Countering communalism: the secular state, the law and everyday life

Detail

1. The secular state: what the Constitution says

• Secular state means a state that has no official religion and treats all religions equally. India is one.
• Other countries do it differently:
• Sri Lanka gives Buddhism a special place.
• Pakistan has Islam as its state religion.

• England has an established Church (the Church of England is the official church).

• Freedom of religion (Art. 25): every person may profess, practise and propagate (say openly, follow, and spread) any religion. A person may also follow no religion.

• This freedom has limits. It is subject to public order, morality and health.

• No religious discrimination:

• Art. 14: equality before law and equal protection of laws.
• Art. 15: the state cannot discriminate on grounds of religion, race, caste, sex or place of birth.
• Art. 16: equal opportunity in public jobs.

• Art. 29(2): no one can be refused admission to a state-run or state-aided school or college because of religion, race, caste or language.

• The state may step in to bring equality inside a religion:

• Art. 17 abolishes untouchability (treating some castes as "impure" and keeping them apart). Practising it in any form is an offence.

• Art. 25(2)(b) lets the state make laws for social reform. It also lets the state open Hindu temples of a public character to all classes and sections of Hindus (temple entry).

• Related safeguards:

• Art. 27: no one can be forced to pay a tax that is used to promote a particular religion.

• Art. 28: no religious instruction in schools fully paid for by the state.

• "Secular" in the Preamble: this word was added in 1976 by the 42nd Amendment.

• S.R. Bommai v. Union of India (1994): the Supreme Court held that secularism is part of the basic structure. Basic structure means the core features of the Constitution. Parliament can amend the Constitution, but no amendment can destroy these features.

• In this case, the Court said a state government that works against secularism can be dismissed under President's rule (Art. 356). Under President's rule, the Union takes over the running of a state.

• Principled distance, the Western and Indian models of secularism, and criticisms of Indian secularism are covered in the secularism note.

2. Election law: keeping religion out of the vote

• Representation of the People Act (RPA) 1951, s.123(3): a candidate or the candidate's agent may not ask people to vote, or not to vote, on the ground of religion, race, caste, community or language. Using religious symbols to win votes is also covered.
• s.123(3A): promoting, or trying to promote, enmity or hatred between groups of citizens on these grounds.
• Both are corrupt practices. A corrupt practice is a dishonest or unfair act in an election that the law forbids.
• What follows: an election petition is filed in the High Court → the court finds a corrupt practice → the election is declared void (cancelled) → the person can then be disqualified.

• Example: after the Ramesh Yeshwant Prabhoo case (1995), Bal Thackeray lost his right to vote for six years (1999-2005) on the advice of the Election Commission.

• s.125: promoting enmity between classes in connection with an election is a criminal offence. The punishment can be up to 3 years in jail, a fine, or both.

• Abhiram Singh v. C.D. Commachen (2017): a bench of seven judges decided this case by 4:3.
• The question was what "his religion" in s.123(3) means.
• The majority said it covers the religion of the candidate, the agent and the voter.

• So any appeal for votes in the name of religion is a corrupt practice. More detail is in the electoral-reforms note.

• Model Code of Conduct (MCC): these are the Election Commission's rules for parties and candidates during an election.

• Temples, mosques, churches, gurudwaras and other places of worship must not be used for election campaigning [7].
• There must be no appeal to caste or communal feelings to get votes [7].
• No party may do anything that deepens differences or creates hatred between castes, religious groups or language groups [7].
• The MCC also applies to what candidates and parties post on the internet, including social media [7].

3. Criminal law: Bharatiya Nyaya Sanhita (BNS) 2023

• The BNS 2023 (Act No. 45 of 2023) replaced the Indian Penal Code (IPC) 1860 [6].

Offence	BNS 2023	Old IPC
Promoting enmity between groups on grounds of religion, race, place of birth, language, etc.	s.196	s.153A
Imputations and assertions harmful to national integration	s.197	s.153B
Deliberate and malicious acts meant to outrage religious feelings	s.299	s.295A
Words spoken with deliberate intent to wound religious feelings	s.302	s.298

• Mob lynching, BNS s.103(2): this is the first time Indian law names mob lynching as a separate offence [5].
• Rule: a group of five or more persons acting together commits murder on the ground of race, caste or community, sex, place of birth, language, personal belief or any other similar ground [5].
• Punishment: every member of the group gets death or life imprisonment, and must also pay a fine [5].

• Killings on religious grounds fall under "community", "personal belief" or "any other similar ground" [5].

• Tehseen S. Poonawalla v. Union of India (2018): the Supreme Court gave guidelines against lynching. They fall into three groups:

• Preventive: for example, a nodal police officer (a senior officer put in charge of this issue) in each district.
• Remedial: for example, compensation for victims.
• Punitive: for example, action against officers who fail to act.
• The Court also asked Parliament to make lynching a separate crime. BNS s.103(2) later did this.
• More detail is in the justice-delivery-tribunals note.

4. Hate speech

• Hate speech means speech that attacks a group because of its religion, caste, race and so on, and pushes people towards hatred or violence.
• Pravasi Bhalai Sangathan v. Union of India (2014):
• The Supreme Court said the existing laws were enough. The real problem was that they were not enforced well.

• It asked the Law Commission to study hate speech [4].

• Law Commission, 267th Report "Hate Speech" (23 March 2017) [3]:

• It proposed two new offences in the IPC: one placed after s.153B and one after s.505 (new ss.153C and 505A) [3].
• The draft s.153C covered inciting hatred. The draft s.505A covered causing fear, alarm or provoking violence.

• Before limiting any speech, the report said four things must be looked at: the context of the speech, the status of the victim, the status of the speaker, and whether the speech can cause discrimination or disorder [3].

• Amish Devgan v. Union of India (2020):

• The Court drew a line between free speech and hate speech.

• It said the speaker's reach and influence matter. A person with power or a large audience carries more responsibility.

• Suo motu FIRs (2022-23): suo motu means "on its own", without waiting for a complaint. An FIR is the first police report of a crime.

• In 2022, the Supreme Court told the police in Delhi, Uttar Pradesh and Uttarakhand to register hate-speech cases on their own.
• In 2023, it extended this order to all states and UTs.
• Officers who delay can face contempt of court.

5. Places of Worship Act 1991 and other measures

• Places of Worship (Special Provisions) Act 1991 (Act No. 42 of 1991):
• Aim: to stop any place of worship from being converted, and to keep the religious character of each place as it was on 15 August 1947 [2].
• s.3: bars converting a place of worship of one religion or sect into one of another [2].
• s.4: declares that the religious character stays as it was in 1947, and bars courts from hearing cases that try to change it [2].
• s.5: the Act does not apply to Ram Janma Bhumi-Babri Masjid (Ayodhya) [2].
• s.6: punishes anyone who breaks s.3 [2].

• Coverage: it now also applies to the UTs of Jammu and Kashmir and Ladakh [2].

• Court challenge (verify current):

• Petitions questioning whether the Act is valid are pending in the Supreme Court.

• In December 2024, the Court ordered that no new suits be registered. It also told lower courts not to pass final orders, including orders for surveys, in pending suits until it decides.

• Prevention of Communal and Targeted Violence Bill 2011: this bill was meant to hold officials accountable for communal violence. It was never passed and lapsed.

• National Integration Council (1961): a body chaired by the Prime Minister. It brings together Union ministers, Chief Ministers, party leaders and public figures to discuss communalism, casteism and regionalism.

6. Beyond law: everyday life

• NCERT's view: a secular Constitution is necessary but not enough.
• Prejudice (unfair dislike of a group) must be fought in everyday life.
• Mobilisation in the name of religion (gathering voters through religious appeals) must be opposed in politics.

• Why it matters: communalism threatens not only some groups but "the very idea of India".

• Civic links between communities:

• Ashutosh Varshney studied this in Ethnic Conflict and Civic Life (2002).
• He compared riot-prone cities with peaceful cities.
• Peaceful cities had associations where Hindus and Muslims worked together, such as trade bodies, unions and clubs. These networks stopped rumours and kept the peace.

• More detail is in the civil-society-pressure-groups note.

• Other tools:

• Peace committees (local groups of leaders from different communities) in sensitive areas.
• School curricula that teach shared history and respect.
• Responsible media that checks facts before spreading claims.

Prelims Hooks

• "Secular" was added to the Preamble by the 42nd Amendment (1976). Secularism was declared part of the basic structure in S.R. Bommai (1994).
• Art. 25(2)(b) = temple entry and social reform. Art. 17 = abolition of untouchability. Art. 29(2) = no denial of admission to state-aided schools and colleges on religious grounds.
• RPA 1951: s.123(3) = appeal on religion, race, caste, community or language (corrupt practice). s.123(3A) = promoting enmity (corrupt practice). s.125 = promoting enmity in connection with elections (criminal offence).
• Abhiram Singh (2017): 7 judges, 4:3; "his religion" includes the voter's religion.
• BNS–IPC pairs: 196 → 153A, 197 → 153B, 299 → 295A, 302 → 298.
• BNS s.103(2): murder by a group of 5 or more on grounds such as race, caste or community, sex, place of birth, language or personal belief. Punishment is death or life imprisonment [5].
• Law Commission 267th Report (2017) = hate speech; proposed new IPC ss.153C and 505A [3]. It came after Pravasi Bhalai Sangathan (2014) [4].
• Places of Worship Act 1991: cut-off date 15 August 1947; Ayodhya exempted (s.5) [2]. Trap: the cut-off is not 26 January 1950.
• National Integration Council = 1961. Communal Violence Bill = 2011, lapsed.

Mains Points

• Law is necessary but not sufficient. India has many laws: RPA s.123, BNS ss.196-197 and 299, the MCC and court guidelines. The problem is weak enforcement, slow election petitions, and police who act selectively. Suo motu FIR orders (2022-23) and the Tehseen Poonawalla guidelines try to close this gap. Real change also needs Varshney-style civic links between communities, and education.
• Free speech vs hate speech: Art. 19(2) allows reasonable limits on speech. Vague hate-speech laws can be misused against critics. The Law Commission's (2017) context-based test and Amish Devgan's focus on the speaker's influence offer a balance. A clear statutory definition of hate speech is still missing.
• Places of Worship Act 1991: supporters say it protects communal peace and secularism, which is part of the basic structure. Critics say it bars courts from hearing claims and freezes past wrongs. The pending challenge tests how far the law can close disputes about the past.
• Electoral reform: Abhiram Singh's wide reading of s.123(3) bans appeals in the name of religion. But the dissent warned that this could silence genuine talk about caste and religious injustice. The MCC also has no legal force. This supports proposals to give the Election Commission legal power to act against communal campaigning, including on social media.