ORDER
Mohammad Yaqoob Mir, J.
1. A batch of petitions numbered above involve almost identical questions for determination, hence, taken up for disposal together.
2. Withholding of travel document 'Pilgrimage pass' by State Committee for want of clearance by the CID agency (respondent No. 3) is under challenge, same is claimed to be violative of the fundamental right guaranteed under the Constitution of India. A person has a right freely to profess, practice and propagate religion subject to certain restrictions i.e., it shall not offend public order, morality and health and shall not also offend other provisions of the part III of the Constitution.
3. The five pillars of Islam which include Haj are the foundation of Muslim life and are integral part of the religion. Every able bodied Muslim is religiously duty bound to make the pilgrimage to Mecca at least once in the lifetime subject to affordability. Committee (Central Haj Committee) and the State Committee (State Haj Committee) in terms of the provisions of The Haj Committee Act, 2002 have been established for facilitating/ making arrangements for pilgrimage of Muslims for Haj and for connected matters therewith.
4. Haj is performed in the month of Zilhaj and every year it is notified, in response, desirous persons apply but when the number of applicants is more than the allotted seats, then the selection is made by the 'Draw of Lots'. After selection on completion of requisite formalities, departure for pilgrimage is arranged. In the process, 'pilgrim pass' is issued by the Committee (Central Haj Committee) and sent to the State Haj Committee for its delivery to the selected pilgrims. The State Haj Committee after necessary verification and clearance by CID agency deliver the (pilgrim pass) travel document, consequent thereof Haji's depart to Saudi Arabia through scheduled Haj flights.
5. Travel document 'pilgrim pass' of petitioners in all the petitions have been withheld. Respondent No. 2 in the reply has stated that State Committee has power to retain the travel document of the pilgrim whose character and antecedents are reported to be adverse and is not bona fide pilgrim. Adverse reports received from respondent No. 3 prevented respondent No. 2 from delivering the travel document.
OWP No. 790/08
6. Petitioner (Abdul Gani Soft, s/o. Abdul Karim Sofi, r/o. Chowdri Bagh, Sebdan Bemina District Budgam) along with his wife had applied, got selected on draw of lots, deposited initially an amount of Rs. 10,700/-on selection deposited an amount of Rs. 1,72,000/- which fact is not denied. Though there was no objection vis-a-vis spouse of the petitioner but petitioner has not been cleared by the respondent No. 3 (CID agency) which prompted the petitioner to invoke the writ jurisdiction of this Court.
7. Respondent No. 3 in the reply has stated that the petitioner is a released militant, was asserted by security forces on 27-2-1993 in case FIR No. 3/1993 of police station CIK. Petitioner is a local trained militant of Hizbul Mujahideen outfit, has also remained under preventive detention for a period of six months. Furthermore, petitioner was holding post of Supervisor in the Jammu and Kashmir State Industries Department, for anti-national activities, was dismissed from service.
8. No doubt respondent No. 3 (CID agency) has made reference to the case registered as FIR No. 3/1993. Police Station CIK vis-a-vis, petitioner in OWP No. 790/ 2008. Same case pertains to the year 1993. From 1993, till date for a period of approximately fifteen years nothing adverse has been brought on record against the petitioner. Detention order, which was for a period of six months, on their own showing has also since expired. Dismissal from service is not correct. Petitioner had retired from service as is clear from communication No. BWM/Acctts/34/06 dated 29-4-2006.
OWP No. 800/08
9. Petitioner (Abdul Gani Ahangar, s/o. Ghulam Mohammad Ahangar, r/o. Munnippay, District Budgam) got selected by 'Draw of Lot'. On completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3. Respondent No. 3 in the reply has stated that the petitioner has remained affiliated with Jaish Mohammad outfit, a dreaded militant organization, is providing food and shelter to anti nation elements. Brother of the petitioner is District Commander of Tehreek-ul-Muhajideen presently petitioner has involvement.
10. Had it been correct, then the petitioner would not have been at large and might not have been working as Driver in Military Engineering Service (MESJ-503624. MES authorities have issued NOC in his favour.
OWP No. 801/08
11. Petitioners (1. Hamidullah Itoo, s/o. Abdul Ahad Itoo, 2. Shamima Hamid w/o. Hamidullah Itoo both residents of Mohamadpora, Arrah, District Kulgairri) got selected by 'Draw of Lots'. On completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
12. Respondent No. 3 in the reply filed has stated that petitioner is active worker of Jamat-i-Islami and OGW of HM outfit involved in case FIR No. 102/2006, Police Station, Kulgam under Sections 10, 13, 17, ULFA, has undergone two years preventive detention.
13. From year 2006 till date nothing has been placed on record to show that the petitioners' pilgrimage in any way shall be against the public order, even otherwise petitioner might hot have been at large.
OWP No. 813/08
14. Petitioners (Mohd. Ashraf s/o. Abdul Khaliq r/o. Ahagam, Shopian) got selected by 'Draw of Lots' on completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
15. Respondent No. 3 in the reply filed has stated that petitioner was arrested in the year 1990 and released by the Screening Committee in the year 1991 only after two months. However, again has been apprehended by army 55 RR on 17-4-2008 and was released on 18-4-2008.
It appears that from the year 1990, nothing adverse has been brought on record neither any information or material is produced which suggests that the bona fides cannot be doubted. From the year 1990 till date more than 17 years have elapsed, nothing of the sort which would effect the bona fides of the petitioner has been brought on record. Petitioner has to be presumed as bona fide pilgrim.
OWP No. 814/08
16. Petitioners (Mohd. Yousuf Ganai, s/o. Gh. Rasool Ganai, and Rehana Bano w/o. Mohd. Yousuf Ganai, r/o. Harduschichan, Dialgam) got selected by 'Draw of Lots' on completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
17. Respondent No. 3 in the reply filed has stated that the petitioner is involved in case FIR No. 11/96, Police Station, Anantnag, and was detained for a period of one year under Public Safety Act. Moreover, his brother is a release pak trained militant.
18. From the year 1996, nothing adverse has been brought on record neither it is mentioned as to whether petitioner has committed any wrong even if that, would have been so, then some action against the petitioner would follow, nothing ;in, this direction is forthcoming.
19. It may not been out of place to mention that failure on the part of respondent in filing the reply resulted in passing of interim direction to the effect that the respondents shall arrange departure of petitioner for Haj. Now after objections, position remains the same as the departure of the petitioner and his wife cannot be stopped.
OWP No. 825/08
20. Petitioner (Bilal Ahmad. s/o. Gulam Nabi Mir r/o. Karfali Mohalla, Qazi Masjid, Srinagar) got selected by 'Draw of Lots' on completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
21. Respondent No. 3 has filed reply to the effect that the petitioner Is a released militant, a local trained militant of HM outfit, was arrested on 25-8-91 in connection with FIR No. 08/91 Police Station, CIK.
22. From 1991 till date, 17 years have elapsed, nothing adverse has been brought on record, neither any information so as to doubt the bona fides of the petitioner.
OWP No. 826/08
23. Petitioner (Mohammad Yaseen Sheikh, s/o. Ghulam Qadir Sheikh, r/o. Naid Kadal, Srinagar) got selected by 'Draw of Lots' on completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
24. Respondent No. 3 In the reply filed has stated that petitioner is a local trained militant of Al-Umar Mujahideen, arrested in connection with FIR No. 180/96 detained for 3 years and six months under PSA.
25. It is to be noticed that the petitioner would not have been 'at large, had he been indulging in, any activity prejudicial to public order, or which would suggest want of bona fides.
OWP No. 843/08 ;
26. Petitioner (Khurshid Ahmad Shah s/o. Haji Ch. Mohidu-din Shah, r/o. Badarm Bagh, Sopore) and Ills wife got selected by 'Draw of Lots' on completion of requisite formalities, travel document received by State Committee has been withheld for want of clearance by respondent No. 3.
Respondent No. 3 in the reply has stated that petitioner has obtained subversive training in the year 1990, returned to valley in 1991.
The petitioner is at large, for last 17 years nothing adverse against has been brought On record so as to doubt the bona fides.
27. Appearing Counsel for the petitioners highlighted the scope of issuance of 'pilgrim pass' and contended that clearance from CID department was not required nor is envisaged by The Haj Committee Act of 2002 (hereinafter referred to as 'the Act'). While referring to Section 35 of 'the Act', contended that issuance of pilgrim pass is exempted from the provisions of Section 3 of the Passport Act, 1967, therefore, the requirements for obtaining passport which include verification of antecedents and other inquiries is not required for issuance of 'pilgrim pass', The Counsel appearing for the other side, both by Mr. Anil Bhan, Assistant Solicitor General as well as Mr. M.A. Rathore, Additional Advocate General would contend that State Committee has every right to retain the pilgrim pass for want of bona fides of the pilgrim. The State Committee has to get the bona fides verified through some agency i.e. how CID agency has to make verifications and to issue clearance.
28. It is true that strict adherence to the provisions of the Passports Act for clearance is imperative before Issuance of passport. Same strictness is not applicable for Issuance of 'pilgrim pass' as the operation of the provisions of Section 3 Of the Passports Act is excluded by Section 35 'of the Act' which Is reproduced hereunder:
Section 35
Powers of Committee to issue pilgrim passes and levy fees:
(1) The Committee shall have the power to. Issue a travel document called pilgrim pass to a Haj pilgrim for his departure from India as a bona fide pilgrim to Saudi Arabia and the said pilgrim shall be deemed to be exempted from the provisions of Section 3 of the Passports Act, 1967.
(2) Notwithstanding anything contained in the Passports Act, 1967, the Central Government may, in consultation with the Committee, levy such fees for registration of Haj pilgrims, issuance of pilgrim pass by the Committee and other related matters, as may be prescribed in connection with rendering of such services.
29. The State Committee before delivering the 'Pilgrim Pass' has to ensure that only a bona fide pilgrim departs from India to Saudi Arabia. The antecedents are irrelevant. At the same time, in the context of bona fides of the pilgrim, verification through some agency which include CID agency is imperative. The word bona fide as employed in Section 35 of 'the Act' in my opinion would mean i.e., goodfaith, sincerity and genuineness same is the basic feature of a pilgrim to perform Haj. In this context nothing is brought on record to show that the petitioners in any way while going to Saudi Arabia are planning or scheduled to have links with unwanted elements so as to have the association and thereafter on return to be a threat to public order or the security of the State. No such material is available with the CID agency. That apart a pilgrim, who has to perform the Haj, (an important pillar of Islam) is presumed to be a bona fide pilgrim unless something contrary is noticed or brought on record.
30. Had there been any information about petitioners getting involved in any activity relatable to public order, morality, health or otherwise, imposition of restriction as against the fundamental right of performing Haj would be termed to be reasonable because there can be no compromise with the security of the State as well to the public order. On mere whims and caprice, valuable guaranteed constitutional right cannot be jeopardized.
31. Withholding of the travel document and resultant deprivation of performance of Haj is violative of the guaranteed rights more particularly Articles 25 and 26 of the Constitution of India. In our secular country India, every person irrespective of caste, creed, colour and religion has his own place and the Constitution extends full protection to one and all except for reasonable restrictions. The right guaranteed under Article 25 of our Constitution can be made wholly illusory in case on unfounded grounds restriction against the right to practice religion are imposed. I am strengthened in my view by the judgment delivered by Hon'ble Apex Court in case E.R.J. Sawamy v. State of T.N. reported in : [1972]3SCR815 and the judgment captioned Durgah Committee v. Syed Hussain Ali and Ors. reported in : [1962]1SCR383 . It shall be quite apt to quote para 12 of the judgment reported in 1972 and also as to what has been held in the judgment reported in AIR 1961 above referred.
32. Para 12 of the judgment reported in E.R.J. Sawamy v. State of T.N. reported in : [1972]3SCR815 reads as under:
This Court in Sardar Syedna Taher Saifuddin Saheb v. State of Bombay : AIR1962SC853 has summarized the position in law as follows (pages 531 and 532).
The content of Articles 25 and 26 of the Constitution came up for consideration before this Court in the Commr. Hindu Religious Endowments Madras v. Sri Lakshmindra Thirtha Swamiar : [1954]1SCR1005 Jagannath Ramanuj Das v. State of Orissa : [1954]1SCR1046 : [1958]1SCR895 Durgah Committee Ajmer v. Sayed Hussain Ali : [1962]1SCR383 and several other cases and the main principles underlying these provisions have by these decision been placed beyond controversy. The first is that the protection of these articles is not limited to matters of doctrine or belief they extend also to acts done in pursuance or belief they extend also to acts done in pursuance of religion and therefore contain a guarantee for rituals and observances, ceremonies and modes of worship which are integral parts of religion. The second is that what constitutes an essential part of a religious or religious practice has to be decided by the Courts with reference to the doctrine of a particular religion and include practices which are regarded by the community as a part of its religion.
33. It shall be beneficial to quote portion of para 33 of the judgment reported in : [1962]1SCR383 as under:.A religion may not only lay down a code of ethical Rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress (pp. 1023, 1024) (of SCR) : (p. 290 of AIR). Dealing with the same topic, though in another context, in Venkataramana Devaru v. State of Mysore : [1958]1SCR895 . Venakatarama Aiyar, J. spoke for the Court in the same vein and observed that it was settled that matters of religion in Article 26(b) include even practices which are regarded by the community as part of its religion and in support of this statement the learned Judge referred to the observations of Mukherjea, J. which we have already cited. Whilst we are dealing with this point it may not be out of place incidentally to strike a note of caution and observe that in order that the practices in question should be treated as part of religion they must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26. Similarly even practices though religions may have sprung from merely superstitious beliefs and may in (hat sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for the protection under Article 26 may have to be carefully scrutinized; in other words, the protection must be confined to such religious practices as are an essential and integral part of it and no other.
34. As detailed hereinabove Haj for a Muslim is an essential and integral part of the religion forming one of the five pillars of Islam. It can safely be concluded that withholding of the 'pilgrim pass' (travel documents) amounts to infringement of fundamental right guaranteed under the Constitution of India which cannot be permitted. Hence, respondent No. 2 shall forthwith, issue the ('pilgrim pass') travel documents in favour of the petitioners.
35. State functionaries including the respondents shall arrange and facilitate departure of the petitioner for Haj pilgrimage to Saudi Arabia forthwith.
Petitions succeed and disposed of as above along with all connected CMPs.
Copy be sent to respondent No. 2, State Haj Committee for compliance.