Secularism key to constitutional fabric: SC on Preamble challenge
The petitions argued that the original framers of the Constitution had after much deliberation opted not to include these terms in the Preamble
The Supreme Court on Monday expressed reservations over petitions challenging the inclusion of the words “socialist” and “secular” in the Preamble of the Indian Constitution in 1976, emphasising that these terms hold specific significance in the Indian context, distinct from their Western interpretations.
“When you look at the terms ‘equality’ and ‘fraternity’ within various constitutional provisions, it gives clarity to their intended meanings in the Preamble. Also, this court has said in several provisions that secularism is a part of our basic structure,” said a bench of justices Sanjiv Khanna and Sanjay Kumar.
“This court has interpreted and balanced these concepts flexibly in Indian democracy,” observed the bench, stressing that India’s legal framework has given substantive meaning to the term secularism beyond religious neutrality.
The petitions, led by advocates Vishnu Shankar Jain and Ashwini Upadhyay, argued that the original framers of the Constitution had after much deliberation opted not to include these terms in the Preamble. The petitioners highlighted that the debates during the drafting of the Constitution had rejected proposals to include these terms, reflecting a deliberate decision by the framers to avoid them.
The court, however, rebuffed this argument. “At the time of drafting, the concept of secularism was vastly different from what it is today,” responded justice Khanna, adding that India’s understanding of secularism has evolved significantly over time. The bench highlighted that the judiciary has since rendered key rulings that identified secularism as an integral part of the basic structure doctrine.
It added that the constitutional courts in the country have rendered significant meaning to the word “secularism” by striking down religious diktats that impinge on the fundamental rights of the people. “This is how the courts have understood and interpreted this term. We have been very flexible, and courts have balanced everything,” the bench remarked.
On the issue of socialism, the bench pointed out that after the liberalisation of the Indian economy in the 1990s, socialism in the Indian context is more about equality of opportunity and fair distribution of resources. It cautioned against equating Indian socialism with its Western counterpart, saying that India’s approach has always been more flexible.
“After 1990, our economic policy has been liberal. Did it pose any danger to the country? No! Socialism can also mean equality of opportunities and that wealth should be distributed equally and equitably. Let’s not take the Western meaning of the word socialism,” it commented.
Former parliamentarian Subramanian Swamy, also a petitioner in the case, took a different angle by contending that the Preamble could not have been amended in 1976 since the date of the adoption of the Constitution — November 26, 1949 —remained unchanged. He argued that this fixed date rendered any later amendments, such as the insertion of “socialist” and “secular”, constitutionally invalid.
The bench disagreed with Swamy’s premise. It explained that amendments are a regular feature of constitutional evolution. “This was not the only amendment made at that time,” clarified the bench, underlining that the Indian Constitution has been subject to multiple amendments to address changing societal needs.
Despite these clarifications, the court did acknowledge the uniqueness of the Indian Preamble, particularly its inclusion of a specific date — November 26, 1949. The bench then agreed to defer the matter to November for a more detailed hearing, with specific instructions for the petitioners to address the issue of whether the Preamble could have been altered without changing its adoption date.
The hearing stems from petitions filed in 2020 by individuals, including Swamy and social worker Balram Singh, challenging the legitimacy of the 42nd Constitutional Amendment. This amendment, passed during Indira Gandhi’s tenure 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.
During the Constituent Assembly debates, proposals to include the words “secular” and “socialist” were brought up multiple times. On November 15, 1948, Professor KT Shah proposed including “secular” and “socialist” in the Preamble, but the assembly rejected the proposal. Further attempts to insert “secular” into Article 18 of the Constitution were similarly dismissed by the Constituent Assembly. The petitions contend that these rejections reflect a deliberate decision by the framers to avoid embedding these concepts into the core framework of the Constitution.
The petitioners, which also include advocate Upadhyay in person, argued that the insertion of these words in 1976 violated the original vision of the Constitution, especially in light of Article 25, which guarantees the freedom of religion. They contended that the concept of secularism as inserted into the Preamble has been misinterpreted as being equivalent to religious neutrality, whereas in reality, secularism in India refers to the state’s positive obligation to respect all religions equally. In addition, the petitioners challenged the 1989 amendment to the Representation of People Act, which requires political parties to pledge allegiance to the principles of “socialism” and “secularism” as a precondition for registration with the Election Commission of India, arguing that this provision forces political parties to subscribe to ideologies that may not align with their values, thus infringing on their right to freedom of speech and expression under Article 19(1)(a) of the Constitution.
