Why Supreme Court Refused To Delete 'Secularism' & 'Socialism' From Preamble

The court said that it has found no legitimate cause or justification for challenging this constitutional amendment after nearly 44 years.

The Supreme Court on Monday dismissed the petitions seeking deletion of word 'Secularism' and 'Socialism' from Preamble stating that the petitions do not require detailed adjudication as the flaws and weaknesses in the arguments are obvious and manifest.

The two expressions—'secular' and 'socialist' and the word 'integrity' were inserted in the Preamble vide the Constitution (Forty-second Amendment) Act, 1976. These amendments were made in 1976 during the national Emergency imposed by the Indira Gandhi government.

The petitioners challenged the amendments stating that they were added in 1976, while the date on the Preamble reads November 26, 1949. They further argued that the Constituent Assembly had not agreed to include the words 'socialist' and 'secular' in the Preamble. 

Parliament's Powers To Amend Constitution & Basic Structure Doctrine

The top court dismissed all the petition stating that power to amend unquestionably rests with the Parliament and the amending power extends to the Preamble. The court said that it has found no legitimate cause or justification for challenging this constitutional amendment after nearly 44 years. 

"Article 368 of the Constitution permits amendment of the Constitution. The power to amend unquestionably rests with the Parliament. This amending power extends to the Preamble. Amendments to the Constitution can be challenged on various grounds, including violation of the basic structure of the Constitution." the verdict read.

The court further said that the fact that the Constitution was adopted, enacted, and given to themselves by the people of India on the 26th day of November, 1949, does not make any difference.

"The date of adoption will not curtail or restrict the power under Article 368 of the Constitution. The retrospectivity argument, if accepted, would equally apply to amendments made to any part of the Constitution, though the power of the Parliament to do so under Article 368, is incontrovertible and is not challenged," the bench headed by CJI Sanjiv Khanna explained.

The court said that while it is true that the Constituent Assembly had not agreed to include the words 'socialist' and 'secular' in the Preamble, the Constitution is a living document and Parliament has power to amend the Constitution. The bench further explained that only those amendments can be challenged in court that are violative of 'Basic Structure of Constitution.'

The court further said that it has been explained time and again that Secularism and Socialism are part of basic structure of Constitution.

Preamble's Original Tenets Reflect Secular Ethos

The top court explained that in 1949, the term 'secular' was considered imprecise, as some scholars and jurists had interpreted it as being opposed to religion. Overtime, India has developed its own interpretation of secularism, wherein the State neither supports any religion nor penalizes the profession and practice of any faith. This principle is enshrined in Articles 14, 15, and 16 of the Constitution, which prohibit discrimination against citizens on religious grounds while guaranteeing equal protection of laws and equal opportunity in public employment, the top court said.

"The Preamble's original tenets—equality of status and opportunity; fraternity, ensuring individual dignity—read alongside justice - social, economic political, and liberty; of thought, expression, belief, faith, and worship, reflect this secular ethos," the verdict read.

The court further added that the Article 25 guarantees all persons equal freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality, health, other fundamental rights, and the State's power to regulate secular activities associated with religious practices.

"Article 26 extends to every religious denomination the right to establish and maintain religious and charitable institutions, manage religious affairs, own and acquire property, and administer such property in accordance with law.

Furthermore, Article 29 safeguards the distinct culture of every section of citizens, while Article 30 grants religious and linguistic minorities the right to establish and administer their own educational institutions. Despite these provisions, Article 44 in the Directive Principles of State Policy permits the State to strive for a uniform civil code for its citizens," the court elaborated while explaining what Secularim means in India.

The apex court further said that a number of previous decisions of the Supreme Court, 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.

In R C Poudyal v. Union of India, the Supreme Court elucidated that 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.

In M Ismail Faruqui (Dr) v. Union of India, the Supreme Court elaborated that the expression secularism in the Indian context is a term of the widest possible scope.

The State maintains no religion of its own, all persons are equally entitled to freedom of conscience along with the right to freely profess, practice, and propagate their chosen religion, and all citizens, regardless of their religious beliefs, enjoy equal freedoms and rights.

"However, the ‘secular’ nature of the State does not prevent the elimination of attitudes and practices derived from or connected with religion, when they, in the larger public interest impede development and the right to equality. 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 top court added.

Socialism In Preamble Reflects State's Commitment To Be Welfare State, Ensuring Equality Of Opportunity

The court said that the word 'socialism', in the Indian context should not be interpreted as restricting the economic policies of an elected government of the people's choice at a given time.

"Neither the Constitution nor the Preamble mandates a specific economic policy or structure, whether left or right. Rather, 'socialist' denotes the State's commitment to be a welfare State and its commitment to ensuring equality of opportunity. India has consistently embraced a mixed economy model, where the private sector has flourished, expanded, and grown over the years, contributing significantly to the upliftment of marginalized and underprivileged sections in different ways."

The top court explained that 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 further said that the argument that the Constitution (Forty-second Amendment) Act, 1976, should be struck down due to its enactment during the Emergency and the extended period of the Lok Sabha was previously deliberated in Parliament, during the consideration of the Constitution Forty-Fifth Amendment Bill, 1978.

"During these deliberations, the inclusion of the words 'secular' and 'socialist' came under scrutiny. Subsequently, this Bill was renumbered and called the Constitution Forty-Fourth Amendment Act 1978. The word 'secular' was explained as denoting a republic that upholds equal respect for all religions, while 'socialist' was characterized as representing a republic dedicated to eliminating all forms of exploitation—whether social, political, or economic. However, the said amendment as proposed to Article 366 was not accepted by the Council of States," the court said.

Socialism And Secularism Have Become Integral Part 

The court said that 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," the verdict read.