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SCOI Report: Uncertainty reigns in Gujarat 2002 riot-hit religious places repair case

A question of Article 27
A question of Article 27

Today (27 August) on the second day of the hearing in the Supreme Court, the bench comprising justices Dipak Misra and Prafulla C Pant asked counsel representing the Gujarat Government and the respondent, Islamic Relief Committee Gujarat (IRCG), to come up with answers for two questions, during the next hearing on September 23.

The questions posed by the bench are as follows:

First, whether the court could issue a mandamus to the state government to frame a policy for repair and reconstruction of religious sites damaged during the 2002 communal violence.

Second, Justice Misra said although the government may be obliged to provide for maintenance of religious sites (as distinct from promotion) - because it is obliged on the ground that it failed to maintain law and order - mandamus has its own limitations.

“There can’t be judicial enthusiasm, although there can be judicial statesmanship,” he said. According to him, the Vishakha (prevention of sexual harassment in workplaces) case and Lakshmi Kant Pandey (guidelines for intercountry adoption) Lakshmi Kant Pandey vs Union of India were necessitated because of silences in the Constitution, and therefore can’t be compared with the present case.

Here, the question is whether Article 27 of the Constitution would prevent the State from making ex-gratia payments to restore damaged religious sites.

Justice Dipak Misra also felt the case raises a constitutional question, and it may not be possible to answer in a PIL

When the Gujarat Government’s counsel and ASG Tushar Mehta said those who seek compensation for damages could go to civil courts, IRCG counsel, Yusuf Hatim Muchhala said there was complete dereliction of duty on the part of the Gujarat government, and therefore, this case is important to fix accountability.

When Mehta said whatever could have happened happened, Muchhala said more than 2000 persons died in the communal violence, and these could have been prevented if there was accountability.

Justice Misra then asked Muchhala a pointed question whether it would be necessary to go into all these, if all religious sites, damaged during the violence, have been restored (without the government contributing funds by private effort).

He asked: “Can we direct a refund? Refund to whom? Unidentified bodies, who manage the damaged sites?”

As both the counsel did not have the latest data regarding the number of religious sites which have been repaired and restored, and those remaining to be restored, the bench asked the counsel to obtain the data, and answer his questions posed to them at the next hearing.

Earlier, as Muchhala was comparing religious freedom in India with that of the USA, Justice Misra said Article 27 was an enabling provision and our constitutional law regarding religion stands on a different footing than what is guaranteed under the American constitution.

Muchhala told the bench that spending money out of state funds for the purpose of giving compensation for the failure of the state to protect religious sites, would not mean promotion of religion, and therefore, Article 27 would not apply.

About 523 mosques and 19 Hindu temples were damaged during the 2002 Gujarat violence, according to the figures available with the counsel.

The case was heard from 2pm to 3:30 pm on August 27.

Photo by ISM Palestine.

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