A Critical Analysis of the Petition challenging 'Socialist' and 'Secular' in the Preamble
Tanmaya Gupta *
The 42nd Constitutional Amendment, 1976 has come under controversy again, as a plea has been filed in the Supreme Court challenging the insertion of words ‘socialist’ & ‘secular’ in the Preamble. This article seeks to show that the constant vilification of the presence of the aforementioned words in the Preamble is unfounded and baseless. During these trying times of an ongoing pandemic, filing of this petition in the Supreme Court is a waste of judicial time. The Judiciary is struggling to give time to matters of immense importance and such a petition is an added burden on the already attenuated resources of the Indian Judiciary.
These words were added in the Preamble in a bid to assert “parliamentary supremacy” over the judiciary by Indira Gandhi, after the Supreme court’s historic decision in the case of Kesavananda Bharati v. State of Kerala, which placed certain restrictions on the powers of the Parliament to amend the Indian Constitution. After the 42nd Amendment in 1976, Indira Gandhi’s government fell in 1977 and most of the effects of the amendment were removed by the Janta Party that came in power after it through the 43rd and 44th Constitutional Amendments. If the addition of these two words was antithetical to democracy, as the petitioners in this case claim, the Janta government could have revoked their addition to the preamble through the same Amendments. They did not do so, because they did not believe these words to be inherently harmful. Even BJP stalwarts and staunch critics of Indira Gandhi, such as Lal Krishna Advani and Atal Behari Vajpayee did not oppose the addition of these words in the Constitution. While India might have proceeded towards a more capitalistic and pro-rich economic system post liberalization in 1991, this does not mean that India stopped being a welfare state.
If these words hinder the efficient functioning of the country, they can be removed. However, from a constitutional point of view, an analysis of the motive of the petitioner is necessary and emphasis should be on the totality of the plea. The focus of the plea does not seem to be attacking the words ‘socialist’ and ‘secular’ in the Preamble, but more on Section 29A of Representation of People’s Act that came in 1989, which makes it mandatory for a political party to swear allegiance to the Constitution and principles of socialism and secularism. The petitioners claim that they want to establish a political party and cannot be forced to adhere to secularism because it violates their right to freedom of religion. It appears that their problem does not lie against these two words but against the principles under Section 29A and their motive is to contest election on the basis of religion.
The petition also says that “secularism” is a Marxist theory that has been globally disapproved and also mentions the Constituent assembly debates, specifically the rejection of Prof. K.T. Shah’s idea to add socialist and secular in the preamble by Dr. B.R. Ambedkar. The petition also stated that the amendment was against the historical and cultural theme of “great republic of Bharat, the oldest civilisation of the world, having clear concept of ‘Dharma’ different from the concept of religion”. This article undertakes to analyse these contentions.
'SOCIALISM' & 'SECULARISM': BASIC STRUCTURE OR MARXIST THEORY?
The idea that the Constitution does not specifically mention these words and thus, they are not a part of the basic structure is unfounded. The absence of certain words in the Constitution does not necessarily imply that they are not a part of the basic structure. Words and phrases like “federalism”, “rule of law” and “free and fair election” are not mentioned in the Constitution but a holistic reading of the Constitution suggests that these are the principles that it leans towards. In the Kesavananda Bharti case, the Supreme Court held that ‘secular character of the Constitution’ and ‘mandate to build a welfare state’ formed a part of the basic structure of the Constitution. Thus, in essence, the court upheld the secular and socialist character of the Constitution in its basic structure doctrine.
It is true that the Marxist economic theory has been disapproved globally, but it is factually wrong that ‘socialism’ & ‘secularism’ are Marxist ideologies. The concept of secularism has existed since ancient India. Amartya Sen in his book ‘The Argumentative Indian’ writes about the secular character of India since the time of Ashoka. Even in Europe, Machiavelli devised the separation of church and state in his magnum-opus ‘The Prince’, long before Karl Marx called religion “an opioid of the masses”. In 2008, a petition filed by Good Governance organisation, challenging the word ‘socialist’ in the Preamble was struck down by the Supreme Court where Chief Justice K G Balakrishna said: “Why do you take socialism in a narrow sense defined by communists? In broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn't got any definite meaning. It gets different meanings in different times.” Thus, it can be safely said that socialism and secularism in the Indian context are not Marxist ideologies.
THE 'VALUE' OF CONSTITUENT ASSEMBLY DEBATES
The idea proposed by K.T. Shah in the Constituent Assembly debates was rejected not because Dr. Ambedkar opposed the principles of these words but rather because they were “superfluous” in the words of Dr. Ambedkar himself. His opinion was that the Constitution in and of itself is a secular document that promotes the idea of a welfare state and thus there is no necessity to specifically state so.
The extent to which Constituent Assembly debates can be used in the interpretation of the Constitution need to be taken into consideration, which is limited to it uses. Normally these debates cannot be used if there is a specific provision in the Constitution. They are only used when the Constitution is silent in some aspect and there is a conflict between any two provisions of the Constitution. It has also been the case that provisions rejected during Constituent Assembly debates have been adopted and made a part of the Constitution by the Supreme Court later, so the argument that it was rejected in the debates and thus, is ‘ultra vires’ does not hold. For example, in the case of K.S. Puttaswamy v. Union of India, the question, whether ‘right to privacy’ is a fundamental right or not, was put before the court. The government argued that the idea of ‘right to privacy’ was rejected during the Constituent Assembly debates and thus, it is not a fundamental right. The apex court rejected this argument and held ‘right to privacy’ to be an inherent part of Article 21 of the Constitution thus, a fundamental right. Another example of the same would be the case of ‘due process’ which was originally enshrined in Article 21 but was removed in the Constituent Assembly debates and replaced with the phrase “procedure established by law”. However, the Supreme Court brought back “due process” in its entirety in the case of Maneka Gandhi v. Union of India. The reasoning that these words were rejected in the Constituent Assembly debates is thus not viable.
A HIDDEN MOTIVE
In the case of Abhiram Singh v. C.D. Commachen, the majority held that a person cannot use the rhetoric of religion or caste to further their agenda. All electoral practices should be purged of caste, religion or community in all forms. It upheld a broader interpretation of Section 123(3) of the Representation of People’s Act, 1951. The minority split was on the interpretation and extension of the section, but they agreed that a representative shall not be allowed to invoke his religion to ask for votes before an electorate.
The motive of the Petitioners in challenging Section 29A of Representation of People’s Act on the basis that it curbs their rights to freedom of speech and religion as prescribed under Articles 19(1)(a) and 25 of the Constitution, by their selective citing of Hon'ble Justice D.Y. Chandrachud’s dissent in the same case, which misrepresents his views on the matter as a whole, seems to be to form a political party and contest elections on the rhetoric of religion and caste, further dividing the country on communal lines. They seem to harbour the intent of overturning the majority decision in Abhiram Singh case.
The Indian Constitution in its letter and spirit is a secular document that effectively advocates for separation of state and religious affairs and political parties should avoid seeking votes on the rhetoric of religion. Seeking partisanship on a religious basis is not a fundamental right and neither should it be lest we fall into an abyss of theocracy. This petition is at best, poorly drafted and at worst, malicious in its intention seeking further partisanship of the country.
Though the 42nd Amendment came in the backdrop of “darkest hour of democracy” for our country, that does not make it inherently antithetical to democracy. The authoritarian parts of the amendment have long been struck down by the Parliament through subsequent amendments and by the Supreme Court in the case of Minerva Mills v. Union of India, that struck down the Sections 4 and 55 of the 42nd Amendment. The addition of the words ‘socialist’ and ‘secular’ in the constitution does not seem to violate any fundamental right of any citizens and the petition is an added burden on the judiciary’s resources. The judicial interpretation of 42nd Amendment in the past suggests the same. These words are a part of the basic structure of the Constitution irrespective of them being mentioned in the Preamble.
* Tanmaya Gupta is a third year student of Dr Ram Manohar Lohia National Law University, Lucknow.
** Image Source: Wikimedia Commons