When It Comes to Violation of Freedom of Religion, Can the State Be Held Monetarily Liable?

The recent apex court ruling on the repair of religious shrines destroyed in the Gujarat riots has raised key questions about the state's liability towards its citizens.

Under Indian constitution, does a government have a duty towards its citizens and if it fails in its duties, can it be held liable to pay compensation? Representative image. Credit: Wikimedia Commons

Under Indian constitution, does a government have a duty towards its citizens and if it fails in its duties, can it be held liable to pay compensation? Representative image. Credit: Wikimedia Commons

God is dead. God remains dead. And we have killed him. Yet his shadow still looms…
∼ Friedrich Nietzsche

India is a secular country with religion occupying a central role. The country’s failure in erecting a US-like wall of separation between religion and state was the first blunder of our republic. Protection of minority rights was implicit in our secularism. But the Supreme Court in a recent order ruled that the state government need not pay for the rebuilding of Muslim religious places that were damaged and destroyed in the Gujarat riots because of secularism.

Law makes each individual liable not only for his ‘acts’ but also for his ‘omissions’. Of course, for an ‘omission’, there must be a duty in law. Negligence is tort as well as crime and remedies are concurrent. Thus, if a child is drowning and I am standing on the bank of a river, I am not liable if I do not rescue her. But if she is my daughter and I do not try to save her, law will not only treat it as a civil wrong (private violation), which can be rectified by paying some compensation, but also as a serious offence against the society at large and hold me criminally liable as well.

Similarly, a jailor who allows his inmates to die of starvation is also liable because he has a legal duty towards the people in his custody. Maintenance of law and order and protection of the rights of citizens was indeed called raaj dharma of the state in the Hindu jurisprudence. Under the Indian constitution, does a government have a duty towards its citizens and if it fails in its duties, can it be held liable to pay compensation?

‘King can do no wrong’ was the dictum of the bygone era. Article 300 clearly says that governments can be sued. The primary purpose of any constitution is to provide for a robust system to hold the government liable through the verdicts of independent judiciary. This is why B.R. Ambedkar termed Article 32 as the ‘soul of the constitution.’

Should courts give relief in writ jurisdiction only when one’s right to life or personal liberty is violated, or can the state be held monetarily liable even in respect of violation of other fundamental rights such as freedom of religion? Will an order for the payment of such compensation for the repair of religious places be contrary to Article 27 of the constitution, which prohibits the state from imposing any religious tax and imposition of any tax whose proceeds are used for the maintenance of any particular religion or religious denomination. These are the pertinent issues with which the August 28 decision of the new Chief Justice India fundamentally deals with.

Case history

In 2002, there were communal riots in Gujarat after the tragic Godhra incident. In these riots, some 2,000 people lost their livee and as many as 567 religious places, including mosques, dargahs and khankahs, were either desecrated, damaged or destroyed.

On February 8, 2012, the Gujarat high court ordered the state government to repair these religious places and if their owners/managers have already had them repaired, to reimburse them. The Gujarat government made an appeal to the Supreme Court opposing the high court’s order arguing that for any loss of property, the remedy is available in the civil law and high court in its writ jurisdiction under Article 226 cannot pass such an order as the right to property after the 44th amendment is not a fundamental right but simply a constitutional right under Article 300A. It may be recalled that in the privacy case as well, the government had argued that privacy is just common law right not fundamental right.

The Gujarat government admitted that for the violation of right to life and personal liberty, writ jurisdiction of high courts could be invoked to claim compensation. But for the violation of other fundamental rights, like the right to equality or freedom of speech, the remedy is merely striking down of law which violates those rights.

Moreover, it strangely argued that since India is a secular state, we cannot spend governmental money for any religious purpose as Article 27 prohibits the use of taxpayer’s money for the promotion or maintenance of any religious denomination. BJP as a party has been saying that the original constitution was not secular, and during the Emergency, Indira Gandhi inserted this term to appease minorities.

It also argued the right to profess and practice freedom of religion does not include right to profess and practice it from ‘any particular place’. In Ismail Faruqui, the apex court too had strangely held that a mosque is not an ‘essential feature of Islam,’ though this was not the dispute.

The respondents based their case on the joint reading of fundamental rights and said that if religious places of weaker sections of the population are especially targeted, it not only violates freedom of religion but also right to equality and right to personal liberty. It adversely affects their dignity which is a right under Article 21.

Fundamental rights are woven together and cannot be compartmentalised in a strait jacket. In any case, maintenance of law and order is the primary duty of the state government in which it had miserably failed and its failure has been recorded by the National Human Rights Commission in great details. They also argued that compensation is not being sought for the maintenance of any particular religion but for the failure of the government to fulfil its basic duty.

Supreme Court accepted the argument that power of the writ court to award compensation is limited. It placed reliance on judgments which had held that such a power is confined to only violations under Article 21. It appears that the two judge bench of Justice Mishra and Justice Pant did not take into account the recent nine-judge bench judgment on privacy which clearly rejected the view of treating fundamental rights as independent islands.

Legal precedence

All fundamental rights are to be now read together. After R.C. Cooper (11 judge bench) and Maneka Gandhi (seven judge bench) decisions, law has been settled on this question that fundamental rights are not be understood in isolation of each other. In fact, privacy judgment yet again reiterated this view. Thus, now Article 21 is to be read with Article 14 and Article 19.

Moreover, the privacy verdict also read freedom of religion in Article 21 and thus the high court was probably right in ordering award of compensation. In any case, the writ jurisdiction of the high courts under Article 226 is wider than apex court’s writ powers under Article 32 as while the Supreme Court can issue writs just for the violation of fundamental rights, high courts can do it additionally for the violation of other rights.

Article 290A of the constitution itself provides that a sum of Rs 46,50,000 shall be charged on, and paid out of, the Consolidated Fund of the State of Kerala every year to the Travancore Devaswom Board; and a sum of Rs 13,50,000 shall be charged on, and paid out of the Consolidated Fund of the State of Tamil Nadu every year to the Devaswom Fund established in that state for the “maintenance of Hindu temples”.

This is the liability Indian state has inherited in state succession. Indian secularism is unique as it recognises kirpan for Sikhs, cows for Hindus, freedom to ‘propagate’ religion for Christians and personal law for Muslims and others.

Expenditure on religion by other states

The court was not properly informed about the money which state governments routinely spend on religion. A closer look at the state budgets will give a shocking picture. Justice Mishra did cite an earlier judgment where the court had held that if small amount is spent for religious purposes it will not be hit by Article 27. In this case, the compensation for damaged/destroyed religious places was not going to be huge if we consider Gujarat’s 2017-18 budget of Rs 1,72,179.24 crores.

Government of India did spend Rs 100 million for the infrastructure development for the Amarnath yatra route. Chief ministers routinely make huge offerings to Tirupati Balaji temple on behalf of state governments. Chadars are sent to Ajmer even by the Modi government. In spite of apex court’s ruling against haj subsidy, it has not yet been withdrawn and in spite of court’s criticism, prime minister’s goodwill mission led by M.J. Akbar is already in Mecca.

The BJP government of Rajasthan, in its last tenure, gave Rs 260 million for temple renovations and training of Hindu priests. For the Devasthan Department, Rs 38.91 crores have been given in 2017-18 budget of which Rs 16 crores is for the pilgrimage of senior citizens. Congress government of erstwhile Andhra Pradesh was not far behind as it allocated Rs 600 million for the welfare of priests in the undivided state.

Tamil Nadu government had enhanced temple renovation grants from Rs 5 million to Rs 30 million. Even the Gujarat government had Hindu priests on the payroll of the state. Muslims also have financial support from the state and similar salary packages are given to Muslim imams of Gujarat.

BJP government in Madhya Pradesh is also paying salaries of imams of mosques and priests of temples. In west Bengal too, imams are on the state’s pay roll. In Karnataka, huge budgetary allocations are made to churches. Thus in 2011, government gave 5 crores for the repair and renovation of churches. In 2013-15, allocation went up to 12.30 crores and in 2014-15 it was further enhanced to 16.56 crores. Out of some 4,000 madrasas in Bihar, as many as 1,127 are run by the state government with staff getting salaries from the state and provision of free books and mid-day meal.

Shivraj Singh Chouhan’s government too sponsored senior citizens’ trips to Ajmer and other religious sites. Indian army’s latest advertisement for the recruitment of 82 imams is very much in the public domain. Governments also spends hundreds of crores on madrasas.

Adityanath’s dream 2017 UP budget has allocated Rs 394 crore for the madrasas and Rs 800 crore for the pilgrimage to Kashi, Ayodhya and Mathura under Pilgrimage Rejuvenation and Spirituality Augmentation Drive. In his first speech as chief minister, Adityanath announced that the UP government would pay Rs one lakh to each pilgrim of the Kailash Mansarovar Yatra.

It may be recalled that the BJP has been opposing haj subsidy. Haryana government recently gave Rs 1 crore to Dera Sacha Sauda. Several so-called Godmen have been given huge tracts of land to establish deemed universities. Had these facts been presented to the court, the decision would have been quite different.

Faizan Mustafa teaches constitutional law. Views are personal. This is an expanded version of an article published in the Indian Express.