrims are taken care of by the Haj Committee, and only a limited number of pilgrims can undertake the Haj pilgrimage through HGOs as per the quota of the respective HGO, the court noted.

The Centre filed an appeal against this order of the single bench pertaining to one of the HGOs before a division bench of the HC which on June 12 issued notice and listed the matter in July. The Centre thereafter moved the SC against the division bench order and on June 19 a vacation bench of the SC, did not deem it necessary to entertain the same observing that the matter before the HC was listed in July and “all the issues raised herein can be effectively raised before the High Court”.