Does the constitutional scheme of things create impediments in the way of the legislature in making laws to fund restoration of places of worship damaged due to failure of law and order?
This question was posed by the Supreme Court today as it continued its crucial hearing to decide whether courts can command the State to fund the restoration of places of worship damaged due to its failure to maintain law and order, an issue that came to the fore after several religious structures were damaged or destroyed during the 2002 Gujarat riots.
The court, hearing Gujarat's appeal against a 2012 order of the High Court asking it to pay compensation to over 500 shrines damaged during the post-Godhra riots, framed the question for its own consideration whether damages under the principle of "constitutional tort" be sought against the State for failing to protect the places of worship.
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A bench, comprising justices Dipak Misra and P C Pant, referred to the judgement in the T M A Pai Foundation case on the right of minorities to run educational institutions and Article 27 of the Constitution that deals with the fact that no person shall be compelled to pay taxes to promote or maintain any particular religion or religious denomination.
"The question is whether the TMA Pai judgement is binding and Article 27 of the Constitution does not create impediments on the part of Parliament and the state legislature to make a law on maintenance and repair of places of worship," it said.
It further said that in a situation where a state government has not framed any policy on the subject, "that being the bedrock, can courts issue a writ of mandamus asking states to frame a policy".
Courts can examine the validity of a government policy and the question would be whether they can order framing of any such policy in case of a void, the bench said.
The court also asked Additional Solicitor General Tushar Mehta, appearing for Gujarat, to apprise it of the factual position as to how many places of worship, allegedly damaged during the riots, have been repaired so far and how many others are yet to be restored.
To this, Mehta said "without prejudice to rights of either of the parties, we will try to find out the factual situation."
The state government has been opposing the High Court order saying its direction was "neither manageable, nor enforceable nor capable of execution as per the law".
