DURING the Gujarat riots of 2002, 567 places of worship, including 545 of Muslims, were damaged. After a 14-year legal battle on the compensation to be paid, the Supreme Court last week upheld a state government compensation scheme while setting aside a Gujarat High Court order, which too had held the state liable to pay compensation.
The state government scheme sets a limit of Rs 50,000 for each damaged structure, and certain conditions for eligibility. The high court verdict, on the other hand, said it was the government’s duty to restore all the damaged places of worship to their original position, and asked it to collect the amount from those found guilty of the destruction. While the high court order did not set a limit for the compensation, it tasked principal district judges with fixing the amount.
Upholding the government scheme, the Supreme Court ruled that a “substantial part of taxpayers’ money cannot be granted for repairing religious structures” under Article 27, which prohibits promotion or maintenance of any particular religion or religious denomination.
The legal battle began in 2003 with a petition in the high court by an organisation called Islamic Relief Committee, Gujarat (IRCG). Following reports of the National Human Rights Commission on the state government’s alleged failure to protect life and properties, IRCG filed its petition seeking compensation for “restoration of the damaged, desecrated and destroyed places of worship”.
IRCG stressed the principle of res ipsa loquitor, which infers negligence on the ground that the incident concerned would not have happened without negligence. It contended that if this principle were applied, the government was liable to pay compensation for the loss in view of “principles of public wrong”.
In 2012, the high court ruled that it was the government’s duty to restore the damaged places of worship. “…There was inadequate endeavour on the part of the state government in effectively handling the situation resulting in destruction of more than 500 places of religious worship throughout the state belonging only to the one religious community, we are left with no other alternative, but to conclude that it is the duty of the state government to restore all those religious places, irrespective of the religion, to its original position as it existed at the time of destruction,” it ruled.
The court directed the government to collect the money spent on restoration from the persons found guilty of the destruction. “The state government, it is needless to mention, would be entitled to realise the amount to be spent for such repair from the persons who would be found actually guilty of destruction of those religious places by the competent criminal court in this regard.”
The high court appointed the state’s principal district judges as special officers for deciding the amount of compensation for restoration of the religious places in the respective districts.
In the meantime, the state government accepted the recommendations of a committee it had set up. It passed a resolution in 2013 to pay ex gratia assistance up to Rs 50,000 to all religious places damaged or destroyed during the riots — at par with assistance provided for damaged/destroyed houses — subject to certain conditions, including that the place should not be unauthorised or located in the middle of road, and that an FIR should have been lodged at the time of the incident.
In October 2013, the government filed an affidavit in the Supreme Court and informed it that it had issued a notification on compensation, and that it was not implemented since the matter was pending.
ICRG, for its part, filed an affidavit stating that the principal judges, as directed by the high court, had arrived at the conclusion that the “quantum of compensation, payment up to Rs 50,000 only as against the quantified quantum, would be travesty of justice”.
In its petition, the state challenged the inference that the properties were damaged due to “failure or inability or negligence on the part of the state”. “The state has not failed in fulfilling its constitutional obligation of protecting the liberty and dignity of all its people. The state did its best with available resources to protect the lives of its people,” it said.
Another point the government raised, citing Article 27, was “whether public money, collected from taxpayers, can be spent on repairing religious structures”. Article 27 says, “No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.”
The high court had been of the opinion that its order would not be in conflict with the provision of Article 27. Setting aside this order and upholding the government’s scheme, the Supreme Court cited the verdicts in Prafull Goradia v Union of India (2012) and Archbishop Raphael Cheenath S V D vs State of Orissa (2009), and Article 27, and noted that a “substantial part of taxpayers’ money cannot be granted for repairing religious structures”.
“The said scheme has to be appreciated on the anvil of the directions issued in the Prafull Goradia and Archbishop Raphael Cheenath S V D cases,” the judgment reads. “In the first case, the two-judge bench has opined that object of Article 27 is to maintain secularism and the said Article would be violated if the substantial part of entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or maintenance of any particular religion or religious denomination…”