This is an update on my earlier post on the Haj order (A Liberal Secularist Agenda for Disengagement with Religion). The interim order in Union of India v Rafique Shaikh Bhikhan by Justice Alam and Desai is available now. The relevant (and fascinating) extract outlining the Court’s reasoning is reproduced below:
we appreciate the intent of the Government of India to provide subsidy to cover the additional burden resulting from the stringent regulation imposed by the Saudi Arabian Authorities. We also take note of the fact that the grant of subsidy has been found to be constitutionally valid by this Court.We are also not oblivious of the fact that in many other purely religious events there are direct and indirect deployment of state funds and state resources. Nevertheless, we are of the view that Hajj subsidy is something that is best done away with.
This Court has no claim to speak on behalf of all the Muslims of the country and it will be presumptuous for us to try to tell the Muslims what is for them a good or bad religious practice. Nevertheless, we have no doubt that a very large majority of Muslims applying to the Haj Committee for going to Hajj would not be aware of the economics of their pilgrimage and if all the facts are made known a good many of the pilgrims would not be very comfortable in the knowledge that their Hajj is funded to a substantial extent by the Government. We remind ourselves that the holy Quran in verse 97 in Surah 3, Al-e-Imran ordains as under:
“ 97. In it are manifest signs (for example), the Maqam (place) of Ibrahim (Abraham); whosoever enters it, he attains security. And Hajj (pilgrimage to Makkah) to the House (Ka’bah) is a duty that mankind owes to Allah, those who can afford the expenses (for one’s conveyance, provision and residence); and whoever disbelieves [i.e. denies Hajj (pilgrimage to Makkah), then he is a disbeliever of Allah], then Allah stands not in need of any of the Alamin (mankind, jinn and all that exists).”
We, therefore, direct the Central Government to progressively reduce the amount of subsidy so as to completely eliminate it within a period of 10 years from today.
[emphasis in the original]
So the reasoning of the Court is not exactly based on liberal disengagement with religion. Quite the opposite, really! The Court is telling you what it is to be a good Muslim, although echoes of Shah Bano are quickly drowned in the modest qualification of the Court’s inability to speak for all Muslims. Also, the Court acknowledges that Haj subsidy has been held to be constitutional, but thinks it is bad policy. Can the Court set a policy aside without finding unconstitutionality? I believe this is the right outcome, but based on bad reasons – the policy should have been found to be unconstitutional because it violates Article 15. Admittedly, that would be a radical overhaul of existing jurisprudence, and require a larger bench. Also interesting is the Court’s use of a the 10 year window: one can see resonance with Brown v Board of Education, and also the ‘progressive realisation’ jurisprudence on socio-economic rights in South Africa.
"Can the Court set a policy aside without finding unconstitutionality?" I assume you also subsume "extra-statutory" with unconstitutionality in this context. And the answer should be no if you subscribe to a policy of judicial modesty. In India, we have become used to activist courts and activism is not such a dirty word as elsewhere (e.g. elsewhere it would be unprecedented if courts came up with very specific means of furnishing emergency care, or designed a public distribution system). Perhaps because the judiciary is very trusted in India compared to the legislature and executive, it is more palatable in the Indian context. Further, Indian courts cannot trust the executive to comply with their orders. As a student trained abroad, I found it unsettling that Indian judges would not dismiss cases after coming to a conclusion of whether a practice was legal/illegal and whether relief was warranted. Instead, the case lingered and orders were issued to an agency to check if the agency was complying with the previous order or not. Even though this practice looks odd to me, I am sympathetic because appellate courts in India recognize that even if they rule in a certain way does not mean that their ruling will be executed.
"So the reasoning of the Court is not exactly based on liberal disengagement with religion. Quite the opposite, really."
Yes, that is disappointing. Even generally speaking, I am disturbed by the tendency of certain judges who employ folk wisdom, poetry, mythology, or philosophy as substitutes for legal reasoning and precedent (I'm thinking of a certain Justice K here). In this case, though, interpretation of scripture is a critical part of the rationale of the judgment. I hope the legal academy both discusses this disturbing tendency to co-opt extra-legal sources in their scholarship and also discourages students from this habit. Binding precedent is not flowery oratory. Judges should be as precise as possible and the use of these extra-legal sources just injects more uncertainty in a material that will be subject to repeated interpretation by litigants and lower courts.
See also the reasoning here:
http://volokh.com/2012/05/13/minister-prosecuted-for-teaching-parishioners-to-hit-children-on-the-bare-buttocks-with-wooden-dowels/#disqus_thread
thanks for your interesting comments and links.
Apparently, the Hajj subsidy is a way of subsidizing Air India to remain competitive rather than subsidizing Muslims. See Mohd Farooq's article here
http://kafila.org/2011/02/28/the-myth-of-indias-hajj-subsidy-muhammad-farooq/