The 2002 Gujarat riots will now be a test case for the Supreme Court to determine whether a State which is accused of failing to control law and order will face an obligation under Constitution to compensate the damage caused to religious structures and places of worship.
This question assumed relevance a day after the Gujarat Government argued in the Court that under the concept of secularism, the State cannot be seen as supporting a particular religious community by sparing public funds to construct or maintain their religious structures. The State was faced with a demand by the Islamic Relief Committee- Gujarat (IRCG) that has demanded compensation for the mosques destroyed or desecrated during the riots.
Caught between the fine line of arguments made by Additional Solicitor General (ASG) Tushar Mehta for the state and Yusuf Hatim Muchhala for the IRCG, the Bench of Justices Dipak Misra and PC Pant asked both sides to address on two issues that arose for consideration. One, it felt whether Constitution Article 27 that laid down an express bar on State to divert public funds for promotion or maintenance of a particular religious denomination will come in the way of the Court to order the State to pay compensation in cases where damage has been caused due to a law and order situation.
Second, the Bench decided to lay down a general principle for all times to come on whether the State when faced with its failure to control law and order will be obliged to pay compensation as the Constitution requires the state to protect the religious freedom of citizens under the inviolable fundamental rights.
Muchhala had pressed this point as in his view no State could escape its responsibility especially where there is evidence to suggest complicity of the state that resulted in the law and order situation and death of innocents.
A similar incident had occurred in Odisha in 2009 when the attack on churches had forced the Supreme Court to intervene and suggest the State Government to draw up a scheme for compensation. But the court noted that the principle whether the State was obliged to pay up was never considered then.
Besides, the Court wondered that in the times to come even a commercial property worth hundreds of crores could be at the receiving end of a violent mob and a demand could be raised against the state for compensating the damages. The matter is expected to come up for hearing on September 23.