Observer Desk

Posted on 14.10.17 by

Gujarat Shrine Restoration Case – Plain English

On 29.08.2017, a division bench comprising of  Chief Justice Dipak Misra and Justice P C Pant rendered the judgment in the case of State of Gujarat v. I.C.R.G , reversing the Gujarat High Court ruling.

In 2012, a PIL was filed in the Gujarat High Court by Islamic Relief Committee of Gujarat(IRCG), petitioning the Court to direcy the state government to compensate the costs of repair for damaged mosques, dargahs, Khankahs and other places of religious importance, which were destroyed in the Godhra Riots of 2002. The Gujarat High Court passed an order on 08.02.2012, directing the government to provide compensation for the destroyed structures. It also appointed Principal District Judges as Special Officers, to record claims, consider the Government’s defence and communicate their adjudication to the High Court, which kept the PIL pending for scrutinizing the final decisions of the Special Officers.

The State of Gujarat submitted before the Hon’ble Supreme Court, three broad reasons as to why the order passed by the High Court violates the Constitution. First, diverting funds from the public exchequer towards the reconstruction of religious monuments grossly violates Articles 25, 26, 27 which guarantee religious freedom and protection from preferential treatment by the State on religious grounds. Second, taking cognizance of the removal of the Right to Property from Part III of the Constitution, along with Supreme Court judgments that confine the compensatory jurisdiction of a “Constitutional Tort” to Article 21 violations, the claim made by I.C.R.G for compensation in the present petition is vacuous. Third, the ambiguously worded order of the Gujarat High Court is unenforceable, because the procedure to be followed by Special Officers has not been laid down, and the term “places of worship” lacks a clear definition.

In response, IRCG contended that the action (or lack thereof) on the part of the Gujarat Government during the riots of 2002, which led to widespread destruction of a minority community’s religious symbols, tantamounts to a violation of the personal dignity of the individuals who constitute the community. It also submitted that payment of compensation would not substantively violate Article 27, because it was governmental ineptitude that engendered the situation in the first place and hence the government would merely be restoring the former position of these places of worship and not “favoring” them without a reasonable justification. A fundamental tenet of secularism is that it imposes a duty upon the State to protect all religious symbols without any discrimination. The respondents further asserted that, fundamental rights could not be interpreted as individual silos, but must be read inter-connectedly so as to expose the undeniable links between Article 14, 21, 25, 26, 27- if religious symbols are desecrated, it violates the dignity of the community, and dignity is an integral part of the right to life. The dignity does not necessarily have to be the dignity of an individual. The dignity of a group of people is equally protected under Article 21.

The Hon’ble Supreme Court examined the decision in Destruction of Public and Private Properties, In Re where, acting upon the reports of the the Committees headed by Justice K.T. Thomas and Mr. F.S. Nariman, the Court clarified on liability in case of destruction of public or private property. The Court espoused the reasoning that a remedy of compensation under Article 21 can be availed only if one can directly and clearly show a violation of bodily autonomy (such as illegal detention, custodial torture, rape). The Court relied on Common Cause, A Registered Society v. Union of India (1996) to interpret the scope of compensation under Article 21. Finally citing the decisions in Prafull Goradia v. Union of India and Archbishop Raphael Cheenath S.V.D. v. State of Orissa, the court observed: any substantial deviation of tax proceeds towards the maintenance of religious structures violates Article 27; and the scheme of the Gujarat Government for recompensing victims which stipulated the provision of a maximum of Rs. 50,000 /- or repair costs (whichever is lower) to legitimate cases which comply with certain conditions (such as filing of an FIR, the religious structure not being in an unauthorized location or on a public road) is  indeed reasonable. With that, the court set aside the order of the Gujarat High Court and directed the State Government to implement the scheme in an efficacious manner.

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