Much ado about Secularism - The Blog of Daksh Pandit

“Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage, therefore, you cannot destroy its identity.”¹

Secularism and Socialism

On 24.04.1973, the Supreme Court delivered judgment in the matter of Kesavananda Bharati vs State of Kerala² which marked an epoch in the judicial history of the country. By a narrow margin of 7:6, the Supreme Court in its majority decision emphatically held that although the Parliament has wide and expansive powers to amend the Constitution, including add, alter or repeal any of the Articles, however, the Parliament cannot, using its amending power under Article 368, destroy or emasculate the basic structure or the fundamental features of the Constitution. Chief Justice S.M. Sikri, in his majority opinion, observed that the basic structure consists of the following features-

Supremacy of the Constitution;
Republican and Democratic form of Government
Secular character of the Constitution;
Separation of powers between the legislature, the executive and the judiciary;
Federal character of the Constitution.

According to the majority decision, the aforesaid features of the Constitution are sacrosanct and cannot be effaced, removed or obliterated from the face of the Constitution. Apart from this, Justice H.R. Khanna, in his majority opinion, also similarly observed that the secular character of the state according to which the state shall not discriminate against any citizen on the ground of religion, cannot likewise be done away with. Not to mention that Articles 15, 25, 26 and 29 of the Constitution also reflect the features of Secularism.

Similarly, Article 38 of the Constitution falling in Part IV containing Directive Principles of State Policy, also embody the features of Socialism inter alia stating that the State shall secure social order for the promotion of the welfare of the people. This is also reflected in the Preamble to the Constitution – “..to secure to all its citizens justice- social, economic and political.” Justice J.M. Shelat and Justice A.N. Grover, in their majority opinion, inter alia observed that a reading of the provisions of the Constitution disclose one of the main objectives i.e. the building of a Welfare State and Egalitarian Social Order in the country. Ultimately, in their majority opinion, they not only held that the Parliament cannot abrogate the basic structure of the Constitution, but also cannot revoke the mandate to build a Welfare State and Egalitarian Society-

“613. These provisions together with the other provisions of the Constitution contain one of the main objectives, namely, the building of a welfare State and an egalitarian social order in our country…

682. On a careful consideration of the various aspects of the case, we are convinced that the Parliament has no power to abrogate or emasculate the basic elements or fundamental features of the Constitution such as the sovereignty of India, the democratic character of our polity, the unity of the country, the essential features of the individual freedoms secured to the citizens. Nor has the Parliament the power to revoke the mandate to build a Welfare State and and egalitarian society.” (emphasis supplied)

Justice H.R. Khanna also similarly observed in his majority opinion. Recently, the Supreme Court, while dismissing the challenge to the inclusion of words “Secular” and “Socialist” by 42^nd Amendment Act³, also observed that the word ‘Socialist’ denotes the State’s commitment to be a Welfare State and its commitment to ensuring equality of opportunity.

The Constitution (Forty-Second Amendment) Act, 1976

The above background is necessary because the words “Secular” and “Socialist” did not originally form part of the Preamble to the Constitution, they were only added by the 42^nd Amendment Act, 1976 i.e. three years after the decision in Kesavanda Bharati (supra). In recent years, the inclusion of the aforesaid words in the Preamble has come under heavy criticism and also become a subject of challenge before the Supreme Court. The criticism and challenge is primarily predicated on inter alia following grounds-

The words “Secular” and “Socialist” did not form part of the original Preamble adopted by the Constituent assembly.
Secularism and Socialism does not represent the true India.
The Preamble cannot be amended.

Admittedly, the words “Secular” and “Socialist” did not form part of the original preamble, however, does that operate to construe that the aforesaid words cannot be added by way of an amendment? The majority decision in the Kesavanda Bharati (supra) in no uncertain terms held that the Parliament possess power to amend each and every Article of the Constitution so long the basic structure of the Constitution is retained and not obliterated. Justice H.R. Khanna, in his majority opinion, considered the submissions of the Respondent/Union that Preamble is not a part of the Constitution and thus not amenable to an amendment. Rejecting the submission, the Court observed as follows-

“1482.…Submission has also been made in the above context that there is no power to amend the Preamble because, according to the submission, Preamble is not a part of the Constitution but “walks before the Constitution”. I am unable to accept the contention that the Preamble is not a part of the Constitution. Reference to the debates of the Constituent Assembly shows that there was considerable discussion in the said Assembly on the provisions of the Preamble. A number of amendments were moved and were rejected. A motion was thereafter adopted by the Constituent Assembly that “the Preamble stands part of the Constitution” (see Constituent Assembly debates, Vol. X, p. 429-456). There is, therefore, positive evidence to establish that the Preamble is a part of the Indian Constitution…. Preamble itself is amendable, its provisions other than those relating to basic structure cannot impose any implied limitations on the power of amendment.”

The 42^nd Amendment Act, 1976 is regarded as one of the most controversial amendments to the Constitution as it inter alia sought to amend Article 368, granting an unbridled power to the Parliament to amend the Constitution, in a bid to overcome the ratio laid down in Kesavanda Bharati (supra). This amendment was challenged before the Supreme Court in Minerva Mills Ltd. & Ors vs Union of India⁴ in which the Constitution Bench of the Supreme Court by majority of 4:1, struck down Section 4 and 55 of the Amendment Act, finding it unconstitutional and an attempt to destroy the basic structure of the Constitution. The Supreme Court, however, upheld the inclusion of the words “Secular” and “Socialist” and stated that the said amendment is demonstrative of how the power of amendment can be used consistent with the basic structure of the Constitution-

“18. The very 42nd Amendment which introduced clauses (4) and (5) in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy; they afford strength and succor to its foundations. By the aforesaid amendments, what was a ‘Sovereign Democratic Republic’ became a “Sovereign Socialist Secular Democratic Republic” and the resolution to promote ‘unity of the nation’ was elevated into a promise to promote the “unity and integrity of the nation”. These amendments furnish most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more; they do not scuttle a precious heritage”

Is the Criticism Justified?

The 42^nd Amendment Act, 1976, by including the words “Secular” and “Socialist”, edified and solidified the features of Secularism and Socialism which were already present and embodied in various Articles of the Constitution as also observed by the Supeme Court in Kesavananda Bharati (supra). Even dehors the inclusion of the categoric words in the Preamble, the Constitution is replete with the features of Secularism and Socialism and they are not amenable to an amendment as they form the basic structure of the Constitution. Recently, the Supreme Court dismissed the various Petitions⁵ challenging the inclusion of the words Secular” and “Socialist” by the 42^nd Amendment Act, 1976. Even if, for the sake of argument, the words “Secular” and “Socialist” are removed from the Preamble by the Legislature today, it would be of no consequence as the various Articles in the Constitution embodying their features would still continue to persist and guide India into a Secularist and Socialist society.

By Daksh Pandit