SC Refusal to Compensate Shrines Damaged in 2002 Riots Is Baffling

What reasons did the SC have for setting aside the Guj HC’s order compensating damaged shrines? None, actually.

Justice Dipak Misra’s tenure as Chief Justice of India has gotten off to a controversial start with his decision on 29 August to set aside a Gujarat High Court judgment ordering the state government to compensate or fund the restoration of religious shrines damaged during the 2002 Gujarat riots.

Also Read: Gujarat Govt Won’t Pay For Shrines Damaged in 2002 Riots: SC

Why is this controversial, you ask? Well, quite frankly, because the decision has nothing to do with what was argued in the case!

What was this case before the Supreme Court about?

In 2012, the Gujarat High Court had directed the Gujarat government to pay compensation to the persons in charge of all the religious places (regardless of religion) which had been damaged during the communal violence that had followed the burning of the Sabarmati Express.

The Gujarat government decided to appeal the decision to the Supreme Court, which led to arguments before Justice Misra and Justice Prafullah C Pant by both sides earlier this year. The judgment of the Supreme Court was released on 29 August, in which they held that the 2012 decision was set aside.

And what’s wrong with that decision?

The Supreme Court had said at the end of the judgment that:

... the judgment and order passed by the High Court is set aside and the appeal is disposed of in the above terms.

Since the appeal against the High Court decision was filed by the Gujarat government, for the Supreme Court to set it aside should have meant that the judges agreed with the arguments raised by the Gujarat government, and disagreed with what the High Court said.

The problem is, that at no point in any of the 49 pages of the judgment, does Justice Misra actually accept any of the contentions raised by ASG Tushar Mehta, who represented the state government. In fact, if anything, he agreed with the arguments of the HC.

How Is That Possible?

The Supreme Court doesn’t at any point say that the Gujarat High Court got anything wrong. So, why then has it set aside the Gujarat High Court’s decision?

The logic that is presented for this is that the Gujarat state government had formulated a compensation scheme in 2013 that decided to pay up to Rs 50,000 as ex gratia assistance to all religious places damaged/destroyed during the communal riots, provided a number of conditions were met.

If the State Government Is Providing Compensation, What’s the Problem?

The problem is that this case had nothing to do with whether the government had prepared the 2013 scheme or not.

The Gujarat government had initially accepted the decision of the High Court, and did in fact prepare the 2013 scheme as a response to the Supreme Court’s follow-up proceedings on the matter.

Despite this, they did an about-turn in 2016, filing this appeal in which they aggressively tried to argue that the Gujarat High Court was wrong to order the compensation in the first place. The broad arguments they raised for this were:

• The High Court was wrong to say that it was not a violation of Article 27 of the Constitution (which says that no person can be taxed to fund a state programme meant to maintain or promote a particular religion) for the state to be paying money towards restoration of religious places;
• The High Court could only have granted compensation when there was an “established” breach of Article 21 of the Constitution (guarantee against deprivation of life and liberty), and the damage to places of worship could not be a breach of this;
• The people who filed the case (a collection of NGOs) didn’t have any standing to ask the High Court to order compensation;
• The High Court had laid out an unclear procedure and set of rules for how the compensation was to be calculated and provided;
• The limitation period (time limit) for making the claims for compensation was over.

So the Supreme Court was supposed to be seeing if the High Court had got those issues right?

Yes.

And what did Justice Misra’s judgment say about the issues?

Errr, nothing. Here, take a look.

That can’t be right, can it?

Well, Justice Misra does summarise the arguments raised by each side, and the conclusion of the High Court, so it’s not like he hasn’t addressed them at all.

He just declines to say who’s right, or what the Supreme Court thinks is the right position of law on any of those issues.

But does this make any difference then? Given the 2013 scheme and all?

Yes, it absolutely does. The 2012 Gujarat High Court order didn’t put a limit on the amount of compensation that had to be paid, saying that the amounts had to be determined on a case-to-case basis by special officers it had appointed for the job. Thus it ensured that whatever was necessary would be done to ensure that the religious places were restituted (to a reasonable extent, of course).

The 2013 government compensation scheme, on the other hand, set out a number of restrictive conditions that would unfairly exclude many damaged shrines (for instance, the condition that an FIR had to have been filed at the very time of the incident, which was impossible in the middle of the violence). It also capped the compensation amount at a paltry Rs 50,000, which would be useless for all practical purposes.

And this, of course, is why it is wrong that the Supreme Court should have overturned the Gujarat High Court judgment, without having actually found any deficiency in its reasoning. In fact, the Supreme Court actually implies that the High Court’s analysis of issues such as Article 27 are correct, by saying that the 2013 scheme is in accordance with the position of law on those points.

Regardless, we can expect multiple challenges in the higher courts now against the capping of the compensation, which just delays justice even longer.

So the High Court was right and the Supreme Court is wrong?

That’s not necessarily true.

There were some reasonably plausible arguments by the Gujarat government on standing and whether the original requests for compensation could be entertained in the first place. It is arguable whether the Gujarat High Court got its answers on those issues right, and it was therefore crucial for the Supreme Court to conduct an assessment on those.

At the same time, the Gujarat High Court got the Article 27 issue absolutely correct, and it was essential that the Supreme Court, given the challenge raised against that finding, expressly endorse this. This would have also helped prevent polarisation of the issue, as the Gujarat High Court ordered compensation for ALL places of worship damaged in the riots, not just mosques.

The Supreme Court may well have got its position on those issues right – but they would have needed to bother answering those questions in the first place. And by setting aside the High Court’s judgment, the good work done there was wasted too.