'Socialist', 'Secular' in Preamble: Supreme Court dismisses plea challenging Constitution amendment

New Delhi: The Supreme Court on Monday dismissed pleas challenging insertion of the words 'Socialist' and 'Secular' in the Preamble to Indian Constitution during Emergency.

A bench of Justices Sanjiv Khanna and Sanjay Kumar held that the writ petitions do not need further deliberation and adjudication and amending the power of Parliament over Constitution extends to Preamble.

"These terms have achieved widespread acceptance, with their meanings understood by “We, the people of India” without any semblance of doubt. 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," the court said.

The court felt the circumstances do not warrant it to exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement. 

A batch of petitions filed by Balram Singh, BJP leader Subramanian Swamy and advocate Ashwini Kumar Upadhyay, challenged retrospectivity of the insertion in 1976. They contended the Constitution was adopted on the 26th day of November 1949; the word ‘secular’ was deliberately eschewed by the Constituent Assembly, and the word ‘socialist’ fetters and restricts the economic policy choice vesting in the elected government, which represents the will of the people.

They claimed the 42 nd amendment was vitiated and unconstitutional as it was ‘passed’ during the Emergency on November 2, 1976, after the normal tenure of the Lok Sabha that had ended on March 18, 1976.

"Article 368 of the Constitution permits amendment of the Constitution. The power to amend unquestionably rests with the Parliament. This amending power extends to the Preamble," the bench said.

The fact that the Constitution was adopted, enacted, and given to themselves by the people of India on the 26th day of November, 1949, does not make any difference, it said.

"The date of adoption will not curtail or restrict the power under Article 368 of the Constitution. The retrospectivity argument, if accepted, would equally apply to amendments made to any part of the Constitution, though the power of the Parliament to do so under Article 368, is incontrovertible and is not challenged," the bench said.

The court also said the Constitution is a living document, with power given to the Parliament to amend it in terms of and in accord with Article 368.

It noted in 1949, the term 'Secular' was considered imprecise, as some scholars and jurists had interpreted it as being opposed to religion.

However, the bench said, "Over time, India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalises the profession and practice of any faith. This principle is enshrined in Articles 14, 15, and 16 of the Constitution which prohibit discrimination against citizens on religious grounds while guaranteeing equal protection of laws and equal opportunity in public employment."

Citing the Constitution bench judgments in Kesavananda Bharati Vs State of Kerala (1973) and S R Bommai vs Union of India (1994), the court pointed out, it has been observed that secularism is a basic feature of the Constitution.

The court also pointed out in M Ismail Faruqui (Dr) Vs Union of India (1994), this court elaborated the expression secularism in the Indian context is a term of the widest possible scope. The State maintains no religion of its own, all persons are equally entitled to freedom of conscience along with the right to freely profess, practice, and propagate their chosen religion, and all citizens, regardless of their religious beliefs, enjoy equal freedoms and rights.

Similarly, the word 'Socialism', in the Indian context should not be interpreted as restricting the economic policies of an elected government of the people's choice at a given time, the bench said.

"The word ‘Socialism’ reflects the goal of economic and social upliftment and does not restrict private entrepreneurship and the right to business and trade, a fundamental right under Article 19(1)(g)," the court said.