Can’t annul Parl’s legislative actions during Emergency: SC

The Supreme Court on Friday observed that it cannot annul all legislative actions of Parliament during the 1976 Emergency solely on the ground that the extended tenure of Parliament was meant for emergency purposes and not for amending laws or the Constitution.

The remarks were made by a bench comprising Chief Justice of India (CJI) Sanjiv Khanna and justice PV Sanjay Kumar while expressing reservations about entertaining petitions challenging the inclusion of the words “socialist” and “secular” in the Preamble through the 42nd Constitutional Amendment.

“The subject amendment (42nd amendment) has been subjected to a lot of judicial review by this court. The legislature has intervened...Parliament has intervened. We cannot say that whatever Parliament did at that time (Emergency) is nullified,” said the bench in response to a submission that Parliament could not have amended the Preamble during the extended tenure of Lok Sabha in 1976.

During the hearing on Friday, the bench pointed out that the authority of Parliament under Article 368 to amend the Constitution extends to the Preamble as well. “The Preamble is part and parcel of the Constitution. It is not separate,” it remarked.

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The court added that the term “socialism” holds specific significance in the Indian context. “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,” it observed.

The hearing stemmed from separate petitions filed in 2020 by former BJP parliamentarian Subramanian Swamy, social worker Balram Singh and advocate Ashwini Upadhyay challenging the legitimacy of the 42nd Constitutional Amendment. This amendment, passed during Indira Gandhi’s extended tenure during the Emergency in 1976, inserted the words “socialist” and “secular” into the Preamble. Prior to the amendment, the Preamble had described India as a “sovereign democratic republic,” but the new text read “sovereign socialist secular democratic republic”. The petitioners argue that this amendment was inconsistent with the original intent of the Constitution’s framers, who had explicitly rejected the inclusion of these terms.

Advocate Vishnu Shankar Jain, representing Singh, argued that the 1976 Parliament acted beyond its mandate, as the inclusion was made during an Emergency without consulting the people. “When the Preamble has a fixed adoption date, how can words be added subsequently?” asked Jain, contending that the amendment distorted the original vision of the Constitution’s framers, who had deliberately rejected these terms during the Constituent Assembly debates.

Jain also cited a recent nine-judge bench ruling on Article 39(b) to highlight differing interpretations of socialism, but CJI Khanna dismissed concerns about its inclusion. “In India, socialism primarily means a welfare state. It has never hindered private sector growth,” he replied.

By an 8-1 decision on November 5, the top court prescribed limitations on state’s power to acquire privately owned resources to distribute it for common good, holding that not all property that is privately owned can be acquired but only those which meet certain criteria to be declared a “material resource of the community”.

Advocate Upadhyay, on his part, clarified that he was not against secularism or socialism, emphasising that his objection lay with the “illegal” process of their inclusion during the Emergency. “The mandate of the people of India had come to an end with the term of the Lok Sabha ending on March 18, 1976, and thus, there was no ‘will of the people’ when the amendments were brought. The tenure of Lok Sabha was extended to meet the emergency requirements and not to amend the Preamble which is basic structure of the Constitution,” Upadhyay contended.

Replying, the bench said it cannot accept the suggestion the Emergency Parliament lacked legitimacy to amend the Constitution, adding that the 42nd Amendment has been extensively reviewed by courts and supported by subsequent legislative actions. It also said that secularism has been repeatedly upheld as part of the Constitution’s basic structure, notably in the SR Bommai case (1994).

Swamy argued that the amendment rendered the Preamble inconsistent with its original adoption date of November 26, 1949. He suggested that these words be included in a separate paragraph, rather than implying they were part of the original text.

Despite the petitioners’ insistence that the matter be referred to a larger bench for detailed deliberations, the bench refused the plea, stating that a detailed order would be pronounced on November 25.

During the previous hearing of this matter on October 21, the bench had emphasised that the terms “secularism” and “socialism” in the Preamble were to be understood in the Indian context, distinct from their Western interpretations. It pointed out that the Indian understanding of secularism is unique, rooted in the State’s duty to respect all religions equally, rather than strict religious neutrality. On socialism, the bench had said on the day that socialism in India is about equality of opportunity and equitable distribution of resources.