When I use a word, it means just what I choose it to mean—neither more nor less,” Lewis Carroll wrote in Through The Looking Glass.
The Supreme Court, however, seems to disagree. In fact, we must wonder whether its recent ruling on the words “Secular” and “Socialist” in the Constitution’s preamble implies that these words can be given any (even opportunistic) meaning. Unlike Caroll, words can be made to mean more and less, depending on how their lordships see an issue.
To be sure, the Supreme Court bench comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar did not actually say anything to the above effect, but its reasoning, while rejecting a challenge to the 42nd Amendment Act of 1976, indirectly seems to suggest that words can be given different meanings at different points of time.
The 42nd Amendment, enacted during the Emergency when many Opposition leaders were in jail and when parliament had extended its own life by a year, specifically inserted the words “Socialist” and “Secular” into the preamble in order to politically justify Indira Gandhi’s internal emergency. The bench said that both secularism and socialism were implied in the original preamble and were part of the “basic structure” of the Constitution, and thus there was no case for re-examining the validity of the insertions in 1976. More so since 44 years had passed before the 2020 legal challenge to these changes was mounted. In any case, socialism does not mean the private sector cannot exist in a mixed economy, and secularism does not mean religious freedom cannot coexist along with a uniform civil code or justify state intervention in a religion’s affairs.
This is questionable reasoning. Let us debate the four points of contention separately.
Soul of the Constitution
One, a 44-year lapse between the amendments and the challenge cannot make the challenge itself unworthy of examination. If the Supreme Court, in an 8:1 verdict earlier this year, can decide 67 years after the Mines and Minerals (Development and Regulation) Act 1957 was legislated, that states can indeed tax minerals, surely the 44-year lapse between 1976 and 2020 can hardly be a barrier to a review. Especially when we are not talking about any ordinary law, but the very soul of the Constitution.
Two, the two-judge bench also claimed that the spirit of secularism and socialism was part of the “basic structure”, and the mere insertion of these two words in 1976 made no material difference. This is a bit rich, since the idea of “basic structure” itself came only 23 years after the Constitution was adopted, in the Kesavananda Bharati case. In this case, a 13-judge bench headed by SM Sikri gave 11 different judgments that made no mention of the words “basic structure”. These words were made part of the overall judgment summary when nine judges, after writing their own separate judgments, agreed to include one line in the summation saying that “Article 368 (power to amend the Constitution) does not enable Parliament to alter the basic structure or framework of the Constitution”. Four judges refused to sign this summary which was produced by the Chief Justice in open court, after the actual judgment was delivered. On the other hand, a fundamental right given in the original Constitution, the right to property, was allowed to vanish without anyone in the Supreme Court questioning the same. And no bench has since chosen to decide which features of the Constitution constitute its basic feature, and which do not.
Three, and this is where one must ask whether words can have any meaning that the courts choose to give them. When it came to the word socialist, the bench 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”.
Really? The Oxford Learners English Dictionary says that socialism implies “a set of political and economic theories based on the belief that everyone has an equal right to a share of a country’s wealth and that the government should own and control the main industries.” In fact, this was the meaning—where the public sector was to own “the commanding heights” of the economy— that the Nehruvian state (pre-1991) took as a given while opting for a “socialist pattern of society”.
On the other hand, what if the amendment had inserted the word “Capitalist” instead of “Socialist”? Would that still have been kosher, when another bench could easily have held post facto that welfare states are a feature in all capitalist countries, and hence equally a part of the “basic structure” of the original Constitution?
Four, which brings us to the reasoning for retaining the word “Secular”, never mind that the word evolved entirely in a European context, and meant separation of church and state. The bench said “Over time, India has developed its own interpretation of secularism wherein the state neither supports any religion nor penalises the profession and practice of any faith.”
Really? Then why is only the Hindu faith subject to excess intervention by the state, thus denying it the right to manage its own religious affairs and places of worship?
What if the word “Secular” had been replaced with the word “Plural”, which would have been even better since it includes not only acceptance of religious diversity but other types of diversities too?
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An elastic Constitution
If words like socialism and secularism can be given any meaning by the courts, will they equally accept that a preamble that specifically creates a Hindu state is part of the “basic structure”? After all, the word Hindu does not only mean those who practice the Hindu faith. It can be a reference to Indian culture or way of life.
So would a reworded preamble that commits the state (India, that is Bharat) to establishing Ram Rajya, a goal dear to the “father of the nation” MK Gandhi be acceptable? And why not replace the words Liberty, Equality, Fraternity (borrowed from the French Revolution’s war cry) with Dharma, Artha, Satya, Nyaya, Antyodaya and Samanwaya? These words too can be given broad, inclusive and benign interpretations or rigid, politically-loaded meanings.
The verdict on the preamble amendments of 1976 suggests that the courts will accept flexible meanings of terms.
A Constitution built of plasticine can be made to mean anything. The highest court should ask itself if that is what it wants.
The one question that the bench did not answer was this: Does a constitutional amendment passed when parliament’s life was extended and many Opposition leaders were in jail, pass the test of democratic norms?
R Jagannathan is editorial director at Swarajya magazine. Views are personal.
(Edited by Theres Sudeep)