Could Preamble have been amended without altering Constitution’s adoption date, SC asks
The Supreme Court of India has agreed to examine whether the words "socialist" and "secular" can be removed from the Preamble of the Indian Constitution.
The Supreme Court on Friday agreed to examine whether the words “socialist” and “secular” could have been inserted in the Preamble of the Indian Constitution in 1976 even though the date of the adoption of the Constitution remained unaltered -- November 26, 1949.
Hearing a pair of petitions that have sought deletion of words “secular” and “socialist” from the Preamble, a bench of justices Sanjiv Khanna and Dipankar Datta clarified that the court did not mean to say that Preamble cannot be amended at all, but the question arose if it could have been tweaked when the date of adoption of the Constitution was a part of the Preamble too.
“Just consider this...Can the Preamble be changed while keeping the other date intact? This is perhaps the only Preamble we have seen that comes with a date. On so and so date (November 26, 1949) we give ourselves this Constitution...this is also a part of the Preamble,” the bench asked counsel Vishnu Shankar Jain and former parliamentarian Subramanian Swamy.
While Jain represented two advocates and a social worker who moved a common petition, Swamy filed a petition in his personal capacity.
“It’s not that Preamble cannot be amended. The question is about the other date,” the bench clarified, as it asked the parties to come prepared with a discussion on this point on the next date of hearing. The court has fixed the next hearing in April.
The Preamble is an introductory statement that sets out the Constitution’s guiding purpose and principles as the master document. It was adopted on November 26, 1949, by the Constituent Assembly of India and came into effect on January 26, 1950.
It initially read : “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens: justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and to promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation; In our Constituent assembly this 26th day of November, 1949, do hereby adopt, enact and give to ourselves this Constitution.”
The words “socialist” and “secular” were inserted in 1976 by the 42nd Constitution Amendment, passed by the then Indira Gandhi government. The first line now mentions “sovereign socialist secular democratic republic”.
The petition filed jointly by Balram Singh, Karunesh Kumar Shukla and Pravesh Kumar in 2020 argued that the amendment made in 1976 was “antithetical to the constitutional tenets as well as the historical and cultural theme of India” because the Constitution permits them the right to practice, profess and propagate their own religion under Article 25.
“The amendment was per se illegal for violating the concept of freedom of speech and expression enumerated in Article 19(1)(a) of the Constitution and the right to freedom of religion guaranteed under Article 25 of the Constitution,” it said.
The plea sought a direction the Union government to declare that the concept of ‘socialism’ and ‘secularism’ referred to the nature of the republic and was limited to the working of the sovereign function of the State and not applicable to citizens, political parties and social organisations.
The petition has also challenged the insertion of words “secular” and “socialist” in Section 29 A (5) of the Representation of People Act by an amendment in 1989. The provision makes it compulsory for a political party applying for registration before Election Commission of India,” to make specific provision in its memorandum or rules and regulations that the association or body shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of “socialism” and “secularism” and democracy and would uphold the sovereignty and integrity of India”.
The petition, filed by Jain, further argued that the original Constitution makers deliberately chose to keep these concepts out of the Preamble.
On November 15, 1948, Professor KT Shah proposed adding the words “secular, federal and socialist nation”, but the Constituent Assembly (CA) rejected it after a lengthy discussion.
Again, on November 25, 1948, a second amendment was introduced and discussed on incorporating the word ”secular” in the draft Constitution. That, too, was rejected.
On December 3 that same year, a third attempt was made to include “secular” in Article 18 of the Constitution, which was also dismissed by the Constituent assembly.
The petition demanded the top court to examine that given this position, whether Parliament could go against the solemn declaration by the Constituent assembly and modify or add “secular” and “socialist” words to the text of the Preamble by way of an amendment in 1976.
Similarly, Swamy’s petition, also filed in 2020 contended that it was not possible for policymakers to vary, alter or repeal the Preamble since it was not equivalent to an ordinary statute.
Swamy added that the Preamble not only formed the essential features of the Constitution but also the fundamental conditions based on which various groups and interests adopted the Constitution with the hope to create one unified integrated community. He claimed that the insertion was against the right to freedom of religion, and the concept of judicial review which formed an integral part of the basic structure of the Constitution.
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