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THE ISLAMIC REPUBLIC OF PAKISTAN through the Secretary, Ministry of Foreign Affairs, and Commonwealth Relations, Karachi‑-Respondent

Writ Petition No. 736 of 1957, decided on 24th April 1958 under Art. 170 of the Constitution of the Islamic Republic of Pakistan.

Constitution of Pakistan, Art. 18‑"Subject to law"‑Scope Pilgrimage‑Haj‑Whether Government must provide facilities of exchange, etc. to everyone desiring to go to Hedjaz on Haj pilgri mage‑Selection of pilgrims by lot disapproved.

The words "subject to law" occurring in Art. 18 of the Cons titution; do not mean that there may be a law which would regu late the actual performance of pilgrimage, for the actual perfor mance is a ritual which itself constitutes .the practice of religion. What is intended to be meant is that if in the performance, of a religious duty certain secular steps have to be taken, then these steps may be regulated by law.

The language of Article 18 does not necessarily carry one beyond the land of Pakistan. All it says is that "every citizen has the right to practise any religion", which, in its broad sense, only means that if he practises, say, the Christian religion, no one will object to or obstruct his practising it. In its refusal to secure ex change or arrange for shipping, the Government is not obstructing the practice of religion but merely cutting 'its coat according to the cloth it possesses.

So long as facilities are provided for a reasonable number of pilgrims to visit Hedjaz, the High Court would embarrass the Government by issuing any direction of the nature for which prayer had been made. Considering the world position, the law regulating exchange was a necessity and Article 18 was also "subject to law".

The High Court, however, disapproved the practice of drawing lots for determining which of the applicants were to be issued Pass ports and allowed facilities of exchange etc. for making a pilgrim age to the Hedjaz.

Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan P L D 1957 S C (Pak.) 9 ref.

Ismail Bhatti, Advocate for Petitioner.

Khan Inayat Ullah Khan, Advocate for Respondent.

Dates of hearing: 8th and 15th April 1958.

‑This petition by Ch. Abdul Ghani, a Motor Mechanic of Kalra, is for a direction against the Ministry of Foreign Affairs that he should be allowed to proceed to Hedjaz on pilgrimage, ‑with a reasonable amount of money which he places at Rs. 1,250 and that all reasonable facilities should be provided for him in the performance of Haj. He particularly objects to the system of drawing lots by which candidates for Haj are selected out of the total number of applicants. On behalf of the respondent Government it is admitted by its counsel, Khan lnayat Ullah Khan, that the performance of Haj at least once during a lifetime is a religious duty, but he pleads that it is impos sible for Government to make arrangements for all the applicants. The Government has constituted a Haj Committee to advise it in matters pertaining to the performance of pilgrimage, and it includes prominent Muslim scholars and jurists among its members. Broad rules and policy have been laid down and categories made in order to give due weight to all kinds of claims. But as the number of applicants' is large, the only practical, way of dealing with the problem is to determine by lots which particular appli cants 011t of each category are to be granted passage. . For so long it is contended‑‑as the foreign exchange position of the Govern ment, the value of its currency in the Middle East and the Shipping accommodation do not improve, it will not be possible to decon trol the Haj traffic.

2. We were told upon a question that the total number of applicants in 1957 was 35,000 and that the number of candidates who were allowed passports was 10,500. In 1958, the number of applicants has increased to 39,000 and the number of passports granted is 9,000. Considering that each pilgrim is allowed Rs. 1,250 for which exchange has to be secured, on an average of 10,000 pilgrims, foreign exchange will have to be found equal to a crone and a quarter rupees.

3. Learned counsel for the petitioner relied on Article 18 of the Constitution which guarantees the practice of religion as a fundamental right, "subject to law, public order and morality". It is true that the performance of pilgrimage at least once in a life time is an essential religious practice and if pilgrimage were possible with the mere grant of a passport, we would have no hesi tation in directing the Government to issue a passport. The peti tioner, however, wants us to secure for him foreign exchange as well as other facilities for the journey. If, therefore, all the appli cations were to be granted, additional foreign exchange, three times as much as is already devoted to pilgrimage, will have to be found, and if even them then there are not enough ships to trans port all the pilgrims in time, neither the grant of passports nor the provision of foreign exchange will have advanced the religious practice an inch further than Karachi. This would land both the practice of religion and the exercise of the writ jurisdiction into an impossible position. We think that so long as facilities are provided for a reasonable number of pilgrims to visit Hedjaz, we should not embarrass the Government by issuing any direction of the nature for which prayer has been made. Considering the world position, the law regulating exchange is a necessity and it will be noticed that Article 18 is also "subject to law".

4. Learned counsel for the petitioner relied on Jibendra Kishore Achharyya Chowdhury v. The Province of East Pakistan (P L D 1957 S C 684 : P L D 1957 S C (Pak.)9) for the argument that the words "subject to law" in Article 18 do not imply that a fundamental right conferred by that Article can be taken away by any law. In that case it was observed by the Supreme Court that, "the very conception of a fundamental right is that it being a right guaranteed by the Constitution cannot be taken away by the law, and it is not only technically inartistic but a fraud on the citizens for the makers of a Constitution to say that a right is fundamental but that it may be taken away by the law". But their Lordships further observed that "the law may regulate the manner in which religion is to be professed, practised and propagated and religious institutions are to be established, maintained and managed". By this we do not understand their Lordships to mean that there may be a law which would regulate the actual performance of pilgrimage, for the actual performance is a ritual which itself constitutes the practice of religion. What is intended to be meant is that if in the performance of a religious duty certain secular steps have to be taken, then these steps may be regulated by law. It is almost impossible to contend at the present day that a journey to Hedjaz can be performed on foot or that any person can be allowed to beg his way to Hedjaz.

5. It must not, however, be overlooked that the language o Article 18 does not necessarily carry us beyond the land of Pakistan. All it says is that "every citizen has the right to practise any religion", which, in its broad sense, only means that if he practises, say, the Christian Religion, no one will object to or obstruct his practising it. In its refusal to secure exchange or arrange for shipping, the Government is not obstructing the practice of religion but merely cutting its coat according to the cloth it possesses.

6. The only sensible objection which may be taken to the' method adopted by the Haj Committee of drawing lots is that a person may apply for ten years in succession and not get a chance, of being selected. This is not a matter on which we would like to issue a direction, but we have no doubt that the majority of applicants are not genuine pilgrims and that quite a large number of them may be desirous of obtaining facilities for smuggling goods either into the country or out of it, so that if the lists were scruti nized, it might be possible to select deserving persons and keep them on a waiting list. It would be almost impossible to scrutinize these lists at Karachi where the applicants would generally be unknown. There should consequently be District Committees who should be require to send up a prescribed number each year.

7. With this recommendation we would dismiss the petition, but in view of the legitimate religious enthusiasm of the petitioner we make no order as to costs. We further recommend to Govern ment that, if possible, the petitioner's religious zeal may be respected by the grant of a passport.

A. H. Petition dismissed.

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