Justices Sanjiv Khanna and PV Sanjay Kumar, part of the Bench, noted that these words, added to the Preamble through the 42nd Amendment in 1976, can carry different meanings within the Indian context.
NEW DELHI: On Monday (21st Oct), the Supreme Court emphasized that secularism is a fundamental aspect of the Constitution, asserting that the terms “socialist” and “secular” in the Preamble should not be interpreted solely from a Western perspective.
Justices Sanjiv Khanna and PV Sanjay Kumar, part of the Bench, noted that these words, added to the Preamble through the 42nd Amendment in 1976, can carry different meanings within the Indian context.
They explained, “Socialism can also imply a fair opportunity for all and the concept of equality. We should not confine it to Western interpretations, as it can hold a distinct significance here. The same applies to secularism.”
Nevertheless, the Court agreed to consider the argument presented by petitioner and BJP leader Subramanian Swamy, who contended that the two terms, added in 1976, cannot be retroactively associated with the original Preamble established in 1949.
The Bench has yet to issue a formal notice to the Central government and has scheduled further hearings for November.
The Bench was hearing petitions that challenge the 42nd Amendment to the Constitution of India, which introduced the terms “socialist” and “secular” in the Preamble.
The 42nd Amendment, enacted in 1976, is regarded as the most immediate and direct consequence of the judgment. Additionally, the ruling established that Parliament has complete legislative authority to amend any part of the Constitution, provided that such amendments align with its basic features.
In the 1980 case of Indira Nehru Gandhi v. Raj Narain, a Constitution Bench of the Supreme Court applied the basic structure doctrine to invalidate the 39th Amendment. This amendment, passed in 1975 during The Emergency, exempted the elections of the President, Vice President, Prime Minister, and Speaker of the Lok Sabha from judicial review. Its adoption was seen as an attempt to shield Gandhi from prosecution.
The Supreme Court of Bangladesh also embraced the basic structure doctrine in 1989, explicitly referencing the reasoning from the Kesavananda Bharati case in its decision regarding Anwar Hossain Chowdhary v. Bangladesh.
One of the petitions, filed by Bharatiya Janata Party (BJP) leader and former Union Minister Subramanian Swamy, argued that the provisions of the Representation of the People Act, 1951, which require political parties to pledge to uphold secularism for registration, should be invalidated.
Communist Party of India (CPI) leader and Rajya Sabha member Binoy Viswam opposed this plea.
Today’s Hearing
“Please consider the implications. This was not discussed in Parliament and goes against the founding fathers’ vision. Your Lordships should permit us to raise this issue. Please issue a notice on it,”
Jain stated.
During today’s hearing, petitioner advocate Vishnu Shankar Jain contended that the 42nd Amendment was never debated in Parliament and contradicted the principles envisioned by the Constitution’s framers.
Justice Khanna interjected, asking,
“Are you suggesting that India should not be secular?” Jain clarified, “We are not asserting that India is not secular; we are contesting this amendment.”
Another petitioner, advocate Ashwini Kumar Upadhyay, highlighted that the amendment was enacted during a national emergency.
The Court, however, asserted that the founding fathers intended for India to be a secular nation, as reflected in various Articles and fundamental rights outlined in Part III of the Constitution. The Bench reminded the petitioners that the Supreme Court has reaffirmed this in multiple judgments.
“If we consider the right to equality and the term ‘fraternity’ mentioned in the Constitution, along with the rights in Part III, it is evident that secularism is a fundamental feature of the Constitution. I can provide relevant cases. When secularism was discussed, only the French model was considered. The Supreme Court has annulled laws that contradict secularism; refer to Article 25,”
Justice Khanna stated.
Regarding socialism, the Court noted,
“We have not adopted the Western model of socialism, and we are content with this.”
In response to this, advocate Jain cited a speech by Dr. B.R. Ambedkar during the Constituent Assembly Debates, stating, “Dr. B.R. Ambedkar condemned the inclusion of the term ‘socialism’ as it restricts liberty.”
The Bench countered, “Has liberty actually been restricted? Please explain.”
Advocate Upadhyay argued that the terms were added to the Constitution when Parliament was not operational. “This inclusion has opened a Pandora’s box. We have always been a secular nation. Tomorrow, the term ‘democracy’ could be removed or altered.
The insertion of these words did not reflect the will of the people; there was no mandate from ‘we the people.’ There was no leadership in Parliament, no debates, everyone was imprisoned, and even the right to approach the court was restricted,” he asserted.
BJP leader Subramanian Swamy pointed out a discrepancy regarding the date, asserting that the amended Preamble should not bear the date of the original Preamble from November 26, 1949.
“The current Preamble is incorrect as it cites November 26, 1949. I want to illustrate why this is erroneous. These amendments belong elsewhere, not in the Preamble,”
he stated.
Swamy suggested that the Preamble could be divided into two parts since the terms ‘secularism‘ and ‘socialism’ were not present in the original Preamble.
“We can have a two-part Preamble. It’s misleading to claim that we, the people of India, consented to the addition of the terms ‘secularism’ and ‘socialism.’ There should be one part with the original date and another without the amendments,”
he explained.
The Court indicated it would consider this issue but declined to issue a formal notice to the Central government.
“Please issue notice,” Jain requested.
“No notice. Sorry. Schedule it for the week beginning November 18,” the Bench responded.
“In Court 1?” Upadhyay inquired.
“I’m not sure. Maybe,” Justice Khanna replied.
Case Title: Balram Singh v. Union of India
