Can't say what Parliament did in emergency was all nullity: SC on addition of socialist, secular to Preamble

The Supreme Court observed that the 1976 amendment to the Constitution, which added the terms "socialist", "secular", and "integrity" to the Preamble, underwent judicial reviews, and it cannot say whatever Parliament did during the emergency period was all nullity. 

A bench of Chief Justice Sanjiv Khanna and Justice Sanjay Kumar reserved its verdict on a batch of pleas filed by former Rajya Sabha MP Subramanian Swamy, advocate Vishnu Shankar Jain and others, challenging the inclusion of the words "socialist" and "secular" in the Preamble to the Constitution.

The bench said it would pronounce its order on the issue on November 25, reported PTI.

The CJI, however, said, "The subject amendment (42nd amendment) has been subjected to a lot of judicial reviews by this court. The Parliament has intervened. We cannot say that whatever Parliament did at that time (emergency) was all nullity." 

The words "socialist", "secular", and "integrity" were inserted into the Preamble to the Constitution under the 42nd constitutional amendment moved by the Indira Gandhi government in 1976. The amendment changed the description of India in the Preamble from a "sovereign, democratic republic" to a "sovereign, socialist, secular, democratic republic".

During the hearing, the bench refused to refer the matter to a larger bench as sought by the petitioner and noted that "The way we understand socialism in India is very different from other countries. In our context, socialism primarily means a welfare state. That is all. It has never prevented the private sector, which is thriving well. We have all benefited from it."

He said the top court held "secularism" to be part of the basic structure of the Constitution in the 1994 S R Bommai case.

Advocate Jain further contended the 1976 amendment to the Constitution was passed without hearing the people as it was passed during the emergency and inclusion of these worlds would amount to forcing the people to follow specific ideologies.

"When the Preamble comes with a cut-off date, how can new words be added to it?" submitted Jain while seeking a reference to a larger bench for authoritative adjudication on the issue.

Advocate Ashwini Upadhyay, who too has filed a petition said he was not against the concepts of "socialism" and "secularism" but opposed their insertion into the Preamble.

The bench said Article 368 of the Constitution granted power to Parliament to amend the Constitution and it extended to the Preamble as well.

"The Preamble is part and parcel of the Constitution. It is not separate," it said, making it clear the court won't go into the inquiry that the Lok Sabha in 1976 could not have amended the Constitution and that amending the Preamble was a constituent power, exercised only by the Constituent Assembly.

Former Rajya Sabha MP Subramanian Swamy, who filed a separate plea, pointed out even the subsequently elected union government led by Janata Party supported the inclusion of these words in the Preamble.

He said the question was whether it should be added as a separate paragraph to the Preamble instead of saying in 1949, it was adopted as socialist and secular.

"Not only the emergency Parliament adopted this but (it) was also subsequently supported by the Janata Party government's Parliament by a 2/3rd majority, in which this particular aspect of socialism and secularism was retained," Swamy said.

"The issue here is only this much - whether we would make out that this should come as a separate paragraph because we cannot say that in 1949, these words were adopted. Therefore, the only issue that remains is, having accepted this, we can have a separate paragraph below the original paragraph," he added.

On October 21, the top court said secularism had always been held to be part and parcel of the basic structure of the Indian Constitution, and the terms "socialist" and "secular" need not be considered like a western concept.

On February 9, the top court asked whether the Preamble to the Constitution could be amended while keeping the date of its adoption, November 26, 1949, intact.

Earlier in September 2022, the top court tagged Swamy's plea with other pending matters filed by Balram Singh and others for hearing. They sought deletion of the words "socialist" and "secular" from the Preamble to the Constitution.

Swamy's plea contended that the Preamble not only indicated the Constitution's essential features but also the fundamental conditions on which it was adopted to create a unified, integrated community.