CASE COMMENTARY: STATE OF GUJARAT & ANR. V. THE IRCG & ORS.

CASE COMMENTARY: STATE OF GUJARAT AND ANR. V. THE

I.R.C.G. AND ORS.

INTRODUCTION

The State of Gujarat witnessed widespread communal riots in the year 2002. During the
period of riots, a large number of lives and properties were lost. The riots also resulted in
destruction of many places of religious significance in the form of temples and mosques.
IRCG (Islamic Relief Committee of Gujarat) moved the Gujarat High Court against the
Government of Gujarat, demanding compensation, repairment and reimbursement for
reconstruction and repairing dargahs, graveyards, khankahs, etc. The High Court allowed the
petition. Government, however, challenged it in the Supreme Court in light of constitutional
obstruction of Article 27 which restricts State to spend State funds comprised of taxes for
promotion of any particular religion. The Supreme Court dismissing the High Court’s order,
delivered its judgement in favour of government scheme offering ex gratia assistance to
temples and mosques.

FACTS

 Islamic Relief Committee of Gujarat filed a public interest litigation petition before
the Gujarat High Court against the Government of Gujarat.
 The petition prayed for compensation and repairment for places of religious
importance like dargahs, graveyards, khankahs, etc. which suffered desecration and
destruction during the period of 2002 communal riots. It also prayed for commanding
the State Government to adequately compensate the trusts and institutions owning the
said religious places.
 The High Court passed a number of directions including for compensation, restoration
and reimbursement of amount spent for restoration. It also appointed Principal District
Judges of various districts as the Special Officers for deciding the compensation
quantum. The High Court went on further to state that the aggrieved persons lodge
their respective claim with those Special Officers within two months.
 The High Court, however, kept the PIL pending for scrutiny of the final decisions of
the Special Officers.

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CASE COMMENTARY: STATE OF GUJARAT & ANR. V. THE IRCG & ORS.

 As the case reached Supreme Court, the Government informed the Apex Court that a
scheme is being formulated regarding the religious places and challenged High
Court’s order on various grounds.

ISSUES RAISED

The Government of Gujarat challenged the Gujarat High Court’s order primarily on three
grounds:

 The High Court cannot, under its writ jurisdiction under Article 226 of the
Constitution, command the Government to use funds which consist payment of
various taxes by citizens to be spent for restoration/construction of any religious place
since the Constitution prohibits compelling any person to pay any tax, proceeds of
which is to be spent for the promotion or maintenance of any particular religion or
religious denomination. It submitted that the fundamental right to profess, practice
and propagate religion does not include right to profess, practice or propagate any
religion from any particular place. It cited The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiari, and Dr. M. Ismail
Faruqui v. Union of Indiaii for the said contention.
 Damage to properties is an alleged deprivation of Right to Property which gives rise
to a civil cause of action for damages by aggrieved parties only. The High Court in
exercise of its writ jurisdiction can grant compensation only when there is an
established breach of Article 21 of the Constitution.

JUDGMENT

The Supreme Court began with clearing the maze amidst a number of conflicting contentions.
It recognized as thrust of the matter the question – whether the State would be obligated to
compensate the institutions or bodies, that look after the religious places which were
damaged, by restoring to their original position or granting reimbursement of the amount to
the people who have done the same.

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CASE COMMENTARY: STATE OF GUJARAT & ANR. V. THE IRCG & ORS.

The Court also rejected all the international conventions, opinions of international tribunals
and other foreign authorities, and restricted reference only to views of the Supreme Court
pertaining to the religious rights.

Noting the opinions of the Court in The Commissioner, Hindu Religious Endowments,
Madras case,iii S.R. Bommai caseiv and Dr. M. Ismail Faruqui case v, the Court reaffirmed the
legal position between State and religion. It held that the State is obliged under the
Constitution to treat persons belonging to all faiths with equality. It observed protection of
property and places of worship as an essential feature of secularism.

Writ jurisdiction and grant of compensation

The Court upheld the Government’s contention that public law remedy for granting
compensation can be resorted to only when Article 21 of the Constitution is violated and not
otherwise. Drawing inference from Hindustan Paper Corpn. Ltd. casevi, Association of
Victims of Uphaar Tragedy casevii and Sanjay Gupta case, the Court ruled not every violation
of the Constitutional provisions enables direction of compensation grant. The Court’s power
of judicial review to grant compensation is limited. The Apex Court considered and affirmed
the ruling in Association of Victims of Uphaar Tragedy case viii wherein it was observed that
“the constitutional courts… 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.”

Use of State fund and Article 27

Concern before Supreme Court was not novel. The State fund is constituted, to a large extent,
of taxes. When the High Court directed the Government to utilise that amount for purposes
related to religious places, Article 27 arose as obstruction.

In this regard, the Court refereed to its decision in Prafull Goradia v. Union of India.ix
Reiterating the ruling, the Apex Court laid down that Article 27 shall be attracted provided a
substantial part of tax proceeds are utilised for a particular religion. For eg., Article 27 would
have been violated if substantial part of the entire income tax, goods & services tax was
utilised for promotion or maintenance of any particular religion or religious denomination.

It was held that if only a relatively small part of collected tax is moved for providing
conveniences or concessions to any religion, no violation of Article 27 can be established.

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CASE COMMENTARY: STATE OF GUJARAT & ANR. V. THE IRCG & ORS.

Further, while discussing the case of Archibishop Raphael Cheenath S.V.D. v. State of
Orissax, the Court asked the Government’s counsel whether a scheme of compensation has
been formulated by the Government. Government of Gujarat informed the Court about its
scheme wherein it decided to pay ex gratia assistance up to Rs. 50,000/- for
repair/reconstruction of religious places which suffered damage during the 2002 riots,
provided the place of worship is not unauthorized, not located at any unauthorized place and
an FIR has been lodged at the relevant point of time in the nearest police station.

The Court scrutinised the scheme and observed: “the assistance rendered for
repairing/restoration of public places of worship will come within the guidelines of Prafull
Goradiaxi and Archbishop Raphael Cheenath S.V.D.xii Therefore, we accept the said scheme.”

Conclusion

The Court made pertinent observations on compensation grant under writ jurisdiction and
applicability of Article 27 of the Constitution of India, besides scrutinising the scheme
formulated by the Government of Gujarat. On weighing facts and law, High Court’s order
was set aside by the Supreme Court.

CRITICAL ANALYSIS

The Supreme Court resolved crux of the dispute in the instant case. However, gaps remain.

One of the primary issues that is since long pending is the expenditure from the State fund
into projects of religious sphere. Because of the intrinsic pluralistic character of Bharat,
where beliefs are found abundant, governments share a close relationship with religious
practices, festivals, pilgrimages and places of worship. This is in addition to the fact that
India’s culture is immersed in what can be called the Hindu ways, and thus, the thin line
separating cultural activities from religious activities keep on vanishing.

A huge expenditure from State funds can be observed in projects of religio-cultural

significance. As India does not entertain a notion of secularism similar to that in the United
States of America, utilisation of tax proceeds for promotion or maintenance of a religion
raises no alarms as far as it does not amount to substantive portion of the tax collection. But
what quantum of finances will be considered “a substantive portion” is difficult to answer.

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CASE COMMENTARY: STATE OF GUJARAT & ANR. V. THE IRCG & ORS.

If the test for applicability of Article 27 is allocation of substantive amount, it is necessary to

determine in objective terms the cap amount. Judiciary’s or legislature’s inability to arrive at
objective decision on this issue comes at a cost – popular distrust in the Constitution and
judicial competence.

Judiciary must shoulder the burden of putting in place a framework of tax proceeds allocation
to the extent of the force of Article 27 of the Constitution of India. In not doing so, the State
runs the risk of politically motivated unequal treatment of religions by governments under the
protection of exception to Article 27 – allowance to utilise funds unless it comprises of big
piece of the pie.

Secondly, the onus of compensation must shift. In occurrences of public disorder and riots,
the miscreants causing the actual damage to the State infrastructure and number of private
properties evade civil consequences of their misconduct. It is so because individuals, unlike
the government, lack the machinery to identify and bring before the law the person who
caused damage to the property during a riot. Victim is not only the individual, but also the
State. Loss of property of the individual has to be compensated by the State funds. The State
funds ultimately belong to the society. By compensation claims against the government,
exhaustion occurs of only our resources, with the guilty men evading civil liabilities to a large
extent.

This necessitates shifting onus of compensation. Inspiration must be drawn from the recent
and remarkable legislative innovation in Uttar Pradesh. After riots in Uttar Pradesh, the State
Government cleared an ordinance titled 'Uttar Pradesh Public and Private Property Damage
Recovery Ordinance, 2020.’ Under the stated ordinance, a Tribunal will act like a civil court
and an individual who has suffered loss of private property will be enabled to file a claim
petition before the tribunal. On determination of the claim, the defendant will be liable to pay
the damages. In case of defendant’s inability to do so, his properties shall be attached and
sold. Moreover, such proceedings will have no effect on any criminal proceeding against the
defendant.

A law similar to the above-stated ordinance will ensure not only justice to private property,
but will also deter indiscriminate destruction of infrastructure.

The Apex Court in the instant case wisely weighed and balanced both public and private
interests, but a more profound positioning of law is required to similar instances of
widespread riots and ruin

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i
1954 AIR 282
ii
AIR 1995 SC 605 A
iii
Supra note 1
iv
[1994] 2 SCR 644
v
Supra Note 2
vi
2004 (9) SCALE 46
vii
(2003) ACC 114
viii
Ibid
ix
(2011) 2 SCC 568
x
2016 SCC OnLine SC 761
xi
Supra note 9
xii
Supra note 10.