[2017] l l S.C.R. 787

STATE OF GUJARAT AND ANOTHER

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

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)

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.

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

[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

(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.

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."

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.

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

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." D

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,

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:

(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'.

(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'.

'AIR 1954 SC 282 '(1994) 6 sec 360 ' (200217sec478 '12004J 6 sec 213

'AIR 2012 SC 100

(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. Eve1son 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

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

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

for compensation since the entire local community might have contributed D 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

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 B 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 D 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 E 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 F 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 " (20"1) t 7 sec 87 anJ % H

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 reimbwse 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 G 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 H " 12004 J 9 sec 579

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.

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 D 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 E 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.-

(!) 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 H

(2) Nothing m this article shall affect the operation of any existing

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/onaion 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.

0 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;

(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 F 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.

16. In The Commissioner, Hindu Religious Endow111e11ts,

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

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

and protection of their life and property and of the places of their worship arc an essential part of secularism enshrined in our F 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." G

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

A 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 .... "

19. Ahmaqi, J. (as His Lordship then was), concurring with the views of Justice $awant, Ramaswamy and Jeevan Reddy, JJ., held:

"Notwithtanding the fact that the words 'Socialist' and 'Secular' were adMd in the Preamble of the Constitution in 1976 by the 42nd Amndment, 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. The aforesaid authorities clearly enunciate that as far as State is concerned, it 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 G principle has been accepted in the constitutional scheme keeping in view the concrete sustenance of national unity and integrity.

22. Having said so, we are required to examine the liability of the State to repair or restore the places of worship which are damaged by the mob during the riot. There is no dispute that the places of worship H belonging to all religions have been damaged and affected. Be it clarified,

though the learned senior counsel appearing for the respondents laid A immense stress on the failure oflaw and order situation and non-existence of the active role of the executive to curtail the disaster, we need not dwell upon the same inasmuch as there had been mob fury and places of worship at certain places have been damaged. Learned senior counsel for the appellants submits that the State cannot be commanded to repair B or restore any place of worship as such an act on the part of the State will create a dent in the secular fabric and further the expenditure from the State exchequer is impermissible in view of the language employed in the Article 27 of the Constitution.

23. Before dwelling upon A11icle 27, we may profitably refer to C certain aspects that have been highlighted in Destruction of Public and Private Properties, In Re (supra). In the said case the two-Judge Bench, taking a serious note of various instances oflargc-scale destruction of public and private properties in the name of agitations, bandhs, hartals and the like. had initiated suo motu proceedings. It had called for reports from two committees - one headed by Justice K.T. Thomas and the D other by Mr. F.S. Nariman, a senior member of the legal profession. It has referred to the recommendations of the Committee headed by Justice K.T. Thomas and also that ofF.S. Nariman Committee. Summarizing the basic principles as suggested by Nariman Committee, the Comt enumerated the same:

(l) The basic principle for measure of damages in torts (i.e. wrongs) in property is that there should be "rcstitutio in intc1,'fl1m" which conveys the idea of"making whole".

(2) Where any injury to prope11Y is to be compensated by damages,

in settling the sum of money to be given for reparation by way of F damages the Court should as nearly as possible get at that sum of money which will put the party who has suffered, in the same position as he would have been in if he had not sustained the wrong for which he is now getting his compensation or reparation.

(3) In this branch of the law, the principle ofrestitutio in integrum has been described as the "dominant" rule of law. Subsidiary rules can only be justified if they give effect to that rule.

(3.1) In actions in tort where damages arc at large i.e. not limited to the pecuniary loss that can be specifically proved, the Com1 may also take into account the defendant's motives, conduct

and manner of committing the tort, and where these have aggravated the plaintiff's damage e.g. by injuring his proper feelings of dignity, safety and pride--aggravated damages may be awarded. Aggravated damages are designed ro compensate the plaintiff for his wounded feelings. they must be distingutshed from exemplary damages which arc punitive m nature and which (under English Law) may be awarded in a limited category of cases.

(3.2) "Exemplary damages" has been a controversial topic for many years. Such damages are not compensatory but arc awarded to punish the defendant and to deter him and others from similar behaviour in the future. The law in England (as restated in Rookes v. Barnard" affirmed in Cassell & Co.

Ltd. v. Broome") is that such damages are not generally allowed.

In England they c<m only be awarded in three classes of cases

(i) where there is oppressive, arbitrary or unconstitutional action by servants of the Government; (ii) where the defendant's conduct has been calculated by him to make a profit for himself which may well exceed the compensation payable to the claimant; and (iii) where such damages arc provided by statute.

(3 . .3) In the decision in Kuddus v. Chief Constable of Leicesters/ciire Co11stab11/a1:v"', the most recent judgment of the House of Lords. the Law Lords did not say that in the future the award of exemplary damages should be restricted only in the cases mentioned in Rookes v. Barnard (as affirmed in Cassell & Co. Ltd. '' Broome). Lord Nicholls in his speech at p. 211 stated that: (Kuddus case, WLR p. 1807. para 68)

"68 .... the essence of the conduct constituting the cout1's discretionary jurisdiction to award exemplary damages is conduct which was an outrageous disregard of the plaintiff's rights."

G (3.4) In this Committee's view, the principle that courts in India are not limited in the law of torts merely to what English Courts say or do, is attracted to the present situation. This Committee is of the view that this Hon 'ble Court should cvol vc a principle of

" 1964 AC 1129: (1964) 2 WLR 269: (1964) 1 ALL ER 367 (HL)

" 1972 AC 1027: ( 1972) 2 WLR 645: ( 1972) 1 ALL ER 801 (HL) H

" (2002) 2 AC 122: (2001) 2 WLR 1789: (2001) 3 ALL ER 193: 2001 UKHL29 (HL)

liability, punitive in nature, on account of vandalism and rioting A leading to damages/destruction of property public and private.

Damages must also be such as would deter people from similar behaviour in the future, after all this is already the policy of the law as stated in the Prevention of Damage to Property Act,

1984. and is foreshadowed in the order of this Hon 'blc Court dated 18-6-2007 making the present reference.

(3.5) In Winfield andJolowicz on Tort, 17th Edn. (at pp. 948-49) the authors set out the future of exemplary damages by quoting from the decision in Kuddus v. Chief Constable of Leicestershire Constabulary where two Law Lords, Lord Nicholls and Lord Hutton expressed the view that such damages might have 'a valuable role to play in dealing with outrageous behaviour. The authors point out that the boundaries between

the civil and criminal law are not rigid or immutable and the criminal process alone is not an adequate mechanism to deter wilful wrongdoing. The acceptability of the principle of D compensation with punishment appears to have been confirmed by the Privy Council (in Gleaner Co. Ltd. v. Abrahams'; AC at

54) where it was felicitously said that: (AC p. 647, para 54)

"54 .... Oil and vinegar may not mix in solution but they combine to make an acceptable salad dressing." E

(3 .6) The authors go on to say that exemplary damages certainly enjoy a continuing vitality in other common law jurisdictions, which, by and large, have rejected the various shackles imposed on them in England and extended them to other situations, thus punitive damages were held to be available in Australia in cases F of "outrageous" acts of negligence. The Law Commission of Australia has also concluded, after a fairly evenly balanced consultation, that exemplary damages should be retained where the defendant "had deliberately and outrageously disregarded the plaintiff's rights".

24. The Court also referred to in detail to Justice K.T. Thomas Committee which basically dealt with law and order and tort. After approving the reports of the Committee, the Court took note of the absence oflegislation and framed the following guidelines:

" (2004) I AC 268: (2003) 3 WLR I 038 (PC)

A .. (!)Wherever a mass destruction to property takes place due to protests or thereof, the High Court may issue suo motu action and set up a machinery to investigate the damage caused and to award compensation related thereto.

(II) Whre there is more than one State involved, such.action B may be taken by the Supreme Court.

(!II) In each case, the High Court or the Supreme Court, as the case may be, appoint a sitting or retired High Court Judge or a sitting or retired District Judge as a Claims Commissioner to estimate the damages and investigate liability.

(IV) An assessor may be appointed to assist the Claims Commissioner.

( V) The Claims Commissioner and the assessor may seek instructions from the High Court or the Supreme Court as the case may be. to summon the existing video or other recordings from private and public sources to pinpoint the damage and establish nexus with the perpetrators of the damage.

(Vl) The principles ofabsolute liability shall apply once the nexus with the event that precipitated the damage is established.

(Vil) The liability will be borne by the actual perpetrators of the crime as well as the organisers of the event giving rise to the liability-to be shared, as finally determined by the High Court or the Supreme Court as the case may be.

(VIII) Exemplary damages may be awarded to an extent not greater than twice the amount of the damages liable to be paid.

(IX) Damages shall be assessed for:

(a) damages to public property;

(b) damages to private property;

(c) damages causing injury or death to a person or persons; and

(cl) cost of the actions by the authorities and police to take preventive and other actions.

(X) The Claims Commissioner will make a report to the High Court or the Supreme Court which will determine the liability H after hearing the pm1ies."

After so stating, the Court directed that the guidelines shall be A operative.

25. In this regard, reference to the authority in Sanjay Gupta

(supra) would be fruitful. The factual matrix in the said case pertains to Meerut Fire Tragedy where sixty-four people had died. While dealing with the grant of interim compensation, the Court held: 13

"Having so opined, we cannot comatose our judicial conscience to the plight of the victims who have approached this Court.

Some of the petitioners are themselves the victims or next kin of the deceased and the injured persons who have suffered because of this unfo1tunate man-made tragedy. lt is the admitted position c that 64 deaths have occurred and a number of persons have suffered grievous injuries. There are also persons who have suffered simple injuries as has been asserted by the State. We have been apprised at the Bar that the State Government has already paid Rs 2 lakhs to the legal representatives of the persons who have breathed their last, and a sum of rupees one lakh has D been paid by the Central Government. As far as seriously injured persons are concerned, rupees one lakh has been paid by the State Government and Rs 50,000 has been paid to the victims who have suffered simple injuries.

The question that we would like to pose is whether this Court should wait for the Commission's report and then direct the State Government to pay the amount of compensation to the grieved and affected persons, who have been waiting for the last eight years, or should they get certain sum till the matter is finalised.

We will be failing in our duty if we do not take into consideration the submission of Mr. Shanti Bhushan, learned Senior Counsel, that as far as Respondents IO to 12 are concerned, no liability can be fastened under Article 32 of the Constitution of Indiu, . and definitely not at this stage. As far as first pmi of the submission is concerned, we keep it open to be dealt with after the report is obtained by this Court. As far as the second aspect is concerned, we shall deal with it after we address the issue of public law remedy and the liability of the State in a case of this nature."

26. In Association of Victim.~ of Uplraar Tragedy (supra), Radhakrishnan, J., in his concurring opinion, opined:

.. ... Rightto life guaranteed under Article 21 of the Constitution of India is the most sacred nght preserved and protected under the Constitution, violation of which is always actionable and there is no necessity of statutory provision as such for preserving that right. Article 21 of the Constitution oflndia has to be read into all public safety statutes, since the prime object of public safety legislation is to protect the individual and to compensate him for the loss suffered. Duty of care expected from State or its officials functioning under the public safety legislation is. therefore, very high, compared to the statutory powers and supervision expected from the officers functioning under the statutes like Companies Act, Cooperative Societies Act and such similar legislations.

When we look at the various provisions of the Cinematographic Act, 1952 and the Rules made thereunder, the Delhi Building Regulations and the Electricity laws the duty of care on officials was high and liabilities strict.

• • •

Legal liability in damages exist solely as a remedy out of private law action in tort which is generally time-consuming and expensive, and hence when fundamental rights arc violated the claimants prefer to approach constitutional courts for speedy remedy. The constitutional courts, of course, shall invoke its jurisdiction only in extraordinary circumstances when serious injury has been caused due to violation of fundamental rights. especially l)nder Atticle 21 of the Constitution oflndia. In such circumstances the Court can invoke its own methods depending upon the facts and circumstances of each case."

27. The purpose of referring to the aforesaid authorities is that the learned senior counsel has canvassed that the benefit under the public law remedy is available to the bodies or institutions that look after the religious places of worship of each and every religion. The hypothesis that is canvassed is that the damage caused affects the dignity of that paiticular community or a group. The stand of the State is that keeping in view the concept of secularism and the role of the State, it is inappropriate to direct the State to spend the amount from the State exchequer for these purposes. In this context, as stated earlier, Article 27 becomes relevant.

28. In Hindustan Paper Corpn. Ltd. (supra), the Court was A considering whether the High Court in exercise of its jurisdiction under Article 226 of the Constitution oflndia could have directed payment of interest by way of compensation. The issue before the Court pertained to an order by which the Division Bench of the Calcutta High Court directed the appellant before this Court to refund the amount advanced to it with 12% per annum interest to the respondents. The factual matrix in the said case was that the Minishy of Human Resource Development, Department of Education, Government of India floated a scheme purpo1ted to be for securing equitable distribution of white printing pape1: The said scheme had certain relevant features. Pursuant to the scheme, the respondents allegedly placed orders for supply of white paper upon the appellant therein which the appellant Corporation could not supply.

The learned single Judge by ex pa rte order had directed the Corporation

to take immediate steps for release of white concessional paper to the respondents wherefor allegedly the advance money had already been accept by them. The application for recall was dismissed. In appeal, D the Division Bench noted the contention of the appellant and took into

acount that.the appellant had already refunded the large amount to the allotees without any interest subsequent to the discontinuation of the scheme. However, it held that by such act it could not absolve the Corporation from the liability to compensate the respondents in cash if not in kind in consideration of their default and accordingly it directed for payment of interest at 12%pei: annum. The three-Judge Bench observed . that the scheme in question did not have the force of law and even if it did, a writ of mandamus could not have been issued by directing grant of compensation. In that context, the Court ruled:

" ... Public law remedy for the purpose-of grant of compensation can be resorted to only when the fundamental right of a citizen under Article 21 of the Constitution is violated and not otherwise ..

It is not every violation of the provisions of the Constitution or a statute which would enable the court to direct grant of compensation. The power of the court of judicial review to grant compensation in public law remedy is limited. The instant case is not oric which would attract invocation of the said rule. It is not the case of the respondents herein that by reason of acts of commission and omission on the part of the appellant herein the fundamental right of the respondents under Article 21 of the Constitution has been violated.".

29. On a perusal of the judgment in its entirety, we find the case hinges on its own facts regarding grant of compensation. The power of the coun of judicial review to grant compensation in public law is limited.

There cannot bq any quarrel about the said proposition of law.

30. In Ra(Jindra Natlt Glwsal (supra), the assail was to the order of the learned single Judge whereby he had directed the University of Calcutta to pay 'to the appellant before him Rs. 60,000/- as monetary compensation and damages. The Division Bench overturned the same by holding that in the facts of the case compensation should have been awarded but the proper course should have been to leave the parties to agitate their grievances before the civil court. This Court referred to the decision in Common Cause, A Registered Socie(v2' and adverted to the concept of public law remedy and opined:

"A claim in public law for compensation for contravention of human rights and fundamental freedoms, the protection of which is guaranteed in the Constitution is undoubtedly an acknowledged remedy for protection and enforcement of such right and such a claim based on strict liability made by resorting to a constitutional remedy, provided for the enforcement of fundamental right is distinct from, and in addition to the remedy in private law for damages for the tort, as was held by this Court in Nilabati Behera17."

And again:

"The courts having the obligation to satisfy the social aspiration of the citizens have to apply the tool and grant compensation as damages in public law proceedings. Consequently when the court moulds the relief in proceedings under Articles 32 and 226 of the Constitution seeking enforcement or protection of fundamental rights and grants compensation, it docs so under the public law by way of penalising the wrongdoer and fixing the liability for the public wrong on the State which has failed in its public duty to protect the fundamental rights of the citizens. But it woold not be correct to assume that every minor infraction of public duty by every public officer would commend the court to grant compensation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The court in exercise of

" (1996) 6 sec 667 " ( 1993) 2 sec 746

STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G.

[DIPAK MISRA, CJ!]

extraordinary power under Articles 226 and 32 ofthe Constitution, therefore, would not award damages against public authorities merely because they have made some order which ll1rns out to be ultra vires, or there has been some inaction in the performance of the duties unless there is malice or conscious abuse. Before exemplary damages can be awarded it must be shown that some fundamental right under Article 21 has been infringed by arbitrary or capricious action on the part of the public functionaries and that the sufferer was a helpless victim of that act."

31. Mr. Mehta, learned senior counsel appearing for the appellants

c has pressed hard on the said passage. According to him in a case of the present nature, the High Court could have not in exercise ofj urisdiction under Article 226 of the Constitution constituted a forum for grant of compensation and directing reimbursement. Learned senior counsel further submitted that violation offundamental right under Article 21 is different than what has been averred in the writ filed before the High Court inasmuch as the gravamen of whole issue pertained to grant of D damages caused to the places of worship.

32. Article 27 of the Constitution reads as follows:

"Article 27.-Frccdom as to payment of taxes for promotion of any particular rcligion.-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 religions denomination."

33. In The Commissioner, Hindu Religious Endowments, ll(adras (supra), the Court, while commenting on Article 27, held thus:

F "What is forbidden by the article is the specific appropriation of the proceeds of any tax in payment of expenses for the promotion or maintenance of any particular religion or religious denomination. The reason underlying this provision is obvious.

Ours being a secular State and there being freedom of religion guaranteed by the Constitution, both to individuals and to groups, G it is against the policy of the Constitution to pay out of public funds any money for the promotion or maintenance of any particular religion or religious denomination. But the object of the contribution under Section 76 of the Madras Act is not the fostering or preservation of the Hindu religion or any denomination H

within it. The purpose is to see that religious trnsts and institmions, wherever they exist, arc properly administered. It is a secular administration of the religious institution that the legislature seeks to control and the object, as enunciated in the Act, is to ensure that the endowments attached to the religious institutions are properly administered and their income is dttly appropriated for the purposes for which they were founded or exist. There is no question of favouring any particular religion or religious denomination in such cases. In our opinion, Article 27 of the Constitl\tion is not attracted to the facts of the present case."

34. In Prafitll Goradia v. Union of India", the Court, while interpreting Article 27, referred to the decisions in The Co111111issio11er, Hi11d11 Religious E11dowments, Madras (supra), Sri Jaga1111at/z Ra111a1111j Das a11d another v. State of Orissa a11d another'' and also alluded to T.M.A. Pai Fo1111dation and other.5 v. State of Karnataka 1111d others'° and opined that the said decisions did not really deal with Article 27 at any depth. Elaborating further, the two-Judge Bench held:

"6. There can be two views about Article 27. One view can be that Article 27 is attracted only when the statute by which the lax is levied specifically states that the proceeds oflhe tax will be utilised for a particular religion. The other view can be that Article 27 will be attracted even when the statute is a general statute, like the Income Tax Act or the Central Excise Act or the State Sales Tax Acts (which do not specify for what purpose the proceeds will be utilised) provided that a substantial pa1t of such proceeds are in fact utilised for a particular religion. In our opinion Article 27 will be attracted in both these eventualities. This is because Article 27 is a provision in the Constitution, and not an ordinary statute. The principles of interpreting the Constitution arc to some extent different from those of interpreting an ordinary statute vide the judgment ofHon'ble Sikri, J. in Kesavananda Bharati v. State ofKerala" (vide SCC para 15). The object of Article 27 is to maintain secularism, and hence we must constrne it from that angle.

'" c2011>2 sec 568

" AIR 1954 SC 400 " (2002) 8 sec 481

"(1973J4SCC225

7. As Lord Wright observed in Jam, es v. Commonwealth of A Australia'', a Constitution is not to be interpreted in a narrow or pedantic manner (followed in Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, l 938, In re 33). This is because a Constitution is a constituent or organic statute, vide British Coal C01pn. v. R.34 and Kesavananda Bharati v. Stale B of Kera/a (supra) (vide SCC para 506). While a statute must ordinarily be construed as on the day it was enacted, a Constitution cannot be construed in that manner, for it is intended to endure for ages to come, as Marshal, C.J. of the US Supreme Court observed in M'Culloch v. Maryland", and Holmes, J. in Jvlissouri v. Holland". Hence a strict construction cannot be C given to it.

8. In our opinion Article 27 would be violated if a substantial part of the entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or salc.s tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or maintenance ofany particular religion or religious denomination. In other words, suppose 25% of the entire income tax collected in India was utilised for promoting or maintaining any pa11icular religion or religious denomination, that, in our opinion, would be violative of Article 27 of the Constitution.

x x x x x

10. In our opinion, if only a relatively small part of any tax collected is utilised for providing some conveniences or facilities or concessions to any religious denomination, that would not be violative of Article 27 of the Constitution. It is only when a substantial part of the tax is utilised for any particular religion that Article 27 would be violated."

Be it stated, in the said case the Court was dealing with the constitutional validity of the Haj Committee Act, l 959 and the Amendment Act of2002 on the foundation that the said Act is violative of Articles 14, 15 and 27 of the Constitution.

" 1936 AC 578: (1936) 2 ALL ER 1449 (PC)

" AIR 1939 FC I

" AIR 1935 PC 158 "4LEd579: 17US316(1819) '"64 L Ed641: 252 US 416(1919)

35. In this regard, as stated earlier, the learned senior counsel for the respondent has commended us to the decisions of the Kcrala High Court in K. Reglumath (supra), the Orissa High Court in Bira Kishore Moftanty (supra) and the Karnataka High Court in Papa11na (supra).

As we have already copiously reproduced few decisions pertaining to Article 27, there is no necessity to refer to the High Court judgments.

36. Having referred to these decisions, it is obligatory to refer in detail to the order passed in Archbishop Raphael Cfteenath S. V.D. v.

State of Orissa af1d a1wtfter37 • The said authority has already been referred to in the order of the Court passed on 30.07.2012. 1nArc/1bislwp Raplrae/ Clteenatf1 S. V.D. v. State of Orissa and a11otlter", the Court, while dealing with the attack on the churches and public institutions, directed as follows:

"7. The State is also agreed to give compensation to the victims.

It is stated in the affidavit of the State that Rs. 50,000 is being given for the fully damaged house, Rs. 25,000 for partly damaged honse and Rs. 2 lakh each is being given to the damaged public institutions like schools, hospitals, etc. and Rs. 2 lakh each from the Chief Minister's Relief Fund to each of the families of the persons killed in the violence.

x x x x

I 0. We are told by the counsel for the petitioner that approximately 16 churches have been fully or partly damaged. As regards the damaged churches also the State can have a generous attitude on the matter and assess the damage of those churches or other religious places and render reasonable help to rebuild the same.

We hope that the State would create an atmosphere where there shall be complete harmony between the groups of people and the State shall endeavour to have discussions with the various groups and bring about peace and do all possible help to the victims. The existing battalions/police force sent by the Government oflndia would continue till the end of December 2008."

" (2009) 11 sec 90 '" (2009) 11 sec 87

[emphasis supplied]

STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G. 817

[DIPAK MISRA, CJ!]

37. It is worthy to note that vide order dated 30.07.2012 the Court A had reproduced the passage from Arc/Ibis/top Raphael Cl1eenatll S. V.D.

v. State of Orissa and another" and required the learned counsel for the State of Gujarat to inform the Court whether the State is contemplating any such scheme for repair or renovation of the religious places affected by the communal riots.

38. It is necessary to mention that in pursuance of the aforesaid order, a scheme has been framed by the State of Gujarat. The said scheme reads as under:

"GOVERNMENT OF GUJARAT

REVENUE DEPARTMENT Resolution No. RHL/I 02012/SLP/15730/12/S.4

Sachivalaya, Gandhinagar Dated: 18.10.2013 Read: 1. G.R. RD No. RHL/1070/60691/S4,

dated 14.07.1970

2. G.R. RD No. RHL/2185/156/84/S4, dated 29.03.1986

3. G.R. RD No. RHL/2390/3456/54, dated 05.05.1991

4. G.R. RD No. RHL/102012/SLP/15730/12/S.4,

dated 9.8.2012

PREAMBLE:

As per the assurance given on behalf of the State Government in SLP (Civil) No. 15730 of 2012, filed by the Government of Gujarat, as contained in order dated 30'' July F 2012, passed by the Honourable Supreme Court, the State Government constituted a committee for formulation of policy for giving ex gratia assistance and to prepare a draft of such policy for consideration by the Government of Gujarat vide Revenue Department Resolution dated 9" August 2012, as referred to above.

The above Committee's meetings were held on 20lh August, 2012, 4'' September, 2012 and on 21" February, 2013. The Committee went into various questions involved in formulating

" (2009) 11 sec 90

such a policy and also considered other Government Resolutions issued earlier with reference to subject matter. After detailed deliberations and considerations as above, the Committee took the view to suggest for providing ex gratia assistance to all religious places damaged/destroyed in communal riots as per the existing policy of the State Government, as reflected in above referred Government Resolutions. The Committee's conclusion reads as under:

"The policy of the past, treating the public places of worship i.e. te111plcs, mosques and churches as houses for the purpose of grant of subsidy and/or loan, may be applied to the public places of worship damaged/destroyed during 2002 riots, subject to the conditions that they are not located in the middle of roads or at unauthorized places: FIR lodged: and assistance to be given up to the amount granted for damaged house as per the existing G.R. limited to the actual cost of repairing/ restoration of that public places of worship, whichever is less."

RESOLUTION:

After careful consideration, the State Government accepts the recommendations of the Committee and decides to pay ex gratia assistance up to Rs. 50,000/- to all religious places damageq/destroyed during the communal riots at par with the similar assistance which have been provi<kd by the State Government for damaged/destroyed houses subject to the following conditions:

(i) No financial ex gratia assistance would be available/ F sanctioned to unauthorized religious places:

(ii) No religious place, if located in the middle of the public road or at any unauthorized place, shall be given any ex gratia assistance;

(iii) For availing the financial assistance under this Scheme, it is necessary that an FIR should have been lodged at the relevant point of time in the nearest police station;

(iv) The person/persons claiming such ex gratia assistance shall have to satisfy the District Collectorofthc District in which such religious place is situated about the ownership an<Vor

administration rights of religious places concerned so as to A ensure that any person unconnected with a religious place may not claim and receive ex gratia financial assistance under the Scheme. The decision of the District Collector in this behalf shall be final: and

(v) The ex gratia financial assistance given under this Scheme B shall be up to Rs. 50,0001and limited to the actual cost of repairing/ restoration, whichever is less.

The expenditure on this account should be met under the budget head Expenditure Demand No. 82, Major Head 2235-60-200-02 Relief to persons affected by riots. c

By Order and in the name of the Governor of Gujarat."

39. The said scheme has to be appreciated on the anvil of the directions issued in Prafull Goradia (supra) andArclrbislwp Raplrael Clree11atlr S. V.D. (supra). In the first case, the two-Judge Bench has opined that object of Article 27 is to maintain secularism and the said D Article would be violated ifthe substantial pmt of the 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 ofany other tax collected in India, were to be utilized for promotion or maintenance ofany particular religion or religious denomination. The Comt has made a distinction E between the relatively small pa1t ilnd the substantial part. In Arclrbi.lwp Rapltuel C/we1111tll S. V.D. v. StMe of Orissll a11d a11otl1er'" the Court emphasized on the creation of atmosphere where there shall be complete harmony between the groups of people and the duty of the State to have discussions with the various groups to bring about peace and give possible help to the victims. As stated earlier, in Arclrbisllop Rap/la el Cheenatll F S. V.D. v. Stllte of Orissa a11d a11otlrer41 the Court directed the Government to formulate a scheme regarding the religious places.

40. In the present case, similar direction was given and the State has framed the scheme. On a close scrutiny of the scheme, we have noticed that the Government has fixed the maximum amom1t under the G caption of ex gratia assistance and also conferred the power on the District Collector of the Districts where religious places are situated to determine about the ownership or administration rights of religious places

" (2009J 11 sec 87 " c2009) 11 sec 90 H

concerned. There are certain conditions precedent for claiming the amount. The terms and conditions which arc mcorporatcd in the scheme are quite reasonable. It is also worthy to note that while fixing the maximum limit, the Government has equated the same with houses which have been given the assistance. When the individual's grievances pertaining to property has been conferred the similar assistance, we arc disposed to think, the assistance rendered for repairing/restoration of public places of worship will come within the guidelines of Pru/ult Goradia (supra) and Archbishop Raphael Cheenath S. V.D. (supra).

Therefore. we aqcept the said scheme.

41 .. The cl11imants who fulfil the conditions of the scheme shall approach' the authorities therein within eight weeks and the said authorities shall determine the same within three months from the receipt of the claims. If any party is aggrieved by the denial of the benefit, he can take appropriate steps in accordance with law.

42. ln view of the aforesaid analysis, the judgment and order passed by the High Court is set aside and the appeal is disposed of in the above terms. There shall be no order as to costs.

Kalpana K. Tripathy Appeal disposed of.