Reportable

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

Writ Petition (civil) No.1 OF 2007

Prafull Goradia  Petitioner(s)

VERSUS

Union of India  Respondent(s)

O R D E R

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.  

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  

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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  

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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  

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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  

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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  

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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  

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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  

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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  

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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

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