Whether Courts could direct a state to rebuild religious places damaged due to its failure to maintain law and order'

The Supreme Court on Wednesday faced a tricky constitutional question -- 'whether courts could direct a state to rebuild religious places damaged due to its failure to maintain law and order'.

The question was faced by a bench of Justices Dipak Misra and P C Pant as it started final hearing on a petition filed by the Gujarat government challenging a high court order that the state was duty bound to reimburse the cost of restoration of shrines damaged during the 2002 communal riots.

Appearing for Islamic Relief Centre, Gujarat (IRCG), senior advocate Yusuf Muchala said the state government had completely abdicated its constitutional role to maintain law and order and protect lives and property of citizens during the communal riots and hence, it was its secular duty to restore the mosques and dargahs damaged by mobs.

"The National Human Rights Commission had directed the state to conduct a survey of damage to places of worship of Muslims during the riots. A defiant state which had failed to protect the religious places belonging to minority community has conducted no such survey even after more than a decade. The religious minority suffered gravely. Attack on religious places was an attack on the religious identity of the community. The motive was to inflict humiliation on the minority," Muchala said.

For the state, additional solicitor general Tushar Mehta told the bench that a scheme was framed by the government to pay compensation to religious places at the rate applicable to damaged residential and commercial properties.

However, Mehta put a constitutional caveat, "Right to practice, profess and propagate any religious belief is part of fundamental rights. But right to worship from a particular place is not. Is giving compensation to rebuild religious places part of the secular scheme of governance?

"Under the constitutional scheme, a court cannot direct a state government to utilize taxpayers money for religious purposes. Most of the damaged religious places have been restored with community funding. Even if the state was directed to meet the expenses incurred, whom should it be paid?"

The bench had a different concern. How could the HC designate district judges as special officers and task them with assessing damage to the shrines and quantify the cost of restoration, it asked.

"Asking district judges to send a report on damaged places of worship is one thing. But under what procedure of law will the district judge gather evidence about damage, examine witnesses and allow their cross-examination and quantify the damages? Moreover, in civil law, there is a time limit for claiming compensation. That time limit expired a long time ago. A court cannot extend that period of limitation," the bench said.