Introduction

• A public interest litigation filed by former Rajya Sabha MP Dr. Subramanian Swamy seeks to delete the words “Socialist” & “Secular” from the Preamble to the Constitution of India.
• The case questions the validity of the insertion of these words via the 42nd Constitution Amendment of 1976 during Prime Minister Indira Gandhi’s tenure.
• It argues that the amendment was beyond the amending power of the Parliament under Article 368.

Why discuss Preamble?

• Original Draft: The Preamble was adopted on November 26, 1949, by the Constituent Assembly of India, setting out the Constitution’s guiding purpose and principles.
• 1976 Amendment: The 42nd Constitution Amendment introduced the words “Socialist” and “Secular” to the Preamble, altering its initial declaration.
• Legal Implications: The insertion faces scrutiny over its legality and alignment with the Constitution’s foundational principles.

Amending the Preamble

• Judicial Inquiry: During the hearing, Justice Datta remarked on the amendability of the Preamble. He pondered if the Preamble could have been amended earlier (by the 42nd Amendment Act in 1976) to include the words Socialist and Secular while retaining the date of adoption (November 29, 1949).
• Discussion on Academic Grounds: The judge prompted counsels to consider, academically, the feasibility of amending the Preamble while preserving its original adoption date.
• Historical Context: Justice Datta noted that the Preamble, unique with its specified adoption date, underwent changes, but the inclusion of “Socialist” and “Secular” was a notable amendment.
• Legal Challenge: The petition challenges the constitutionality of the insertion, arguing that it contradicts the Constitution’s original intent and undermines the citizens’ right to choose their political ideologies.
• Kesavananda Bharti Precedent: The inquiry draws upon the landmark Kesavananda Bharti case (1973) where the Supreme Court held that the Preamble was an integral part of the Constitution and subject to amendment, provided it didn’t violate the Constitution’s basic structure.

Addition of “Socialist” and “Secular”

• The 42nd Amendment: During the Emergency imposed by Prime Minister Indira Gandhi in 1976, the terms “socialist” and “secular” were added to the Preamble through The Constitution (42nd Amendment) Act, 1976.
• Indira Gandhi’s Agenda: Indira Gandhi’s government aimed to emphasize a socialist and pro-poor image, aligning with slogans such as “garibi hatao” (Eradicate poverty). The addition of “socialist” highlighted socialism as a fundamental goal of the Indian state.
• Distinctive Indian Socialism: The Indian version of socialism did not endorse complete nationalization but emphasized selective nationalization of essential sectors.

Understanding “Secular”

• Religious Diversity: India is home to diverse religious beliefs and practices. The term “secular” was added to the Preamble to promote unity and fraternity among people of various faiths.
• State Neutrality: Secularism in the Indian context implies that the state maintains neutrality and impartiality towards all religions. It does not favor any particular religion as a “state religion.”
• Secularism as Law: Articles 25-28 of the Constitution secure the secular nature of the Indian state.
• Inherent in the Constitution: The philosophy of secularism was inherent in the Constitution even before the 42nd Amendment.

Debates Surrounding “Socialist” and “Secular”

• Consensus on Secularism: The concept of secularism was already part of the Constitution’s philosophy. The insertion of the word “secular” in the Preamble simply made explicit what was implicit in various provisions.
• Constituent Assembly Discussions: The Constituent Assembly debated including these words in the Preamble but decided against it.
• Dr. B. R. Ambedkar’s Perspective: Dr. B. R. Ambedkar argued that issues related to the state’s policy, organization, and economic aspects should be determined by the people, not dictated by the Constitution itself.
• Ongoing Debates: Over the years, there have been petitions and discussions regarding the removal of “socialist” and “secular” from the Preamble. Some argue that these terms were added arbitrarily during the Emergency.

Conclusion

• The Supreme Court’s inquiry into the amendment of the Preamble reflects a critical examination of constitutional principles.
• The case raises fundamental questions about the scope of parliamentary amending power and the preservation of constitutional integrity.
• The outcome of this legal challenge will have significant implications for the interpretation of the Constitution’s core values and the balance of power between Parliament and the judiciary.

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Introduction

• The Supreme Court’s recent deliberation on the sub-classification of Scheduled Castes (SC) within India’s reservation system raises questions about the balance of power between states and the Parliament.
• This highlights the socio-economic implications of such sub-classification.

Quest for Sub-Classification: SC Bench’s Examination

• Questioning Tinkering with the List: Justice B.R. Gavai queries whether state-level preferential allotment to certain sub-castes affects the parliamentary power to manage the Presidential list.
• Dismissal of “Balkanisation” Argument: The Bench dismisses concerns that sub-classification would lead to fragmentation of the SC list.
• Argument for Homogeneity: Senior advocate Manoj Swarup argues that SCs form a homogeneous group and preferential treatment would perpetuate inequality.
• Justice Gavai’s Counter: Justice Gavai challenges this view, highlighting the need for the upliftment of particularly backward groups within SCs.

Why discuss this?

[A] Socio-Economic Implications

• Equality and Empowerment: Justice Vikram Nath underscores the aim of sub-classification as uplifting backward groups within SCs.
• Ensuring Fairness: Justice Gavai emphasizes that preferential treatment should not exclude other deserving candidates from access to opportunities.

[B] Political and Societal Considerations

• Potential for Political Appeasement: Concerns raised about states using sub-classification for political gains and electoral advantage.
• Judicial Review and Empirical Basis: Justice Gavai highlights the role of High Courts in scrutinizing state decisions based on empirical data.

Why is the Sub-Classification needed?

• Addressing Inequalities: Graded inequalities persist among SC communities, with some having limited access to services.
• Disproportionate Representation: Certain sub-castes lack fair representation in employment and education due to current discrimination policies.
• Overcoming Hierarchies: SCs vary socio-economically, with some progressing while others still face disadvantages.
• Facilitating Mobility: Current policies hinder uniform benefits, leading to competition. Sub-categorization can aid in political empowerment and education.
• Ensuring Justice: Targeted approaches are needed to address specific vulnerabilities within SC sub-groups.
• Equitable Distribution: Sub-categorization prevents benefits from concentrating in certain groups, promoting fair resource allocation.

Challenges Associated

• Inequality: Sub-categorization may not effectively address disparities within Scheduled Castes, per recommendations from the National Commission for Scheduled Tribes (NCST), highlighting the need for existing schemes to reach the most backward communities first.
• Federalism Issue: While a 2004 Supreme Court ruling barred states from unilaterally sub-categorizing SC lists, a 2020 judgment indicated states could decide benefit allocations within these lists, pending review by a larger Bench.
• Identification Criteria Complexity: Determining sub-categorization criteria, as highlighted in judgments like State of Kerala v N M Thomas (1976) and E V Chinnaiah (2005), presents challenges in defining SCs due to socio-economic complexities.
• Data Accuracy Challenge: Obtaining accurate socio-economic data for SC communities is difficult, hindering decision-making on caste categorizations and allocations.
• Intra-group Disputes Risk: Sub-categorization may create internal divisions within SC communities, potentially exacerbating tensions as groups compete for affirmative action.
• Fragmentation Risk: Sub-categorization could fragment the SC community, diluting their political and social identity, and weakening their collective advocacy for rights, as per concerns raised.

Chief Justice’s Perspective

• Artificial Backward Class Creation: Chief Justice Chandrachud emphasizes the need for states to demonstrate objective criteria, like lack of representation, for sub-classification.
• High Court Review: Asserts that High Courts can review state decisions to ensure fairness and adherence to constitutional principles.

Way Forward

• Legal Options: Explore legal avenues like a constitutional amendment for sub-categorization, leveraging existing provisions like Article 16(4).
• Data Collection: Enhance data collection on socio-economic status through a caste-based census to inform policy formulation.
• Creamy Layer Concept: Apply the “creamy layer” concept within SCs to ensure fair allocation of benefits based on income eligibility.
• Transparent Criteria: Develop transparent criteria for sub-categorization, considering socio-economic status, education, and regional disparities.
• Balanced Approach: Strike a balance between recognizing diversity within SCs and maintaining unity, ensuring policies address specific needs without fragmenting the community.

Conclusion

• As the case awaits judgment, the need for a nuanced approach that balances legal principles with social justice imperatives remains paramount.

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