The Supreme Court of India has upheld the Gujarat Government’s scheme restricting the compensation for religious places destroyed during the communal riots of 2002 to a maximum of Rs 50,000 with many conditions attached thereto. Before the issue reached the Supreme Court at the instance of the State of Gujarat, in terms of the judgment of the Gujarat High Court it was directed that the State should pay compensation for ‘restoring’ the destroyed religious places. At the time of the High Court judgment, there was no government scheme to meet that eventuality. The scheme was brought about during the pendency of the matter in terms of the interim order passed by the Supreme Court.

The issue before the Court was the abject failure of the State in controlling the mob and violence which destroyed religious places. While reaching this conclusion, the Supreme Court first records that the protection of property and places of worship is an essential part of secularism and also records that places of worship of all religions have been damaged and affected.

Why were these religious places damaged? For sure, it is failure of the Government in protecting rights and ensuring safety during the violence. What is the magnitude and impact of this failure? One can understand the fact that the United States Department of State had banned the then Chief Minister of Gujarat from travelling to the United States due to his alleged role in the attacks. The Supreme Court in 2004 recorded the situation prevailing at that time by observing that “The modern-day “Neros” were looking elsewhere when Best Bakery and innocent children and helpless women were burning, and were probably deliberating how the perpetrators of the crime can be saved or protected. Law and justice become flies in the hands of these ‘wanton boys’.”

One of the then MLAs, who subsequently became a Minister, was convicted for orchestrating the riot and massacre of 97 people of one community. The judge who convicted her, wrote that the incident “was a black chapter in the history of the Indian Constitution,”. Many bureaucrats of the State government went to jail after the intervention of Supreme Court. The NHRC, in its report stated that there could be no doubt that there was a comprehensive failure on the part of the State Government to control “the persistent violation of the rights of life, liberty, equality and dignity of the people of that state”.

In this riot, according to Christope Jaffrelot, about 273 dargahs, 241 mosques, 19 temples, and 3 churches were either destroyed or damaged. Many such religious places have not yet been repaired. In this background the High Court passed the order for compensating the damage caused to the religious places so as to ensure repair or reconstruction. It was not to promote religious affairs but to bring them back to the position which existed before the riot.

The democratic form of governance, based upon majoritarianism, ensures that the fundamental rights of the citizen are not compromised. Can that government, just to appease its voters, act with sheer negligence and complicity and ignore its Constitutional obligations and then limit compensation for property of citizens to such a petty amount and then say that they are not obliged to extend the value of actual loss for destruction of religious places of its citizens from the tax payers’ money? The answer should be ‘no’. Here the Supreme Court has, in a way accepted the state government’s argument that tax payers’ money cannot be used to compensate the actual loss of destruction and overturned the High Court judgment. In my view, this is not correct.

All money with the government is public money and tax payers’ money. On voluntary basis, the governments have been spending money, allotting lands, distributing public resources for purely religious purposes many a times, without any policy to that effect. Just because the government wants to do the spending on voluntary basis, may be for keeping their supporters happy, why should not the same tax payer’s money principle be applicable? Rather in a situation where due to failure of the government, if religious places are damaged, it should be government’s obligation to restore them, failing which the courts should take strong view on it.

The scheme, apart from confining the amount to a meager amount, attaches many conditions, like the lodging of FIR at the nearest Police Station and that the place of worship should be authorised without defining what this would mean in this context. Thereafter the Supreme Court has held that the terms and conditions of the scheme are ‘quite reasonable’. Hence, the recent judgment has, in effect, left the aggrieved party without a remedy considering the maximum amount which can be availed after going through a complex legal procedure.

In such communal violence, who is at the receiving end? Whose properties, values and value system gets most affected? They are the weaker sections. That is precisely where the role of the government to protect its citizens becomes paramount. If that role is diluted by the State’s policy, the question would arise as to whether the accountability, which is already very low and unattended, shall improve or further erode?

This was an opportunity when the Supreme Court of India could have laid down certain guidelines which would have acted as deterrents and fixed the accountability of executives and the bureaucracy. A review application has been filed. The Apex Court has an opportunity to correct the legal position. An unreasonable policy of the State government has got the approval of Court which may serve as precedent to protect the promulgation of policies and schemes based upon majoritarianism and in violation of fundamental rights.