Supreme Court of India
STATE OF GUJARAT AND ANOTHERversusTHE L.R.C.G. AND OTHERS
- Citation
- 2017 INSC 818
- Decided
- 29 August 2017
- Disposal
- Appeal(s) allowed
- Bench
- DIPAK MISRA
Holding
The Gujarat ex‑gratia scheme for repairing religious places is constitutionally valid and the High Court’s compensation order is set aside.
Summary
The Gujarat High Court, in a public‑interest litigation, directed the State to compensate trusts and institutions for religious places damaged in the 2002 communal riots and appointed special officers to assess claims. The State responded by framing an ex‑gratia scheme limiting assistance to Rs 50,000 per place, subject to conditions. On appeal, the Supreme Court examined whether the State could be compelled to spend public funds on repairing places of worship under Articles 25, 26 and 27 of the Constitution. It held that protecting property and places of worship is an essential facet of secularism and that the scheme, which treats damaged religious places like damaged houses, is constitutionally permissible. Consequently, the High Court’s order directing compensation was set aside and the appeal was disposed of.
Issues considered
- The State’s liability to repair or compensate for damage to religious places caused by communal riots.
- Whether directing the State to spend public funds for restoration of places of worship violates Article 27 of the Constitution.
- The validity of the ex‑gratia scheme framed by the Gujarat Government under the constitutional framework of Articles 25, 26 and 14.
- The scope of a public‑law remedy (writ under Art.226) for awarding compensation in the absence of a breach of Article 21.
Legislation cited
Subjects
public interest litigationcommunal riotsreligious placesex gratia assistancesecularismArticle 25Article 26Article 27state liabilityconstitutional tortpublic law remedy
Judgment
[2017] l l S.C.R. 787
STATE OF GUJARAT AND ANOTHER A
v.
THE l.R.C.G. AND OTHERS
(Civil Appeal No. 3249 of2016)
AUGUST29,2017 B
[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 ofpublic 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 F
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 G
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) H
787
788 SUPREME COURT REPORTS [2017] 1 l S.C.R.
A 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)
B
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
c 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
D 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
E 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
F 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
H
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 789
AIR 2012 SC 100 : [2011] 16 SCR l; Rabindra Nath A
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
B
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; c
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
D
(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 E
(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. F
Union oflndia and others (2004) 9 SCC 579 - referred
to.
Case Law Reference
[1954] SCR 1005 followed Para8 G
[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 H
790 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
(1996) 6 sec 667 referred to Para 30
E
[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
From the Judgment and Order dated 08.02.2012 passed by the
G 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. 791
Y. H. Muchhala, Huzefa Ahmadi. Ms.V. Mohana, Sr. Advs., A
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, B
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! c
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 D
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 E
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
F
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
G
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." H
792 SUPREME COURT REPORTS [2017] l l S.C.R.
A 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
B
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
c 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
D 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
E 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:-
F
"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.
G 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.
H
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 B
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. c
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.
F
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:
H
794 SUPREME COURT REPORTS [2017] ll S.C.R.
A (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
B
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
c 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"
E 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
F 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
H '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 ofArticle 27 of the Constitution. On a true, meaningful
and purposive construction ofArticle 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
D
general. On a meaningful and puiposive construction ofArticle 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 ofA1ticlc 27 in particular. In this regard, our attention has been E
invited to Arc/1 ll. Eve1·son v. Board ofEd11£·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. F
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 G
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 H
796 SUPREME COURT REPORTS [2017) l l S.C.R.
A 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
B
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
c 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
D 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
E
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
F 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
G & 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
H "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
B
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 c
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 F
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 G
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
H
798 SUPREME COURT REPORTS (2017] ll S.C.R.
A 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 ofArticle 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
B
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".
c (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
D 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
E 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
F 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
G 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
H "(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/1er 14 , 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
800 SUPREME COURT REPORTS [2017] 11 S.C.R.
A 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.
B (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
c 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
D 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
E set out in Destruciio11 ofPublic 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
F 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 " 12004J 9 sec 579
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 801
[DIPAK MISRA, CJ!]
seeking repair and restoration of mosques. dargahs. graveyards, khankahs A
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
B
·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
c
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, F
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:
G
"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
802 SUPREME COURT REPORTS (2017) l I S.C.R.
A (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
( 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.
c
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;
E (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.
G 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
H
STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G. 803
[DIPAK MISRA, CJ!]
declared in unrestricted terms without any limitation whatsoever. A
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 ofjudicial opinion
B
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
ofArticles 25 and 26 is sufiicicntly clear to enable us to determine c
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." E
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
H
804 SUPREME COURT REPORTS ;2017] ll S.C.R
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:
u "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
c 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:
D "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
E 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
F
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,
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 805
[DIPAK MISRA, CJ!]
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 ofPublic 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:
E
(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
G
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
H
806 SUPREME COURT REPORTS [2017] 11 S.C.R.
A 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
B
(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
c 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
D 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
E 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)
F
"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)
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 807
[DIPAK MISRA, CJ!]
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.
n
(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
c
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".
G
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) H
808 SUPREME COURT REPORTS (2017] 11 S.C.R.
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) Wh~re 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.
c (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
D 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
E
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.
F
(IX) Damages shall be assessed for:
(a) damages to public property;
(b) damages to private property;
G (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."
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 809
(DIPAK MISRA, CJI]
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 E
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 F
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, G
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:
H
810 SUPREME COURT REPORTS [2017] l l S.C.R.
A .. ... 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
13
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
c 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.
D • • •
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
E 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."
F
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
G 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.
H
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 811
(DIPAK MISRA, CJ!)
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
B
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 C·
the appellant therein which the appellant Corporation could not supply.
The learned single Judge by ex parte 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
ac~ount 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 E
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 F
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 ofjudicial review to grant
compensation in public law remedy is limited. The instant case is G
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.". H
812 SUPREME COURT REPORTS (20 l 7] 11 S.C.R.
A 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 ofjudicial 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
B 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
c decision in Common Cause, A Registered Socie(v 2' 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
D 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
E Behera 17 ."
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
F 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
G
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
H " ( 1993) 2 sec 746
STATE OF GUJARAT AND ANOTHER v. THE I.R.C.G. 813
[DIPAK MISRA, CJ!]
extraordinary power under Articles 226 and 32 ofthe Constitution, A
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
B
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
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
c
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 E
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 ofthe Hindu religion or any denomination
H
814 SUPREME COURT REPORTS [20 l 7] l l S.C.R.
A 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
B
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
c 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
D 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
E 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
F 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
G 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
H
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 815
[DIPAK MISRA, CJ!]
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 D
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 ofArticle
27 of the Constitution. E
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
F
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 ofArticles 14, G
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) H
816 SUPREME COURT REPORTS [2017] l l S.C.R.
A 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.
B
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,
c 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
D 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
E
I0. 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.
F 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
G Government oflndia would continue till the end of December
2008."
[emphasis supplied]
" (2009) 11 sec 90
'" (2009) 11 sec 87
H
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.
B
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
c
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 D
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,
E
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. G
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
H
818 SUPREME COURT REPORTS (2017] l l S.C.R.
A 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
B
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
c 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/
D 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
E 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
G.
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
H
STATE OF GUJARAT AND ANOTHER v. THE l.R.C.G. 819
[DIPAK MISRA, CJI]
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. 50,0001- and 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
820 SUPREME COURT REPORTS (2017] I I S.C.R.
A 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
B
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
c 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
D 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.
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