'Socialism In Indian Context Means Welfare State' : Supreme Court Reserves Order On Challenge To Adding 'Socialist' & 'Secular' In Preamble

The Supreme Court on Friday (November 2022) reserved orders on a batch of petitions challenging the inclusion of the words "socialist" and "secular" in the Preamble to the Constitution as per the 42nd Amendment passed in 1976.

A bench comprising Chief Justice of India Sanjiv Khanna and Justice Sanjay Kumar, which heard the matter, refused the petitioners' plea to refer the matter to a larger bench. Though CJI Khanna was about to dictate the order, 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.

Today, 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.

"I may add that not only the Emergency Parliament adopted this but was subsequently supported by the Janata Party Government's Parliament also by 2/3rd majority, in which this particular aspect of socialism and secularism was retained. This issue is here only this much - whether we would make out that this should come as a separate paragraph because we cannot say that in 1949 this was adopted. Therefore, the only issue that remains is, having accepted this, we can have a separate paragraph below the original paragraph, that's all I would submit," Swamy submitted.

When an intervenor sought to make submissions, CJI pointed out that the bench had not even issued notice on the petitions. As CJI Khanna was about to dictate the order, the intervenor kept on interrupting. Ultimately, CJI deferred the pronouncement to Monday.

"List on Monday for orders," CJI said. "Please do not dismiss it. Please hear us," Jain requested then. "Yes yes, we heard you. Monday we will pass the order," CJI repeated.

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

Cases : 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