New Delhi: A day before the Supreme Court celebrates 75 years since India adopted its Constitution, a bench led by Chief Justice of India Sanjeev Khanna disposed of a petition seeking to remove two words—’secular’ and ‘socialist’—from the Constitution.
On Monday, the two-judge bench, including Justice P.V. Sanjay Kumar, said, “The fact that the writ petitions were filed in 2020, forty-four years after the words—’socialist’ and ‘secular’—became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by ‘We, the people of India’ without any semblance of doubt.”
What plea said, challenge to 1976 amendment
In the Dr. Balram Singh vs. Union of India case, a batch of petitions challenged the insertion of the words—’socialist’ and ‘secular’—into the Preamble to the Constitution through the 42nd Amendment Act in 1976.
The ground of the challenge was that the retrospective insertion in 1976, years after India adopted the Constitution on 26 November 1949, resulted “in falsity”. The plea argued that the constituent assembly “deliberately eschewed” the word ‘secular’. On the other hand, the word ‘socialist’, according to the plea, fettered and restricted the choice of economic policy vested with the elected government representing the will of the people.
Further arguing that the 42nd Amendment, “passed” on 2 November 1976 amid the Emergency after the tenure of the then Lok Sabha ended on 18 March 1976, is “vitiated and unconstitutional”, the plea said there was no will of the people to sanction the amendments.
What SC said, Article 368 on amendments
Hearing the plea on 25 November, the Supreme Court said the petitions did not require detailed adjudication because the flaws and weaknesses in the arguments were “obvious” and “manifest”.
Stating that ‘secular’ and ‘socialist’ were inserted into the Preamble along with ‘integrity’ by the 42nd Amendment Act, 1976, the SC said that Article 368 of the Constitution allows amendments in or modifications to the Constitution and that power to amend “unquestionably” rests with the Parliament.
Article 368 entails the Parliament’s power to amend the Constitution and lays down its procedure. “Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article,” it states.
Explaining the procedure of constitutional amendments, Article 368 says that it can be initiated only by introducing a Bill in either of the Houses of Parliament. When the Bill is passed in each House by a majority of the members, with at least two-thirds of them present and voting, it is presented to the President for his nod, after which the amendment becomes a part of the Constitution.
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What SC said ‘secular’ has come to mean
In its order, the SC bench said though the constituent assembly did not include the words—’socialist’ and ‘secular’—in the Preamble originally, the Constitution is a living document since the Parliament is empowered to amend it, according to Article 368.
Pointing out that in 1949, ‘secular’ was considered an imprecise term because certain scholars and jurists interpreted it as opposed to religion, the court said that India, over time, ended up developing its interpretation of secularism, where the government neither supports any religion nor penalises anyone for professing or practising any faith.
“This principle is enshrined in Articles 14, 15, and 16 of the Constitution, which prohibit discrimination against citizens on religious grounds while guaranteeing equal protection of laws and equal opportunity in public employment,” the court said in its order.
Underlining that the Preamble’s original tenets—equality of status and opportunity, fraternity, and ensuring individual dignity—read with social, economic and political justice and liberty of thought, expression, belief, faith and worship—reflect this secular ethos, the court pointed to other constitutional provisions that support this view.
What other provisions SC cited to support secularism
Among other constitutional provisions endorsing the principle of secularism, the court pointed to Article 25, which guarantees everyone equal freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, morality, health and other fundamental rights. It also entails the State’s power to regulate secular activities associated with religious practices.
The court also pointed to Article 26, which extends to all religious denominations the right to establish and maintain religious or charitable institutions, manage religious affairs, own and acquire property, and administer such property according to law.
Moreover, the court cited Article 29, which safeguards the distinct culture of every section of citizens, and Article 30, which grants religious and linguistic minorities the right to establish and administer their educational institutions.
The court also noted that despite these provisions, Article 44 in the Directive Principles of State Policy permits the State to strive for a uniform civil code for its citizens.
How Sanjeev Khanna-led SC bench interpreted ‘socialism’
Stating that ‘socialism’ should not be interpreted in the Indian context as restricting the economic policies of an elected government or people’s choice, the court said, “Neither the Constitution nor the Preamble mandates a specific economic policy or structure, whether left or right. Rather, ‘socialist’ denotes the State’s commitment to be a welfare State, and its commitment to ensuring equality of opportunity.”
Adding that India has “consistently embraced a mixed economy model”, where the private sector has flourished, expanded, and grown, contributing significantly to the upliftment of the marginalised and underprivileged sections in different ways, the court said socialism embodies principles of economic and social justice, where the State ensures no citizen is disadvantaged due to existing economic or social circumstances.
The word ‘socialism’ reflects the goal of economic and social upliftment and does not restrict private entrepreneurship and the right to business and trade—a fundamental right under Article 19(1)(g)—the court said.
The court also countered the plea to strike down the 1976 amendment due to its enactment during the Emergency by recalling that the Parliament already deliberated upon this question during considerations over the 45th Amendment Bill in 1978.
The Lok Sabha scrutinised the words—’secular’ and ‘socialism’—before renumbering the 1976 Bill, which, subsequently, became the 44th Amendment Act 1978.
The court said that at the time, the word ‘secular’ was explained as denoting a Republic that upholds equal respect for all religions and ‘socialist’ as representing a Republic dedicated to eliminating all forms of exploitation—whether social, political, or economic.
Referencing its recent nine-judge bench ruling in the Property Owners Association vs. Maharashtra case, the court said through that judgment, it cleared any doubt and ambiguity by holding that the Constitution allows elected governments to adopt a structure for economic governance that would promote the policies for which it is accountable to the electorate. “Indian economy has transitioned from the dominance of public investment to the co-existence of public and private investment,” the court said while explaining its interpretation of the term ‘socialist’.
Dismissing the pleas, the court stressed that the constitutional position on the subject remained unambiguous and that there was no need for a detailed academic pronouncement. It ruled, “The additions to the Preamble have not restricted or impeded legislation, or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, we do not find any legitimate cause or justification for challenging this constitutional amendment after nearly 44 years.”
(Edited by Madhurita Goswami)