# l l S.C.R. 787 STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. AND OTHERS

- **Citation:** [2017] 11 S.C.R. 787
- **Court:** Supreme Court of India
- **Decided:** 2017
- **Case number:** Civil Appeal No. 3249 of2016
- **Bench:** Dipak Misra, Prafulla C. Pant
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/l-l-s-c-r-787-state-of-gujarat-and-another-v-the-l-r-c-g-and-others-31613
- **Pages:** 34

## Headnote

Constitution of India:
Arts. 25 and 26 - Public interest litigation - Seeking direction
A
B
to compensate the Trusts and institutions owning the religious places
C
which got damaged/destroyed during the period of communal riots
in the State - High Court directed the State Government to
compensate - In appeal to Supreme Court, pursuant to an interim
orde1; the State framed a Scheme regarding payment of ex gratia
assistance to all religious places damaged/destroyed during the
0
riots - Held: Protection of property and places of worship is a11
esse11tia/ part of secularism - The State is obliged to treat persons
of all faiths and religions with equality - In the present case places
of worship belo11ging to all religio11s have been damaged and
affected - State is liable to repair or restore the places of worship
damaged by the mob during the riot - The assistance rendered, as
E
per the Scheme of the State,for repairing/restoration of public places
of worship would come within the guidelines of *Prafull Goradia
and** Ard1bishop Raphael Cheenath cases.
Disposing of the appeal, the Court
HELD: 1. The State is obliged under the Constitution to
treat persons belonging to all faiths and religions with equality.
The individual has his freedom to practice the religion as he
desires and it is totally immaterial from the perspective of the
State. The protection of property and places of worship is an
essential part of secularism. The freedom of individual in this
regard has to be respected and there has to be tolerance for
each other. This principle has been accepted in the constitutional
scheme keeping in view the concrete sustenance of national unity
and integrity. In the present case, the places of worship belonging
to all religions have been damaged and affected. [Paras 21 and
22) [804-F-H)
787
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788
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SUPREME COURT REPORTS
[2017] 1 l S.C.R.
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt AIR 1954 SC 282 : [1954] SCR 1005;
SR. Bommai and others v. Union of India and others
(1994) 3 SCC 1 : [1994) 2 SCR 644; Dr. M Ismail
Faniqui and others v. Union of India and others (1994)
6 SCC 360 : [1994] 5 Suppl. SCR I - followed.
2. In the present case, the State has framed the scheme
regarding payment of ex gratia assistance to all religious places
damaged/destroyed during the communal riots. On a close
scrutiny of the scheme, it is noticed that the Government has
fixed the maii:imum amount under the caption of ex gratia
assistance and also conferred the power on the District Collector
of the Districts where religious places arc situated to determine
about the ownership or administration rights of religious places
concerned. There arc certain conditions precedent for claiming
the amount. The terms and conditions which arc incorporated in
the scheme arc quite reasonable. While fixing the maximum limit,
the Government has equated the same with houses which ha\'e
been given the assistance. When the individual's grievances
pertaining to property has been conferred similar assistance, the
assistance remllered for repairing/restoration of public places of
worship will come within the guidelines of * Prafull Goradia und
** Arcllbisllop Raphael Cllee11ath S. V.D. cases. Therefore, the said
scheme is accepted. (Para 40) (819-G; 820-A-C)
*Prafull Goradia "· Union of India (2011) 2 SCC 568
: [2011) 1 SCR 579; **Archbishop Raphael Cheenath
S. V.D. v. State of Orissa and another (2009) 17 SCC
87 and 90 - relied on.
Hindustan Paper Corpn. Ltd. v. Ananta Bhattacharjee
and others (2004) 6 sec 213 - distinguished.
G
Destruction of Public and Private Properties, In Re v.
H
State of Andhra Pradesh and others (2009) 5 SCC 212
: [2009) 6 SCR 439; Sa'?jay Gupta and others v. State
of Uttar Pradesh and others (2015) 5 SCC 283 : [2014]
8 SCR 992; Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy and others
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
AIR 2012 SC 100 : [201

## Text

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[2017] l l S.C.R. 787
STATE OF GUJARAT AND ANOTHER
v.
THE l.R.C.G. AND OTHERS
(Civil Appeal No. 3249 of2016)
AUGUST29,2017
[DIPAK MISRA, CJI AND PRAFULLA C. PANT, J.]
Constitution of India:
Arts. 25 and 26 - Public interest litigation - Seeking direction
A
B
to compensate the Trusts and institutions owning the religious places
C
which got damaged/destroyed during the period of communal riots
in the State - High Court directed the State Government to
compensate - In appeal to Supreme Court, pursuant to an interim
orde1; the State framed a Scheme regarding payment of ex gratia
assistance to all religious places damaged/destroyed during the
0
riots - Held: Protection of property and places of worship is a11
esse11tia/ part of secularism - The State is obliged to treat persons
of all faiths and religions with equality - In the present case places
of worship belo11ging to all religio11s have been damaged and
affected - State is liable to repair or restore the places of worship
damaged by the mob during the riot - The assistance rendered, as
E
per the Scheme of the State,for repairing/restoration of public places
of worship would come within the guidelines of *Prafull Goradia
and** Ard1bishop Raphael Cheenath cases.
Disposing of the appeal, the Court
HELD: 1. The State is obliged under the Constitution to
treat persons belonging to all faiths and religions with equality.
The individual has his freedom to practice the religion as he
desires and it is totally immaterial from the perspective of the
State. The protection of property and places of worship is an
essential part of secularism. The freedom of individual in this
regard has to be respected and there has to be tolerance for
each other. This principle has been accepted in the constitutional
scheme keeping in view the concrete sustenance of national unity
and integrity. In the present case, the places of worship belonging
to all religions have been damaged and affected. [Paras 21 and
22) [804-F-H)
787
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G
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788
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B
c
D
E
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SUPREME COURT REPORTS
[2017] 1 l S.C.R.
The Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt AIR 1954 SC 282 : [1954] SCR 1005;
SR. Bommai and others v. Union of India and others
(1994) 3 SCC 1 : [1994) 2 SCR 644; Dr. M Ismail
Faniqui and others v. Union of India and others (1994)
6 SCC 360 : [1994] 5 Suppl. SCR I - followed.
2. In the present case, the State has framed the scheme
regarding payment of ex gratia assistance to all religious places
damaged/destroyed during the communal riots. On a close
scrutiny of the scheme, it is noticed that the Government has
fixed the maii:imum amount under the caption of ex gratia
assistance and also conferred the power on the District Collector
of the Districts where religious places arc situated to determine
about the ownership or administration rights of religious places
concerned. There arc certain conditions precedent for claiming
the amount. The terms and conditions which arc incorporated in
the scheme arc quite reasonable. While fixing the maximum limit,
the Government has equated the same with houses which ha\'e
been given the assistance. When the individual's grievances
pertaining to property has been conferred similar assistance, the
assistance remllered for repairing/restoration of public places of
worship will come within the guidelines of * Prafull Goradia und
** Arcllbisllop Raphael Cllee11ath S. V.D. cases. Therefore, the said
scheme is accepted. (Para 40) (819-G; 820-A-C)
*Prafull Goradia "· Union of India (2011) 2 SCC 568
: [2011) 1 SCR 579; **Archbishop Raphael Cheenath
S. V.D. v. State of Orissa and another (2009) 17 SCC
87 and 90 - relied on.
Hindustan Paper Corpn. Ltd. v. Ananta Bhattacharjee
and others (2004) 6 sec 213 - distinguished.
G
Destruction of Public and Private Properties, In Re v.
H
State of Andhra Pradesh and others (2009) 5 SCC 212
: [2009) 6 SCR 439; Sa'?jay Gupta and others v. State
of Uttar Pradesh and others (2015) 5 SCC 283 : [2014]
8 SCR 992; Municipal Corporation of Delhi v.
Association of Victims of Uphaar Tragedy and others
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
AIR 2012 SC 100 : [2011] 16 SCR l; Rabindra Nath
Ghosa/ v. University of Calcutta and others (2002) 7
SCC 478 : [2002] 2 Suppl. SCR 698; Common Cause,
A Registered Society v. Unio11 of India and others (1999)
6 SCC 667 : [1999] 3 SCR 1279; The Commissio11e1;
Hindu Religious Endowments, Madras v.
Sri
Lakshmindra Thirtha Swamiar of Sri Sltirur Mutt AIR
1954 SC 282 : [1954] SCR 1005; Sri Jagannath
Ramanuj Das and another v. State of Orissa and
another AIR 1954 SC 400: (1954] SCR 1046; T.MA.
Pai Foundatio11 and others v. State of Karna/aka and
others (2002) 8 SCC 481 : [2002] 3 Suppl. SCR 587;
K. Reghunath v. State of Kera/a and another AIR 1974
Kera la 48; Bira Kishore Mohanty v. State of Orissa AIR
1975 Orissa 8; Papanna and Etc. >: State of Kama/aka
qnd others AIR 1983 Karnalaka 94; Archbishop
Raphael Cheenath S. V:D. v. State of Orissa and another
(2009) 17 SCC 87 and 90; Arch R. Everson v. Board of
Education of the Township of Ewing 330 US 1; MC.
Mehta and another v. Union of India and others (1987)
l SCC 395 : [1987] l SCR 819; P. Ramachandra Rao
v. State of Karnataka (2002) 4 SCC 578; Common
Cause (A Registered Society) v. Union of India & others
(2008) 5 SCC 511: [2008] 6 SCR 262; Pravasi Blwlai
Sangathan v. Union of India & others (2014) 11 SCC
477 : [2014] 4 SCR 446; Rustom Cowasjee Cooper v.
Union of India (1970) 2 SCC 298 : [1971] l SCR
512; Ranganathan and another v. Union of India and
others (1999) 6 SCC 26; Ranganathan and another v.
Union oflndia and others (2004) 9 SCC 579 - referred
to.
Case Law Reference
[1954] SCR 1005
followed
Para8
[1994] 5 Suppl. SCR 1
followed
Para 8
[2002] 2 Suppl. SCR 698
referred to
Para8
c2004) 6 sec 213
distinguished
Para 8
[2011] 16 SCR 1
referred to
Para 8
789
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SUPREME COURT REPORTS
[20 l 7] l l S.C.R.
A
[1987) 1 SCR 819
referred to
Para 8
[1999) 3 SCR 1279
referred to
Para 8
(2002) 4 sec 1578
referred to
Para 8
[2008) 6 SCR 262
referred to
Para 8
B
(2014) 4 SCR 446
referred to
Paras
(1994) 2 SCR 644
followed
Para 9
(2014] 8 SCR 992
referred to
Para 9
AIR 1974 Kcrala 48
referred to
Para 9
c AIR 1975 Orissa 8
referred to
Para 9
AIR 1983 Karna.taka 94
referred to
Para 9
(2009) 17 sec 87 and 90
referred to
Para 9
(1971) 1 SCR 512
referred to
Para 9
D
(2009) 6 SCR 439
referred to
Para 9
(1999) 6 sec 26
referred to
Para 9
12004) 9 sec 579
referred to
Para 9
E
(1996) 6 sec 667
referred to
Para 30
[2011 I 1 SCR 579
relied on
Para 34
[1954] SCR 1046
referred to
Para 34
[2002] 3 Suppl. SCR 587
referred to
Para 34
F
(2009J 11 sec 90
relied on
Para 36
(2009) 17 sec 87
relied on
Para 36
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3249
of20!6
G
From the Judgment and Order dated 08.02.2012 passed by the
High Court of Gujarat atAhmcdabad in Special Civil Application No.3023/
2003.
Ms.Manisha Luv Kumar Shah, Ms.Jesal Wahi, Ms.Hemantika
Wahi, Kabir Hathi, Ms. Vinakshi Kadan, Ad vs. for the Appellants.
H
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
Y. H. Muchhala, Huzefa Ahmadi. Ms.V. Mohana, Sr. Advs.,
M.T.M. Hakim, Ejaz Maqbool, MrigankPrabhakar, C. George Thomas,
Faraz Maqbool, Abubakar Sabbaq, B. Raghunath, Ms. Kiran Bhardwaj,
Sridhar Potaraju, Ms.Sushma Suri, Ad vs. for the Respondents.
The Judgment of the Court was delivered by
DIPAK MISRA, CJI !. The present appeal, by special leave,
assails the judgment and order dated s•h February, 2012, passed by the
High Court of Gujarat in Special Civil Application No. 3023 of2003 with
Civil Application No. 6115 of2004.
2. The essential facts that need to be stated are that the High
Court was moved by way ofa public interest litigation seeking direction!
order directing the State and its functionaries to make detailed survey of
the mosques, dargahs, graveyards, khankahs and other religious places
and institutions desecrated, damaged and/or destroyed during the period
of communal riot in the State in the year 2002 under the supervision and
guidance of the Court and to immediately repair and restore the same
within specified time limit and fmiher command the State Government
to suitably and adequately compensate the trusts and institutions owning
the said religious places. Various assertions were made before the High
Court. A counter affidavit in oppugnation was filed by the State.
3. The High Court dwelling upon certain aspects eventually issued
number of directions. The relevant part of the High Court order reads as
follows:
"We, accordingly, pass direction upon the State Government to
give compensation in favour of the persons in charge of all the
religious places including those of worship, which were damaged
during the ·communal riot of the year 2002 for restoration to the
original position, as those existed on the date of destruction.
We find that during the long pcndency of this litigation, many of
those places of worship have been repaired. Nevertheless, the persons
in charge of those places would be entitled to get reimbursement of the
amount spt'.nt for restoration of those places by production of evidence
of expenditure incurred by them for the above purpose, as there is no
waiver of fundamental right. We, however, make it clear that if at the
time of repair, further additional construction has been made in excess
of the one existed at the time of damage, for such additional construction,
no amount should be payable by the State Government."
791
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SUPREME COURT REPORTS
[2017] l l S.C.R.
4. After so stating, the High Court has appointed all the Principal
District Judges of the various districts in the State and in the area under
the jurisdiction of the City Civil Court, the Principal Judge, City Civil
Court as the Special Officers for deciding the amount of compensation
for the restoration ofthose religious and places of worship situated within
the terntorial limit ofthdr respective court. After so directing, the High
Comt further proceeded to state that the aggrieved persons should lodge
their respective1 claim with those Special Officers within two months
from the date of judgment supported by the documentary evidence they
propose to rely in suppott of their claim of damages; and that apart, they
will be entitled to adduce oral evidence to prove the exact position of the
structure as it stood at the time of causing damages. After so stating,
the High Court directed as under:
"The State Government will also be entitled to give written
statement and oral and documentary evidence in support of its
defence. Such written statement must be filed within one month
from the service of the claim-application. The learned Special
Otliccrs on consideration of the entire materials on record will
decide ~he matters and fix the amount of disbursement, if proved
to have been incurred by them. In the cases, when~ the religious
places including those of worship are still lying in un-repaired
condition or partly repaired condition, the learned Special Officer
will pass not only the order of payment of the amount already
spent by them for such repair, but also pass necessary order for
repair Qr the balance amount of repair, as the case may be, to be
made by the State Government."
Andagain:-
"The final order should be passed by the learned Special Officers
within six months oflodging of the claim and such decision should
be sent to this Court for confirmation within fifteen days of passing
decisions.
The State Government, it is needless to mention, would be
entitled to realize 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 CoUit in this
regard.
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
. 793
[DIPAK MISRA, CJ!]
We, keep this public interest litigation pending forthe scrutiny
A
of the final decisions of the learned Special Officers on
corf1pensation or repair, as the case may be, on merit."
5. When the matter travelled to this Court, the hearing continued
and on 30'" July, 2012, the following order was passed:
"Reliance is placed on sub-para 3 of the judgment reported in
2009 (17) SCC 90 (Archbishop Raphael Cheenath S.V.D. vs.
State of Orissa and Another) which is quoted hereunder:-
"The learned counsel appearing for the petitioner stated that a
large number of churches have been demolished and the State
Government is giving meager amount by way of compensation.
Some churches and religious places were in existence which
are being destroyed and the State Government is not giving
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any compensation on the ground that there is some dispute
regarding the land. The Government may formulate a scheme
regarding these religious places.and take appropriate decision."
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On the basis of this judgment, let the senior counsel
appearing for the State of Gujarat may inform this Court whether
the State is contemplating any such schemes for repair or
renovation of the religious places affected by the communal riots."
6. On 27'" August, 2013, the Court passed the following order:
E
"Mr. Tushar Mehta, Sr. AAG appearing for the State of Gujarat,
submits that the scheme is under preparation and the same would
be filed within a period of four weeks.
Put up on October 01, 2013.
Status quo shall be maintained for a period of one month
from today."
7. In the course of hearing, the Union oflndia was made a party,
F
but, eventually, the arguments were advanced by the learned senior
counsel appearing for the State of Gujarat and the learned senior counsel . G
appearing for the respondents.
8. Mr. Tushar Mehta, learned senior counsel appearing for the
State of Gujarat has raised the following contentions:
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SUPREME COURT REPORTS
[2017] ll S.C.R.
(a) The State fund whic!i consist payment of various taxes by citizens
cannot be directed by the High Court to be spent for restoration/
construction of any religious places by issuing a writ under Article 226
of the Constitution of India, inasmuch as under the scheme of Articles
25. 26, 27 and 28 under the heading "Right to Freedom of Religion", the
Constitution protects certain rights while prohibiting cc11ain actions. What
is protected is righi to profess, practice and propagate religion; and what
is prohibited is compelling any person to pay any tax, proceeds of which
is to be spent for the promotion or maintenance ofony particular religion
or religious denomination. Though right to profess, practice and propagate
religion is a Fundamental Right, the Court has conclusively held that the
said fundamental ,right to profess, practice and propagate cannot and
docs not include to profess, practice or propagate any religion from any
particular place. For the said purpose, inspiration has been drawn from
the decisions rendered in The Commissioner, Hindu Religious
Endowments, Jl.fadrus I'. Sri Lakshmindra Thirtha Swamiar of Sri
D Shirur Mutt' and Dr. Jl.f. Ismail Faruqui and others v. Union of
India and others'.
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(b) In cases of damage to prope11ics (religious in the present case but
any other properties in general) an alleged deprivation is of "Right to
Property" which may give rise to a civil cause of action for damages by
aggrieved parties only. In view of the deletion of "Right to Property"
from Part lll of the Constitution oflndia as a fundamental right under
the 43'' Constitutional Amendment and the same right being only a
Constitutional Right under Article 300A, the High Court ought not have
exercised its jurisdiction under Article 226 as a public law remedy for
awarding compensation (for an alleged breach of"Right to Property", a
non-fundamental right) when in all decided cases the Court has confined
jurisdiction of Constitutional Courts as "Public Law Remedy" only in
cases of breach/violation offundamcntal right and that too only the right
A1ticle 21 of the Constitution. In this regard, learned senior counsel has
commended us to Rabi11dra Nath Ghosal v. University of Calcutta
a11d others', Hind11sta11 Paper Corpn. Ltd. v. A11a11ta Bltattacltarjee
G
and otliers4 and Municipal Corporatio11 of Delhi v. Associatio11 of
Victims of Uplzaar Tragedy and others'.
H
'AIR 1954 SC 282
'(1994) 6 sec 360
' (200217sec478
'12004J 6 sec 213
'AIR 2012 SC 100
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
795
[DIPAK MISRA, CJ!]
(c) Issue of any writ having the effect of use of tax-payers' money for
A
repair/restructuring/construction of any 'religious place' would offend
the sprit and object of Article 27 of the Constitution. On a true, meaningful
and purposive construction of Article 27, no writ, order or direction can
be issued having the direct or indirect etfoct of use of State funds for
repair/ restructuring/ construction of any religious places. The term "of B
any particular religion" or "religious denomination" as usedfo Article 27
needs to be given wider interpretation so as to protect, preserve and
give effect to the spirit of Article 27. On a purposeful interpretation of
A11icle 27, it becomes apparent that the funds of the State cannot be
directed to be used for 'maintenance' [which includes repair/ restructuring/
construction] of any religion (which essentially includes religious places) c
or may be all the religions whether individually or simultaneously. If
such an interpretation is not given, there can be situation where a State
can declare a portion of State fund to be used for maintenance of places
of worship of all religions which will be in stark contrast to the spirit and
object of Article 27 in particular and that ofA1ticles 25, 26, 27 and 28 in
general. On a meaningful and puiposive construction of Article 27, even
in such a case when the State fund is directed by the High Court by way
ofa writ for 'maintenance' of all religions [which term would necessarily
include repair/ restructu[ing/ construction of'places of worship'], it would
still be offending the secular fabric of the Constitution and it would be
violative of A1ticlc 27 in particular. In this regard, our attention has been
invited to Arc/1 ll. Eve1·son v. Board of Ed11£·ation of tlte Towns/tip of
Ewi11g6•
( d) The High Court, in exercise ofits constitutional writ jurisdiction under
Article 226 of the Constitution of India can grant compensation only
when there is an "established" breach of Article 21 of the Constitution.
This Court has time and again taken the view that remedy of writ as a
'public law remedy' to award compensation is restricted to violation of
Article 21 of the Constiti1tion only. Ifa constitutional court finds some
action to be violative of any other Fundamental Rights; say an arbitrary
action offending Article 14, curtailment of Freedom of Speech and
Expression under Article 19( 1 )(g), etc. the Constitutional Comt will strike
down such action or will issue an injunctive writ. However, Constitutional
Court have so far never awarded damages for breach of such
Fundamental Rights other than the ones under Article 21; and Article 21
would not include "Right to Worship" by a person following any religion
"330 US I
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SUPREME COURT REPORTS
[2017) l l S.C.R.
from a particular place: therefore, alleged damage to any religious
structure ofany religion would not fall within the sweep of violation of
Article 21 of Constitution. The High Court, therefore, ought not to have
issued an interim writ direction for quantification of'actual damages' to
'places of worship.' To bolsterthe said submission, reliance is placed on
the decisions rendered in M. C. Mehta and another v. Union of India
and others', Hi,1dusta11 Paper Corp11. Ltd. (supra) and Association
of Victims of Up/war Tragedy (supra).
( e) Award of compensation by constitutional com1s is a remedy in public
law. The very genesis of the concept ofaward 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 not to approach the
Court. It is Sl\bmitted that any organization, merely by making
representations to the State Government claiming to represent '"aggrieved
parties" would 111ot become "an aggrieved party" itself and thereby acquire
'locus standi' to maintain a petition under A1ticlc 226 of the Constitution.
Learned counsel in order to buttress the said submission, has commended
us to Common· Cause, A Registered Society v. Union of India amt
others'.
(f) 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 not exist which has not been availed of by
any "aggrieved person. The jurisdiction exercised by the High Court, in
the absence of a vacuum, providing for enforcement of such right to
receive compensation, the High Court could not have created a forum
since it has conferred adjudicating power in it in a different way. In this
regard, support has been drawn from P. Ramad1a11dra Rao v. Stale of
Kamalllkll', Co111111011 Clluse (A Registered Society) v. Unio11 of /11dill
& others'° and Pravasi Bltalai Sa11gatlta11 " U11io11 of India &
others". That apart, the High Cou11 has directed computation of actual
'11987) 1 sec 395
'(t999)6SCC667
'12002) 4 sec 578
"12008) s sec 511
"12014) I I sec 477
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G
797
[DIPAK MISRA, CJ!]
compensation to "places of worship" and has created a totally new remedy
A
by the impugned judgment 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 manageable. enforceable
nor capable of execution as per law, for it is not known as to what
procedure such "Special Officers" arc required to follow, while seeking
to adjudicate the quantum. It is difficult to fathom as to what is the
remedy of any party aggrieved either by an interim order or final order
of "Special Officers" against such interim or final order. The order of
High Court is again incapable of enforcement since religious places are
only vaguely identified. Such religious places are not shown to be under
the administration of any recognized statutory body like a public trust,
wakf or a society, etc. When all people residing in the vicinity of such
vaguely described religious places are managing the religious places as
a community, there are bound to be multiple claimants who would pray
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for compensation since the entire local community might have contributed
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in the repair/reconstruction/construction of the concerned places of
worship. There is no methodology as to in what manner such inter se
disputes amongst the claimants arc to be adjudicated and/or appropriated.
It is also not clear when the believers of a particular religious place of
worship have already restored the damaged place of worship [which
has in fact been done before many years], how the amount of E
compensation would be appropriated amongst such believers who have
contributed without any claims.
(g) The statutory period of limitation for such affected persons to
otherwise approach the civil courts has already expired years back.
However, the very same affected persons [who never took recourse to
any legal remedy] arc now permitted to approach the District Judges
with a prayer to adjudicate their claims for compensation as a civil suit.
The High Court could not have, by issuing such interim writ. extended
the statutory period oflimitation indirectly.
9. Mr. Y.H. Muchhala and Mr. Huzcfa Ahmadi, learned senior
counsel appearing for the respondents have raised the following
contentions:
(a) Attack on religious places of worship is an attack on religious
symbolism of people who hold them as sacred. Destruction of places of
worship belonging to weaker section of the society by a dominant group
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1s to inflict humiliation on them and thereby violate Article 21 of the
Constitution. If the State fails to protect large scak 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 oflaws 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. Therefore. there is a breach of Fundamental Right
of the said sufferers. For the said purpose, they have relied upon Dr. M.
ls111t1il Fllruqui (supra) and S.R. Bo11111wi "'"/others v. Union of
btdill and others".
(b) As it is obligatory on the part of the State to maintain the law and
order situation and there was a failure, the High Court is j usti1ied in
invoking the 'public law remedy' as such negligence could invite the
principle of concept of "Constitutional tort''. That apart, the State
Government has specifically accepted before the National Human Rights
Commission (NHRC) that it would restore the places of worship which
have been damaged. Emphasis has been laid on various aspects of the
reports of the N!-IRC. In view oflhe reports, it was the obligation of the
State Government to inform the elected representatives of the people of
the concerned legislatures the reasons for non-acceptance of the NHRC
reports. In the absence of non-disclosure ofreasons, the State becomes
absolutely resp9nsible for the damages caused and is liable to pay the
compensation.
(c) In the instant case, the petitioner before the High Court had sought
relief against !he State Government and not against any public official/
Minister. The case is rested on the breach of the fundamental rights of
the persons whose places of worship have been destructed because of
the comprehensive failure oflaw and order in the State of Gujarat during
the crucial period for whatever reason and for which the State
Government is responsible. Such failure on the part of the State
Government amounts to violation in Public Law. The Respondent's claim
is based in public law for compensation for contravention of fundamental
and human rights. The Respondent's right to claim such compensation
under Article 226 of the Constitution is a well settled law as per the
authority in Sa11jay Gupta tmd others v. State of Uttar Pradesh and
others".
"< 1994)3 sec 1
"(2015) s sec 283
STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G.
799
[DIPAK MISRA, CJI]
( d) The plea of the State Government that to provide compensation for
A
destruction of places of worship is violative of Article 27 is totally
erroneous because in the first place no person is compelled to pay any
tax in the instant case. However, the relief is sought against the State
Government to pay compensation from the public exchequer. But the
liability of the State Government to compensate those who have suffered
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by destruction of places of worship is not for the promotion of
maintenance of any particular religion or religious denomination. The
cause of action is based on the principle that if the State has by its
inability or for whatever reason has failed to protect the fundamental
rights or human rights then it has to compensate the aggrieved person
for such violation. The compensation is appropriated for providing relief C
for violation of human rights and not for the promotion of maintenance
of any particular religion or religious denomination and thereby the
concept of secularism is not affected. In this regard, heavy reliance is
placed on the decisions of the Kerala High Court in K. Reg/111n(lt/i v.
State of Kera/a and anot/1er14, the Orissa High Court in Bira Kislrore
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Mohanty v. State ofOrissa" and the Kamataka High Court inPapanna
and E1'·. v. State ofKamatak" a11d others". The directions issued by
this Com1 in Archbishop Rilph"el Clreenilth S. V.D. v. State of Orissa
a11d another" have also been.placed reliance upon to strengthen the
said proposition. The decision supports the principle that the incurring of
expenses for reconstruction and restoration of places of worship damaged
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in violence would not be in violation of Article 27 of the Constitution of
India.
(e) The argument that the High Court has created a forum is without
any substance because the State is entitled to contend before the District
Judge that a particular place of worship was/is unauthorized and the
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District Judge will consider such plea and report to the High Court.
That apart, the High Court in its extraordinary jurisdiction has basically
called for a report from the District Judge after adjudication when the
High Colirt can wait because it has not finally disposed of the writ petition.
(t) It is the fundamental obligation of the State to protect the places of G
wor3hip \1hich is the facet of secularisrr. and ·.Llso covered by Article 14
of the Constitution. When 1!1ei'e iJ failure, t:;~ St»t: is liable to pay the
. '' i\IR \ 974 Kcra\a 48
1.'I AIR 1975 Orissa 8
"i\IR ~983 r:arnataka <;4
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damages for the same. There cannot be distinction in law between
damage done to the collective property of the community and to an
individual. The basis for awarding compensation for destruction to an
individual's property or the community's property is on the principle that
the State has failed to fulfill its fundamental constitutional obligation.
(g) Articles 14. 21, 25 and 26 of the Constitution have to be woven
together and they oannot be compartmentalized in a strait-jacket manner.
It is an established principle of Constitutional law that the fundamental
rights cannot be cotnpartmentalized because one fundamental right draws
sustenance from the other fundamental rights as well. In this regard,
strength has been drawn from Rustom Cowasjee Cooper v. Union of
Indili".
(h) The relief scheme framed by the High Court is in consonance with
the guidelines laid down by this Court in Destrnction of Public and
Private Properties, Jn Re v. State of Andhra Pradesh and others".
Similar schemes were framed in Ranganathan and another v. Union
of India anti others'°, Ranga11atha11 <mtl another v. Union of India
and others" and Association of Victims of Uphaar Tragedy (supra).
Guidelines are lai<a by the Court as there is no law for compensation for
such losses and t~ same are laid down to deal with exigencies till the
law for the same i$ framed. Reliance has been placed on the principles
set out in Destruciio11 of Public and Private Properties, Jn Re (supra).
(i) As there had been failure of law and order situation at the relevant
time it becomes the constitutional obligation of the State to compensate
the victims and also to reimbw·se the organizations where repairing work
had been carried out or restructuring had been done or, if not done, to do
it. The obligation to protect the rights of the minorities is the facet oflaw,
right guarantee under the Constitution and also a ;:iart of the international
conventions.
I 0. Having noted the submissions, it is necessary to clear the
maze. The assertions in the public interest. litigation before the High
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Court did not project the case of any individual. 1o explicate, it was not
a case for grant of compensation for any individual injury or damage.
Fundamentally, the writ petition was preferred for issue of direction for
'"(1970) 2 sec 298
"(2009J s sec 212
"(1999) 6 sec 26
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" 12004 J 9 sec 579
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G.
[DIPAK MISRA, CJ!]
seeking repair and restoration of mosques. dargahs. graveyards, khankahs
and other religious places damaged during the riot in 2002. Therefore,
we do not intend to use the expression "victim" in our analysis. It is
worthy to note that the High Court had also taken note of the fact that
the reports submitted by the NHRC on the mcident were not laid before
the State Legislature and hence. there was violation of Section 20 of the
·Protection of Human Rights Act. 1993. Similar stand has been taken
before this Court. In the course of hearing, the reports submitted by
NHRC were laid before the State Legislature.
11. The thrust of the matter is whether in such a situation, the
State would be obligated to compensate the institutions or bodies that
look after the religious places which were damaged by restoring to their
original position or granting reimbursement of the amount to the people
who have done the same.
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12. In this regard, some of the authorities that have been
commended to us require to be looked at. We may immediately clarify
that the learned senior counsel appearing for the respondents has copiously
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referred to us to various international conventions, the opinions of statutes
ofTntcrnational Criminal Tribunal of other countries and also judgments
of European Court of Human Rights. As far as present !is is conc.erned,
we arc of the considered opinion that the same arc not relevant. We
think it appropriate to refer to the authorities of this Court which have
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expressed this view to a certain extent pertaining to the religious rights.
13. Mr. Mehta, learned senior counsel appearing for the State
would contend that the respondents cannot claim as a matter of right as
the State is not bound to spend any amount for restoration of the place
of worship. Mr. Muchhala, learned senior counsel for the respondents,
per contra, would contend that when damage is caused to the places of
worship ofa minority, the right of the said group or stream is affected
and that right would come within Articles 25 and 26 of the Constitution
oflndia.
14. Articles 25 and 26 read as under:
"Article 25. Freedom of conscience and free profession,
practice and propagation of religion.-
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(!) Subject to public order, morality and health and to the other
provisions of this Part, all persons are equally entitled to freedom
of conscience and the right freely to profess, practise and
propagate religion
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(2) Nothing m this article shall affect the operation of any existing
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law or prevent the State from making any law-
( a) regulating or restricting any economic, financial, political
or other secular activity which may be associated with religious
practice;
( b) providing for social welfare and reform or the throwing
open of Hindu religious institutions ofa public character to all
classes and sections of Hindus.
Exp/ona~ion l.- The wearing and carrying of kiqJans shall be
deemed tP be inciuded in the profcsswn of the Sikh religion.
Expla11otio11 Il.-In sub-clause (b) of clause (2), reference to
Hindus shall be construed as including a reference to persons
professing the Sikh, Jaina or Buddhist religion, and the reference
to Hindu religious institutions shall be construed accordingly.
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Article 26. Freedom to manage religious affairs.-Subject
to public order, morality and health, every religious denomination
or any section thereof shall have the right-
(a) to establish and maintain institutions for religious and charitable
purposes;
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(b) to manage its own affairs in matters ofreligion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law."
15. The submission is that the fundamental rights cannot be
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compartmentalized as one draws sustenance from the other. In essence,
the argument is that strait-jacket compartmentalization is impermissible
and when there is violation of human rights of a class, that is, minority
(because of damage caused to the places of worship), the rights in a
cluster spring up to action.
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16. In The Commissioner, Hindu Religious Endow111e11ts,
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Madras (supra), the Constitution Bench, while dealing with Articles 25
and 26, held:
"22. ft is to be noted that both in the American as well as in the
Australian Constitutions the right to freedom of rn'tigion has been
STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G.
[DIPAK MISRA, CJ!]
declared in unrestricted terms without any limitation whatsoever.
Limitations. therefore, have been introduced by courts oflaw in
these countries on grounds of morality, order and social protection.
An adjustment of the competing demands of the interests of
Government and constitutional liberties is always a delicate and
diflicult task and that is why we find difference of judicial opinion
to such an extent in cases decided by the American courts where
questions ofrcligious freedom were involved.
Our Constitution-makers, however, have embodied the
limitations which have been evolved by judicial pronouncements
in America or Australia in the Constitution itself and the language
of Articles 25 and 26 is sufiicicntly clear to enable us to determine
without the aid of foreign authorities as to what matters come
within the purview of religion and what do not. As we have
already indicated, freedom ofreligion in our Constitution is not
confined to religious beliefs only; it extends to religious practices
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as well subject to the restrictions which the Constitution itself D
has laid down. Under Article 26(b ), therefore, a religious
. denomination or organization enjoys complete autonomy in the
matter of deciding as to what rites and ceremonies arc essential
according to the tenets of the religion they hold and no. outside
authority has any jurisdiction to interfore with their decision in
such matters."
17. In S.R. Bommai (supra), Sawant, J. opined:
" ... religious tolerance and equal treatment of all religious groups
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and protection of their life and property and of the places of their
worship arc an essential part of secularism enshrined in our
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Constitution: We have accepted the said goal not only because it
is our historical legacy and a need of our national unity and
integrity but also as a creed of universal brotherhood and
humanism. It is our cardinal faith. Any profession and action
which go counter to the aforesaid creed are a prima facie proof
of the conduct in defiance of the provisions of our Constitution."
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18. In the said case. B.P. Jccvan Reddy, J. observed:
"While the citizens of this country are free to profess, practice
and propagate such religion, faith or belicfas they choose, so far
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as the State is concerned. i.e., from the point of view of the
State. the religion, faith or bcliefofa person is immaterial. To it,
all are equal and all are entitled to be treated equally .... "
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19. Ahmaqi, J. (as His Lordship then was), concurring with the
views of Justice $awant, Ramaswamy and Jeevan Reddy, JJ., held:
"Notwith~tanding the fact that the words 'Socialist' and 'Secular'
were adMd in the Preamble of the Constitution in 1976 by the
42nd Am~ndment, the concept of Secularism was very much
embedded in our constitutional philosophy. The term 'Secular'
has advisedly not been defined presumably because it is a very
elastic term not capable ofa precise definition and perhaps best
left undefined. By this amendment what was implicit was made
explicit."
20. In Dr. M. Ismail Far11q11i (supra), after referring to the
authority in S.R. Bommai (supra), the Constitution Bench hdd:
"The Preamble of the Constitution read in particular with Articles
25 to 28 emphasises this aspect and indicates that it is in this
manner the concept of secularism embodied in the constitutional
scheme as a creed adopted by the Indian people has to be
understood while examining the constitutional validity of any
legislation on the touchstone of the Constitution. The concept of
secularism is one facet of the right to equality woven as the
central golden thread in the fabric depicting the pattern of the
scheme in our Constitution."
21.