Supreme Court questions Gujarat HC order: Can a state be asked to fund restoration of places of worship

The Supreme Court on Wednesday resumed a crucial hearing to decide whether the courts can command the State to fund the restoration of places of worship damaged due to its failure to maintain law and order, an issue that came into focus after the destruction of such structures during the 2002 Gujarat riots.

"Can we command the state to construct the places of worship or religious structures damaged because the state failed to maintain the law and order situation," asked the bench comprising Justices Dipak Misra and Prafulla C Panth.

"What is troubling us is whether the state because of its failure to control law and order situation can be asked to compensate with funds the restoration of temple, church, mosque, gurudwara, math etc.," the bench said. It further asked "whether a body collective, running places of worship like temple, church, mosque, gurdwara or math, can seek damage and compensation because the state has failed to maintain law and order leading to their damage." The bench was hearing a petition filed by the Gujarat Government challenging the 2012 order of the High Court directing it to pay compensation to over 500 shrines damged during the post-Godhra riots.

The High Court had issued an interim direction for computation of actual damages to the places of worship to be made by 'special officers' who were District Judges. While Gujarat Government sought quashing of the High Court order contending that it was neither manageable, enforceable or capable of execution as per law, the NGO, Islamic Relief Committee of Gujarat (IRCG), said the state government is liable to compensate those who suffered damages.

The apex court on August 27, 2013 had directed the maintenance of status quo on the February 8, 2012 order of the High Court and decided to examine the legal issues arising out of the matter. The bench said it has to be examined how far it would be constitutional to command the state to give money from its funds which come from tax payers for restoration, relocation and renovation of religious structures damaged due to its failure to maintain law and order situation.

The court noted that in the instant case, government compensation relating to individuals have been completed but the issue which is "bothering" was about the compensation for religious places. The bench also wondered under which provision of law was a district judge asked to act as a special officer to quantify the amount of damage.

"Under which provision of law, the Special Officer, who is a District Judge will proceed for determining the amount to be paid as compensation. Under which provision, the Special Officers will hear arguments and appreciate the evidence for quantifying the compensation," the bench said. It also said places of worship come up besides the roads and middle of the footpath and they would also seek compensation.

However, senior advocate Yusuf H Muchhala and advocate Ejaz Maqbool submitted that such structures would be classified as unauthorised and submitted that such comprehensive failure of law and order in Gujarat amounted to acts of nonfeasance/misfeasance/ malfeasance in public law.

"It is now well settled that for such acts of malfeasance /nonfeasance/misfeasance, the State Government is liable to compensate those who suffered damages," Muchhala submitted.

His submission came after Additional Solicitor General Tushar Mehta assailed the High Court order saying the state fund which consists of payment of various taxes by citizens cannot be directed by the High Court to be spent for restoration/construction of any religious place by issuing a writ under Article 226 of the Constitution of India.

He claimed that in the instant case, it was not the aggrieved persons but an NGO which was "a stranger to the issue", had approached the High Court for relief which was not permissible under the law.

"Award of compensation by constitutional courts is a remedy in public law. The very genesis of the concept of award of damages/compensation has its roots in the Law of Torts. "This court has, therefore, consistently taken the view that remedy of writ by a constitutional court to award compensation for breach of Fundamental Rights would be exercised only when the 'person aggrieved' comes before the constitutional court and a stranger who has no enforceable right against the state, cannot hold the brief on behalf of others who have chosen to approach the court," Mehta submitted. 

Mehta submitted that any organisation, merely by making representations to the state governemnt claiming to represent "aggrieved parties", would not itself become an "aggrieved party" and thereby acquire locus standi to maintain a petition under Article 226 of the Constitution. The ASG said "the High Court, under the impugned order, has virtually legislated by providing a separate forum through the statutory civil remedy before a competent civil court does exist which is not availed by any aggrieved person".

"In the present case, the High Court has directed computation of actual compensation to 'places of worship' and has created a totally new remedy by the impugned judgement which is unknown to law.

"The High Court has issued an interim direction for computation of actual damages to places of worship to be made by special officers who are District Judges of the District. Such direction is neither mangeable, enforceable or capable of execution as per law since it is not known as to what procedure such 'special officers' are required to follow, while seeking to adjudicate the quantuum." However, Muchhala said "the attack on religious places of worship is an attack on religious symbolism of people who hold them as sacred and destruction of places of worship belonging to weaker section of the society by a dominant group is to inflict humiliation on them and thereby violate Article 21 of the Constitution."

"If the State fails to protect large scale destruction of places of worship belonging to weaker or less dominant section of the people, it results in breach of Article 21 of the Constitution. "Article 14 enjoins on the State to give equal protection of laws to all persons and therefore it is the fundamental obligation of the State to protect religious places of Worship belonging to every section of the people. This is one of the facets of secularism," he said adding that "therefore there is a breach of the fundamental right of the petitioners.

He said NHRC has given findings that Gujarat has failed in its duty to extend the protection of law and recommended that places of worship should be repaired expeditiously, and added that these recommendation and findings were binding on the Government. The counsel for the IRCJ said "under the circumstances, the findings of the high-powered NHRC that there was comprehensive failure of law and order in Gujarat during the period of riots, is binding on Gujarat.

"Such comprehensive failure of law and order amounts to acts of nonfeasance/misfeasance/ malfeasance in public law. It is now well settled that for such acts of malfeasance/ nonfeasance/misfeasance, the State Government is liable to compensate those who suffered damages." He said state government had specifically accepted before the NHRC that it would restore the places of worship, which were damaged.

"It therefore cannot wriggle out of its undertaking by resorting to hair splitting and arguing that it did not mean that it would restore such places themselves. "It is now on record that the State Government has received the Annual Report of the NHRC for the year 2002-2003 in or about January 2005.

"Admittedly, the State of Gujarat had not prepared any Action Taken Report on the NHRC reports and tabled the same before the Gujarat Legislative Assembly. It is also on record that NHRC had prepared two interim reports (Special Reports) dated 1.4.2002 and 31.5.2002 and duly submitted to the State Government.

"It is undisputed that the State Government has not prepared Action Taken Report on those reports nor tabled the same before the Gujarat Legislative Assembly," the IRCJ counsel maintained.