Haj-HGOs Policy 2019- 2023: Courts Are Ill-Equipped To Substitute Policy Decisions By Executive, Says SC [Read Judgment]

Haj-HGOs Policy 2019- 2023: Courts Are Ill-Equipped To Substitute Policy Decisions By Executive, Says SC [Read Judgment]

“It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters.”

While disposing of writ petitions challenging certain conditions in the Policy for Haj Group Organisers for Haj 2019-23, the Supreme Court observed that it is not within the realm of the courts to go into the issue as to whether there could have been a better policy.

The bench comprising Justice AK Sikri, Justice S. Abdul Nazeer and Justice MR Shah observed that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing and to conclude which way the balance tilts.

Federation Haj PTOs of India had challenged certain conditions of the newly formulated Haj policy. During the hearing, the bench was informed that out of three major proposals submitted by the PTOs, the Ministry has accepted two.

Senior Advocate Salman Khurshid, who appeared for the petitioner federation, contended that Category-I* and Category I, eligibility for which is turnover of Rs.5 crores and Rs.3 crores respectively, is unreasonable. Instead, according to them, there should be only two categories with turnover of Rs.2 crores and Rs.1 crore respectively. Responding to this submission, the Centre submitted that it could not afford to take any chance on this aspect as the lack of adequate financial strength of the PTOs as it may result in the pilgrims becoming stranded in a foreign country or facing other hardships.

The court said that the categories of HGOs are carved out on the parameters of experience as well as financial strength of HGOs, based on policy considerations. The bench observed that that this decision cannot be termed as manifestly arbitrary or unreasonable. In this context, the bench said:

"It is settled law that policy decisions of the Executive are best left to it and a court cannot be propelled into the unchartered ocean of Government policy {See Benett Coleman & Co. v. Union of India }. Public authorities must have liberty and freedom in framing the policies. It is well accepted principle that in complex social, economic and commercial matters, decisions have to be taken by governmental authorities keeping in view several factors and it is not possible for the courts to consider competing and to conclude which way the balance tilts. Courts are ill-equipped to substitute their decisions. It is not within the realm of the courts to go into the issue as to whether there could have been a better policy and on that parameters direct the Executive to formulate, change, vary and/or modify the policy which appears better to the court. Such an exercise is impermissible in policy matters."

While disposing of the petitions, the bench further observed:

"The scope of judicial review is very limited in such matters. It is only when a particular policy decision is found to be against a statute or it offends any of the provisions of the Constitution or it is manifestly arbitrary, capricious or mala fide, the court would interfere with such policy decisions. No such case is made out. On the contrary, views of the petitioners have not only been considered but accommodated to the extent possible and permissible."

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