Prafull Goradia vs Union Of India

Prafull Goradia Petitioner(s)

VERSUS

Union of India Respondent(s)

ORDER

Heard learned counsel for the parties.

This Writ Petition under Article 32 of the Constitution had been

initially filed challenging the constitutional validity of the Haj Committee

Act 1959, but thereafter by an amendment application the Haj Committee

Act of 2002 which replaced the 1959 Act, has been challenged. 2

The ground for challenge is that the said Act is violative of Articles

14, 15, and 27 of the Constitution. The grievance of the petitioner is that he

is a Hindu but he has to pay direct and indirect taxes, part of whose proceeds

go for the purpose of the Haj pilgrimage, which is only done by Muslims.

For the Haj, the Indian Government inter alia grants a subsidy in the air fare

of the pilgrims.

Particular emphasis has been given by the petitioner to Article 27 of

the Constitution which states:-

"27. Freedom as to payment of taxes for promotion of any particular religion.--No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination."

The petitioner contends that his fundamental right under Article 27 of the

Constitution is being violated. We have, therefore, to correctly understand

and interpret Article 27.

There are not many decisions which have given an indepth

interpretation of Article 27. The decision in Commissioner, Hindu

Religious Endowments vs. Sri Lakshmindra Thirtha Swamiar, 1954 (5)

SCR 1005 held (vide page 1045) that since the object of the Madras Hindu 3

Religious and Charitable Endowments Act, 1951 is not to foster or preserve

the Hindu religion but to see that religious trusts and institutions are properly

administered, Article 27 is not attracted. The same view was taken in

Jagannath Ramanuj Das vs. State of Orissa and Anr. 1954(5) SCR

1046. The decision in T.M.A. Pae Foundation vs. State of Karnataka,

AIR 2003 SC 355 (vide paragraph 85) does not really deal with Article 27 at

any depth.

There can be two views about Article 27. One view can be that

Article 27 is attracted only when the statute by which the tax is levied

specifically states that the proceeds of the tax will be utilized for a particular

religion. The other view can be that Article 27 will be attracted even when

the statute is a general statute, like the Income Tax Act or the Central Excise

Act or the State Sales Tax Acts (which do not specify for what purpose the

proceeds will be utilized) provided that a substantial part of such proceeds

are in fact utilized for a particular religion.

In our opinion Article 27 will be attracted in both these eventualities.

This is because Article 27 is a provision in the Constitution, and not an

ordinary statute. Principles of interpreting the Constitution are to some

extent different from those of interpreting an ordinary statute vide judgment 4

of Hon'ble Sikri, J. in Kesavanand Bharati vs. State of Kerala, 1973 (4)

SCC 225 (vide para 15). The object of Article 27 is to maintain secularism,

and hence we must construe it from that angle.

As Lord Wright observed in James vs. Commonwealth of

Australia, (1936) AC 578, a Constitution is not to be interpreted in a narrow

or pedantic manner (followed in re C.P. & Berar Act, AIR 1939 F.C.I.).

This is because a Constitution is a constituent or organic statute, vide

British Coal Corporation vs. The King, AIR 1935 P.C. 158 and

Kesavanand Bharati vs. State of Kerala, 1973 (4) SCC 225 (vide para

506). While a statute must ordinarily be construed as on the day it was

enacted, a Constitution cannot be construed in that manner, for it is intended

to endure for ages to come, as Chief Justice Marshal of the U.S. Supreme

Court observed in McCulloch vs. Maryland, 17 U.S. 316(1819) and by

Mr. Justice Holmes in Missourie vs. Holland, 252 U.S. 416(1920). Hence

a strict construction cannot be given to it.

In our opinion Article 27 would be violated if a substantial part of the

entire income tax collected in India, or a substantial part of the entire central

excise or the customs duties or sales tax, or a substantial part of any other

tax collected in India, were to be utilized for promotion or maintenance of 5

any particular religion or religious denomination. In other words, suppose

25 per cent of the entire income tax collected in India was utilized for

promoting or maintaining any particular religion or religious denomination,

that, in our opinion, would be violative of Article 27 of the Constitution.

However, the petitioner has not made any averment in his Writ

Petition that a substantial part of any tax collected in India is utilized for the

purpose of Haj. All that has been said in paragraph 5 (i) and (ii) of the Writ

Petition is :-

"(i) That the respondent herein has been imposing and collecting various kinds of direct and indirect taxes from the petitioner and other citizens of the country.

(ii) That a part of the taxes so collected have been utilized for various purposes including promotion and maintenance of a particular religion and religious institutions."

Thus, it is nowhere mentioned in the Writ Petition as to what

percentage of any particular tax has been utilized for the purpose of the Haj

pilgrimage. The allegation in para 5(ii) of the Writ Petition is very vague.

In our opinion, if only a relatively small part of any tax collected is

utilized for providing some conveniences or facilities or concessions to any 6

religious denomination, that would not be violative of Article 27 of the

Constitution. It is only when a substantial part of the tax is utilized for any

particular religion that Article 27 would be violated.

As pointed out in para 8 (iv), (v) and (viii) of the counter affidavit

filed on behalf of the Central Government, the State Government incurs

some expenditure for the Kumbh Mela, the Central Government incurs

expenditure for facilitating Indian citizens to go on pilgrimage to

Mansarover, etc. Similarly in para 8 (vii) of the counter affidavit it is

mentioned that some State Governments provide facilities to Hindu and Sikh

pilgrims to visit Temples and Gurudwaras in Pakistan. These are very small

expenditures in proportion to the entire tax collected.

Moreover, in para 8(iii) of the counter affidavit the Central

Government has stated that it is not averse to the idea of granting support to

the 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 7

Government money is spent for a particular religion there will be violation

of Article 27.

As observed by Mr. Justice Holmes, the celebrated Judge of the U.S.

Supreme Court in Bain Peanut Co. vs. Pinson, 282 U.S. 499, 501 (1931)

"The interpretation of constitutional principles must not be too literal. We

must remember that the machinery of the government would not work if it

were not allowed a little play in its joints" (see also Missourie, Kansas and

Tennessee Railroad vs. May, 194 U.S. 267 (1904).

Hence, in our opinion, there is no violation of Article 27 of the

Constitution.

There is also no violation of Articles 14 and 15 because facilities are

also given, and expenditures incurred, by the Central and State Governments

in India for other religions. Thus there is no discrimination.

In Transport & Dock Workers Union vs. Mumbai Port Trust,

2010(12) Scale 217 this Court observed that Article 14 cannot be interpreted

in a doctrinaire or dogmatic manner. It is not prudent or pragmatic for the 8

Court to insist on absolute equality when there are diverse situations and

contingencies, as in the present case (vide paragraphs 39 and 43).

Apart from the above, we have held in Government of Andhra

Pradesh vs. P. Laxmi Devi, AIR 2008 SC 1640 that Court should exercise

great restraint when deciding the constitutionality of a statute, and every

effort should be made to uphold its validity.

Parliament has the legislative competence to enact the Haj Committee

Act in view of entry 20 to List 1 of the Seventh Schedule to the Constitution

which states : "Pilgrimages to places outside India".

Thus there is no force in this petition and it is dismissed.

Before parting with this case we would like to mention that India is a

country of tremendous diversity, which is due to the fact that it is broadly a

country of immigrants (like North America) as explained in detail by us in

Kailas & Others vs. State of Maharashtra, JT 2011 (1) 19. As observed

in paragraph 32 of the said decision, 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 (see also in 9

this connection the decision in Hinsa Virodhak Sangh vs. Mirzapur Moti

Kuresh Jamaat, AIR 2008 SC 1892 vide paragraphs 41 to 60). It is due to

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.

It may be mentioned that when India became independent in 1947

there were partition riots in many parts of the sub-continent, 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. 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 and hence there must have been tremendous pressure on Pandit

Jawaharlal 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 sub-continent, with all its tremendous diversity (because 92 per cent of 1

the people living in the sub continent 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.

.................................J [Markandey Katju]

..................................J. [Gyan Sudha Misra]

New Delhi;

January 28, 2011