Menu

BALRAM SINGH V. UNION OF INDIA 2024 INSC 893(25 November 2024)

Case Comment, Publications

FACTS: 

This writ Petition challenged the insertion of the words ‘socialist’ and ‘secular’ in the Preamble of Indian Constitution by the 42nd Constitutional Amendment Act of 1976 on the grounds of retrospectivity and, of that it was passed during emergency.

ISSUES:

  1. Whether the insertion of the words ‘socialist’ and ‘secular’ in the Preamble is constitutionally valid or not?
  2. Whether the retrospective inclusion of the words, during emergency, has any effect on amending powers of the Parliament?
  3. Is the 42nd constitutional amendment act valid?

CONTENTIONS:

On behalf of Petitioner

  1. The Petitioner specifically challenged the insertion of the words ‘secular’ and ‘socialist’ in the Preamble of the Indian Constitution.
  2. The first ground of challenge was the retrospective effect of the amendment of inclusion of the said words made on the Preamble.
  3. It was contended by the petitioner that the Preamble along with the Indian Constitution was adopted by the people of India on November 26, 1949 without the words ‘socialist’ and ‘secular’ in it.
  4. Therefore, it raised an alarm of deception to the people of India by including these two words by the 42nd constitutional amendment act, 1976.
  5. The petitioner also stated that the constituent assembly intentionally and purposefully avoided the words socialist and secular.
  6. Secondly, it was also argued that 42nd constitutional amendment was unconstitutional as it was passed at the time of National Emergency i.e on 2nd November, 1976 where the Lok Sabha’s usual period came to an end on 18th March, 1976. Thus indicates that there was no fair procedure adopted in passing this bill.
  7. The petitioner also contended that the word ‘socialist’ restricts the choice of the government in formulating its various economic policies, and hinders it from adopting to other non- socialistic principles in its policies, which is a violation of the Right to Business and Trade under Article 19 of the Constitution.

On Behalf of Respondents:

  1.  It was argued by respondents that the assertion of the petitioner were weak and illogical.
  2. The Respondents contended that Article 368 of the Indian constitution allows the Indian Parliament to amend constitution, and thus the words ‘secular’, ‘socialist’ along with ‘integrity’ were included in the Preamble while exercising such powers of the amendment, as Preamble is also considered to be a part of the Constitution.
  3. In response to the contention of the petitioner that the retrospective insertion of the aforesaid words in the Preamble was unjust to the people of India, as it didn’t exist at the time of adoption, the respondents argued that doing so did not have any negative retrospective impact on anyone, as both the secularism and socialism were a part of the basic structure of the constitution as it was evident from both the letter and spirit of constitution.
  4. Further, the respondents also made a clear interpretation of the words ‘socialist’ and ‘secular’ in the Indian context.
  5. It was said that there is a separate and independent Indian Interpretation of those two words.

Generally, the word secular was used as an antonym to religion, but in Indian usage of the word, it means that the entity of the state does not have any religion, viz. it doesn’t favor any particular religion, as mentioned under the chapter of Right to Equality.

  1. Further it was elaborated that the actual principles of Preamble such as Equality, Dignity and Freedom, when seen together with justice of various kinds is in consonance with secular essence.
  2. The respondents also laid an emphasis on Article 25 and 26 of the Indian Constitution to further establish the secular spirit of the constitution.
  3. It was also held that secularism is one of the basic features of the Indian constitution as was held in the cases of Kesavananda Bharati vs. State of Kerala and S. R. bommai vs. Union Of India.
  4. Further, an extract from the judgment of the case R. C. Podyal vs. Union Of India was quoted to clarify the Indian interpretation of the term ‘secular’, that it signifies the state’s intention of equal and fair treatment of its citizens belonging to different religions. In this case it was held that the court stated that even though the word secular was not mentioned in the Preamble of constitution before the Constitution(Amendment) Act 1976, it meant the dedication of the state to treat all those persons equally who belong to different religions and not to discriminate against or favor any particular religion.
  5. Further in the case of Property owners Association and others v. State of Maharashtra and others, the 9 judge constitution bench elucidated that the constitution allows the government to adopt an economic pattern for sub-serving the policies for which it was elected, and it was also said that Indian Economy has gradually shifted from entire public investments to a combination of public and Private investments.
  6. Likewise the respondents also proposed certain arguments with regard to the Indian interpretation of the word ‘socialism’. It was said that the word socialism should not be used in a restrictive sense, but in a wider sense, by mentioning that no such specific kind of economic policy is mentioned in the constitution, or in the preamble.
  7. Accordingly, the word ‘socialist’ means the dedication of the state to ensure equality of opportunity and welfare of its citizens.

RATIONALE:

  1. In this case it was held that, though the constituent assembly did not agree to include the words ‘socialist’ and ‘secular’ in the preamble of Indian Constitution, the constitution is a living document and thus will undergo various amendments as specified in Article 368 of the Constitution, to adapt to various emerging needs of the society.
  2. The word socialism in Indian context is used in a very generous sense that it permits private entrepreneurship and the right to business and trade, as specified under article 19(1) (g) of the Indian Constitution.
  3. The petitioner’s argument to nullify the 42nd constitutional amendment act because it was passed during times of emergency, was previously discussed in the parliament while passing the 45th constitutional amendment bill 1978 (renumbered as 44th constitutional amendment bill) with the scrutiny of the inclusion of ‘secular’ and ‘socialist’ in constitution, and the addition of these words were not removed but were retained by the Parliament during these considerations.
  4. The court stated that the said words have been widely accepted as indicated by the phrase “We the people of India” and thus cannot be removed from the preamble.
  5. The court also raised a contention that the writ petitions were filed after 44 years since the addition of the words i.e after those have become an inseparable part of the preamble, seems illegitimate and unreasonable to the court, which formed the secondary reason of the court to dismiss this writ petition.
  6. The primary reason which forms the basis of this judgment is Article 368 of the Indian Constitution. The court based its reasoning on the power of the parliament to amend constitution without violating its basic structure as enshrined in Article 368.
  7. As Preamble is also a part of the Constitution, it was amended by the parliament by exercising the powers of the said article and the same was recognized as the act of re- affirming and specifying the ‘socialist’ and ‘secular’ spirit of Indian Constitution.
  8. The reasoning of 44th Constitutional amendment act was also used by the court to validate the intra vires provisions of the 42nd constitutional amendment act 1976.

CRITICAL ANALYSIS:

With due respect to the division bench who decided this matter of dispute, my only difference of reason is that, as this petition dealt with key aspects of constitution, it should have been considered by a constitutional bench of five judges as mentioned in article 145(3) which reads    “ The minimum number of judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this constitution or for the purpose of hearing any reference under article 143 shall be five.”

INFERENCE OF THE CASE:

This judgment is a welcoming step towards the progressive development of Indian society as it clearly reinstates the principles of socialism and secularism in Indian context. Had the court not emphasized the use of those words by harmonizing their non-Indian interpretations with the Indian ones, it would always be misunderstood by the people and would cause a great deal of chaos about it. As stated by the court, that these words have become embedded in the minds of people, removing them from the constitution would indeed result in a sort of disturbance and unrest in the society. It would surely cause a feeling of doubt in the minds of people and primarily in the minds of peace- disruptors for peddling their own propagandas in contrast with the nature of our constitution. The spirit of our constitution is so filled with these said words that inclusion of these principles in the preamble would make it easy for any individual to get a complete picture of constitution in an instant. The saying “Preamble is the soul of the constitution” speaks volumes about the proper organized structure of the Preamble to clearly and precisely define the objectives of its body, viz. the constitution. Thus the inclusion of the words ‘secular and socialist’ does no harm, and instead adds an additional amount of completeness and value to the soul of constitution. 

Name: Sania Bareera 

College: Osmania University College Of  Law