The Calcutta High Court’s ruling that the West Bengal Government’s grant of honorariums to imams and muezzins of mosques is unconstitutional 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 one community at the expense of all others. This process reached its pinnacle with Prime Minister 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 High Court’s reasoning.
On April 9, 2012 the Department of Minority Affairs & Madrasah 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 Organization & Ors Vs Union of India & Ors (AIR 1993 SC 2086) and subsequent related orders passed by the Apex Court.
In All India Imam Organization & Ors, the Supreme Court made it clear that the Wakf Board is responsible for paying salaries to imams and should generate funds for the same. The Calcutta High Court noted that the State Government was paying imams through the Wakf Board, which was not the same thing. In Para-5 of its judgment, the Supreme Court specifically directed the Union of India and Central Wakf Board to prepare a scheme for making payments to imams after considering the 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, and an application filed before the Supreme Court, 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, the imams of West Bengal should have approached the respective Tribunal for payment of salary/remuneration, according to the scheme, if they were not being paid. The State Government 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 the State List nor Concurrent List of the Seventh Schedule permits the State Government to issue such orders. Payment of honorarium to imams by the Government of West Bengal is not a public purpose and hence no grant can be made under Article 282 of the Constitution, as the latter does not permit spending of money from the public exchequer to benefit a particular group of persons exclusively engaged in the religious activities of a particular community.
Article 282 of the Constitution makes it clear that the spending power of the Union of India or State Government is not co-terminus with legislative power. Money has to be spent for a public purpose, and the concept of public purpose cannot be contrary to the constitutional value of Secularism. If the Government uses the public exchequer to grant honorarium to the religious leaders of Muslim community to the exclusion of other religious communities, such an action is unconstitutional, and cannot be said to be for public purpose.
The Calcutta High Court concluded that the practice of religion is not a public purpose but is 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. The State Government’s decision was based on religious considerations and nothing else, and does not serve even the general interest of the community as a whole. Patronage of this nature is not permissible and violates Article 14 and discriminates on the ground of religion which offends Article 15 (1) of the Constitution.
The State Government justified its decision to offer honorarium to the prayer leaders of the Muslim community on grounds that they help mobilise the community for health, hygiene, educational activities or promoting various government schemes. Actually, imams are not supposed to participate in the social work mentioned in the impugned memorandum of April 9, 2012; nor was the State Government able to establish that imams ever helped in this manner.
Moreover, Article 266 (3) provides, “No moneys out of the 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 the Constitution. Regarding honorarium to muezzins, no Government order was issued but the State Government provided funds to the Wakf Board to make payment, which is illegal and irregular.
The Court concluded that the State cannot patronise or favour any particular religion. Secularism is part of the basic structure of our Constitution; hence the State cannot identify itself with or favour any religion. It is obliged to offer equal treatment to members of all religions. The State Government unnecessarily created tension amongst the members of different religious communities which should be avoided in a secular State. On these constitutional grounds, the Calcutta High Court quashed a blatantly communal award by the ruling party. It can set a precedent to challenge blatantly unconstitutional acts of the ruling UPA at the Centre and other ‘secular’ dispensations in the States.
Niticentral.com, 25 September 2013