What Supreme Court said on plea to remove 'secular', 'socialist' from Constitution's Preamble

The Supreme Court on Monday said that secularism has been held to be a core feature of the Constitution and the terms "socialist" and "secular" in the Preamble to the Indian Constitution need not be looked at through the western lens.

A Bench of Justices Sanjiv Khanna and PV Sanjay Kumar said that the words, which were inserted into the preamble by way of the 42nd amendment to the Constitution, can have a different meaning in the Indian context.

"Socialism can also means there has to be fair opportunity for all - concept of equality. Let's not take it in a western concept. It can have some different meaning as well. Same with the word secularism," the Court remarked.

However, the Court eventually agreed to examine the argument of one of the petitioners, BJP leader Subramanian Swamy, that the two words inserted in the preamble in 1976 cannot bear the date of the original preamble which was framed in 1949.

The Bench did not issue formal notice to the Central government yet but posted the case for further hearing in November.

The Bench was hearing pleas challenging the 42nd amendment to the Constitution of India and which had added the terms "socialist" and "secular" to describe India in the Preamble to the Constitution.

One of the petitions filed by Bharatiya Janata Party (BJP) leader and former Union Minister Subramanian Swamy also said that the provisions of the Representation of the People Act, 1951, that require political parties to give an undertaking to uphold secularism in order to be registered, should be struck down.

Hearing today

One of the petitioners, advocate Vishnu Shankar Jain, argued that the 42nd amendment was never debated in the parliament and was against the idea of propounded by the founding fathers of the Constitution when it was first drafted.

"Please check the implications. This was not debated in the parliament. It is against the founding fathers idea. Lordships please allow us to raise this issue. Issue notice on this," Jain said.

"You don't want India to be secular?" Justice Khanna asked.

"We are not saying that India is not secular. We are challenging this amendment," Jain replied.

Another petitioner, advocate Ashwini Kumar Upadhyay, argued that the amendment was made during the time when national emergency was in force.

The Court, however, said that the founding fathers always envisaged India as a secular country which was evident from the Articles in the Constitution including various fundamental rights under Part III of the Constitution.

This was also reaffirmed by the Supreme Court in various judgments, the Bench reminded the petitioners.

"If one looks right to equality and word fraternity used in constitution as well as the rights under Part III, there is a clear indication that secular has been held as the core feature of constitution. I can cite cases for you. When secularism was debated, there was only French model. Supreme Court has struck down statutes which go against secularism. You may look at Article 25," Justice Khanna remarked.

As regards socialism, the Court said,

"For socialism, we have not followed the western concept and we are happy on it."

On socialism, advocate Jain referred to speech by Dr BR Ambedkar on the aspect of 'socialism' during the Constituent Assembly Debates.

"Dr. BR Ambedkar has condemned the aspect of introduction of word 'socialism' as it curtails liberty," Jain said.

"Has liberty been curtailed? Tell me," the Bench asked Jain.

Advocate Upadhyay said that the words were inserted in the Constitution at a time when the parliament was not functional.

"This addition of words has opened a pandora's box. We have always been secular. Tomorrow the word democracy can be removed or anything. There was no will of the people during the insertion of these words. No will of the 'we the people'. There was no leader in the parliament, no debates, everyone in jail and even right to move court was prohibited," he stated.

BJP leader Subramanian Swamy highlighted the discrepancy as regards the date saying the amended preamble cannot bear the date of the original preamble from November 26, 1949.

"Present preamble is not correct in saying as it mentions the date November 26, 1949. I want to present how this is wrong. This (the amendments) could be somewhere else but not in preamble," he said.

Swamy said that the preamble can be in two parts since the insertion of the words 'secualrism' and 'socialist' was not present in the original preamble.

"We can have a preamble in two parts. It is wrong to say that we the people of India have consented towards enactment of words 'secualrism' and 'socialist'. There could be two parts of the preamble - one with the date and one without," he said.

The Court eventually said that it will examine this aspect but refused to issue formal notice to the Central government.

"Please issue notice," Jain requested.

"No notice. Sorry. List it in week commencing November 18," the Bench replied.

"In court 1," Dr Swamy then said.

"I don't know. Maybe," Justice Khanna said.

Communist Party of India (CPI) leader and Rajya Sabha member Binoy Viswam opposed the plea through advocate Sriram Parakkat.