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.

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.

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.

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.

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.

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.