Last week, the Supreme Court struck down the Gujarat High Court’s order directing the state government to repair or rebuild the 535 Muslim shrines damaged or destroyed during the 2002 communal violence, and compensate those already repaired or rebuilt.

By doing so, the apex court failed to uphold a vital principle: that the government must be held accountable if shrines are destroyed or damaged during communal riots. This principle was enunciated by the Gujarat High Court in 2012.

Had the Supreme Court upheld the High Court’s judgement, it would have set a precedent enriching the two Constitutional principles of fundamental rights and secularism. Instead, the court allowed the Gujarat government an easy way out, only directing it to implement the state’s scheme of paying up to Rs 50,000 ex gratia to such shrines.

As Yusuf Muchhala points out, ex gratia payment is a favour. “We don’t want favours, we want our right,’’ the senior counsel for the Islamic Relief Committee Gujarat, the original petitioner in the case, said.

The High Court had recognised their right. It had held the Gujarat government’s refusal to rebuild, repair or compensate the shrines affected by the 2002 violence as violative of Articles 14, 25 and 26 of the Constitution. Article 14 lays down the right to equality before the law or the equal protection of the laws. Articles 25 and 26 safeguard the freedom to practise and propagate one’s religion.

One of the Gujarat government’s main arguments then, as now before the Supreme Court, was that spending public money on places of worship would violate Article 27 of the Constitution, which frees a citizen from paying any tax the proceeds of which will be spent on the promotion of any religion.

The High Court, however, held that spending public money to compensate for damage to shrines in 2002 did not amount to promotion of religion as envisaged by Article 27. It explained that the state had acknowledged that the shrines were destroyed during the communal riots, which it had ascribed to the “general reaction from the unfortunate incident of the Sabarmati Express at Godhra”.

The High Court ruled that even if the government’s reason for the carnage was accepted, it was the state’s “failure of intelligence” not to have foreseen that reaction and “to take appropriate timely action’’. This amounted to “negligence’’ by the state. The fact that the riots continued for days suggested “lack of adequate action, if not inaction on the part of the State”.

Since it was established that there was “inadequate endeavour on the part of the State…resulting in the destruction of more than 500 [shrines] belonging to only one religious community”, the court concluded, “we are left with no other alternative, but to conclude that it is the duty of the State Government to restore all those religious places…’’

Blow to National Human Rights Commission?

Strangely, the Supreme Court did not refer to this reasoning, or, indeed, any of the other reasons given by the High Court for its order.

By ignoring these reasons, the apex court also failed to uphold the dignity of another crucial institution entrusted with safeguarding our fundamental rights: the National Human Rights Commission. Its casual reference to the Commission is puzzling for two reasons. One, the Commission is always headed by a retired Supreme Court judge. Even though its recommendations are not binding – indeed because its recommendations are not binding – it surely must fall to the Supreme Court to ensure they are implemented whenever they form the subject matter of the litigation before it.

Second, in Gujarat, the Commission’s role in ensuring justice for the victims of the 2002 carnage has been pivotal. It was on its plea that the Supreme Court had transferred key trials related to the violence out of Gujarat.

In this case too, the Commission was involved. The Gujarat government had accepted, in principle, the Commission’s recommendation that it should help repair or rebuild shrines damaged or destroyed during the riots. However, it was found during hearings in the High Court that the state government, the headed by Narendra Modi, had not even bothered to table the Commission’s reports on Gujarat in the Assembly. Under the Protection of Human Rights Act 1993, such reports are required to be tabled in the legislature along with the Action Taken Reports. If the reports are rejected, state governments must give reasons for the rejection.

It was only after the High Court took note of this “grave defiance’’ of the Human Rights Act that the government tabled the Commission’s report in the Assembly – 10 years after the carnage. And it chose the last day of the Assembly session to do so.

The Supreme Court, too, could have reprimanded the Gujarat government for this, not least because the original petitioners had raised this point before it. But by merely noting that the state government had finally tabled the report, the Supreme Court judgement sends a clear signal that the National Human Rights Commission’s recommendations need not be taken seriously by governments.

Judgement with little reasoning

Most bafflingly, the judgement offers no reason for striking down the High Court’s order. Nor does it make its own stand clear. It deals with the two main arguments made by the opposing sides: whether Article 27 is in play, and whether the court can direct the government to pay compensation for shrines damaged during riots as a matter of “Constitutional Tort’’. The term refers to damages payable by the state when it violates the fundamental rights of a citizen. The Gujarat government claimed that no fundamental right was violated during the 2002 violence.

But the apex court did not rule one way or the other. Instead, the judgement only refers to its own order passed in 2012 on the Gujarat government’s appeal against the High Court order. A bench of Justices KS Radhakrishnan and Dipak Misra had then told the Gujarat government to formulate a scheme for compensation to the affected shrines. By way of precedent, the court had cited its suggestion to the Odisha government to “have a generous attitude’’ and draw up a scheme for repair of churches damaged during the Kandhamal riots of 2008.

Ironically, in 2012, the Supreme Court’s refusal to stay the High Court’s order had been considered a big setback to Chief Minister Modi. Radhakrishnan had asked Gujarat’s Additional Advocate General: “You compensate if a house is washed away in a flood or if it is damaged in an earthquake. Then why not in case of a religious place?”

In its final judgement delivered last week, however, that question seems to have been forgotten. Instead, the scheme drawn up by the Gujarat government – of Rs 50,000 ex gratia payment subject to stringent conditions – has been converted into a resolution of the matter.

Significantly, the judgement notes that this scheme falls within the guidelines laid down by the Supreme Court in Prafull Goradia vs Union of India, 2011. A Bench of Justices Markandey Katju and Gyan Sudha Misra had ruled that if a substantial portion of public money, say 25 %, is spent on religion, Article 27 would be violated. However, if only a small part of public money is spent, it would not be violated.

Which of these categories does the Gujarat government’s ex gratia payment fall under? No facts were placed before the Supreme Court to enable it to conclude either way.

It is 15 years since the shrines in Gujarat were attacked. Most have been rebuilt or repaired. The district judges who prepared the lists of affected shrines, on the directions of the Gujarat High Court, found one shrine where repairs had cost Rs 85 lakh. So, even if ex gratia payment of Rs 50,000 is accepted, Muchhala points out, it would amount to nothing. In any case, when it is offered without the state acknowledging its liability, the money is not welcome.

To establish this principle of accountability, the petitioners might file a review petition in the Supreme Court.