NEW DELHI: Firstly, it is important to clarify that the issue at hand is not with the ideals of ‘Socialism and Secularism’ themselves, but with the method by which these words were inserted into the Preamble in 1976. The amendment was applied retrospectively from 26.11.1949, purportedly by a Constituent Assembly that did not exist in 1976, and without any state ratification, raising significant constitutional questions and issues. First, let us see the historical context.
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The deliberations on the Preamble began on 13 December 1946 and continued until 19 December 1946, though it was not finalized initially in hopes that Muslim League members would participate. Further discussions occurred on 20, 21, and 22 January 1947, and the Preamble was eventually adopted with everyone standing to mark the solemn occasion. On 15 November 1948, Prof. KT Shah proposed adding 'Secular,' 'Socialist,' and 'Federal' to Article 1, but this motion was turned down. On 3.12.1948, Prof K.T. Shah moved another motion to incorporate ‘Secular’ in Article-18 but it was also negated. On 6.12.1948, Sh. Loknath Mishra vehemently opposed the insertion of the word ‘Secular’ in Preamble, describing it ‘Slippery Phrase’ intended to bypass the Ancient Culture of India. Sh. HV Kamath emphasizes on the importance of Dharma in guiding the principles of the State and strongly opposes the insertion of the word ‘Secular’. Ultimately, on 17 October 1949, the Preamble was unanimously adopted, setting the foundational ethos of the Indian Constitution.
Fast forward to 1976. On 18 March 1976, the tenure of the Lok Sabha ended and it was extended solely to manage the emergency, not to amend the Constitution or the Preamble. The 41st Amendment was passed on 7 September 1976 to protect the Prime Minister and President from legal actions post their terms. Subsequently, on 2 November 1976, the 42nd Amendment was passed, and 'Socialist Secular' was added to the Preamble, effective retrospectively from 26 November 1949.
This amendment was controversial for several reasons. Firstly, it was carried out during a period when the Lok Sabha’s regular tenure had ended, and Parliament was functioning under emergency provisions. This raises the question of whether the Parliament, functioning under such circumstances, had the legitimate authority to make such a significant change to the Constitution, particularly the Preamble, which is often considered the soul of the document.
I hope the Supreme Court will answer important constitutional questions viz. (1) Does the Centre possess ‘Constituent Power’ when there is no ‘Will of the People’ i.e. after the expiry of Lok Sabha’s tenure? (2) Can ‘Constituent Power’ be perpetuated at the whim of the government? (3) Can ‘Constituent Power’ under Article 368 be used during the Emergency? (4) Can Preamble, which if not more important than ‘Seventh Schedule’ is nevertheless to it, be amended without States’ Ratification? (5) Can Preamble be amended when Parliament is functioning under the emergency provisions of the Constitution, whereby the tenure of Lok Sabha is extended to meet the emergency requirements only? (6) Can Preamble be amended in 1976 retrospectively w.e.f. 26.11.1949? (7) Can Preamble be amended on behalf of the Constituent Assembly, which did not exist in 1976? (8) Can Preamble be amended without changing the Adoption Date? (9) Can Preamble be amended for ‘Administrative Necessity’ during the emergency? Was there any Real ‘Administrative Necessity’ or ‘Public Demand' to amend the Preamble, which contain the basic features? (10) Can the words such as ‘Communism/Capitalism’ be added to the Preamble? Has adding the words ‘Socialist Secular’ to the Preamble not opened a Pandora's box? (11) Is there any Real Effect of adding the words ‘Socialist Secular’ into Preamble? What will happen if the Original Preamble is restored? (12) Has adding the words ‘Socialist Secular’ in the Preamble not given birth to a Reverse Power i.e. to remove words from the Preamble? Can Social Justice or Equality of Status be removed from the Preamble? (13) Can the Preamble be amended without proper deliberation? Can Preamble be amended when most of the opposition members of Parliament are in Jail/Underground due to preventive detention? (14) Can Preamble be amended when fundamental rights have been suspended and the voice of people is silenced? (15) Will ‘Doctrine of Acquiescence’ apply here? Can an unconstitutional act be allowed to continuously exist in the Constitution and even more so in the Preamble, which is a basic feature of our Constitution?
According to me, the 'Constituent Power' should align with the 'Will of the People,' expiring with the Lok Sabha’s tenure. Extending legislative power for administrative needs is one matter, but extending the ‘Constituent Power’ and using it to amend fundamental aspects like the Preamble during an emergency is another.
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The legitimacy of any constitutional amendment rests on the democratic principle that such power is derived from the will of the people, expressed through their elected representatives. When the normal tenure of the Lok Sabha expires, the mandate of the people ends, raising doubts about the validity of any amendments passed thereafter without fresh elections. Legislative power, extended for administrative necessity, does not carry the same weight as constituent power, which can alter the fundamental framework of the Constitution. Allowing the government to wield such immense power during an emergency, without proper deliberation and opposition, risks undermining the very principles of democracy and constitutional governance. A power as great as one to amend the ‘Grundnorm’ shouldn’t be wielded in unruly times.
The 42nd Amendment was passed at a time when the Lok Sabha’s regular tenure had ended, and Parliament was operating under emergency provisions. During this period, a Presidential Order under Article 359 of the Constitution suspended the right to move courts for enforcement of fundamental rights, and preventive detention laws like the Maintenance of Internal Security Act, 1971 (MISA) and the Defense and Internal Security of India Rules, 1971 (DISIR) were enacted, silencing the people’s voice.
Opposition members were jailed, and the people’s voice was further stifled by these laws. The Supreme Court's ADM Jabalpur vs. Shivakant Shukla verdict further restricted citizens' rights to challenge preventive detentions. The environment during this period was such that there was little room for dissent or debate, a cornerstone of any democratic process, especially when it comes to amending the Constitution.
The addition of 'Socialist Secular' did not significantly alter India's inherent secular nature but did set a precedent for future arbitrary changes to the Preamble. The Preamble serves as a statement of the Constitution's guiding principles and values. Its amendment, especially in a manner that retrospectively alters the original intent of the Constituent Assembly, raises concerns about historical revisionism and the potential for future governments to make arbitrary changes.
The true function of the Preamble is to expound the nature, extent, and application of the powers actually conferred by the Constitution and not substantially to create them. Adding the words ‘Socialist Secular’ had no real effect on the governance of the country. However, it opened a Pandora's box for further manipulations. If 'Socialist Secular' can be added, what prevents future amendments from adding terms like 'Communism' or 'Capitalism,' thereby aligning the Preamble with specific ideologies rather than the broad, inclusive principles it was originally intended to represent?
The amendment process itself raises fundamental questions about democratic principles and constitutional governance. Can the Preamble be amended without proper parliamentary deliberation, especially during an emergency when fundamental rights are suspended, and the voice of the opposition is stifled? Should such significant amendments be made without state ratification, similar to the requirements for amending the Seventh Schedule? Analogous to a statute, the Constitution has its Aims & Objectives enshrined in the Preamble and gives powers to the state to achieve those principles. If the powers to achieve the goals of the Preamble requires state ratification to be amended, then it would be repugnant to make the Preamble amendable by a majority. Here, the Doctrine of Necessary Implication would apply to make the Preamble amendable with state ratification.
The validity of Section 2 of the Constitution 42nd Amendment Act 1976, which altered the Preamble, has not been reviewed under the Basic Structure doctrine. The Preamble, as a statement of adoption by the Constituent Assembly on 26 November 1949, should not be altered retrospectively. Parliament can amend the Constitution, but it cannot change historical facts. Proper deliberation and state ratification should reflect the "Will of the People," preserving the integrity and sanctity of our Constitution.
Furthermore, there are ethical considerations to be accounted for.
The manner in which the 42nd Amendment was passed, during a period of internal emergency and without proper debate or opposition, challenges the very core of democratic ideals. The use of constituent power under such circumstances, especially when fundamental rights were suspended, raises questions about the legitimacy and ethicality of the amendment process.
The legal validity of such amendments can also be called into question. The Supreme Court, through various landmark judgments, has upheld the sanctity of the Constitution's basic structure. The 42nd Amendment’s retrospective application and the circumstances under which it was passed could be argued to violate this doctrine, further complicating its legal standing.
The amendment has also set a precedent that could have far-reaching implications for the future. If fundamental aspects of the Constitution, such as the Preamble, can be amended during emergencies and without proper debate, it opens the door to potential misuse of constituent power by future governments. This could lead to arbitrary and ideologically driven changes to the Constitution, undermining its stability and the democratic principles it enshrines.
In conclusion, the amendment of the Preamble during an emergency and after the expiry of the Lok Sabha's tenure raises significant constitutional, legal, and ethical concerns. It challenges the principles of democratic governance, raises questions about the validity and process of constitutional amendments, and underscores the need for preserving the integrity and sanctity of the Constitution. The Preamble, as a reflection of the basic structure of the Constitution, should be protected against arbitrary changes, ensuring that any amendments align with the foundational principles and democratic ideals upon which our Democratic Republic is built.
The author of this article is Ashwini Upadhyay, Advocate, Supreme Court.
