SC DISMISSES THE PLEA FOR REMOVING “SECULARISM” AND “SOCIALISM” FROM THE PREAMBLE
The apex court by way of bench comprising of Chief Justice Sanjiv Khanna and Justice Sanjay Kumar dismissed a petition challenging the inclusion of terms “Secularism” and “Socialism” in the Preamble of the Constitution of India through the Constitution (Forty Second Amendment) Act, 1976.
It has been challenged on several grounds, which include retrospectivity of the inclusion in 1976 as the cut-off date for the adoption of Constitution was 26th November, 1949. Another ground was regarding the controversy about the inclusion of term “Secularism” in the preamble during the discussions of Constituent Assembly and how inclusion of word “Socialism” can restrict or fetter the choice of economic policies of the elected government. The whole Forty Second Amendment Act, 1976 was challenged as being vitiated as it was passed during Emergency.
This petition was criticized by the judges and was not provided with any detailed adjudication as the flaws and weaknesses were obvious and manifest. The bench said that the petition being made in 2020, Forty-Four years after the Forty Second Amendment came into force was particularly questionable. It questions the integrity of the prayer as it is being made years after the terms in question have been deeply enrooted in the society to an extent. These terms have found wide acceptance in the society and are facilitating smooth governance and implementation of policies.
In this petition Article 368 of the Indian Constitution was also discussed. The Article grants constituent power to make formal amendments and empowers parliament to amend the constitution by way of addition, variation or repeal of any provision according to the procedure laid down therein. The court in this regard held that the power of our parliament to amend the constitution is inconvertible and is also applicable to the preamble and has already been established, so the challenge of retrospectivity should apply to all the amendments which is not the case here.
While discussing about the controversy regarding the inclusion of the term secularism in the preamble, the court stated that during the Constituent Assembly debates some scholars and jurists interpreted “secularism” as being opposed to religion. But over period the connotation has changed and it reflects the Indian interpretation of secularism of wherein the state neither supports any religion nor penalizes the profession and practice of any faith. This connotation can be easily found in our societal values and governmental policies along with the original tenets of the preamble such as equality of status and opportunity, fraternity, ensuring individual dignity etc. Article 25 of the Constitution provides the right to freely profess, propagate religion, subject to public order, morality, health and other fundamental rights.
Moving on to the term “Socialism”, the court held that in the Indian context the term inclines towards economic justice and the concept of state being a welfare state. It does not supports the western concept of giving up private ownership meanwhile the right to trade and business is clearly provided to us as a fundamental right under Article 19(1)(g) of the Indian Constitution. The court expressed through its judgment in Property Owners Assn. v. State of Maharashtra that the elected government can select an economic model which would promote policies that the government is accountable to the electorate. This mandate is easily reflected in our transition from dominance of public investment to co-existence of public and private investment.
The petition being brought into action years after the terms socialism and secularism have become integral to our constitution and society is susceptible. It challenges the critical base on which our values, policies has been flourishing upon. If the suit became maintainable by any chance than it would have brought down the whole constitutional spirit.
Rejecting the argument that the amendment was made during Emergency, the SC pointed out that it had been previously deliberated in the parliament during the consideration of the Constitution Forty-Fifth Amendment Bill, 1978. Subsequently, this Bill was renumbered and called the Constitution Forty-Fourth Amendment Act, 1978.
This judgment also reaffirmed the notion of Constitution being a living document, where according to evolving and modernizing concepts we can easily introduce them in our supreme law.
This judgment in its totality embodies the constitutional spirit and keenly balances the societal norms that have been prevailing in our society for a long time with it. However, it was quite clear on its outset that the petition was going to be rejected considering its demand and the lack of completely furnished arguments to support their contention. The court dismissed the petition without an exhaustive examination, since the constitutional position on this was unambiguous and didn’t require an explanation. But the pointed arguments have been completely answered in the judgment clarifying the details and intricacies of the petition. The CJI also held that the process could not be nullified after years of its penetration and acceptance in the society.
References:
- Dr. Balram Singh and Ors. v. Union Of India and Anr. Writ Petition (C) No. 645 of 2020
- Anmol Kumar Bawa, “'No Legitimate Cause' : Supreme Court Dismisses Pleas Challenging Inclusion Of Words 'Socialist' & 'Secular' In Constitution's Preamble” (Live Law.in , 25 Nov 2024) accessed on 29 November, 2024