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ISLAMABAD: The Supreme Court on Wednesday ordered the government to reformulate the Haj policy for 2017 by accommodating the private tour operators that had earlier been denied quota.

A three-judge bench of the court headed by Justice Ejaz Afzal Khan asked the Ministry of Religious Affairs (MoRA) to formulate the policy in such a way that no Haj Group Organiser (HGO) suffered on account of being a comparatively new or junior entrant to the market.

The verdict came in a case involving petitions that sought initiation of contempt of court proceedings against the ministry for not implementing the Haj policy for 2015-16, and which were filed on behalf of the HGOs denied the quota.

Instead of distributing quotas meant for the private sector among all the HGOs, the ministry gave all of them to members of the Haj Group Organisers Association of Pakistan (HOAP), thus depriving the petitioners of their participation in Haj activities this year in clear violation of the earlier Supreme Court judgements, according to the petitions.

Gives govt 30 days to formulate new scheme

Earlier, the Supreme Court was told by MoRA that Haj policy for 2017 had been approved by Prime Minister Nawaz Sharif and had been uploaded on its website.

Authored by Justice Maqbool Baqar, the ruling asked MoRA to submit to it the reviewed or reframed policy within a month. The court, however, preferred not to initiate contempt proceedings against the ministry for violating its judgement by taking a lenient view.

The verdict asserted that Haj quota allocated by the Kingdom of Saudi Arabia to Pakistan was for the people of Pakistan and not for any particular group, segment or association, adding that many HGOs were being denied quota merely on the pretext that no surplus quota was available.

The quota for the country is bifurcated by the government into two segments, one for what is termed the government Haj scheme and the other meant for private operators.

According to the verdict, there is absolutely no basis, rationale or justification to continue granting quota to those who were granted them earlier as well, especially when fresh or new entrants were lured into joining the business/occupation of HGOs through advertisements and subsequently enrolled as such after due process.

“It is only [for] the federal or provincial government or a corporation controlled by the governments to monopolise any trade, business, industry or service to the exclusion of other persons. But the artificial, unjust and unfair classification created by MoRA between quota-holder HGOs and non-quota holder HGOs offends Article 25 of the Constitution, which guarantees equality and equal protection of law,” the judgement said.

“This differentiation,” the ruling regretted, “has no rational nexus to the avowed objective of the Haj policy of developing plans for efficient Haj arrangements through provision of services and logistics like affordable lodging and boarding, transportation and healthcare during Haj. Rather it runs contrary [to the objective],” it said.

“Creating monopoly like in the present case is also violative of Article 18(c) of the Constitution and defeats Article 18(b) which provides for regulation of trade, commerce and industry in the interest of free competition.

As long as the trade or business is lawful, the citizen who is eligible to conduct the business cannot be deprived from undertaking it subject to law which regulates it.

“The petitioners have been enrolled duly and as such permitted to operate as HGOs especially when no handicap or disqualification has been alleged against them,” the verdict said.

It recalled that MoRA had also admitted that there was no rule that the Haj quota once allotted could not be reduced and also that the quota was allocated to private sector on an annual basis.

“...Thus by monopolising the private Haj arrangements in the hands of the members of the HOAP, the government is also depriving the intending Hujjaj of a larger or may be better choices of HGO and is thus facilitating or encouraging their exploitation at the hands of the former,” the judgement added.

Published in Dawn, May 18th, 2017