The Supreme Court on 22nd November Friday noted that the 1976 amendment to the Constitution, which included the phrases “socialist,” “secular,” and “integrity” into the Preamble, has undergone judicial scrutiny, and therefore cannot assert that all actions taken by Parliament during the emergency era were null and irrelevant.
A bench comprising Chief Justice Sanjiv Khanna and Justice Sanjay Kumar has reserved its verdict on a series of petitions submitted by former Rajya Sabha MP Subramanian Swamy, advocate Vishnu Shankar Jain, and others, contesting the incorporation of the terms “socialist” and “secular” in the Preamble of the Constitution. The CJI, however, said, “The subject amendment (42nd amendment) has been subjected to a lot of judicial reviews by this court. The Parliament has intervened. We cannot say that whatever Parliament did atat that time (emergency) was all nullity.” The terms “socialist,” “secular,” and “integrity” were incorporated into the Preamble of the Constitution through the 42nd constitutional amendment enacted by the Indira Gandhi administration in 1976.
The Preamble’s phrase “sovereign, democratic republic” was replaced with “sovereign, socialist, secular, democratic republic” as a result of the modification.
The declaration of an emergency in India was made by the late Prime Minister Indira Gandhi, spanning from June 25, 1975, to March 21, 1977. The bench indicated that it would deliver its order on the matter on November 25. During the hearing, the bench declined to refer the matter to a larger bench as requested by the petitioner, stating that “being socialist” in the Indian context is interpreted as a “welfare state”.
Advocate Jain remarked that in a recent verdict by a nine-judge Constitution bench, the prevailing perspective questioned the interpretation of the term “socialist” as articulated by former Supreme Court justices V R Krishna Iyer and O Chinnappa Reddy.
The bench observed that the understanding of socialism in India differs significantly from that in other countries. In this context, socialism is primarily defined as a welfare state. That concludes the discussion. The private sector continues to thrive without impediment. All individuals have derived benefits from it. Justice Khanna stated that the term socialism is employed in various contexts globally, and in India, it signifies that the state is a welfare entity that must advocate for the welfare of its citizens and ensure equality of opportunities.
He stated that the highest court recognized “secularism” as an integral component of the Constitution’s basic structure in the 1994 S R Bommai case.
Advocate Jain further argued that the 1976 amendment to the Constitution was enacted without public consultation, as it occurred during the emergency, and that the inclusion of these words would effectively compel the populace to adhere to certain ideologies.
“When the Preamble has a cut-off date, how is it possible to incorporate new words into it?” Jain enquired while requesting a reference to a larger bench for authoritative adjudication on the issue.
Advocate Ashwini Upadhyay, who has also submitted a petition, stated that he does not oppose the concepts of “socialism” and “secularism,” but he is against their inclusion in the Preamble.
The bench stated that Article 368 of the Constitution empowers Parliament to amend the Constitution, including the Preamble.
“The Preamble is part and parcel of the Constitution. It is not separate,” it said, making it clear the court won’t go into the inquiry that the Lok Sabha in 1976 could not have amended the Constitution and that amending the Preamble was a constituent power, exercised only by the Constituent Assembly.
Upadhyay, in advocating for the court to consider the perspectives of the Attorney General and Solicitor General, argued that the 42nd amendment lacked ratification by the states.
Subramanian Swamy, a former Rajya Sabha MP, who submitted a distinct petition, highlighted that the later elected union government, under the Janata Party, endorsed the addition of these terms in the Preamble.
He stated that the issue at hand was whether it ought to be included as a distinct paragraph in the Preamble rather than simply noting that it was adopted as socialist and secular in 1949.
“Not only the emergency Parliament adopted this but (it) was also subsequently supported by the Janata Party government’s Parliament by a 2/3rd majority, in which this particular aspect of socialism and secularism was retained.” As Swamy said.
He further added, “The issue here is only this much – whether we would make out that this should come as a separate paragraph because we cannot say that in 1949 these words were adopted. Therefore, the only issue that remains is, having accepted this, we can have a separate paragraph below the original paragraph.” On October 21, the Supreme Court said that secularism has always been seen as an integral component of the fundamental framework of the Indian Constitution, and the phrases “socialist” and “secular” should not be perceived as exclusively Western concepts.
On February 9, the Supreme Court enquired about the possibility of amending the Preamble to the Constitution while preserving the date of its adoption, November 26, 1949, unchanged.
In early September 2022, the Supreme Court associated Swamy’s petition with other outstanding cases submitted by one Balram Singh and others for consideration. Their aim was to remove the terms “socialist” and “secular” from the Preamble of the Constitution.
Swamy’s argument asserted that the Preamble not only delineated the essential characteristics of the Constitution but also articulated the fundamental principles upon which it was established to foster a cohesive and integrated community.