ABSTRACT
The Indian Constitution is a living document that is constantly changing and evolving with social and political life. This research paper studies the idea of judicial interpretation of constitutional flexibility through landmark cases such as Kesavananda Bharati v. State of Kerala (1973) and S.R. Bommai v. Union of India (1994). It also talks about the importance of the Preamble in giving out the basic values of the longest written constitution with special reference to the addition of the notions of “secular” and “socialist” with the 42nd Amendment Act in 1976. It also looks at the modern controversies over these terms, such as the recently raised issue of their reconsideration by the Rashtriya Swayamsevak Sangh (RSS) general secretary Dattatreya Hosabale on the 50th anniversary of the Emergency, in the name of opposing the Emergency (1976), has attacked the soul of India’s Constitution and has initiated a controversy that whether these two notions inscribed during the Emergency deserve a place in the Preamble of the Indian Constitution. By employing the Supreme Court’s perspective in Dr. Balram Singh v. Union of India (2020), the study finalizes that these ideals were always there in the structure of the Constitution and, by putting these words explicitly in the Constitution by Indira Gandhi’s government during the period of infamous Emergency, the intention was to give more strength rather than to modify the fundamental vision of the Constitution.
KEYWORDS: Constitution, preamble, state, emergency, secularism, socialism, constituent assembly, basic structure.
INTRODUCTION
The father of the Indian Constitution, B.R Ambedkar, said about the preamble, ““it was, indeed, a way of life, which recognizes liberty, equality and fraternity as the principles of life and which cannot be divorced from each other: Liberty cannot be divorced from equality; equality cannot be divorced from liberty.” The Preamble is the introductory statement of the Constitution of India, outlining the core values, guiding principles, and objectives upon which the Constitution is based. It reflects the aspirations of the people and serves as a key to understand the Constitution’s spirit. The Objectives Resolution, which was approved by the Constituent Assembly on January 22, 1947, expressed the philosophy of the Indian Constitution. The words “socialist” and “secular,” which were added to the Preamble during the Emergency through the 42nd Amendment Act, 1976, have sparked a new discussion.
Critics contend that these terms may not be consistent with India’s fundamentally secular civilizational ethos and were introduced without extensive consultation. Concerns regarding their constitutional validity and current applicability have been awakened by the conversation. Dattatreya Hosabale, the general secretary of the Rashtriya Swayamsevak Sangh (RSS) who holds the position of Sah-Baudhik Pramukh (second in command of the RSS’ intellectual wing), is one of the prominent and senior critics who sought a discussion on whether the two words should be retained in the Preamble. The Apex Court dismissed the arguments and maintained the terms’ inclusion depending on various precedents in Dr. Balram Singh v. Union of India (2020).
Research Methodology
The research is based on multifaceted methodology with secondary sources and doctrinal legal research. It also contains a comparative method to identify different patterns of constitutional notions in different geographical areas. Secondary sources of information like newspapers, journals, and websites are used for the research.
Review of Literature
The Preamble of the Constitution, which went into effect on January 26, 1950, stated that India was a Sovereign, Democratic, Republic dedicated to ensuring Justice (social, economic, and political), Liberty (of thought, expression, belief, faith, and worship), Equality (of status and opportunity), and Fraternity (assuring individual dignity and national unity). The words “secular” and “socialist” added to the constitution’s preamble as modifiers to describe the republic by the 42nd Constitutional Amendment Act, 1976, which was passed during the National Emergency (1975–77) . By using a mixed economy model, socialism represented the state’s dedication to lowering inequality and guaranteeing distributive justice. By guaranteeing that the state remains impartial in religious affairs and does not promote any particular faith, secularism reaffirmed the idea of equal respect for all religions. The word “Integrity” was also added with “unity”.
Indian secularism guarantees equal respect and treatment for all religions, making it a distinctive and inclusive model. While making sure the State keeps a principled distance from all religions, it aims to stop both intra and inter-religious dominance. It supports pluralism, tolerance, and constitutional morality rather than being anti-religious. As long as it doesn’t infringe upon fundamental rights or constitutional provisions, the state respects religious sentiments and refrains from needless interference with religious practices. The Indian government does not support or encourage any religion and maintains its neutrality. When religious practices go against fundamental principles like justice, equality, and dignity, the state steps in. Untouchability (Article 17), gender equality through personal law reform, laws granting women equal inheritance rights, etc are its examples. India’s socialism has its origins in the pre-independence period, when the ideology rose to prominence as a component of the larger anti-colonial movement. Leaders like Jawaharlal Nehru and Subhas Chandra Bose were influenced by socialist thought, advocating for a society free from exploitation and inequality and were inspired to fight against British rule by the socialist ideals of equality, social justice, and anti-colonialism.
The Indian Constitution, upholds the values of equality, social justice, and economic rights. Socialist objectives like social justice, fair wealth distribution, and state welfare are reflected in the Directive Principles (Part IV).
The fight over words
While speaking on the day when Emergency marked its 50 years Dattatreya Hosabale, the general secretary of the Rashtriya Swayamsevak Sangh (RSS), asked for a discussion whether these two notions should remain in the Preamble. He said that the notions of socialism and secularism were never there on the first page in the beginning. The support for his argument was that ‘socialist’ and ‘secular’ were inserted during the dark period of Emergency, when civil liberties were suspended, opposition leaders were jailed, and the press was censored. Since the majority of the opposing leaders were imprisoned under the rigorous Maintenance of Internal Security Act (MISA), the amendment was passed without any significant opposition in Parliament. Right-wing leaders have frequently claimed that the 42nd amendment was hurried through Parliament, in contrast to the Constituent Assembly, which spent four years carefully discussing and debating every provision of the Constitution. The three reasons he argued were: 1) The original Constitution’s Preamble didn’t contain the words “secular” and “socialist.” The Preamble cannot be amended by Parliament, and Indira Gandhi added them during the Emergency through an undemocratic process. 2) Even Dr Ambedkar didn’t approve of the secular and socialist concepts. Hence, their inclusion is anti-Ambedkar. 3) Secularism and socialism are opposed to India’s culture and civilisation.
The argued motive behind the inclusion of ‘Secular’
In response to great measure of fiscal crises, accusations of money laundering, and the outcome of the Allahabad High Court in 1975 that found Indira Gandhi guilty of electoral malpractices and thus suspended her membership in the Lok Sabha, the Rashtriya Swayamsevak Sangh (RSS) and the Jana Sangh were outspoken opponents of her government in the early 1970s.
Indira Gandhi’s administration justified the Emergency because it saw the Hindutva right wing’s actions and larger opposition unrest as a threat to national stability. By reaffirming India’s commitment to religious neutrality and freedom for all faiths on the very first page of the Constitution, the term “secular” may have been intended to counteract the growing influence of the Hindutva right.
The argued motive behind the inclusion of ‘Social’
In the meantime, Indira Gandhi had continuously attempted to foster a populist persona based on socialist principles. In line with her 1971 campaign slogan “Garibi Hatao” (get rid of pov erty), Mrs Gandhi’s claim was that a state of emergency was necessary to improve the lives of the poor. This idea was formally established as a primary goal of the Indian nation-state when the word “socialist” was added to the Preamble of the Constitution. The amendment was rushed without any meaningful opposition in Parliament, as most of the leaders from the other side were jailed unlike well-represented Constituent Assembly. They claim that the overarching goal was to gain complete control over this nation’s institutions while disguising it as socialism and national unity. Many even interpreted Indira Gandhi’s use of the word “socialist” as an attempt to demonstrate her ideological affinities with the Soviet bloc. It is evident as described by Mitrokhin “The Soviets continued to fund the Congress party through L.N. Mishra and other channels, and Moscow continued to support Mrs Gandhi in exchange for trade concessions”.
Dilemmas of Constituent Assembly
According to Dr. B.R. Ambedkar, Constitution could not be seen as a document that imposes a particular social or economic ideology on future generations of the country. When it was suggested to include the words, he believed that decisions about socialism and secularism should reflect the will of the people. These should not become the ideological preferences of a ruling government.
According to Pandit Jawaharlal Nehru, adding the word “secular” would only be a token gesture with no practical meaning; secularism needs to be lived, practiced, and upheld rather than just stated verbally. In an extremely spiritual and diverse society, many members, including Loknath Misra and HV Kamath, were concerned that using the term explicitly could be interpreted as anti-religious or irreligious, thus alienating religious communities. Some believed that using the word “secular” would restrict the State’s ability to enact laws in the future, particularly when it came to changing religious customs for social justice (such as outlawing untouchability or changing personal laws).
Arguments regarding inclusion (Favour)
The sections of the Constitution talked about “socialism” and “secularism” even before what changed after the emergency. For ex: Ar 14,15,16,25-28. Ambedkar believed political democracy must meet its roads with social and economic democracy somewhere. He even advocated for the dismantling of Brahminical caste systems and state ownership of businesses and land. Ambedkar responded on November 15, 1948, to KT Shah’s request to include the word “socialist,” saying, “What should be the policy of the State, how the Society should be organised in its social and economic side 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.” Additionally, he cited Directive Principles, Part IV, which already steers the state toward socialism. He was hesitant to clearly paraphrase an economic system that is fundamentally socialist. But it is once more a Brahminical injustice to that great soul to regard Ambedkar as non-socialist and non-secular.
Arguments regarding inclusion (Against)
RSS General Secretary, Dattatreya Hosabale, argued that the Preamble of the Constitution should be eternal. “So, from the perspective of ideology, should socialism be considered eternal for India?“. Many like him argued that inclusion of these words during the time when Indira Gandhi’s government put the novel ideas of democracy in graves amounted to tampering with the essence of the Constitution in the face of democratic suppression and was a “betrayal” of its ethos. In contrast to the rigid church-state separation observed in Western secularism, Indian spiritual traditions encourage a “positive alignment” with religion, according to experts and critics who contend that secularism and socialism are Western inventions alien to our indigenous civilizational ideals. The opposition frequently proposes that altering this unique document’s core in hindsight undermines and taints its integrity.
Comparative study of the concept of ‘Secularism’
1) Western Secularism: In the West, the State is separate from the functioning of all religious institutions and groups. The government supports complete religious non-interference. If religion is interfering with the state’s ability to function, the state may restrict citizens’ rights. The west does not nod its head in agreement to the expression of its citizens’ faith in the open. There is a distinct and unchangeable line between the state and religion. The idea of secularism originated in the mid-17th century and first came in the French Constitution after the French Revolution (1789-1799). The state is equally indifferent to all religions. It supports no monetary support to any institution supporting a particular faith. Regardless of a person’s religious background, justice is administered according to a single uniform code of law.
2) Indian Secularism: On the other hand, Indian secularism refers to the state’s neutrality toward all religious groups, without necessarily separating them. The idea is not limited to the issue of how religious communities ought to be treated in India. Rather, establishing a constructive relationship between the state and religion is the core of secularism. All forms of religious expression are equally supported by the government in India. In India, the state and religion are permeable. Even though secularism was a crude concept in ancient and medieval India, the 42nd Amendment Act of 1976 solidified the term in the Indian Constitution.
The government provides financial support to religious organizations. State also interferes when there is discrimination within a particular religious community or its practices. For ex. Abolition of Untouchability, ban on child marriage and the cruel practice of sati. Indian Secularism also ensures that equal respect is to be given to all the religions without forcefully giving them a uniformity. The core feature is also that it allows religion in public life but with some restrictions as inscribed in constitution. For ex. Religious holidays, boards like Waqf, etc.
Comparative study of the concept of ‘Socialism’
1) Indian Socialism: In India, we endorse the concept of Democratic Socialism. It blends the democratic and socialist ideals together to build an acceptable, viable, political and economic structure. It aims at achieving socialist goals of the equality and justice through democratic means. It denounces Marxists’ revolutionary and violent tactics to achieve socialism and favours legal and constitutional methods. It values liberty of individual, equality in social, economic and political sphere. It also assures individual’s dignity through fraternity and nation’s unity as also reflected in the Preamble of the Constitution.
Features of Indian Socialism- It is inspired by the ideals of Mahatma Gandhi and Jawaharlal Nehru. It is based on the concept of Ahimsa, Satya, Decentralization and Trusteeship. It also aims to make public sector as profit-making sector. Despite its contribution to Indian economy and society through welfare policies, planned economy, cooperative societies, land reforms, etc. socialism in India has not been that successful as the founders envisioned.
2) Socialism in Communist countries: In Communist countries, socialism is inspired by the ideals of Karl Marx (1818-1883). It is based on class struggle and dictatorship of proletariat class. The dictatorship of the proletariat as a dictatorship by the majority class. Because Marx regarded all governments as class dictatorships, he viewed proletarian dictatorship as no worse than any other form of government.
It endorses complete state control over resources. The communist model of socialism believes that the public sector is just a welfare tool for income redistribution. Unlike the society that follows the mindset of a more popular concept of “Capitalism”, there is no cut-throat competition. There is almost no sense of competition because the sole presence of state does not make it possible. The core feature is that in socialist society, work is according to ability and wage according to need. Socialism refers to “from each according to his ability to each according to his needs”.
3) Similarities between both models: India adopted some policies of communist nations’ socialism like planned economic development, land reforms, labour laws, progressive taxation, rapid expansion of public sector, social welfare schemes like MGNREGA (Mahatma Gandhi National Rural Employment Guarantee Act, 2005), free education and healthcare facilities.
Judicial Renouncement (Precedents)
The apex court used many precedents that contribute to support the existence of the words ‘secular’ and ‘social’ in Preamble. Some of the important precedents are explained below:
1) Sardar Taheruddin Syedna Saheb v. State of Bombay (1962): In this case, the Supreme Court first articulated its opinions regarding the secular nature of the Constitution. Justice Ayyangar provided the following explanation: “It is well settled that that Arts. 25 and 26 of the Constitution protect not merely religious doctrines and beliefs but also acts done in pursuance of religion and thus guarantee rituals and observances, ceremonies and modes of worship which are integral parts of religion.”. Besides, they serve to emphasise the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution.
2) Kesavananda Bharati v. State of Kerala (1973): In this landmark case, the Supreme Court reiterated that secularism was a part of the basic structure of the Constitution. It claimed that one of the primary components of the basic structure listed was the “secular and federal character of the Constitution.” They also made it very clear that, “It seems also to have been a common understanding that the fundamental features of the Constitution, namely, secularism, democracy and the freedom of the individual would always subsist in the welfare state”, the Parliament could not change it at all.
3) Ahmedabad St. Xaviers College Society v. State of Gujarat (1974): In this particular case, They gave a new dimension to the concept in the constitutional context, “Our Constitution has not erected a rigid wall of separation between church and state,. We have grave doubts whether the expression “secular state” as it denotes a definite pattern of church and state relationship can with propriety be applied to India. It is only in a qualified sense that India can be said to be a secular state.”
4) Ziyauddin Burhanuddin Bukhari v. Brijmohan Ram Das Mehra (1975): Here, the Supreme Court went on to define the concept of secularism in the realm of philosophy and in utilitarian terms. The Court mandated that “The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices.
5) S.R. Bommai v. Union of India (1994): In this landmark judgement, the Court stated and declared that “secularism is part of the basic structure of the constitution”. J. A.M Ahmadi further stated, secularism endorsed “principles of accommodation and tolerance”. “The encroachment of religion into secular activities is strictly prohibited,” the Court added. In Justice Ramaswamy’s independent opinion, he clarified that religiously motivated political party programs or policies that amount to acknowledge religion as a part of political governance, is forbidden by the Constitution. He contends that if a political party deviates from secular principles like casteism or religious hostility, the court has an obligation to review and reform it.
The 2020 Verdict: Dr. Balram Singh v. Union of India
Supreme Court advocate Balram Singh contested the legality of the terms “socialist” and “secular” being included in the Preamble in 2020, with support from petitions from former Law Minister Subramaniam Swamy and Supreme Court advocate Ashwini Kumar Upadhyay, the apex court dismissed the arguments and maintained the terms’ inclusion. The Apex Court stated following points:
- 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. Amendments to the Constitution can be challenged on various grounds, including violation of the basic structure of the Constitution.
- The Supreme Court noted that the word “secular” was considered “imprecise” during the drafting by the Constituent Assembly because certain scholars interpreted secularism as hostile to religion. But as time went on, the court upheld that “India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalises the profession and practice of any faith” The Supreme Court determined that the Preamble’s values of liberty, equality, fraternity, and individual dignity embody this secular character.
- The court also noted that in the Indian context, the term “socialist” has taken on a unique meaning. “the principle of economic and social justice, wherein the State ensures that no citizen is disadvantaged due to economic or social circumstances”. The private sector has “flourished, expanded, and grown over the years, contributing significantly to the upliftment of marginalized and underprivileged sections in different ways,” the court added, emphasizing that this interpretation does not require restrictions on private enterprise.
- Additionally, the “secular” and “socialist” ideals were inherent in the original draft of the Indian Constitution, even before they were formally inscribed in the Preamble by the 42nd Amendment Act (1976). Directive Principles such as Articles 38 and 39, which demand reducing inequality and guaranteeing equitable resource distribution, are examples of how the socialist ideal was embodied in the Constitution. In the same way, Articles 25, 26, 27, and 28 of the Constitution guaranteed equal treatment for all religions.
- The court concluded that the words “socialist” and “secular” are now essential components of India’s constitutional identity. These terms may have political associations for certain groups because they came up during the authoritarian Emergency. However, no one is harmed by their inclusion in the Preamble of the Constitution, and there is currently no reason to take them out of the Preamble. Despite being added during the dark days of democracy, the terms do not change the framers’ intentions. Thus, after almost 44 years, there is no good reason or basis for contesting this constitutional amendment.
Suggestion
Socialism is a practical understanding that the state must act proactively to combat poverty and increase opportunities for the underprivileged segments of society, not an antipathy toward private property or enterprise. Over time, the terms “secular” and “socialist” have been very much indigenised according to our country. Secularism is the state’s commitment to treating all religions equally, not a rejection of Indian civilization or any particular religion. In Indian politics, the terms “socialism” and “secularism” refer to a broad consensus that has persisted for many years. Starting a pointless argument about these words will not accomplish anything. The issue India is facing is not these two terms, but rather its ongoing fight against poverty, underdevelopment, and discrimination—all of which are frequently impacted by the caste and religious backgrounds of its people. Instead of spending time on these types of arguments over settled notions, the government and its affiliations would be better served by concentrating on these issues.
According to Doraisamy Raja, General Secretary of Communist Party of India, “The Vice-President of India, Jagdeep Dhankhar, went a step further, terming the insertion of these words as “sacrilege to the spirit of Sanatan”. This is a deliberate political strategy to delegitimise the modern, plural, democratic republic of India and to usher in a communal and hierarchical order. In 1931, Mahatma Gandhi, in his resolution on Fundamental Rights, insisted that the state must remain neutral in religious matters. On November 22, 1949, Begum Aizaz Rasul called secularism “the most outstanding feature” of the Constitution and expressed hope that it would remain “guarded and unsullied”. The Supreme Court’s recent decision rightly interpreted the term “socialist” in the Preamble as synonymous with a welfare state”. He further concludes, “The Constitution is not just a legal document. It is a political, social, and moral covenant forged in the crucible of our freedom struggle. To defend secularism and socialism today is to defend the right of every citizen — regardless of faith, caste, class, or gender — to live with dignity, equality, and freedom.”
Conclusion
Indira Gandhi guillotined democracy during the period of Emergency (1975-77). Her administration added the terms ‘socialist’ and ‘secular’ on the first page of the Constitution. However, it is not necessary to ask whether the terms should remain in the Constitution after 75 years of independence, “The real question should be: Why have these objectives remained only as words? It is because post-1991, led by the Congress, all the governments have pursued the pro-big capitalist and anti-constitutional economic policy. As a result, secularism and socialism are bleeding under every regime. Therefore, the debate between socialism and secularism is not just a technical debate of words. It is not about words, but about essence.”
AUTHOR:
Saif Alam
3 YEAR LLB
National Law University, Visakhapatnam