What Pluralism Is Up Against

Secularism as the standing answer

In S.R. Bommai v Union of India, AIR 1994 SC 1918; (1994) 3 SCC 1, a Bench of nine, Jeevan Reddy J. held that the constitutional promises of social justice, liberty of belief, faith or worship and equality of status and of opportunity cannot be attained unless the State eschews the religion, faith or belief of a person from its consideration altogether when dealing with him, his rights, his duties and his entitlements; that SECULARISM IS MORE THAN A PASSIVE ATTITUDE OF RELIGIOUS TOLERANCE AND IS A POSITIVE CONCEPT OF EQUAL TREATMENT OF ALL RELIGIONS; and that it is a constitutional goal and A BASIC FEATURE OF THE CONSTITUTION, so any step inconsistent with that policy is unconstitutional. That passage is the single most useful quotation in this module, and the Supreme Court quoted it again in 2019.

And the Court has held that hate speech is incompatible with a plural polity. In Amish Devgan v. Union of India, decided on 7 December 2020, on which the chapter on hate speech works in full: in a polity committed to pluralism, hate speech cannot conceivably contribute in any legitimate way to democracy and in fact repudiates the right to equality.

The statute that froze the past

The Places of Worship (Special Provisions) Act 1991 is Parliament's answer to a specific danger: that a plural society will be pulled apart by competing claims to reverse conversions of places of worship made centuries ago. Its scheme is short.

Section 3, bar of conversion. No person shall convert any place of worship of any religious denomination or any section of it into a place of worship of a different section of the same denomination or of a different denomination or any section of it. By section 6 a contravention is punishable with imprisonment up to three years and fine.

Section 4(1), the freeze. It is hereby declared that THE RELIGIOUS CHARACTER OF A PLACE OF WORSHIP EXISTING ON THE 15TH DAY OF AUGUST 1947 SHALL CONTINUE TO BE THE SAME as it existed on that day.

Section 4(2), the bar of jurisdiction. Any suit, appeal or proceeding pending at the commencement of the Act with respect to the conversion of the religious character of such a place SHALL ABATE, and no such suit shall lie afterwards in any court, tribunal or authority. The proviso preserves a proceeding founded on a conversion said to have taken place AFTER 15 August 1947, which is then to be disposed of in accordance with sub-section (1).

Section 4(3), the exceptions. The freeze and the bar do not apply to an ancient and historical monument or archaeological site covered by the Ancient Monuments and Archaeological Sites and Remains Act 1958; to a matter finally decided before the commencement; to a dispute settled by the parties among themselves before the commencement; to a conversion effected before the commencement by acquiescence; or to a conversion effected before the commencement which is not liable to be challenged, being barred by limitation.

Section 5, the exclusion. NOTHING IN THE ACT SHALL APPLY to the place or place of worship commonly known as Ram Janma Bhumi-Babri Masjid situated in Ayodhya in the State of Uttar Pradesh, or to any suit, appeal or proceeding relating to it. The Act therefore did not settle that dispute and was never meant to; it quarantined it.

What the Supreme Court said the Act is for. In M. Siddiq v. Mahant Suresh Das, (2020) 1 SCC 1, decided on 9 November 2019 by a Constitution Bench of five. Facts. Appeals from the Allahabad High Court's decision in the title suits concerning the disputed site at Ayodhya, in which the Court examined the evidence, the juristic personality of the deity, the effect of the Act of 1991, and the characteristics of a mosque in Islamic law. Held, so far as this chapter is concerned: that the Act PROTECTS AND SECURES THE FUNDAMENTAL VALUES OF THE CONSTITUTION; that in guaranteeing the preservation of the religious character of places of public worship as they existed on 15 August 1947, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past by giving every religious community the confidence that its places of worship will be preserved; that the law addresses itself TO THE STATE AS MUCH AS TO EVERY CITIZEN and implements the Fundamental Duties under article 51A; that by enacting it the State operationalised its obligation to uphold the equality of all religions and secularism, WHICH IS PART OF THE BASIC FEATURES of the Constitution;

The Court went on: that the Act imposes a NON-DEROGABLE obligation and is a legislative instrument designed to protect the secular features of the Indian polity, preserving NON-RETROGRESSION as an essential feature of our secular values; and that in preserving the character of places of public worship Parliament mandated in no uncertain terms that HISTORY AND ITS WRONGS SHALL NOT BE USED AS INSTRUMENTS TO OPPRESS THE PRESENT AND THE FUTURE. The Court also rejected the submission that it should interpret religious doctrine in an absolute and extreme form and question the faith of worshippers, saying that nothing would be as destructive of the values underlying article 25. Why it matters here is that a Constitution Bench treated an ordinary statute as an instrument of the basic structure, which is unusual and quotable.

When a place of worship is destroyed

In Dr. M. Ismail Faruqui v. Union of India, (1994) 6 SCC 360, decided on 24 October 1994. Facts. After the demolition of the disputed structure at Ayodhya on 6 December 1992, Parliament enacted the Acquisition of Certain Area at Ayodhya Act 1993 acquiring about 67 acres including the disputed site, and the President referred a question to the Court under article 143; the Act and the reference were challenged.

Held. The Court upheld most of the Act but struck down section 4(3), which had abated all pending suits and proceedings, as unconstitutional, and declined to answer the Presidential reference, holding it superfluous and unnecessary and returning it unanswered. It described the demolition as A MOST REPREHENSIBLE ACT WHICH STRUCK NOT ONLY AT A PLACE OF WORSHIP BUT AT THE PRINCIPLES OF SECULARISM, DEMOCRACY AND THE RULE OF LAW enshrined in the Constitution. It held that acquisition of a place of worship by the State is permissible where necessary for maintaining public order, and that a mosque is not an essential part of the practice of Islam such that namaz cannot be offered elsewhere, so the acquisition of a mosque as a place of worship does not by itself offend articles 25 and 26.

Why it matters here is twofold. It is the Court's own characterisation of what a communal demolition does to a constitution. And its holding on the mosque is the most criticised sentence in the area, because it applies the essential-practices doctrine to decide the constitutional standing of a place of worship.

What the Constitution asks of the citizen

Article 51A(e) places on every citizen the fundamental duty TO PROMOTE HARMONY AND THE SPIRIT OF COMMON BROTHERHOOD AMONGST ALL THE PEOPLE OF INDIA TRANSCENDING RELIGIOUS, LINGUISTIC AND REGIONAL OR SECTIONAL DIVERSITIES, and to renounce practices derogatory to the dignity of women. The duties are not directly enforceable, but they are not decorative either: in M. Siddiq the Court said the Places of Worship Act implements the duties under article 51A and is therefore a positive mandate to every citizen as well as to the State.

And education is where the duty is meant to take effect. In Aruna Roy v. Union of India, AIR 2002 SC 3176; (2002) 7 SCC 368, decided on 12 September 2002. Facts. A public interest litigation under article 32 challenged the National Curriculum Framework for School Education published by the National Council of Educational Research and Training, mainly on the ground that it introduced religious instruction into State schools contrary to article 28, and separately that the Central Advisory Board of Education had not been consulted. Held. The petition was dismissed. Non-consultation with the Board was no ground for setting the Framework aside, the Board not being a statutory body. On the substance, THE STUDY OF RELIGIONS FOR THE PURPOSE OF VALUE EDUCATION, AS DISTINCT FROM RELIGIOUS INSTRUCTION IN A PARTICULAR RELIGION, is consistent with the constitutional scheme, and the Court connected this with article 51A(e) and with universal values such as truth, righteous conduct, peace, love and non-violence as the foundation of education. Why it matters here is the distinction it draws, which is exactly the line article 28 draws: learning ABOUT religions is not instruction IN a religion.

A worked example

A suit is filed in 2026 seeking a declaration that a mosque built in the sixteenth century stands on the site of a temple demolished then, and asking for possession. The plaint says the Act of 1991 does not bar it because the structure is a protected monument, and alternatively because the Act is unconstitutional. Advise.

First, the freeze. Section 4(1) declares that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same. If the mosque was a mosque on that date, the declaration sought is contrary to the section.

Second, the bar. Section 4(2) bars any suit with respect to the conversion of the religious character of such a place. A suit filed in 2026 does not lie.

Third, the proviso. It preserves a proceeding founded on a conversion said to have occurred AFTER 15 August 1947. A sixteenth-century conversion is not within it.

Fourth, the monument exception. Section 4(3)(a) exempts a place which is an ancient and historical monument or an archaeological site or remains covered by the Act of 1958. That is a question of fact: whether the place is in fact so covered. If it is, the freeze and the bar do not apply to it, and the suit would proceed on the ordinary law. This is the exception litigation now turns on, and an answer should say so rather than pretend the Act is airtight.

Fifth, the constitutional challenge. On M. Siddiq the Act protects and secures the fundamental values of the Constitution, implements article 51A, operationalises the State's obligation to uphold the equality of all religions, imposes a non-derogable obligation, and preserves non-retrogression as an essential feature of secular values. A challenge would have to overcome that characterisation by a Constitution Bench.

Sixth, section 5. If the suit related to the Ram Janma Bhumi-Babri Masjid, the Act would not apply at all, and that dispute was decided in M. Siddiq itself.

Answer: the suit is barred by section 4(2) unless the place falls within the monument exception in section 4(3)(a), which is a question of fact; the constitutional challenge faces a Constitution Bench's characterisation of the Act as an instrument of the Constitution's basic features.

Distinctions

What it does NOT mean

It does not mean the Places of Worship Act settled Ayodhya. Section 5 excludes that site by name. The dispute was decided in M. Siddiq on the title suits.

It does not mean the Act is beyond argument. Section 4(3)(a) exempts ancient monuments and archaeological sites, and that exception is where the present litigation is directed.

It does not mean secularism is a policy the government of the day may adjust. S.R. Bommai holds it a basic feature and a constitutional goal, and any step inconsistent with it unconstitutional.

It does not mean fundamental duties are enforceable in themselves. They are not directly enforceable, but M. Siddiq treats the Act of 1991 as implementing article 51A, which shows how a duty acquires legal force: through a statute that gives effect to it.

It does not mean religion may not be taught at all. Aruna Roy upholds the study of religions for value education as distinct from religious instruction in a particular religion.

And it does not mean the answers have worked. A constitution supplies instruments; it does not supply the will to use them. That is the honest closing sentence of a Module II answer, and it leads directly into Module III, where the question becomes whether one civil code would strengthen the plural order or flatten it.

Quick revision

Three threats, distinguished: communalism (community as the unit of politics), majoritarianism (numbers deciding what the Constitution has removed from numbers), religious fanaticism (a religious command against a constitutional one). Answers: article 15(1) and the secular election law; Part III, judicial review and the basic structure; article 25(1) subject to public order, morality, health and the other Part III provisions, with article 25(2)(b).

S.R. Bommai 1994, nine judges, Jeevan Reddy J.: the State must eschew a person's religion altogether in dealing with his rights, duties and entitlements; secularism is more than passive tolerance, it is a POSITIVE CONCEPT OF EQUAL TREATMENT OF ALL RELIGIONS, a constitutional goal and a BASIC FEATURE; any step inconsistent with it is unconstitutional.

Places of Worship (Special Provisions) Act 1991: section 3 bars conversion of any place of worship, punishable up to three years under section 6; section 4(1) freezes religious character as on 15 August 1947; section 4(2) abates pending suits and bars future ones, with a proviso for post-1947 conversions; section 4(3) exempts ancient monuments and archaeological sites under the Act of 1958, matters finally decided, disputes settled, conversions by acquiescence and conversions barred by limitation; section 5 excludes Ram Janma Bhumi-Babri Masjid by name.

M. Siddiq 2019: the Act protects and secures the fundamental values of the Constitution, addresses the State AND every citizen, implements article 51A, operationalises the equality of all religions and secularism as part of the basic features, imposes a non-derogable obligation, preserves NON-RETROGRESSION, and mandates that history and its wrongs shall not be used as instruments to oppress the present and the future; and the Court refused to question the faith of worshippers.

Ismail Faruqui 1994: the demolition was a most reprehensible act striking at secularism, democracy and the rule of law; section 4(3) of the Act of 1993 struck down; the reference returned unanswered; acquisition of a place of worship permissible for public order, and a mosque held not an essential part of the practice of Islam. Aruna Roy 2002: study of religions for value education is not religious instruction; connected with article 51A(e). Amish Devgan 2020: hate speech repudiates the right to equality in a polity committed to pluralism.

Test yourself

1. Distinguish communalism, majoritarianism and religious fanaticism. Communalism organises political life around religious community so that a citizen is addressed as a group member first. Majoritarianism claims that the numerical majority may decide questions the Constitution has removed from decision by numbers. Religious fanaticism claims that a religious command overrides a constitutional obligation. Each has a different constitutional answer.

2. State the passage from S.R. Bommai on secularism. That the State must eschew a person's religion, faith or belief from its consideration altogether in dealing with his rights, duties and entitlements; that secularism is more than a passive attitude of religious tolerance and is a positive concept of equal treatment of all religions; and that it is a constitutional goal and a basic feature, so any step inconsistent with it is unconstitutional.

3. What does section 4(1) of the Places of Worship Act declare, and what does section 4(2) do? Section 4(1) declares that the religious character of a place of worship existing on 15 August 1947 shall continue to be the same as it existed on that day. Section 4(2) abates pending suits with respect to the conversion of such a character and bars future ones, with a proviso preserving proceedings founded on a conversion said to have occurred after that date.

4. Name the five exceptions in section 4(3). An ancient and historical monument or archaeological site or remains covered by the Act of 1958; a matter finally decided before the commencement; a dispute settled by the parties before the commencement; a conversion effected before the commencement by acquiescence; and a conversion effected before the commencement which is barred by limitation.

5. What did M. Siddiq say the Act of 1991 is? A legislative instrument designed to protect the secular features of the Indian polity, which is one of the basic features of the Constitution; it imposes a non-derogable obligation, implements the fundamental duties under article 51A, addresses the State as much as every citizen, and preserves non-retrogression as an essential feature of our secular values.

6. What did the Court say about the demolition in Ismail Faruqui, and what is the criticised holding in that case? That it was a most reprehensible act which struck not only at a place of worship but at the principles of secularism, democracy and the rule of law. The criticised holding is that a mosque is not an essential part of the practice of Islam such that namaz cannot be offered elsewhere, so its acquisition does not by itself offend articles 25 and 26.

7. May religion be taught in a State school? A religion may not be taught as instruction in that religion, but the STUDY OF RELIGIONS for the purposes of value education is consistent with the constitutional scheme: Aruna Roy v. Union of India, which connected the point with the fundamental duty in article 51A(e).