Glancing Back, 2002 until 2015, In a Nutshell
2002 Gujarat and the Desecration of Religious and Cultural Shrines
Gujarat High Court, 2012 :
State has a Duty to Protect Fundamental Rights of Freedom of Faith and Worship
Para 22. Thus, the State has a duty to protect those fundamental rights of the citizens conferred by the abovementioned Articles and if by any inaction or inadequate action, which is nothing but inaction, a person suffers for no fault on his part resulting in injury to his life and property, he can approach the High Court under Article 226 of the Constitution for appropriate remedy.
Para 23. If in the above situation, huge numbers of persons have suffered injury for such inaction of the State Government but they are unable to come to Court for various reasonable grounds, a public-spirited person can surely espouse their cause and pray before this Court for appropriate remedy.
“ Para 33. After taking into consideration the enormity of the situation where more than 500 religious places of worship of only one community have been destructed, even if we do not take into consideration the number of such destructed places belonging to other community, the State Government cannot shirk its responsibility by asserting that it had no negligence or inaction in protecting the life and the property of the citizen. According to the affidavit filed by the State, the most of the above places of worship have been repaired and thus, the present application has lost its significance.
Absence of Adequate Preventive action by State in 2002
Para 34: If the State Government had disclosed the number of place of worship of the other community destroyed during the riot in its affidavit, we could comprehend in a better way the vastness of the damage arising out of the incident. For the reason best known to the State, it has not disclosed such number. However, the facts remain that the anarchy continued unabated for days. When according to the State, the riot broke out as a general reaction from the unfortunate incident of Sabarmati Express at Godhra as disclosed in its affidavit, such fact should have been known to the police intelligence and they should have taken appropriate preventive action well in advance.
Failure of Governance, Home Department, Police and Intelligence in 2002
“Para 35. Failure on the part of the police intelligence to gather such general reaction in time and to take appropriate timely action definitely come within the expression “negligence of the State” even if we for the sake of argument accept the defence of the State that the cause of riot was the “general reaction from the incident of Sabarmati Express”. Similarly, the fact that the riot continued for several days itself suggests lack of appropriate action or adequate action, if not inaction, on the part of the State in handling the situation.
Deliberate Design by GOG ion Not Placing NHRC Report before the State Assembly
“Para 36. Moreover, the fact that the annual report of National Human Rights Commission on this serious incident of violation of human right has not been placed before State Legislative Assembly for discussion is not in dispute. Such inaction is a grave defiance on the part of the State Government of the provisions contained in Section 20 of the Protection of the Human Rights Act, 1993 which is couched in mandatory form. The State Government has not given any explanation in its affidavits as to why the said report was not placed in the State Legislative Assembly in spite of the fact that the same was received at least in the early part of the year 2005.
Inadequate Efforts by the State to Handle the violence
“ Para 37. Once we hold that there was inadequate endeavour on the part of the State Government in effectively handling the situation resulting in destruction of more than 500 places of religious worship throughout the State belonging only to the one religious community, 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, irrespective of the religion, to its original position as it existed at the time of destruction. If those are already restored, the State Government should compensate the persons in charge of those places of worship by reimbursing the amount already spent by them.
Can the Courts Rule on Government Policy when it comes to Protecting the Religious Rights of Minorities?
Yes says the Gujarat High Court
“ Para 41: It appears from the affidavit used by the State Government that it has already taken decision to restore the places of residence and the business, which were destroyed during the period of communal riot. Such fact indicates that the State Government has virtually accepted its liability to compensate the affected persons for its failure to protect the residence and the place of business. The aforesaid failure to protect the right of the citizens under Article 21 having prompted the State Government to take decision to compensate the citizens whose fundamental right guaranteed under the Constitution has been impeded, there is no reason why the same failure to protect the right of citizens to freedom of conscience and free profession, practice and propagation of religion as also the freedom to manage religious affairs as protected by Articles 25 and 26 will not enable the persons who are in charge of the religious places including those of worship to get compensation for its restoration.
Preposterous Attitude of the Government of Gujarat (GOG)
“Para 43: In spite of the fact that the above rights are protected as fundamental rights in the Constitution of India, it is preposterous to suggest that the State Government, in spite of its failure to protect such rights, is lawfully entitled to take a policy decision only to restore the places of residence and the business destroyed in the riot but not the religious places including those of worship which are also protected in the same way with that of the place of residence and the place of business.
“ Para 44. The above policy rather would give a wrong signal to the citizens that for the protection of the religious places including those of worship from the attack of the ruffians, they should take up arms in their own hand because in the event of destruction of those places, no financial help would come from the Government. The above policy will also encourage the religious bigots to destroy the religious and other places of worship of the economically weaker section of the other community for the purpose of establishing their superiority over the others being well conscious that the economically weaker community will not be able to reconstruct the selfsame structure in future from their own resources. The mere fact that the damaged property has already been restored at the cost of the person wronged is of no consequence on the fate of this writ-application because there cannot be any waiver of fundamental right…. (The High Court then quotes from other judgements) Similarly, the policy decision taken in tackling an incident of earthquake, which is an act of God, cannot be applied in handling a situation arising out of the culpable inaction, inadequate action or negligence on the part of the State Government in protecting the fundamental rights of the citizens guaranteed by our Constitution.
GOG Avoiding Constitutional Responsibility:
“ Para 45. In our opinion, the above policy of the State Government taken in defence is one of evading the constitutional responsibility and will bring anarchy in the society, and thus, is detrimental to the establishment of the principles and the tenets of our Constitution.
Strictures by HC:
“Para 54. We are unable to accept the said decision as a precedent in support of a proposition of law that the policy decisions of the State not to give compensation to the victimized religious places including those of worship by restricting the compensation only to the places of business and residences involved in the riot was not violative of the fundamental right to maintain and run the religious and other places of worship and to protect from being attacked by people of different community.
Inability and Negligence of the State Caused Destruction: Gujarat HC
“Para 56. On consideration of the entire materials on record we, therefore, hold that for the inability or negligence on the part of the State Administration, the religious and other places of worships in this State having been destroyed during the riot of the year 2002 mentioned above, the policy adopted by the State Government, not to spend any money from public exchequer for the restoration of the religious places which were destructed during the said period, but restricting the compensation only to the places of residence and the business, is violative of the fundamental right guaranteed under Articles 14, 25 and 26 of the Constitution of India.
GOG Explanations on Thwarting Statutory Body like the NHRC Inadequate: Gujarat HC
“Para 57. We further find that no explanation has been given by the State Government for not placing the annual and other reports given by the National Human Rights Commission on the incident before the State Legislative Assembly till today in spite of receiving the same in the early part of the year 2005 and such grave lapse on the part of the State Government amounts to clear violation of Section 20 of the Protection of Human Rights Act, 1993.
Direct Compensation for Religious Places Destroyed : Gujarat HC
“Para 58. 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.
Reimburse Costs of Repair, Appoint Principal Judges of Districts to Assist Process: Gujarat HC
“Para 59. 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 amount should be payable by the State Government.
“Para 60. For implementation of our order, we appoint all the Principal District Judges of the various districts in this 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.
“Para 61. The aggrieved persons should lodge their respective claim with those Special Officers within two months from today supported by the documentary evidence they propose to rely in support of their claim of damages. It is needless to mention that they will be also entitled to give oral evidence to prove the exact position of the structure as it stood at the time of causing damage. 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 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.