The court accepted the scheme formulated by the state government to provide "ex gratia assistance" of up to Rs 50,000 to all religious places, including mosques and temples, which were damaged or destroyed during the communal riots, on par with the relief granted for destruction of houses.
A bench of Chief Justice Dipak Misra and Justice Prafulla C Pant referred to apex court verdicts and Article 27 of the Constitution (freedom as to payment of taxes for promotion of a particular religion) and said that substantial part of tax payers' money cannot be granted for repairing religious structures.
"The said scheme has to be appreciated on the anvil of the directions issued in the Prafull Goradia and Archbishop Raphael Cheenath S.V.D cases (earlier judgements).
"In the first case, the two-judge bench has opined that object of Article 27 is to maintain secularism and the said Article would be violated if the substantial part of entire income tax collected in India, or a substantial part of the entire central excise or the customs duties or sales tax, or a substantial part of any other tax collected in India, were to be utilised for promotion or maintenance of any particular religion or religious denomination...," CJI Misra, writing the judgement, said.
The Gujarat government, in its scheme, had proposed to pay ex-gratia assistance of Rs 50,000 for repair of damaged religious structures on the lines of its policy to pay for the houses damaged during riots and put certain conditions like such temples or mosques should not be unauthorised ones.
The policy also said that no ex-gratia assistance would be sanctioned to religious places, located in the middle of the public road or at any unauthorised place, and there should be a prior FIR with regard to the damages caused.
"The person/persons claiming such ex-gratia assistance shall have to satisfy the District Collector of the District in which such religious place is situated about the ownership and/or administration rights of religious places concerned so as to ensure that any person unconnected with a religious place may not claim and receive ex-gratia financial assistance under the Scheme. The decision of the District Collector in this behalf shall be final," the policy said.
Approving the government's scheme, the bench said, "we have noticed that the government has fixed the maximum amount under the caption of ex-gratia assistance and also conferred the power on the District Collector of the Districts where religious places are situated to determine about the ownership or administration rights of religious places concerned.
"There are certain conditions precedent for claiming the amount. The terms and conditions which are incorporated in the scheme are quite reasonable. It is also worthy to note that while fixing the maximum limit, the government has equated the same with houses which have been given the assistance...".
Setting aside the high court verdict, the apex court, in its 49-page verdict, asked the claimants to approach the authorities within eight weeks and directed that "the authorities shall determine the same within three months from the receipt of the claims."
The apex court dealt with various aspects and judgements and said, "we find the case hinges on its own facts regarding grant of compensation. The power of the court of judicial review to grant compensation in public law is limited. There cannot be any quarrel about the said proposition of law."
It referred to Article 27 which said that no person shall be compelled to pay any taxes for "promotion or maintenance of any particular religion or religions denomination" and said that State cannot grant substantial part of tax-payers' money for such purposes.
The State is obliged under the Constitution to "treat persons belonging to all faiths and religions with equality. The individual has his freedom to practice the religion as he desires and it is totally immaterial from the perspective of the State," it said, adding "the protection of property and places of worship is an essential part of secularism."
However, the apex court agreed to the contention that the State cannot be commanded to repair places of worships as this act "will create a dent in the secular fabric and further the expenditure from the state exchequer is impermissible in view of the language employed in the Article 27".
The state government, represented by Additional Solicitor General Tushar Mehta, challenged the high court verdict on various grounds including that the State, being a secular entity, cannot be asked to spend substantial amount of tax payers' money on repair of religious structures.
The high court, while dealing with the PIL filed by NGO, Islamic Relief Committee of Gujarat, had passed a slew of directions including the order asking 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."
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