A plea has been filed before the Supreme Court seeking to remove from the preamble the words ‘socialist’ and ‘secular’

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By on Columns, Know your law, Point of View

Author: Ashutosh Shukla

A plea has been filed before the Supreme Court seeking to remove from the constitution’s preamble the words ‘socialist’ and ‘secular’ which were added through the 42nd constitutional amendment. The PIL said that the amendment made in 1976 was “antithetical to the constitutional tenets as well as the historical and cultural theme of India”.


The move was “per se illegal for violating the concept of freedom of speech and expression enumerated in Article 19(1)(a) of the Constitution and the right to freedom of religion guaranteed under Article 25 of the Constitution,” said.
It said the amendment was also against the historical and cultural theme of the “great republic of Bharat, the oldest civilisation of the world, having a clear concept of ‘Dharma’ different from the concept of religion,” and that the communist theory of State cannot be applied in the Indian context which was not in tune with the religious sentiments and socio-economic conditions of India.


“Issue appropriate direction striking down the words ‘Socialist’ and ‘Secular’ inserted in the Preamble of the Constitution by section 2 (a) of the Forty Second Constitution Amendment Act, 1976,” the petition, filed by advocates Balram Singh and Karunesh Kumar Shukla and an individual Pravesh Kumar, said.
It sought a direction the Union of India to declare that the concept of ‘socialism’ and ‘secularism’ referred to the nature of the republic and was limited to the working of the sovereign function of the State and same is not applicable to the citizens, the political parties and the social organisations.


The petition filed through advocate Vishnu Shankar Jain has also challenged the insertion of the words ‘secular’ and ‘socialist’ in section 29 A (5) of the Representation of People (RP) Act that makes it compulsory for the political parties, applying for registration before Election Commission of India,” to make specific provision in its memorandum or rules and regulations that the association or body shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of ‘Socialism’ and ‘Secularism’ and democracy and would uphold the sovereignty and integrity of India.


In this article, we will focus particularly on the word ‘Secular’ (although the word ‘socialist’ has also been discussed in certain places for describing the context). We shall discuss its history in a chronological manner, and we will put forward the widely stated arguments for the removal of this word from the Preamble of the Constitution of India.
Towards the end, we shall discuss the judgements and precedents of the Supreme Court and High Courts and try to understand whether deletion of the word ‘secular’ from the preamble is possible at all?

HISTORICAL REFERENCE THE CONSTITUENT ASSEMBLY DEBATES
When this term called ‘Secular’ was first brought before the Constituent Assembly (aptly acronymized as CA), opposition came from all directions as to the vagueness of the term. There was no set definition that could describe what this term meant. It was understood that certain people wanted to introduce this term to reject the history and idea of the Bharatiya Civilization State.

Sri Loknath Mishra, made the following remarks on the 6th of December 1948 in the Constituent Assembly debates:
“Gradually it seems to me that our ‘Secular State’ is a slippery phrase, a device to bypass the ancient culture of the land.”
There were attempts which were made at least on three different occasions to introduce this term in the constitution but were rejected on all three occasions They are as follows:-

  • On 15th November 1948, KT Shah moved for an amendment in Article 1 of the constitution. His amendment proposed the addition of “secular, federal, socialist” to the “Union of States”. B.R. Ambedkar opposed his amendment because he believed that the people of the country should be given the freedom to choose their preferred economic or social framework.
  • On 25th November 1948, again, KT Shah proposed the word ‘secular’ to be included in the Draft Article 40 (current Article 51) of the Constitution. This amendment was also rejected.
  • On 3rd of December 1948, the third attempt was made to insert the word ‘Secular’ through Draft Article 18 (currently, Article 24) of the Constitution, which was also rejected.
  • Shri Jagat Narain Lal on 15 November, 1949: the words “Secular State” should not have come into the Constitution. It would have been enough if it had been said that the State should not interfere with any religion. Or, we could have said that the State should have a spiritual and moral outlook, instead of saying that it should be secular. The introduction of these words has created a lot of misunderstanding.

Here, the wisdom and intelligence of Dr B.R. Ambedkar must be appreciated because he was adamant about not inserting the words ‘Secular’ and ‘Socialist’ in the constitution. He had the foresight to understand that inserting such a term could lead to turmoil in the political and public discourse.

The inclusion of these words in the preamble was subject to little debate. The preamble was put before the CA for debate on 17th of October 1949, i.e., just 2 months before the enactment of the constitution. By that time a large portion of the constitution had already been adopted.

According to Rajendra Prasad, the President of the Assembly, the objective behind putting the preamble up for discussion at the very end was done so that the preamble could be in conformity with the constitution.


THE KESAVANANDA BHARATI CASE AND ADDITION TO THE BASIC STRUCTURE.

The Kesavananda Bharati case propounded the Doctrine of Basic Structure in 1973. According to this doctrine, ‘the basic structure’ of the constitution cannot be abrogated even by a constitutional amendment. Also, ‘Secularism’ was identified as a basic structure of the constitution in this landmark judgement.

42ND AMENDMENT OF THE CONSTITUTION

The 42nd Amendment of the Constitution of India was a cesspool of bad ideas for the country. This amendment was enacted in the year 1976 under the leadership of PM Indira Gandhi. The country was under a National Emergency which was done solely with a mala fide intention.

This amendment which was introduced in a dictatorial manner was also the one where the preamble was amended for the first and last time in the history of the Indian Constitution. This amendment to the Constitution which was done in a dictatorial fashion added the word ‘Secular’ to the preamble.

There was no constitutional significance in adding this word in the preamble. This is because the preamble itself, by nature, is non-justiciable.
The only place where the word Secular appears in the Constitution other than the Preamble

The only place where the word ‘Secular’ is mentioned in the constitution other than the preamble is Article 25, clause(2), sub-clause (a):

“(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.”

This article was present in the constitution when it was introduced on the 26th of January 1950 and continues to remain in the constitution. We can observe the sense and the context in which the word ‘secular’ has been used in this article.

Except for the said article and the preamble, the word is not found anywhere else in the constitution. Moreover, nowhere in the entire constitution will we find a ‘definition’ for this particular word.

ARGUMENTS FOR REMOVING THIS WORD FROM THE PREAMBLE

Now that we’ve established the ground, let’s delve right into it. The primary arguments for removing the word ‘Secular’ from the preamble of the Constitution of India are as follows:

  • No constitutional significance
  • As it has been mentioned earlier, there was no constitutional significance of putting this word in the preamble. This is primarily because of two reasons:-
  • The preamble itself is non-justiciable.
  • B.R. Ambedkar had already drafted the preamble to say that all the citizens have been secured “LIBERTY of thought, expression and belief”. This clearly renders the word ‘Secular’ obsolete.

So, we can extrapolate that the word was added in 1976 only because of political motivations. It can be inferred that the dictator wanted to draw attention away from the other horrendous changes made in the constitution.
Origins of Secularism, a notion foreign to Bharat, i.e., India

The idea of Secularism has its roots in the concept of “separation between the church and the state”. This concept, as the name suggests, has its origins in Christianity. To be precise, the concept has been derived from Martin Luther’s doctrine of two kingdoms, a term coined during the Protestant Reformation. So, it is very much evident that the concept of secularism is one that is foreign to India.

Article 1(1) of the COI says, “India, that is Bharat, shall be a Union of States.” The constitution-makers could have chucked out the word ‘Bharat’ from the constitution, but they decided to keep it. Over the years scholars have pointed out that the intention of keeping this word in the very first article was to recognize the existence of the ‘Bharatiya civilization state’. This means that the concept of Bharat is not something that came into existence on the 15th of August 1947, but a grand narrative that has been in existence for the past several millennia.

Moreover, during the Constitutional Assembly debates, it was argued on various occasions that the concept of ‘Dharma’ is much more in concurrence with the narrative of the Bharatiya civilization state. So, ignoring a civilization’s entire narrative and the forceful inclusion of a foreign term in the preamble goes beyond all logic. At least, that’s what is being argued.

To support this argument, some more examples are as follows:

  • The motto of the Supreme Court of India is in Sanskrit. It says, “यतो धर्मस्ततो जयः॥”. This literally translates as: “Where there is Dharma, there is victory”.
  • The original manuscript of the COI had pictures of Hindu Gods and Goddesses. The Chapter on Fundamental Rights had a picture of Rama, Sita and Laxmana. The chapter on Directive Principles had a picture of Krishna preaching to Arjuna before Mahabharata war.
  • Secularism is not even followed in the places from where it originated

The prevailing notion of secularism which is followed by nations from which the idea was imported to India is that of ‘separation of Church and State’. It means that the state distances itself from all religious activities. Therefore, it is also sometimes called negative secularism. But do these countries really follow this notion in the strict sense?
Usually, the countries of Europe are cited as prime examples of Secular countries and these countries are supposed to set examples for the rest of the world to follow. Let us see how these countries fare in the Secularism test:

  • The British Monarch, the Queen of England, is the head of the Anglican Church.
  • Sweden, a Scandinavian country (a liberal and progressive country), has a very clear Christian character. The monarch must at all times must adhere to the protestant evangelical faith.
  • Germany goes several steps further. The state recognizes two political institutions – a catholic and protestant branch. Certain social services are even delegated to these churches. E.g., maintenance of birth and death register, marriages, etc. are dependent upon by the state on these religious institutions.
  • So, Europe which is seen as the Benchmark of Secularism follows this brand of Secularism. The countries like Germany and Sweden aren’t described as anti-minority and unsecular. If secular countries like Sweden and Germany are openly Christian countries, doesn’t this make the whole political discourse on Secularism in India pointless?
  • India and its peculiar brand of secularism

India’s secularism (also described as positive secularism) is a peculiar brand of secularism that effectively has assumed a position of convenience. This is because neither does it practice militant secularism like France nor does it identify a state-sponsored religion like Germany or Sweden mentioned above. So, why do we still follow this concept when India doesn’t adhere to true secularism in any sense whatsoever.


Secularism has been misused to vitiate public and political discourse

It can be argued that if Secularism was already implicit in the constitution before the 42nd amendment, is also identified as a basic structure and the preamble is non-justiciable, then what’s the point of removing the word from the preamble? Let it remain in the preamble, right?

That’s a very myopic argument as per some scholars.

From 26th of January 1950 till 2nd November, the word ‘Secular’ was absent in the preamble. Was India any less Secular?

In fact, after the introduction of the word in the year 1976, the appeasement politics with regard to minorities can be clearly observed in India if we look at the schemes launched by various state governments in the name of Secularism.

Minority appeasement is also another issue. This phenomenon is clearly evident in this peculiar form of Secularism followed by India. Following are some of the examples:-

  • Hindu temples are under government control whereas mosques and churches are completely autonomous: The Hindu Religious and Charitable Endowment Act allows state governments to take control of Hindu temples and appropriate its assets. Moreover, these assets and funds are more often than not misappropriated and used by governments for purposes which have nothing to do with the temple or even Hinduism.
  • Different laws for majority and minority schools: The Right to Education Act (RTE) has regulations which have forced the private schools to reserve 25% of its seats for children from economically disadvantaged backgrounds. Although the government does reimburse these schools, the method of calculating reimbursement often causes losses to these private schools. However, the schools run by minority institutions are completely exempted from this regulation!

The 44th amendment of the Constitution of India was made specifically to undo the wrongs meted out by the 42nd amendment. The Janata Party had won the 1977 general elections on the campaign that they shall restore the Constitution to its original form i.e., how it was before the period of Emergency. However, the 44th amendment didn’t even touch the preamble.


The 42nd amendment was unconstitutional

It is a common-sense fact that the method which was used to enact the 42nd amendment was horrendous and dictatorial. During the Emergency, if anyone raised their voice against the government then they were put behind bars. So, the 42nd amendment was passed by suppression of the “freedom of speech and expression” enumerated under Article 19(1)(a). Therefore, this amendment is directly at loggerheads with a fundamental right and as such should be scrapped.

Nani Palkhivala, one of the most eminent jurists of our country, describes Preamble as “the identity card of the constitution”. So, the constitution is identified by the preamble. The question is: Are we really willing to let the constitution be identified by a word of which the very existence in the preamble is unconstitutional?


The illogical alteration to the preamble

The preamble is a declaration that was taken as a vow on the 26th of November, 1949 by the members of the Constituent Assembly. So, logically we can’t alter the declaration because that would amount to putting words in the mouth of the members of CA on the date of enactment of the Constitution. Thus, the 42nd amendment has literally tried to forcefully alter the intentions of the makers of the Constitution.


The Indian Constitution already provides rights to all religions through its provisions

The Constitution of India provides very explicit rights to its citizens with regard to religion. From Articles 25-30, if all the necessary rights of a citizen are protected then what’s the point of keeping the word ‘Secular’ in the preamble?  Why do we fall back on the argument of secularism rather than using these explicit rights?

Article 14 of the COI guarantees equality before the law to everyone within the territory of India. Article 15(1) prohibits the state from discriminating against any citizen on grounds of religion, race, caste, sex, place of birth or any of them. Article 27 says that no person shall be compelled to pay any taxes, the proceeds of which are used for the promotion or maintenance of any particular religion or religious denomination. When we synthesize these three articles then we can deduce that the state is supposed to be free from any kind of religious bias. These rights are sufficient to protect the rights of all religions and particularly the minority religions.


Why give an argument in the first place?

Lastly, but most importantly, it has to be understood that the word ‘Secular’ was added in the preamble forcefully in a tyrannical manner. There was no prior discussion, debate or permission before adding the word. So, the removal of the word from the preamble also doesn’t require a specific reason either.


COMING TO TERMS WITH THE PRECEDENTS

There are two judgements that are always cited when the amendment to the preamble is called into question – Minerva Mills Ltd. & Ors vs Union Of India & Ors and Hindu Front for Justice v. UOI[12](Allahabad High Court Judgement). Let’s discuss them one at a time.


The Minerva Mills case
In this case, the Supreme court held that the 42nd amendment to the preamble was perfectly reasonable.

The court says: “…Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy they afford strength and succour to its foundation…They offer the promise of more, they do not scuttle a precious heritage.”

It is worth mentioning that this judgement was given by the Supreme Court in the year 1980, i.e., just 4 years after the 42nd amendment act. So, the world hadn’t witnessed if the concept of secularism can be misused. 


Hindu Front for Justice v. UOI (Allahabad HC Judgement)

In this judgment, the Supreme Court has pretty much reiterated what was said in the Minerva Mills case. The court held that “these principles and ideals have always been ingrained in the [constitutional] scheme”.

In this judgement, multiple judgements were cited to nullify the arguments mentioned above. The judgements which were cited (excluding Kesavananda Bharati and Minerva Mills) are as follows:

  • S.R. Bommai and others v. Union of India and others, 1994 (3) SCC 1
  • Mrs. Valsamma Paul v. Cochin University and others, 1996 (3) SCC 545
  • Bal Patil and another v. Union of India and others, 2005 (6) SCC 690

The sum and substance of these judgements in our context is that the Supreme court came to the conclusion that secularism was already embedded in the constitution before the 42nd amendment and that India is a secular state where there is no state religion. 

So, the Allahabad HC held that secularism wasn’t thrust upon by the 42nd amendment. Furthermore, they regarded the arguments of the petitioners (which align with much of the arguments mentioned in this article) as baseless and dismissed them saying, “We find no reason to entertain this rather unnecessary petition”.
Before we move on…

Before we proceed any further, another small point is worth mentioning.

Let’s look at it this way: This article talks about the removal of the word ‘Secular’ from the preamble.
Now it’s time to raise our voice for the removal of the word Secular from the preamble.

HOW CAN THE WORD ‘SECULAR’ BE REMOVED FROM THE PREAMBLE?

Now, let’s discuss the way in which the word can be removed. As already mentioned, a PIL has been filed in the Supreme Court for the deletion of the words ‘Secular’ and ‘Socialist’ from the constitution. 

You see, one of the arguments is that secularism can’t be forced upon the people and the subjects of the nation demand its removal.

BUT, in my opinion, we can approach the Apex court with the retrospective implementation of the KESAVANANDA BHARATI verdict. However, the legislative organ can also be used as a tool to remove the word from the preamble.

The last time the preamble was amended using the legislative framework. So, it only makes sense if this is done through a new constitutional amendment. 


Conclusion

In the aforementioned PIL, the petitioners have submitted that secularism and socialism are just political thoughts/ideologies and the citizens cannot be compelled to follow a certain ideology. They also submitted in their petition that the application of such ideologies are reflected in policy only when the subjects of the nation approve of it. That’s why the institution of election exists. Their thoughts align with what Dr B.R. Ambedkar stated during the CA debate on Article 1 when he said that the people of the country should be given the freedom to choose their preferred economic or social framework.

H.V. Kamath, during the CA debates, described the Preamble as setting out “the character of the future constitutional structure”. The insertion of a simple seven-letter word, ‘secular’, has caused much hue and cry in the past decades. The liberal model of secularism has failed to produce its European successes in the case of India. In fact, conflicts between communities in the name of secularism have increased over the years. The ‘promise of more’ as described by the Supreme Court in the Minerva Mills case, is yet to be seen and a need to revisit the same has arisen.

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