‘You don’t want India to be secular?’: Supreme Court on Preamble amendment plea

 The bench of Justice Sanjiv Khanna and Justice Sanjay Kumar orally observed that the apex court had passed several judgments upholding “secularism” and “socialism” as “basic features” of the Constitution along with the fundamental rights

TT, New Delhi, 22.10.24 : The Supreme Court on Monday said “secularism” and “socialism” were basic features of the Constitution, orally wondering whether any judicial directive could be passed for the deletion of the two terms from the Preamble, as sought by a batch of PIL petitioners.

“You don’t want India to be secular?” the court asked the petitioners.

The bench of Justice Sanjiv Khanna and Justice Sanjay Kumar orally observed that the apex court had passed several judgments upholding “secularism” and “socialism” as “basic features” of the Constitution along with the fundamental rights.

Originally, the Preamble to the Constitution described India as a “sovereign” and “democratic” republic. To these two terms were added “secular” and “socialist” in 1976, during the Emergency, through the 42nd amendment.

Senior BJP leader Subramanian Swamy, advocate Ashwini Kumar Upadhyay, and a man named Balram Singh have challenged the amendment.

“If one looks for ‘equality’ and (the) word ‘fraternity’ used in the Constitution as well as the rights under Part III (fundamental rights), there is a clear indication that secularism has been held as the core feature of the Constitution,” Justice Khanna said.

“I can cite cases for you.... Moreover, this court has struck down a number of statutes which went against secularism.”

The petitioners have also challenged a provision of the Representation of the People Act, 1951, that requires political parties to give an undertaking to uphold “secularism” to get registered.

Advocate Vishnu Shankar Jain, appearing for Balram Singh, argued that although a 13-judge bench had in the 1973 Kesavananda Bharati judgment outlined an inviolable “basic structure” of the Constitution, it did not preclude the apex court from examining the validity of the 42nd amendment.

Jain argued that “secularism” and “socialism” had been incorporated through the 42nd amendment without a debate in Parliament. He said even Babasaheb Ambedkar was against the concept of “socialism” as it curtailed an individual’s personal liberty.

Justice Khanna observed: “’Socialism can also mean that there should be equality of opportunity and the wealth of the country should be distributed equally.”

He added: “(The) concept of equality… let’s not take it as a Western concept. It can have some different connotation as well. Same with the word ‘secularism’.”

Upadhyay, appearing in person, underlined that the 42nd amendment was enacted during the Emergency, when the government had curtailed the fundamental rights.

Justice Khanna said the 42nd amendment had also introduced expressions like the “integrity of the country”.

Upadhyay argued that if the amendment was allowed to operate, “it can open a Pandora’s box”.

“If secularism can be added, tomorrow something else can be added,” he said.

Swamy argued that the 42nd amendment was “unconstitutional and arbitrary”.

The bench did not issue any formal notice to the Union government, as sought by the petitioners, but posted the next hearing to the third week of November.