Calcutta HC quashes stipends for imams, stands by Constitution Sandhya Jain: Calcutta HC’s ruling that WB Govt’s grant of honorariums to imams and muezzins of mosques is unconstitutional and deserves closer scrutiny than it has received, as it invokes fundamental Articles of the Constitution, including the principle of secularism, to scuttle the growing tide of appeasement of Muslims at the expense of all others. This process reached its pinnacle with PM Manmohan Singh’s scandalous assertion that Muslims have the first claim on national resources. Given the growing national anxiety over unwarranted pampering of minorities in various spheres of life, it could be instructive to examine the Calcutta HC’s reasoning. On April 9, 2012, Dept of Minority Affairs & Madrasa Education, issued a memorandum (No. 220/SMAME/L/12) offering a monthly honorarium of Rs 2,500/- to imams through the Wakf Board. Later, at a Cabinet meeting on May 2, the Government decided to offer a monthly honorarium of Rs 1000/- to muezzins of mosques. As the decision sent shockwaves all over the State, a division bench comprising Justices PK Chattopadhyay and MP Shrivastava quashed the notification on September 2, 2013, in response to a petition by the Bharatiya Janata Party & Anr vs the State of West Bengal & Ors (WP No 358 of 2012). The Bench held that the memorandum conflicted with the Supreme Court’s decision in All India Imam Organisation & Ors Vs Union of India & Ors (AIR 1993 SC 2086) and subsequent related orders passed by the Apex Court. In All India Imam Organisation & Ors, SC made it clear that Wakf Board is responsible for paying salaries to imams and should generate funds for the same. Calcutta HC noted that State Govt was paying imams through Wakf Board, which was not same thing. In Para-5 of its judgement, SC specifically directed the Union of India and Central Wakf Board to prepare a scheme for making payments to imams after considering nature of duty, qualification and category of mosques to which they are attached. Accordingly, a scheme was framed prescribing different pay scales for imams in India, application filed before SC, which directed issue of notice to each State to indicate whether Tribunals under Section 83 of the Wakf Act, 1995 had been constituted and if not, why not. Hence, imams of WB should have approached respective Tribunal for payment of salary/remuneration, according to the scheme, if they were not being paid. State Govt has absolutely no obligation in this matter. The memorandum is a classic example of hostile discrimination on grounds of religion, and violative of Article 15 (1) of the Constitution. The State cannot extend financial benefits in the form of honorarium to prayer leaders of a particular religion to the exclusion of other citizens or prayer leaders of other religious communities. In fact, the memorandum creates a religious sub-group of imams on religious lines without any objective criteria, whereas imams are prayer leaders of the Muslim community and do not comprise a separate group. Further, the decision to choose the prayer leaders of a particular religious community for financial assistance is clearly arbitrary and mala fide and offends Article 14 of the Constitution (re Supreme Court in EP Royappa Vs State of Tamil Nadu and Anr, AIR 1974 SC 555). Neither State List nor Concurrent List of 7th Schedule permits the State Govt to issue such orders. Payment of honorarium to imams by Govt of WB is not a public purpose, hence no grant can be made under Article 282 of Constitution, as latter does not permit spending of money from the public exchequer to benefit particular group of persons exclusively engaged in the religious activities of a Muslim community. Article 282 of Constitution makes it clear that spending power of Union of India or State Gov is not co-terminus with legislative power. Money has to be spent for a public purpose, and concept of public purpose cannot be contrary to Constitutional value of Secularism. If the Govt uses public exchequer to grant honorarium to religious leaders of Muslim community to exclusion of other religious communities, such an action is unconstitutional, and cannot be said to be for public purpose. Calcutta HC concluded that practice of religion is not a public purpose but purely a personal matter of an individual. Leading the prayer for Muslims is not a State function and hence cannot be termed as a public purpose. State Govt’s decision was based on religious considerations and nothing else, and does not serve even general interest of the community as a whole. Patronage of this nature is not permissible and violates Article 14 and discriminates on ground of religion which offends Article 15 (1) of Constitution. State Govt justified its decision to offer honorarium to the prayer leaders of Muslim community on grounds that they help mobilise community for health, hygiene, educational activities or promoting various Government schemes. Actually, imams are not supposed to participate in social work mentioned in the impugned memorandum of April 9, 2012; nor was State Govt able to establish that imams ever helped in this manner. Moreover, Article 266 (3) provides, “No moneys out of Consolidated Fund of India or the Consolidated Fund of a State shall be appropriated except in accordance with law and for the purposes and in the manner provided in this Constitution”. Payment of honorarium to imams and muezzins is not authorised by Constitution. Regarding honorarium to muezzins, no Govt order was issued but State Govt provided funds to the Wakf Board to make payment, which is illegal and irregular. Court concluded State cannot patronise or favour any particular religion. Secularism is part of basic structure of our Constitution; hence State cannot identify itself with or favour any religion. It is obliged to offer equal treatment to members of all religions. State Govt unnecessarily created tension amongst the members of different religious communities which should be avoided in a secular State. On these Constitutional grounds, the Calcutta HC quashed a blatantly communal award by the ruling party. It can set a precedent to challenge blatantly unconstitutional acts of ruling UPA at Centre & other ‘secular’ dispensations in States.
Posted on: Wed, 25 Sep 2013 19:52:26 +0000
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