"I realise that some of my criticisms may be mistaken; but to refuse to criticize judgements for fear of being mistaken is to abandon criticism altogether... If any of my criticisms are found to be correct, the cause is served; and if any are found to be incorrect the very process of finding out my mistakes must lead to the discovery of the right reasons, or better reasons than I have been able to give, and the cause is served just as well." -Mr. HM Seervai, Preface to the 1st ed., Constitutional Law of India.

Monday, May 28, 2012

When policies go under knife: The Haj Subsidy Decision


The recent incident of review of a policy by the SC was in an interim order of 7th May 2012 relating to Haj subsidy. This was a SLP between UoI and Rafique Shaikh Bikan. The fundamental issue was on the justifiability of the norms of registration of Private Tour Operators ferrying Haj Pilgrims. The SC decided to look into the entire Haj policy and in this leg of the proceeding was reviewing among others the Haj subsidy issue. The court observed the subsidy to be constitutional as it was already found so in an earlier judgment (Prafull Goradia v. UoI) but un-islamic and advised the government to progressively reduce and eliminate the subsidy within a period of ten years. Advised also that the amount so saved shall be employed for the upliftment of the community in education and other social development programmes. The decision has attracted opposing responses for obvious reasons.

I am not intending to enter into the issue visited ad nauseum, whether judiciary can review policy. Rather, I raise the point, how judiciary has reviewed policy in this judgment.

Use of history

The court have extensively used history to understand the reason behind sending goodwill team during Haj before finding it irrelevant as the basic reason no more stands. So also the way the selection to the team is done has less or nothing to do with the objective sought to be achieved.  When it came to the question of Haj subsidy, the court treated it ahistoric and decided that it is something to be discontinued without offering much of reason to hold so.

Haj subsidy was started in 1973 when the government had stopped a cheaper mode of transport that is by sea. To offset the extra cost that the pilgrims will have to bear the subsidy was instituted. That is the reason why even today, the reasonable travel cost is fixed and the over and above killing made by the opportunistic monopoly carrier (Air India) is subsidized by the government. On the lighter side, the subsidy will become irrelevant on the liquidation of Air India, which seems to be much prior to the decade limit kept by the judiciary. The history would have given the judiciary a perspective to understand the policy better.

Reason to discontinue the policy

Ask the court why the policy should be discontinued. Was it adopting a liberal secular stand? (See here for interesting read)  Seems not, nothing to suggest so. On the contrary court apologetically co-opted muslim theology and attempted to establish why should muslims themselves reject subsidy. Apart from this no reason come that easily, let alone legal reason, which anyway will not stand as already a bench of same strength in a writ proceeding had upheld the validity of the subsidy.

Limits of review

This judgment gives an opportunity to visit a frequented area within judicial review scholarship. What is the extent of judicial review to maintain a healthy balance? Though a one-size-fits-all formula is far from desirable, it could safely be said that judicial prescription of alternate policy is far from desirable. The court in the case doles out free advises as how to relocate the resources so saved from discontinuance of Haj subsidy. Were they compelled to be on the safe side to show that though 'we' are withdrawing a privilege 'we' make sure that the community remains to be the beneficiary in another way?

Do we call it justice, sensitivity or appeasement? In any case it does not fall within review.

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