Politics of Preamble: Igniting controversy

The Narendra Modi government has to respect the institu-tional legacies and fundamental tenets.

The publication of the original Preamble as part of Republic Day advertisement by the BJP-led Union government has ignited controversy, if not a ‘national debate’.

Shiv Sena in a predictable fashion justified the action and even pleaded for its repetition. According to Union Minister Ravishankar Prasad, the Congress party should debate whether Nehru was not secular for he and his team did not find it fit to include the words ‘secular’ and  ‘socialist’ in the Preamble. 

However, another Minister Venkaiah Naidu clarified that the present Preamble would remain intact and the government is committed secularism. Prime Minister Narendra Modi, however, followed usual rules of silence. The finest part of the controversy is that it acted as a national reminder on the topic.

The constitution is more than a statutory law. In the words of Chief Justice Marshall, “it is framed for the ages” and “designed to approach immortality”. It is superior to its own creations including parliament or even the Supreme Court.

This does not, however, mean that an amendment to the constitution duly made by parliament and endorsed by the courts could  be disrespected by the successive governments. 

As held by the Supreme Court in State of Haryana vs State of Punjab (2002), only the political parties which run the government might change, and the government does not.  It is a continuing institution.

The Preamble to the constitution was amended in 1976.  The amended Preamble came into force on 3.1.1977. The 42nd amendment was one that reflected the mood of the house, as evident from the speech of the then Law Minister H R Gokhale. The words ‘socialism’ and ‘secularism’ were incorporated by adopting the Nehruvian concepts as revealed from the parliamentary proceedings.

A dislike to the amendment is apparently a disinclination to the concepts of socialism and secularism which always remained as foundational principles of the constitution. The Modi government has to respect the institutional legacies and the fundamental tenets.

As demonstrated by Mark Tushnet, constitution is a device that gives “structure for our politics”. For the judiciary, constitution is the ultimate guide and therefore, each and every word in the constitution matters. The interpretive jurisprudence evolved by the Indian Supreme Court involved an imaginative and even democratic application of the law.

But crony capitalism has intruded all facets of democratic institutions. Money matters and man does not. In the advanced global market, equality is just a fantasy.

This is why the socialist juridical philosophy evolved by the Supreme Court in the 70s and 80s becomes all the more significant in the new age.  

In the Bhim Singhji case, the Supreme Court explained the linkage between socialism, secularism and democracy. Socialism in the Preamble magnified the scope and ambit of the equality clauses, especially Article 14. The direct result was invention of principles like “equal pay for equal work”. 

The judgments in Nakara (1982), Atam Prakash (1986) etc became the principal weapons in the hands of the working class in the adjudicatory process. The Indian courts witnessed a ‘class struggle’ in the dockets. In the new era where ‘hire and fire’ is the rule and capitalist magnanimity an exception, the Preamble in itself is a social security measure. Ideological difference cannot be a reason to deviate from the basic structure of the constitution.

Observing neutrality

Secularism also is a basic feature of the constitution as held in S R Bommai (1994). The Court held that “The state is prohibited to patronise any particular religion as state religion and is enjoined to observe neutrality”. The purpose is “to ensure an atmosphere of full faith and confidence among (the) people to realise full growth of personality”.

The 1976 amendment had also incorporated the concept of “integrity of the nation” in the Preamble. Secularism is also a means for integration, according to Bommai. ‘Positive secularism’ is the sine qua non of (essential to) the Indian State.

Bommai was decided when the Supreme Court was called upon to examine the president’s power for dissolution of the state governments or legislatures at the states under Article356 of the constitution. The governors of Madhya Pradesh, Himachal Pradesh and Rajasthan reported about the state sponsored fanaticism in their respective states. They intimated that even the chief ministers were part of the Babri Masjid demolition drive, directly or indirectly. 

It was against this political background that the Supreme Court held that not only the governments but even political parties are bound to follow secularist praxis. The state should be clearly irreligious as declared by the apex court in Bal Patil (2005).

Therefore, the Centre will do well by adhering to the present constitutional scheme and the law of the land as explained by the Supreme Court. After all, they came much before American President Barack Obama’s farewell admonition!

(The writer is a lawyer practicing in the Supreme Court and the Kerala High Court)