The supreme court is hearing a case that has far reaching impact on India’s response to religion and religious activities. The court on Wednesday resumed the crucial hearing to decide whether the courts can command the state to fund the restoration of places of worship damaged due to its failure to maintain law and order.

“Can we command the state to construct the places of worship or religious structures damaged because the state failed to maintain the law and order situation,” asked the bench comprising justices Dipak Misra and Prafulla C Panth.

"What is troubling us is whether the state because of its failure to control law and order situation can be asked to compensate with funds the restoration of temple, church, mosque, gurudwara, math etc.," the bench said.

"Under which provision of law, the Special Officer, who is a District Judge will proceed for determining the amount to be paid as compensation. Under which provision, the Special Officers will hear arguments and appreciate the evidence for quantifying the compensation," the bench said. It also said places of worship come up besides the roads and middle of the footpath and they would also seek compensation.

The bench was hearing a petition filed by the Gujarat Government challenging the 2012 order of the state high court directing it to pay compensation to over 500 shrines damaged during the post-Godhra riots.

The Gujarat high court had issued an interim direction for computation of actual damages to the places of worship.

While Gujarat government sought quashing of the high court order contending that it was neither manageable, enforceable or capable of execution as per law, the NGO, Islamic Relief Committee of Gujarat (IRCG), said the state government is liable to compensate those who suffered damages.

The supreme court in 2013 had directed the maintenance of status quo on the February 8, 2012 order of the high court and decided to examine the legal issues arising out of the matter.

Senior advocate Yusuf H Muchhala submitted that comprehensive failure of law and order in Gujarat amounted to acts of nonfeasance/misfeasance/ malfeasance in public law. "It is now well settled that for such acts of malfeasance /nonfeasance/misfeasance, the State government is liable to compensate those who suffered damages," Muchhala submitted.

But additional Solicitor General Tushar Mehta said the state fund which consists of payment of various taxes by citizens cannot be directed by the high court to be spent for restoration/construction of any religious place by issuing a writ under Article 226 of the Constitution of India.

"Award of compensation by constitutional courts is a remedy in public law. The very genesis of the concept of award of damages/compensation has its roots in the Law of Torts. "This court has, therefore, consistently taken the view that remedy of writ by a constitutional court to award compensation for breach of Fundamental Rights would be exercised only when the 'person aggrieved' comes before the constitutional court and a stranger who has no enforceable right against the state, cannot hold the brief on behalf of others who have chosen to approach the court," Mehta submitted.

Mehta submitted that any organisation, merely by making representations to the state governemnt claiming to represent "aggrieved parties", would not itself become an "aggrieved party" and thereby acquire locus standi to maintain a petition under Article 226 of the Constitution.

"In the present case, the high court has directed computation of actual compensation to 'places of worship' and has created a totally new remedy by the impugned judgement which is unknown to law.

"The high court has issued an interim direction for computation of actual damages to places of worship to be made by special officers who are district judges of the district. Such direction is neither mangeable, enforceable or capable of execution as per law since it is not known as to what procedure such 'special officers' are required to follow, while seeking to adjudicate the quantum."