'No Legitimate Cause' : Supreme Court Dismisses Pleas Challenging Inclusion Of Words 'Socialist' & 'Secular' In Constitution's Preamble

The bench comprising Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar observed that there was no "legitimate cause or justification for challenging this constitutional amendment after nearly 44 years."

The Court noted that the amendment power of the Parliament extends to the Preamble as well. The date of adoption of the Preamble does not restrict the power of the Parliament to amend the Preamble. On this ground, the argument of retrospectivity was rejected. The judgment also explained what 'socialism' and 'secularism' meant in the Indian context.

"It has almost been so many years, why rake up the issue now," CJI Khanna said after the pronouncement.

Flaws in the arguments obvious

At the outset of the judgment, the Court observed, "The writ petitions do not require detailed adjudication as the flaws and weaknesses in the arguments are obvious and manifest."

The Court observed that the original tenets of the Preamble reflected a secular ethos. A number of decisions , including the Constitution Bench judgments in Kesavananda Bharati v. State of Kerala and S R Bommai vs Union of India, have observed that secularism is a basic feature of the Constitution.

Although the term 'secular' was not present in the Constitution before its insertion in the Preamble by the Constitution (Forty-second Amendment) Act, 1976, secularism essentially represents the nation's commitment to treat persons of all faiths equally and without discrimination, the decision in R C Poudyal v. Union of India held.

"In essence, the concept of secularism represents one of the facets of the right to equality, intricately woven into the basic fabric that depicts the constitutional scheme's pattern," the judgment observed.

As regards socialism, the Court said, "In the Indian framework, socialism embodies the principle of economic and social justice, wherein the State ensures that no citizen is disadvantaged due to economic or social circumstances. The word 'socialism' reflects the goal of economic and social upliftment and does not restrict private entrepreneurship and the right to business and trade, a fundamental right under Article 19(1)(g)."

The Court also noted that in 1978, the Parliament which was constituted by the elections following the Emergency passed the 44th Amendment, undoing many aspects of the 42nd Amendment. However, the insertion of socialism and secularism in the Preamble was not disturbed.

The Court also questioned the filing of the petitions 44 years after the amendment was passed.

"The fact that the writ petitions were filed in 2020, forty-four years after the words 'socialist' and 'secular' became integral to the Preamble, makes the prayers particularly questionable. This stems from the fact that these terms have achieved widespread acceptance, with their meanings understood by “We, the people of India” without any semblance of doubt. The additions to the Preamble have not restricted or impeded legislations or policies pursued by elected governments, provided such actions did not infringe upon fundamental and constitutional rights or the basic structure of the Constitution. Therefore, we do not find any legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. The circumstances do not warrant this Court's exercise of discretion to undertake an exhaustive examination, as the constitutional position remains unambiguous, negating the need for a detailed academic pronouncement. This being the clear position, we do not find any justification or need to issue notice in the present writ petitions, and the same are accordingly dismissed."

The bench had reserved orders on November 22. Earlier, the bench refused the petitioners' plea to refer the matter to a larger bench. Though CJI Khanna was about to dictate the order on Friday, miffed with the interruptions from certain lawyers, he said that he would pronounce the order on Monday.

The petitions are filed by Balram Singh, senior BJP leader Dr. Subramanian Swamy and Advocate Ashwini Kumar Upadhyay.

On the last hearing, Advocate Vishnu Shankar Jain, for one of the petitioners, placed reliance on the recent 9-judge bench's judgment on Article 39(b) of the Constitution, in which a majority led by the then CJI DY Chandrachud disagreed with the socialistic interpretations propounded by Justices Krishna Iyer and Chinnappa Reddy.

CJI Khanna in response said that "being socialist" in the Indian sense is understood only to be a "welfare state."

"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. The word socialism is used in a different context, meaning that the State is a welfare state and must stand for the welfare of the people and shall provide equality of opportunities." CJI Khanna said. CJI also pointed out that "secularism" has been held to be part of the basic structure of the Constitution in the SR Bommai case.

Jain submitted that the amendment was passed without hearing the people, as it was made during the Emergency and the inclusion of these words would amount to forcing the people to follow certain ideologies. When the Preamble comes with a cut-off date, how can the words be subsequently added, he wondered. Insisting that the matter required a detailed hearing, Jain argued that the matter has to be considered by a larger bench. "No, no," CJI flatly refused the plea.

Advocate Ashwini Upadhyay, another petitioner, clarified that he was not against the concepts of socialism and secularism but was opposing the "illegal" insertion of these words in the Preamble.

CJI Khanna replied that the amendment power under Article 368 of the Constitution extended to the Preamble as well. "The preamble is part and parcel of the Constitution. It is not separate," he said. CJI Khanna said that the Court would not go into the arguments that the Lok Sabha in 1976, during its extended tenure could not have amended the Constitution and that amending the Preamble is a constituent power which can be exercised only by the Constituent Assembly.

"The subject amendment (42nd amendment) has been subjected to a lot of judicial review by this Court. The legislature has intervened. The Parliament has intervened. We cannot say that whatever Parliament did at that time (emergency) is nullified," CJI said. Upadhyay argued that the amendment was not ratified by the States and there are important issues to be considered. He requested that the Court should hear the views of the Attorney General and the Solicitor General.

Dr Subramanian Swamy, appearing as party-in-person, said that even the subsequently elected Parliament led by the Janata Party also supported the inclusion of these words. The question is whether it should be added as a separate paragraph to the Preamble instead of saying that in 1949, it was adopted as socialist and secular.

In a previous hearing, the Court observed that Secularism has always been held to be a part of the basic structure of the Constitution.

Cases : Dr Balram Singh v. Union of India, W.P.(C) No. 645/2020, Dr. Subramanian Swamy v. Union of India, W.P.(C) No. 1467/2020 and Ashwini Upadhyaya v. Union of India, MA 835/2024

Citation : 2024 LiveLaw (SC) 917