Supreme Court is wrong in ruling that Gujarat need not pay for shrines destroyed in 2002
It harms the principle of state accountability and may diminish the National Human Rights Commission.
by Jyoti Punwani
A Muslim man looks at a picture of a burnt mosque in Ahmedabad | AFP
Last
week, the Supreme Court struck down the Gujarat High Court’s order
directing the state government to repair or rebuild the 535 Muslim
shrines damaged or destroyed during the 2002 communal violence, and
compensate those already repaired or rebuilt.
By
doing so, the apex court failed to uphold a vital principle: that the
government must be held accountable if shrines are destroyed or damaged
during communal riots. This principle was enunciated by the Gujarat High
Court in 2012.
Had the Supreme Court upheld
the High Court’s judgement, it would have set a precedent enriching the
two Constitutional principles of fundamental rights and secularism.
Instead, the court allowed the Gujarat government an easy way out, only
directing it to implement the state’s scheme of paying up to Rs 50,000
ex gratia to such shrines.
As Yusuf Muchhala
points out, ex gratia payment is a favour. “We don’t want favours, we
want our right,’’ the senior counsel for the Islamic Relief Committee
Gujarat, the original petitioner in the case, said.
The
High Court had recognised their right. It had held the Gujarat
government’s refusal to rebuild, repair or compensate the shrines
affected by the 2002 violence as violative of Articles 14, 25 and 26 of
the Constitution. Article 14 lays down the right to equality before the
law or the equal protection of the laws. Articles 25 and 26 safeguard
the freedom to practise and propagate one’s religion.
One
of the Gujarat government’s main arguments then, as now before the
Supreme Court, was that spending public money on places of worship would
violate Article 27 of the Constitution, which frees a citizen from
paying any tax the proceeds of which will be spent on the promotion of
any religion.
The High Court, however, held
that spending public money to compensate for damage to shrines in 2002
did not amount to promotion of religion as envisaged by Article 27. It
explained that the state had acknowledged that the shrines were
destroyed during the communal riots, which it had ascribed to the
“general reaction from the unfortunate incident of the Sabarmati Express
at Godhra”.
The High Court ruled that even if
the government’s reason for the carnage was accepted, it was the state’s
“failure of intelligence” not to have foreseen that reaction and “to
take appropriate timely action’’. This amounted to “negligence’’ by the
state. The fact that the riots continued for days suggested “lack of
adequate action, if not inaction on the part of the State”.
Since
it was established that there was “inadequate endeavour on the part of
the State…resulting in the destruction of more than 500 [shrines]
belonging to only one religious community”, the court concluded, “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…’’
Blow to National Human Rights Commission?
Strangely,
the Supreme Court did not refer to this reasoning, or, indeed, any of
the other reasons given by the High Court for its order.
By
ignoring these reasons, the apex court also failed to uphold the
dignity of another crucial institution entrusted with safeguarding our
fundamental rights: the National Human Rights Commission. Its casual
reference to the Commission is puzzling for two reasons. One, the
Commission is always headed by a retired Supreme Court judge. Even
though its recommendations are not binding – indeed because its
recommendations are not binding – it surely must fall to the Supreme
Court to ensure they are implemented whenever they form the subject
matter of the litigation before it.
Second, in Gujarat, the Commission’s role in ensuring justice for
the victims of the 2002 carnage has been pivotal. It was on its plea
that the Supreme Court had transferred key trials related to the
violence out of Gujarat.
In this case too, the
Commission was involved. The Gujarat government had accepted, in
principle, the Commission’s recommendation that it should help repair or
rebuild shrines damaged or destroyed during the riots. However, it was
found during hearings in the High Court that the state government, the
headed by Narendra Modi, had not even bothered to table the Commission’s
reports on Gujarat in the Assembly. Under the Protection of Human
Rights Act 1993, such reports are required to be tabled in the
legislature along with the Action Taken Reports. If the reports are
rejected, state governments must give reasons for the rejection.
It
was only after the High Court took note of this “grave defiance’’ of
the Human Rights Act that the government tabled the Commission’s report
in the Assembly – 10 years after the carnage. And it chose the last day
of the Assembly session to do so.
The Supreme
Court, too, could have reprimanded the Gujarat government for this, not
least because the original petitioners had raised this point before it.
But by merely noting that the state government had finally tabled the
report, the Supreme Court judgement sends a clear signal that the
National Human Rights Commission’s recommendations need not be taken
seriously by governments.
Judgement with little reasoning
Most
bafflingly, the judgement offers no reason for striking down the High
Court’s order. Nor does it make its own stand clear. It deals with the
two main arguments made by the opposing sides: whether Article 27 is in
play, and whether the court can direct the government to pay
compensation for shrines damaged during riots as a matter of
“Constitutional Tort’’. The term refers to damages payable by the state
when it violates the fundamental rights of a citizen. The Gujarat
government claimed that no fundamental right was violated during the
2002 violence.
But the apex court did not rule
one way or the other. Instead, the judgement only refers to its own
order passed in 2012 on the Gujarat government’s appeal against the High
Court order. A bench of Justices KS Radhakrishnan and Dipak Misra had
then told the Gujarat government to formulate a scheme for compensation
to the affected shrines. By way of precedent, the court had cited its
suggestion to the Odisha government to “have a generous attitude’’ and
draw up a scheme for repair of churches damaged during the Kandhamal
riots of 2008.
Ironically, in 2012, the Supreme
Court’s refusal to stay the High Court’s order had been considered a
big setback to Chief Minister Modi. Radhakrishnan had asked Gujarat’s
Additional Advocate General: “You compensate if a house is washed away
in a flood or if it is damaged in an earthquake. Then why not in case of
a religious place?”
In its final judgement delivered last week, however, that question
seems to have been forgotten. Instead, the scheme drawn up by the
Gujarat government – of Rs 50,000 ex gratia payment subject to stringent
conditions – has been converted into a resolution of the matter.
Significantly,
the judgement notes that this scheme falls within the guidelines laid
down by the Supreme Court in Prafull Goradia vs Union of India, 2011. A
Bench of Justices Markandey Katju and Gyan Sudha Misra had ruled that if
a substantial portion of public money, say 25 %, is spent on religion,
Article 27 would be violated. However, if only a small part of public
money is spent, it would not be violated.
Which
of these categories does the Gujarat government’s ex gratia payment
fall under? No facts were placed before the Supreme Court to enable it
to conclude either way.
It is 15 years since
the shrines in Gujarat were attacked. Most have been rebuilt or
repaired. The district judges who prepared the lists of affected
shrines, on the directions of the Gujarat High Court, found one shrine
where repairs had cost Rs 85 lakh. So, even if ex gratia payment of Rs
50,000 is accepted, Muchhala points out, it would amount to nothing. In
any case, when it is offered without the state acknowledging its
liability, the money is not welcome.
To establish this principle of accountability, the petitioners might file a review petition in the Supreme Court.
