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Almost exactly 75 years since the Constitution of India was adopted, the Supreme Court on Monday (November 25) upheld the insertion of the words ‘socialist’ and ‘secular’ in the Preamble of the founding document. Through the Constitution (Forty-Second Amendment) Act, 1976 (42nd Amendment), Parliament during the Emergency enacted a sweeping series of amendments to the Constitution, one of which was labelling India a “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC”. Though the Supreme Court has curbed some of the more controversial changes introduced through the 42nd amendment, it refused to interfere with the phrasing of the Preamble . How did the Preamble as we know it today come into existence? And why did the court refuse to consider the challenges to how it is phrased? The preamble of the Constitution serves as a statement clarifying the guiding principles and purpose behind the Constitution of India. When the Constitution first came into force on January 26, 1950, the Preamble stated: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION. The phrasing of the Preamble can be traced back to the first week of the Constituent Assembly debates on December 13, 1946. On this date, Prime Minister Jawaharlal Nehru introduced the Objectives Resolution — a unanimously adopted 8-point “pledge” that provided the guiding principles for the drafting of the Constitution. Among other things, it declared the intent of the Constituent Assembly to proclaim India as an “Independent Sovereign Republic” and guaranteed equality before the law and safeguards for minorities. During the debates, early attempts were made to introduce the concept of socialism into the Preamble of the Constitution. In October 1949, Constituent Assembly member Hasrat Mohani moved an amendment for the Preamble to instead begin with “We, The People of India, having solemnly resolved to constitute India into a Union of Indian Socialistic Republics to be called U. I. S.R. on the lines of U. S. S. R.”. However, this amendment was negatived and the Preamble as we know it was adopted later that day. These attempts were not confined to the Preamble. Earlier, in November 1948, Constituent Assembly member Professor K T Shah moved an amendment to Article 1(1) of the Constitution. Shah suggested that what is now “India, that is Bharat, shall be a Union of States”, should instead say “India, that is Bharat, shall be a Secular, Federalist, Socialist Union of States”. The motion was eventually negatived, but not before Assembly member H V Kamath also noted that the words secular and socialist “should find a place, if at all, only in the Preamble”. ‘Socialist’ and ‘secular’ introduced In the midst of the Emergency while the Indira Gandhi government was curbing civil liberties and jailing political opponents, Parliament enacted the 42nd Amendment. Often referred to as a ‘mini-constitution’ because of the sheer number of changes introduced, the 42nd Amendment greatly expanded the powers of the Centre. Among a host of measures, it sought to immunise future amendments to the Constitution from being challenged in court by amending Article 368 (on the power and procedure to amend the Constitution) so long as the policies were implemented to give effect to any of the broad principles in Part IV of the the Constitution (Article 36-51). The Preamble was not spared from these sweeping changes. The Amendment stated “for the words “SOVEREIGN DEMOCRATIC REPUBLIC” the words “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC” shall be substituted”. This change was meant to “spell out expressly the high ideals of socialism, secularism and the integrity of the nation”. The Supreme Court struck down the aforementioned vast powers given to the Centre and Parliament in the case of Minerva Mills v. Union of India (1980), and the 43rd & 44th amendments further reversed several amendments. However, the amendment to the text of the Preamble remained, only to be challenged 44 years later in 2020. The challenge to the Preamble In July 2020, a Supreme Court advocate by the name of Dr. Balram Singh filed a petition challenging the inclusion of the words ‘socialist’ and ‘secular’ in the Preamble of the Constitution. Later, former Law Minister Subramaniam Swamy and advocate Ashwini Kumar Upadhyay also filed petitions with similar challenges. They argued that the word ‘secular’ was deliberately excluded from the Constitution by its framers and that the word ‘socialist’ tied the Centre’s hands when creating economic policies. However, the court in a short 7-page order rejected these arguments, with Justices Sanjiv Khanna and P V Sanjay Kumar noting that “the flaws and weaknesses in the arguments are obvious and manifest.” When the Constitution was being drafted, the court noted that the meaning of the word secular was “considered imprecise” as some scholars had interpreted secularism as being opposed to religion. With time though, the court held that “India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalises the profession and practice of any faith”. The ideals espoused in the Preamble — fraternity, equality, individual dignity and liberty among others — “reflect this secular ethos”, the court held. Similarly, the court held that the word ‘socialism’ has also evolved to have a unique meaning in India. It held that socialism refers to “(the) principle of economic and social justice, wherein the State ensures that no citizen is disadvantaged due to economic or social circumstances” and does not necessitate restrictions on the private sector which has “flourished, expanded, and grown over the years, contributing significantly to the upliftment of marginalized and underprivileged sections in different ways”. The court also found that “The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution” and held that there was no justification for challenging the 42nd amendment nearly 44 years after its enactment. None
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