On 25th November, the Supreme Court rejected several petitions contesting the use of the terms “socialist” and “secular” in the Constitution’s Preamble under the 42nd Amendment passed in 1976 during the emergency imposed by former Prime Minister late Indira Gandhi. The bench, which included Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar noted that the Preamble is also subject to parliamentary amending authority and added that the Preamble’s adoption date does not limit the Parliament’s ability to make changes to it. The retrospective argument was dismissed on this basis.
According to CJI Khanna, the decision has determined that the process cannot be revoked after all these years. The ruling further clarified the meanings of “socialism” and “secularism.” The bench upheld Parliament’s “incontrovertible” authority to amend the Constitution by Article 368, so long as the amendments do not conflict with the fundamental framework of the document. The bench concluded that the Preamble’s initial adoption date of 26th November 1949, could not be used as a pretext to invalidate the insertion of these terms.
The court asserted, “The fact that the Constitution was adopted and actively given to themselves by the people of India on 26th day of November 1949, does not make any difference. The date of the adoption would not curtail or restrict the power under Article 368 of the Constitution.” It further noted, “The two expressions ‘socialist’ and ‘secular’ were made in 1976 through amendments and the fact that the Constitution was adopted in 1949 does not make any difference. The retrospectivity arguments if accepted will apply to all amendments.”
The bench also highlighted, “The subject amendment (42nd amendment) has been subjected to a certain amount of judicial reviews by this court. The Parliament has intervened. We cannot say that whatever Parliament did at that time (emergency), we cannot say that all was nullity.” Social worker Balram Singh, barrister Ashwini Upadhyay, and former BJP Rajya Sabha MP Subramanian Swamy filed a series of appeals contesting the use of the terms “socialist” and “secular” in the Constitution’s Preamble.
CJI Khanna pronounced, “It has almost been so many years, why rake up the issue now.” On 22nd November, the bench reserved orders in a series of petitions contesting the 42nd Amendment. The panel previously turned down the petitioners’ request to send the case to a higher bench. Advocate Vishnu Shankar Jain, cited the recent 9-judge bench’s ruling on Article 39(b) of the Constitution, wherein a majority led by the then-CJI DY Chandrachud rejected the socialistic interpretations put forth by Justices Krishna Iyer and Chinnappa Reddy.
CJI Khanna stated that “being socialist” in the Indian context only refers to a “welfare state,” in response. “The way we understand socialism in India is very different from other countries. In our context, socialism primarily means a welfare state. That is all. It has never prevented the private sector which is thriving well. We have all benefited from it. The word socialism is used in a different context, meaning that the state is a welfare state and must stand for the welfare of the people and shall provide equality of opportunities.”
He noted that in the SR Bommai case, “secularism” was ruled to be a component of the Constitution’s fundamental framework. The addition of these terms would equate to forcing people to adhere to certain ideas, according to Vishnu Shankar Jain, who argued that the amendment was enacted without consulting the public because it was drafted during the emergency. He argued how the words could be added later since the Preamble had a deadline and maintained that the issue needed to be heard in depth and a larger bench was needed to evaluate it. “No, no,” CJI replied firmly to the plea.
Ashwini Upadhyay explained that he opposed the “illegal” inclusion of the terms socialism and secularism in the Preamble, but he was not against the ideas themselves. The Preamble was also subject to the modification authority granted by Article 368 of the Constitution, CJI Khanna retorted. “The preamble is part and parcel of the Constitution. It is not separate.” According to CJI Khanna, the court would not address the claims that the Preamble is a constituent power that can only be used by the Constituent Assembly and that the Lok Sabha in 1976, despite its long tenure, could not have changed the Constitution.
“The subject amendment (42nd amendment) has been subjected to a lot of judicial review by this Court. The legislature has intervened. The Parliament has intervened. We cannot say that whatever Parliament did at that time (emergency) is nullified,” he declared. Upadhyay pointed out that there are significant factors to take into account and that the amendment was not adopted by the states. He asked the court to hear the Attorney General’s and Solicitor General’s opinions.
Speaking as a party-in-person, Dr. Subramanian Swamy stated that the insertion of these lines was also endorsed by the Janata Party-led Parliament that was later elected. Instead of stating that it was accepted as socialist and secular in 1949, the debate is whether it should be inserted as a separate paragraph to the Preamble. Secularism has traditionally been regarded as a component of the fundamental framework of the Constitution, the court emphasized in a prior hearing.
