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Secular and Socialist against the Democracy?

Keywords Indian constitution, makers of the constitution, secular, socialist, Preamble, 42nd Amendment, Emergency, Article 368, basic structure.

Introduction

Secular and socialist words added in the preamble, by 42nd Amendment, 1976 by the then Indira Gandhi Government is in the debate today. 42nd amendment of the Indian constitution, enacted at the time of emergency, popularly known ‘mini-constitution of India’ as it made a lot of changes in the constitution most of them in favor of the ruling government.

Challenging the validity of the secular and socialist words of the preamble a petition has been filed in the Supreme Court by Advocates Balram Singh, Karunesh Kumar Shukla, and an individual Parvesh Kumar. The petition states that secular and socialist word is against the right to freedom of speech and expression Article 19(1) and Right to freedom of Religion Article 25. The petitioners also challenged the insertion of the words ‘Secular’ and ‘Socialist’ in section 29 A (5) of the Representation of People Act 1951 compelling the political parties to mention in the memorandum, rules or regulation that they will abide by these principles.

The petition also introduces thoughtful questions of law, for consideration in the Supreme Court which includes, whether the parliament in the exercise of their power in Article 368 amend the preamble? Whether the 42nd amendment of the Constitution ultra vires?

Meaning

The notion of secularism as defined by makers of the constitution was India respect all religion but there is no state religion. It is the ancient doctrine in India that the state protects all religion but interferes with none[1]. The state can have no religion of its own, but it should treat all religions equally.

India is a nation of diversities where people believe in Ishwar, Allah, God, Gurus at the same time. They incorporated the Right to freedom of religion (Article 25- 28) in Part III for this purpose. Religion is a matter of personal faith and belief. They did not intend to add the concept of secularism in the Preamble nevertheless they had inscribed this concept within the constitution.

Socialism means social and economic equality. Social equality means the absence of discrimination, in any form particularly, on the grounds based on caste, color, creed, sex, religion, or language. Economic equality means providing equal rights to every individual. To achieve an egalitarian society, they added these concepts in the constitution in the form of article 14, 15 ,and Part IV which accounts for Directive Principles of State Policy.

A Threat to Democracy

1. Constituent assembly

Chairman of Drafting Committee Dr. Bhim Rao Ambedkar opposed the amendment proposed by Prof. K.T. Shah and strongly submitted that those two words were unnecessary. He also stated that “what should be the policy of State, how the society should be organized in its social and economic sides are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organization of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organization in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organization of society is better than the capitalist organization of the society. But it would be perfectly possible for thinking people to devise some other forms of social organization which might be better than the socialist organization of the today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves”[2].

That it is relevant to mention that the proposal to insert the words ‘Secular’ and ‘Socialist’ in the Preamble was rejected thrice after due deliberation and exchange of views between the members of the Constituent Assembly[3].

2. Emergency

The 42nd amendment came into existence in the darkness of emergency when people had no fundamental right, presses were being suspended, and anyone speaking against the government or emergency was sent to prison, political conversations were ban. What is the meaning of democracy if citizens have no right at all? Whereas Indira Gandhi government had absolute power with this they made changes in the constitution curtailing the powers of the judiciary. She sought to make the directive principles of state policy, or the duties of the state, superior to fundamental rights, or individual rights of citizens. As part of the 42nd amendment, her government had introduced two provisions in the Constitution which did not allow courts to question constitutional amendments.

To justify their wrongdoings, they said Secular and socialist were added to reassure the nation that minorities would be safe and the moneyed class would not dominate the economy[4]. On the other hand, in an attempt to remove poverty they removed the poor.

Our constitution is neither rigid nor flexible yet makers added article 368 to give parliament amending power to the constitution for the welfare of society because society is dynamic. What is moral for today make not be the same tomorrow. The word ‘amendment’ postulates that the old constitution survives without loss of its identity despite the change and continues even though it has been subject to alteration. Nevertheless, parliament has taken this power for granted and amended the constitution for 103 times within 70 years of its enactment.

3. Case laws

In Kesavnanda Bharti v. State of Kerela (1973) it was held that Under Article 368 the parliament cannot destroy the ‘basic feature’ of the constitution. The preamble of the Constitution is the basic structure of the Constitution. It denotes the aspirations of the citizens[5]. Looking into the basic structure doctrine it can be said that preamble cannot be amended by the parliament. In SR bommai v. UOI[6], it was held that Secularism is the basic structure of the constitution.

The Preamble is the key to open the minds of the makers[7].In Kesavananda case has been noted by Y.V. Chandrachud,J. that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, we cannot amend the Constitution so as to destroy the Preamble. Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. The Preamble records like a sunbeam certain glowing thoughts and concepts of history and the argument are that in its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history[8][9].

Conclusion

Socialist and secularism as a concept in the constitution promote egalitarian ideal of makers. At the same time including these concepts in preamble which calls for spirit of constitution without the will of the makers is impermissible. Preamble is a part of constitution and it is basic structure of constitution hence cannot be amended.42nd amendment was enacted when the country was struggling for 2nd independence to restore the spirit of democracy.

[1] Vasudev v. Vamanji, ILR 1881 Bom. 80 [2] Constituent Assembly Debate, Volume VII, page number 399-401 [3] Petition Balram Singh & ors v. UOI & Anr. [4] https://www.livemint.com/Opinion/XKcwMBM2WpKX7TM20yPBBP/Why-secularism-and-socialism-are-integral-to-the-Indian-cons.html [5] https://www.pathlegal.in/Can-we-amend-preamble-of-the-Indian-Constitution--blog-1156137 [6] SR bommai v. UOI 1994 AIR, 1918 1994 SCC (3) [7] Re berubari case [8] http://www.legalservicesindia.com/article/2003/Is-Preamble-a-Part-of-Constitution.html [9] Kesavananda Bharti (1973) 4 SCC 225 para 2085



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