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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO.3249 OF 2016

State of Gujarat and Another                     … Appellant(s)  

Versus

The I.R.C.G. and Others         …Respondent(s)

J U D G M E N T

Dipak Misra, CJI   

The  present  appeal,  by  special  leave,  assails  the

judgment and order dated 8th February, 2012, passed by the

High Court of Gujarat in Special Civil Application No. 3023 of

2003 with Civil Application No. 6115 of 2004.

2. The essential facts that need to be stated are that the

High Court was moved by way of a 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

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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 further  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 pendency 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 spent 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

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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

of those religious and places of worship situated within the

territorial limit of their respective court.  After so directing,

the High Court further proceeded to state that the aggrieved

persons  should  lodge  their  respective  claim  with  those

Special Officers within two months from the date of judgment

supported by the documentary evidence they propose to rely

in support 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  Officers  on  consideration  of  the  entire materials on record will decide the matters and fix the  amount  of  disbursement,  if  proved  to  have been incurred by them.  In the cases, where the

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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 or the balance amount of repair, as the case may be, to be made by the State Government.”

And again:-

“The final order should be passed by the learned Special Officers within six months of lodging 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 Court in this regard.

We,  keep  this  public  interest  litigation pending for the scrutiny of  the final decisions of the  learned  Special  Officers  on  compensation  or repair, as the case may be, on merit.”

5. When the  matter  travelled  to  this  Court,  the  hearing

continued and on 30th 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

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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.”

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 27th August, 2013, the Court passed the following  

order:

“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 of India 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 appearing for the respondents.

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8. Mr. Tushar Mehta, learned senior counsel appearing for

the State of Gujarat has raised the following contentions:

(a) The State fund which 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 issu-

ing a writ under Article 226 of the Constitution of India, inas-

much as under the scheme of Articles 25, 26, 27 and 28 un-

der the heading “Right to Freedom of Religion”, the Constitu-

tion protects certain rights while prohibiting certain actions.

What is protected is right 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 promo-

tion or maintenance of any particular religion or religious de-

nomination. 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 does 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 Endow-

ments, Madras v. Sri Lakshmindra Thirtha Swamiar of

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Sri Shirur Mutt1 and Dr. M. Ismail Faruqui and others v.

Union of India and others2.   

(b) In  cases  of  damage  to  properties  (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 III of

the  Constitution of India as a fundamental right under the

43rd 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 juris-

diction of Constitutional Courts as “Public Law Remedy” only

in cases of  breach/violation of fundamental right and that

too only the right Article 21 of the Constitution.  In this re-

gard,  learned  senior  counsel  has  commended  us  to  Ra-

bindra Nath Ghosal v.  University of Calcutta and oth-

ers3, Hindustan Paper Corpn. Ltd. v. Ananta Bhattachar-

1  AIR 1954 SC 282 2  (1994) 6 SCC 360 3  (2002) 7 SCC 478

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jee and others4 and Municipal Corporation of Delhi v. As-

sociation of Victims of Uphaar Tragedy and others5.

(c) Issue of any writ having the effect of use of tax-payers’

money for 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 construc-

tion of Article 27, no writ, order or direction can be issued

having the direct or indirect effect of use of State funds for

repair/ restructuring/ construction of any religious places.

The term “of any particular religion” or “religious denomina-

tion” as used in Article 27 needs to be given wider interpreta-

tion so as to protect, preserve and give effect to the spirit of

Article 27. On a purposeful interpretation of Article 27, it be-

comes apparent that  the funds of  the State  cannot be di-

rected to be used for ‘maintenance’ [which includes repair/

restructuring/ construction] of any religion (which essentially

includes religious places) 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

4  (2004) 6 SCC 213 5  AIR 2012 SC 100

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worship of all religions which will be in stark contrast to the

spirit  and object of Article 27 in particular and that of Arti-

cles 25, 26, 27 and 28 in general.  On a meaningful and pur-

posive construction of Article 27, even in such a case when

the State fund is directed by the High Court by way of a writ

for ‘maintenance’ of all religions [which term would necessar-

ily include repair/ restructuring/ construction of ‘places of

worship’], it would still be offending the secular fabric of the

Constitution and it would be violative of Article 27 in particu-

lar. In this regard, our attention has been invited to Arch R.

Everson v. Board of Education of the Township of Ew-

ing6.

(d) The High Court, in exercise of its constitutional writ ju-

risdiction 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 Constitution only.  If a constitutional court

finds some action to be violative of any other Fundamental

Rights; say an arbitrary action offending Article 14, curtail- 6  330 US 1

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ment  of  Freedom of  Speech  and  Expression  under  Article

19(1)(g), etc. the Constitutional Court will strike down such

action or will issue an injunctive writ.   However, Constitu-

tional 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 from a particular place; there-

fore, alleged damage to any religious structure of any religion

would not fall within the sweep of violation of Article 21 of

Constitution. The High Court, therefore, ought not to have is-

sued an interim writ  direction for  quantification of  ‘actual

damages’ to ‘places of worship.’  To bolster the said submis-

sion,  reliance is  placed on the decisions rendered in  M.C.

Mehta and another v. Union of India and others7,  Hin-

dustan Paper Corpn. Ltd. (supra) and Association of Vic-

tims of Uphaar Tragedy (supra).

(e) Award  of  compensation  by  constitutional  courts  is  a

remedy  in  public  law.  The  very  genesis  of  the  concept  of

award 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 com- 7  (1987) 1 SCC 395

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pensation for breach of Fundamental Rights would be exer-

cised only when the “person aggrieved” comes before the con-

stitutional 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 submitted

that any organization, merely by making representations to

the State Government claiming to represent “aggrieved par-

ties”  would  not  become  “an  aggrieved  party”  itself  and

thereby acquire  ‘locus standi’ to maintain a petition under

Article 226 of the Constitution.  Learned counsel in order to

buttress the said submission, has commended us to  Com-

mon Cause, A Registered Society v. Union of India and

others8.

(f) The High Court, under the impugned order, has virtu-

ally 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 re-

ceive compensation, the High Court could not have created a

forum since it has conferred adjudicating power in it in a dif- 8  (1999) 6 SCC 667

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ferent way.  In this regard, support has been drawn from P.

Ramachandra  Rao  v.  State  of  Karnataka9, Common

Cause (A Registered Society) v. Union of India & others10

and Pravasi Bhalai Sangathan v. Union of India & oth-

ers11. That apart, the High Court has directed computation of

actual compensation to “places of worship” and has created a

totally new remedy by the impugned judgment which is un-

known to law.  The High Court has issued an interim direc-

tion 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, enforce-

able nor capable of execution as per law, for it is not known

as to what procedure such “Special Officers” are required to

follow, while seeking to adjudicate the quantum.  It is diffi-

cult  to  fathom as to what is  the  remedy of  any party  ag-

grieved 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

9  (2002) 4 SCC 578 10  (2008) 5 SCC 511 11  (2014) 11 SCC 477

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statutory  body  like  a  public  trust,  wakf  or  a  society,  etc.

When all people residing in the vicinity of such vaguely de-

scribed 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 commu-

nity  might  have  contributed  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 are to be adju-

dicated and/or appropriated.  It is also not clear when the

believers of a particular religious place of worship have al-

ready restored the damaged place of worship [which has in

fact been done before many years], how the amount of com-

pensation  would  be  appropriated  amongst  such  believers

who have contributed without any claims.  

(g) The statutory period of limitation for such affected per-

sons to otherwise approach the civil courts has already ex-

pired years back. However, the very same affected persons

[who never took recourse to any legal remedy] are now per-

mitted to approach the District Judges with a prayer to adju-

dicate their claims for compensation as a civil suit.  The High

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Court could not have, by issuing such interim writ, extended

the statutory period of limitation indirectly.  9. Mr. Y.H. Muchhala and Mr. Huzefa Ahmadi, learned se-

nior counsel appearing for the respondents have raised the

following contentions:

(a) Attack on religious places of worship is an attack on re-

ligious symbolism of people who hold them as sacred. De-

struction of places of worship belonging to weaker section of

the society by a dominant group is to inflict humiliation on

them and thereby violate Article 21 of the Constitution.  If

the State fails to protect large scale 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 of

laws to all persons and, therefore, it is the fundamental obli-

gation of the State to protect religious places of worship be-

longing to every section of  the people.   This  is  one of  the

facets of secularism. Therefore, there is a breach of Funda-

mental Right of the said sufferers. For the said purpose, they

have relied upon  Dr. M. Ismail Faruqui  (supra) and  S.R.

Bommai and others v. Union of India and others12.

12  (1994) 3 SCC 1

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(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 justified in invoking the ‘public law remedy’ as such

negligence could invite the principle of concept of “Constitu-

tional tort”.  That apart, the State Government has specifi-

cally  accepted before the National  Human Rights Commis-

sion (NHRC) that it would restore the places of worship which

have been damaged.  Emphasis has been laid on various as-

pects of the reports of the NHRC.  In view of the reports, it

was  the  obligation of  the  State  Government  to  inform the

elected representatives of the people of the concerned legisla-

tures the reasons for non-acceptance of the NHRC reports.

In the absence of  non-disclosure of  reasons, the State be-

comes absolutely responsible 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  the  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 com-

prehensive failure of law and order in the State of Gujarat

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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 com-

pensation  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 Sanjay Gupta and others v. State of

Uttar Pradesh and others13.

(d) The plea of the State Government that to provide com-

pensation for 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.  How-

ever, 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  suf-

fered by destruction of places of worship is not for the pro-

motion 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 13  (2015) 5 SCC 283

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then it has to compensate the aggrieved person for such vio-

lation. The compensation is appropriated for providing relief

for violation of human rights and not for the promotion of

maintenance of any particular religion or religious denomina-

tion 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. Reghunath v. State of Kerala and

another14, the Orissa High Court in Bira Kishore Mohanty

v. State of Orissa15 and the Karnataka High Court in  Pa-

panna and Etc. v. State of Karnataka and others16. The

directions  issued  by  this  Court  in  Archbishop  Raphael

Cheenath S.V.D. v.  State of Orissa and another17 have

also been placed reliance upon to strengthen the said propo-

sition. The decision supports the principle that the incurring

of  expenses for reconstruction and restoration of  places of

worship damaged in violence would not be in violation of Ar-

ticle 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 con-

14  AIR 1974 Kerala 48 15  AIR 1975 Orissa 8 16  AIR 1983 Karnataka 94 17   (2009) 17 SCC 87 and 90

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tend before the District Judge that a particular place of wor-

ship was/is unauthorized and the District Judge will  con-

sider 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 Court can wait because it has not finally dis-

posed of the writ petition.

(f) It is the fundamental obligation of the State to protect the

places of worship which is the facet of secularism and also

covered by Article 14 of the Constitution. When there is fail-

ure,  the  State  is  liable  to  pay  the  damages  for  the  same.

There cannot be distinction in law between damage done to

the collective property of the community and to an individ-

ual. 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 fundamen-

tal constitutional obligation.  

(g) Articles 14, 21, 25 and 26 of the Constitution have to be

woven together and they cannot be compartmentalized in a

strait-jacket manner. It is an established principle of Consti-

tutional law that the fundamental rights cannot be compart-

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mentalized 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 India18.  

(h) The relief scheme framed by the High Court is in conso-

nance  with  the  guidelines  laid  down by  this  Court  in  De-

struction of Public and Private Properties, In Re v. State

of  Andhra  Pradesh  and others19. Similar  schemes  were

framed in  Ranganathan and another v. Union of India

and others20, Ranganathan and another v. Union of In-

dia and others21 and  Association of Victims of Uphaar

Tragedy  (supra). Guidelines are laid by the Court as there is

no law for compensation for such losses and the same are

laid down to deal with exigencies till the law for the same is

framed.  Reliance has been placed on the principles set out

in  Destruction of  Public  and Private  Properties,  In  Re

(supra).  

(i) As there had been failure of law and order situation at the

relevant time it becomes the constitutional obligation of the

18   (1970) 2 SCC 298 19   (2009) 5 SCC 212 20   (1999) 6 SCC 26 21   (2004) 9 SCC 579

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State to compensate the victims and also to reimburse 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 of

law, right guarantee under the Constitution and also a part

of the international conventions.

10. Having noted the submissions, it is necessary to clear

the maze. The assertions in the public interest litigation be-

fore the High Court did not project the case of any individual.

To 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 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 incident were not laid before the State Legisla-

ture and hence, there was violation of Section 20 of the Pro-

tection of Human Rights Act, 1993. Similar stand has been

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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 dam-

aged by restoring to their original position or granting reim-

bursement 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 immedi-

ately clarify that the learned senior counsel appearing for the

respondents has copiously referred to us to various interna-

tional conventions, the opinions of statutes of International

Criminal Tribunal of other countries and also judgments of

European Court of Human Rights.  As far as present  lis is

concerned, we are of the considered opinion that the same

are not relevant. We think it appropriate to refer to the au-

thorities of this Court which have 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

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matter  of  right  as  the  State  is  not  bound  to  spend  any

amount for restoration of the place of worship. Mr. Much-

hala, learned senior counsel for the respondents, per contra,

would contend that when damage is caused to the places of

worship of a minority, the right of the said group or stream is

affected and that right would come within Articles 25 and 26

of the Constitution of India.

14. Articles 25 and 26 read as under:

“Article  25.  Freedom  of  conscience  and  free profession, practice and propagation of religion.— (1) 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 (2) Nothing in 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 of a public  character  to  all  classes  and  sections  of Hindus.

Explanation I.―The wearing and carrying of  kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation  II.―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

23

religious institutions shall be construed accordingly.

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 of religion; (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  compartmentalized  as  one  draws  sustenance  from  the

other. In essence, the argument is that strait-jacket compart-

mentalization 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 Endowments,

Madras (supra), the Constitution Bench, while dealing with

Articles 25 and 26, held:

“22. It is to be noted that both in the American as well as in the Australian Constitutions the right to freedom  of  religion  has  been  declared  in  unre- stricted  terms  without  any  limitation  whatsoever. Limitations,  therefore,  have  been  introduced  by courts  of  law  in  these  countries  on  grounds  of

24

morality, order and social protection. An adjustment of the competing demands of the interests of Gov- ernment and constitutional liberties is always a del- icate and difficult task and that is why we find dif- ference  of  judicial  opinion  to  such  an  extent  in cases decided by the American courts where ques- tions of religious freedom were involved.     Our Constitution-makers, however, have embod- ied the limitations which have been evolved by judi- cial pronouncements in America or Australia in the Constitution itself and the language of Articles 25 and 26 is sufficiently 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 of religion in our Constitution is not confined to reli- gious beliefs only; it extends to religious practices as well subject to the restrictions which the Constitu- tion itself has laid down. Under Article 26(b), there- fore, a religious denomination or organization enjoys complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere 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 are an essential  part  of  secularism  enshrined  in  our 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.”

25

18. In the said case,  B.P. Jeevan Reddy, J. observed:

“While  the  citizens  of  this  country  are  free  to profess, practice and propagate such religion, faith or  belief  as  they  choose,  so  far  as  the  State  is concerned, i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all are entitled to be treated equally….”  

19. Ahmadi, J. (as His Lordship then was), concurring with

the views of Justice Sawant, Ramaswamy and Jeevan Reddy,

JJ., held:  

“Notwithstanding the fact that the words ‘Socialist’ and  ‘Secular’  were  added  in  the  Preamble  of  the Constitution in 1976 by the 42nd Amendment, 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 of a precise defi- nition  and  perhaps  best  left  undefined.  By  this amendment what was implicit was made explicit.”

20. In Dr. M. Ismail Faruqui (supra), after referring to the

authority in  S.R. Bommai  (supra), the Constitution Bench

held:   

“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  va- lidity  of  any  legislation  on  the  touchstone  of  the

26

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 equal-

ity. 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 con-

stitutional 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 belonging to all religions have been

damaged and affected. Be it clarified, though the learned se-

nior  counsel  appearing  for  the  respondents  laid  immense

stress on the failure of law and order situation and non-exis-

tence of the active role of the executive to curtail the disaster,

27

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 or re-

store 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 Con-

stitution.

23. Before dwelling upon Article 27, we may profitably refer

to 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  of  large-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 re-

ports  from  two  committees  -  one  headed  by  Justice  K.T.

Thomas and the other by Mr. F.S. Nariman, a senior member

of the legal profession. It has referred to the recommenda-

tions of the Committee headed by Justice K.T. Thomas and

also that of F.S. Nariman Committee.  Summarizing the basic

28

principles  as  suggested by Nariman Committee,  the  Court

enumerated the same:

(1) The basic principle for measure of damages in torts (i.e. wrongs) in property is that there should be “restitutio in integrum” which conveys the idea of “making whole”.

(2)  Where  any  injury  to  property  is  to  be compensated  by  damages,  in  settling  the  sum of money to be given for reparation by way of 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  of restitutio  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 are at large i.e.  not  limited to  the  pecuniary  loss  that  can be specifically  proved,  the  Court  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  to  compensate the plaintiff for his wounded feelings, they must be distinguished  from exemplary  damages  which  are punitive in 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  are  awarded  to  punish  the

29

defendant and to deter him and others from similar behaviour  in  the  future.  The  law  in  England  (as restated in  Rookes v. Barnard22 affirmed in  Cassell & Co. Ltd. v. Broome23) is that such damages are not generally  allowed.  In  England  they  can  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 are provided by statute.

(3.3) In the decision in Kuddus v. Chief Constable of Leicestershire  Constabulary24,  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. v. 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  court’s  discretionary jurisdiction to award exemplary damages is  conduct  which  was  an  outrageous disregard of the plaintiff’s rights.”

(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 evolve a principle of liability, punitive in nature, on account of  vandalism  and  rioting  leading  to damages/destruction of property public and private. Damages must also be such as would deter people

22  1964 AC 1129: (1964) 2 WLR 269: (1964) 1 ALL ER 367 (HL) 23  1972 AC 1027: (1972) 2 WLR  645: (1972) 1 ALL ER 801 (HL) 24  (2002) 2 AC 122: (2001) 2 WLR 1789: (2001) 3 ALL ER 193: 2001 UKHL 29  

(HL)

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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’ble  Court dated 18-6-2007 making the present reference.

(3.5) In Winfield and Jolowicz 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 compensation with punishment appears to have been confirmed by the Privy Council (in Gleaner Co. Ltd. v. Abrahams25 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.”

(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 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”.

25  (2004) 1 AC 268: (2003) 3 WLR 1038 (PC)

31

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 of legislation and framed the

following guidelines:

“(I) 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)  Where  there  is  more  than one  State  involved, such action may be taken by the Supreme Court. (III)  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. (VI)  The principles of  absolute liability  shall  apply once the nexus with the event that precipitated the damage is established. (VII)  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

32

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 (d) 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 after hearing the parties.”

After so stating, the Court directed that the guidelines

shall be 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:

“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  unfortunate  man-made  tragedy.  It  is  the admitted position 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 been paid by the Central Government. As far as seriously

33

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  10  to  12  are  concerned,  no liability  can  be  fastened  under  Article  32  of  the Constitution  of  India,  and  definitely  not  at  this stage.  As  far  as  first  part  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 Victims of Uphaar Tragedy  (supra),

Radhakrishnan, J., in his concurring opinion, opined:

“ … Right to life guaranteed under Article 21 of the Constitution  of  India  is  the  most  sacred  right 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 of  India  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

34

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 are 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 under  Article  21  of  the  Constitution  of  India.  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

particular 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

35

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

considering  whether  the  High  Court  in  exercise  of  its

jurisdiction  under  Article  226  of  the  Constitution  of  India

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

Ministry  of  Human  Resource  Development,  Department  of

Education, Government of India floated a scheme purported to

be for securing equitable distribution of white printing paper.

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 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

36

already been accept by them.  The application for recall was

dismissed.  In appeal, the Division Bench noted the contention

of the appellant and took into account 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%  per

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 fun- damental 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 ju- dicial  review to  grant  compensation in public  law remedy is limited. The instant case is not one 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  re- spondents under Article 21 of the Constitution has been violated.”

37

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  court  of  judicial  review  to  grant

compensation in public law is limited. There cannot be any

quarrel about the said proposition of law.

30. In Rabindra Nath Ghosal (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

Society26 and adverted to the concept of public law remedy

and opined:  

“A claim in public law for compensation for contra- vention of human rights and fundamental freedoms, the protection of which is guaranteed in the Consti- tution 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  enforce- ment of fundamental right is distinct from, and in

26  (1996) 6 SCC 667

38

addition to the remedy in private law for damages for the tort, as was held by this Court in Nilabati Be- hera27.”

And again:  

“The courts having the obligation to satisfy the so- cial 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 protec- tion  of  fundamental  rights  and grants  compensa- tion, it does so under the public law by way of pe- nalising 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 would not be correct to assume that every minor infraction of public duty by every public officer would commend the court to grant compen- sation in a petition under Articles 226 and 32 by applying the principle of public law proceeding. The court in exercise of extraordinary power under Arti- cles  226  and  32  of  the  Constitution,  therefore, would not award damages against public authorities merely because they have made some order which turns 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  exem- plary 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 has pressed hard on the said passage. According

to him in a case of the present nature, the High Court could

27  (1993) 2 SCC 746

39

have not in exercise of jurisdiction under Article 226 of the

Constitution constituted a forum for grant of compensation

and directing reimbursement.  Learned senior counsel further

submitted that violation of fundamental 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 damages caused to the places of

worship.

32. Article 27 of the Constitution reads as follows: “Article 27.──Freedom as to payment of taxes for promotion of  any particular  religion.─No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of ex- penses for the promotion or maintenance of any par- ticular religion or religions denomination.”

33. In The Commissioner, Hindu Religious Endowments,

Madras (supra), the Court, while commenting on Article 27,

held thus:

“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, it is against the policy of the Constitution to  pay  out  of  public  funds  any  money  for  the promotion  or  maintenance  of  any  particular

40

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 within it. The purpose  is  to  see  that  religious  trusts  and institutions,  wherever  they  exist,  are  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  duly  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 Constitution is not attracted to the facts of the present case.”

34. In  Prafull  Goradia  v.  Union  of  India28,  the  Court,

while interpreting Article 27, referred to the decisions in The

Commissioner,  Hindu  Religious  Endowments,  Madras

(supra),  Sri Jagannath  Ramanuj  Das  and  another  v.

State of Orissa and another29 and also alluded to  T.M.A.

Pai Foundation and others v. State of Karnataka and

others30 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 tax is levied specifically

28  (2011) 2 SCC 568 29  AIR 1954 SC 400 30  (2002) 8 SCC 481

41

states that the proceeds of the 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 sub- stantial part 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 Consti- tution, and not an ordinary statute. The princi- ples of interpreting the Constitution are to some extent different from those of interpreting an or- dinary statute vide the judgment of Hon’ble Sikri, J.  in  Kesavananda Bharati  v.  State  of  Kerala31 (vide SCC para 15). The object of Article 27 is to maintain  secularism,  and  hence  we  must  con- strue it from that angle.

7. As Lord Wright observed in  James v. Com- monwealth of Australia32, 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, 1938, In re33). This is because a Constitution is a con- stituent  or  organic  statute,  vide  British  Coal Corpn. v. R.34 and Kesavananda Bharati v. State of Kerala  (supra)  (vide  SCC  para  506).  While  a statute must ordinarily be construed as on the day it was enacted, a Constitution cannot be con- strued in that manner, for it is intended to en- dure for ages to come, as Marshal, C.J. of the US Supreme  Court  observed  in  M’Culloch  v.  Mary- land35,  and Holmes,  J.  in  Missouri  v.  Holland36. Hence a strict construction cannot be given to it.

8. In our opinion Article 27 would be violated if a substantial  part of  the entire income tax col-

31  (1973) 4 SCC 225 32  1936 AC 578 : (1936) 2 ALL ER 1449 (PC) 33  AIR 1939 FC 1 34  AIR 1935 PC 158 35  4 L Ed 579 : 17 US 316 (1819) 36  64 L Ed 641 : 252 US 416 (1919)

42

lected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or main- tenance of any particular religion or religious de- nomination. In other words, suppose 25% of the entire income tax collected in India was utilised for promoting or maintaining any particular reli- gion or religious denomination, that, in our opin- ion, would be violative of Article 27 of the Consti- tution.

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 vi- olative 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,  1959

and the Amendment Act of 2002 on the foundation that the

said Act is violative of Articles 14, 15 and 27 of the Constitu-

tion.

35. In  this  regard,  as  stated  earlier,  the  learned  senior

counsel for the respondent has commended us to the deci-

sions of the Kerala High Court in K. Reghunath (supra), the

Orissa High Court in Bira Kishore Mohanty (supra) and the

43

Karnataka High Court in  Papanna (supra). As we have al-

ready copiously reproduced few decisions pertaining to Arti-

cle 27, there is no necessity to refer to the High Court judg-

ments.

36. Having referred to these decisions, it is obligatory to re-

fer  in  detail  to  the  order  passed  in  Archbishop Raphael

Cheenath S.V.D.  v.  State of  Orissa and another37.  The

said authority has already been referred to in the order of the

Court  passed  on  30.07.2012.  In  Archbishop  Raphael

Cheenath S.V.D.  v.  State  of  Orissa and another38,  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 house and Rs. 2 lakh each is being given to the damaged public  institutions like  schools,  hospi- tals, etc. and Rs. 2 lakh each from the Chief Min- ister’s Relief Fund to each of the families of  the persons killed in the violence.

x x x x 10. 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 atti- tude  on  the  matter  and  assess  the  damage  of

37  (2009) 17 SCC 90 38  (2009) 17 SCC 87

44

those churches or other religious places and ren- der 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 of India would continue till the end of December 2008.”

[emphasis supplied]

37. It is worthy to note that vide order dated 30.07.2012 the

Court  had  reproduced  the  passage  from  Archbishop

Raphael  Cheenath  S.V.D.  v.  State  of  Orissa  and  an-

other39 and required the learned counsel for the State of Gu-

jarat 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/102012/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,  

39  (2009) 17 SCC 90

45

              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 30th July 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 9th August 2012, as referred to above.

The above Committee’s meetings were held on 20th August,  2012,  4th September,  2012  and  on 21st February,  2013.   The  Committee  went  into various questions involved in formulating 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. temples, 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:

46

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 damaged/destroyed during the communal riots at par with the similar assistance which have been provided  by  the  State  Government  for damaged/destroyed  houses  subject  to  the following conditions: (i) No  financial  ex  gratia assistance  would  be

available/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 Collector of  the District  in which such reli- gious place is situated about the ownership and/or  administration  rights  of  religious places  concerned  so  as  to  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 shall be up to Rs. 50,000/- and limited  to  the  actual  cost  of  repairing/ restoration, whichever is less.

47

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.

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) and Arch-

bishop Raphael Cheenath 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 Article would be violated

if the substantial part of the entire income tax collected in In-

dia, or a substantial part of the entire central excise or the

customs duties  or  sales  tax,  or  a  substantial  part  of  any

other tax collected in India, were to be utilized for promotion

or maintenance of any particular religion or religious denomi-

nation. The Court has made a distinction between the rela-

tively small part and the substantial part.  In  Archbishop

Raphael  Cheenath  S.V.D.  v.  State  of  Orissa  and  an-

other40 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 40  (2009) 17 SCC 87

48

help  to  the  victims.   As  stated  earlier,  in  Archbishop

Raphael  Cheenath  S.V.D.  v.  State  of  Orissa  and  an-

other41 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 amount under the 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 concerned.  There are certain conditions precedent for

claiming the amount.  The terms and conditions which are

incorporated in the scheme are quite reasonable.  It is also

worthy to note that while fixing the maximum limit, the Gov-

ernment has equated the same with houses which have been

given the assistance. When the individual’s grievances per-

taining to property has been conferred the similar assistance,

we are disposed to think, the assistance rendered for repair-

ing/restoration of public places of worship will come within

the guidelines of  Prafull Goradia (supra) and  Archbishop 41  (2009) 17 SCC 90

49

Raphael Cheenath S.V.D. (supra). Therefore, we accept the

said scheme.

41. The claimants 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  ag-

grieved by the denial of the benefit, he can take appropriate

steps in accordance with law.

42. In view of the aforesaid analysis, the judgment and or-

der 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.                                     

                                     ...........................................CJI [Dipak Misra]

.….................................................J. [Prafulla C. Pant]

       New Delhi; August 29, 2017.