SC upholds ‘secular, socialist’ in Preamble of the Constitution

The court said the word ‘socialism’ refers to the welfare state and does not prevent the government of the day to follow any economic theory for the benefit of the people

The Supreme Court on Monday (November 25, 2024), in an order, upheld the inclusion of ‘socialist, secular’ with retrospective effect in the Preamble of the Constitution.

A Bench headed by Chief Justice of India Sanjiv Khanna held the power to amend the Constitution under Article 368 extended to the Preamble of the Constituion. The Preamble was not alien to the Constitution, but a part and parcel of it.

“The power under Article 368 cannot be curtailed. It will equally apply to the Preamble,” Chief Justice Khanna read excerpts of the court order.

The court confirmed the retrospective amendment to the Preamble. The 42nd Constitution Amendment had included the words in the Preamble in 1976 with retrospective effect from November 26, 1949 when “the people of India gave the Constitution to themselves”.

The court said the word ‘socialism’ referred to the ‘welfare state’ which afforded equal opportunity to all. The inclusion of ‘socialism’ did not prevent the government of the day to follow any economic theory for the benefit of the nation’s growth.

Chief Justice had reasoned that the concept of socialism in India did not negate the participation of private players or negate individualism.

The order was based on a batch of petitions, one of them by BJP leader Subramanian Swamy, challenging the inclusion of the words ‘Socialist, Secular’ into the Preamble of the Constitution in 1976 with retrospective application.

The petitioners had challenged the validity of Section 2 of the Constitution 42nd Amendment Act of 1976, and particularly the change in Preamble.

One of the petitioners had argued that the dogma of socialism cannot prevail over other ideas, and it was wrong to force upon the nation one particular economic theory to achieve economic development.

“Socialism here means a welfare state where there should be equality of opportunity for all . It has never prevented the private sector from thriving here. We have all benefited from the private sector… The idea of socialism runs through many Articles of the Constitution,” Chief Justice Khanna had observed during the hearing.

Advocate Ashwini Kumar Upadhyay, a petitioner, had contended that the “Preamble is a statement of adoption of the Constitution by the Constituent Assembly on November 26, 1949 and cannot be changed as it is an unalterable fact”. The inclusion in the Preamble was done without States’ ratification, which reflected the ‘will of the people’. Mr. Upadhyay had contended the changes made amounted to a “fraud on the Constitution”. He pointed out that the 42nd Constitution Amendment Act was passed in the thick of the Emergency days when the “voice of the people was silenced”.

The court held that both socialism and secularism were part of the Basic Structure of the Constitution.

The CJI had made it clear that “secularism had always been part of the Basic Structure… If one looks right to equality and the word ‘fraternity’ used in the Constitution, there is a clear indication that secularism has been held as the core feature of the Constitution”.

Published - November 25, 2024 01:23 pm IST