Supreme Court’s dismissal on petition challenging insertion of “socialist” and “secular” in the preamble via 42nd Constitutional Amendment

Introduction

[1]While deciding a recent writ petition challenging the insertion of terms “socialist” and “secular” in the Preamble to the Constitution vide the 42nd Amendment Act in 1976, a division bench of the Hon’ble Supreme Court of India comprising of Hon’ble Justices Sanjiv Khanna and Sanjay Kumar dismissed the petition while stating that there exists no legitimate case or justification for challenging the Constitutional mandate via amendment after 42nd amendment after a period of 44 years.

Additionally, the words “socialist” and “secular” have achieved a widespread level of acceptance in the society and the preamble has not restricted the legislations or policies pursued by the elected governments provided that these actions have not led to the infringement of the fundamental rights and basic structures of the Indian constitution.

Background and Brief Facts of the case

There were numerous grounds upon which the present challenge to the insertion of terms “socialist” and “secular” was made. First of all, it was contended that the term “socialist” was deliberately kept out of the preamble by the Constituent Assembly while considering the retrospectivity of the insertion and secondly, the term also leads to numerous restrictions upon the choice of economic policy that vests in the elected government which would represent the mandate of the citizenry.

Secondly, the amendment is also manifestly unconstitutional as it was passed during the phase of emergency in the year 1976 when the normal tenure of the Lok Sabha has already ended leading to absence of the will of the people.

Analysis by the Bench

While adjudicating upon the merits of the present case, the court noted that the present case did not require any detailed adjudication of the facts or arguments since the entire set of arguments was based upon surmises and conjectures which was obvious and manifest. Additionally according to Article 368 of the Constitution of India, amendments in the constitution are permissible whose powers are vested with the parliament and this power extends to the preamble provided that the same is not violative of the basic structure.

Furthermore, it was noted by the court that the fact that constitutent assembly had not initially agreed to the insertion of these two terms in the preamble, the constitution of India being a living document possesses the inherent capability to be amended or updated with the course of time provided that the essential tenets as envisioned by the founding fathers of the country are not grossly violated. During the foundation of constitution, the terms ‘Secular’ was understood by the members as being opposed to religion or religious tenets.

There is no doubt as to whether the constitution before the 42nd amendment was secular since various other original tenets such as liberty, equality of status and opportunity, guaranteed individual dignity, social, political and economic justice etc., already represent its secular and socialist ethos. In several landmark adjudications and precedents such as Kesavananda Bharti case and S.R Bommai V. Union of India, it has already been reiterated time and again by the judiciary that secularism forms an intrinsic part of the Indian legal and political system and is a commitment by the state to treat each and every individual with equality and without discrimination.

Interpretation of “Socialism” in Indian constitutional context

According to the bench, the term does not embody merely a system of economic operations since neither the preamble nor the constitution mandates any particular economic system to be followed in the country but embodies a principle of social and economic justice in the country wherein it is the responsibility of the state to ensure that no individual or entity is deprived of equal treatment due to social or economic factors. Socialism as a principle in Indian jurisprudence aims at upliftment of the society and economy at large and is not prohibitive of private ownership, right to trade or right to business according to Article 19 of the Constitution of India.

Even though the terms were initially added during the 1976 era of emergency, a republic that upholds equality of religion and freedom of thought entitling each and every individual to their choices and freedom of religion along with having no individual state religion was always aim of the Indian political system which was envisioned by the constituent assembly.

Furthermore, the term socialist refers to a state which is duty bound to eliminate all forms of social, political and economic exploitations in the country. Since India’s independence in 1947 and the 42nd amendment in 1976, no state can guarantee a unified or same set of principles governing their economic system and therefore the constitution itself guarantees a ‘breathing space’ for the elected representatives to take decisions and act in the welfare of people and economic upliftment of the country. 

Conclusion

With the court raising significant questions upon the present instant writ petition challenging the validity of the 42nd amendment act and the terms added after 44 years since the amendment, the bench dismissed the present petition upon the grounds that there is no need of the court to exercise any exclusive and exhaustive decisions or scrutiny over these two terms and since the present constitutional mandate remains clear and unambiguous, there is no need to undertake any detailed academic recourse to the same.

[1] https://api.sci.gov.in/supremecourt/2020/13773/13773_2020_1_39_57487_Judgement_25-Nov-2024.pdf