The Supreme Court on Wednesday asked whether Gujarat High Court, in exercise of its powers, could command the state government to fund the restoration and repair of the religious structures that were damaged in the post-Godhra riots in 2002.
Describing it as debatable, a bench of Justice Dipak Misra and Justice Prafulla C. Pant said: "What is troubling us is whether a state because of law and order problem can be commanded to fund (the repair and restoration) of a temple, mosque, church gurudwara or other kinds of places of worship under Article 21."
Its stand came in the course of the hearing of a petition by Gujarat government challenging a the high court order directing it to compensate for damages caused to religious structures during the 2002 riots for the failure of law and order machinery to protect them from rampaging mobs.
It also sought to examined whether a high court, in exercising its powers under the constitution's article 226, can direct a state government to compensate for damages caused to religious places during riots or natural calamities and whether the taxpayers' money could be used for the purpose.
The court's query came in the course of the hearing when Additional Solicitor General Tushar Mehta appearing for Gujarat government told the court that high court could not direct the state to compensate funds for the repair and restoration of riot-damaged religious structures.
Assailing the high court order, Mehta said that there was a fundamental right to preach, profess and propagate the religious beliefs but places of worship were not covered under the fundamental rights and article 27 prohibits the state from using money from the state exchequer for religious structures.
"This is against the very fabric of the secure constitution," he maintained.
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However, senior counsel Y.H.Muchhale appearing for the respondent NGO IRCG on whose petition the high court had given the order under challenge contested the Gujarat government's position.
Muchhale will continue addressing the court on Thursday.