Isn’t It Time for a Correction?

ON NOVEMBER 26, India marked the 75th an­niversary of the adoption of its Constitution on November 26, 1949. The event was celebrated in a befitting manner. The top constitutional functionaries—the president, the vice presi­dent, and the prime minister and others—marked the occasion. The prime minister in particular has on a number of occasions stated that he considers the Constitution a holy book.

A day earlier, however, the Supreme Court rejected a petition (Dr Balram Singh and Others vs Union of India and Another) that wanted to undo distortions introduced into the Constitution, specifically in the Preamble. The petitioners wanted the court to expunge the words ‘secular’ and ‘socialist’ from the Preamble.

Distortion is perhaps too strong a word to describe an amend­ment to the Constitution. But the manner in which these changes were introduced—by a wholesale amendment to a large number of articles—came close to rewriting the Constitution, the most extensive use of constituent power ever after January 26, 1950.

But here is the problem: constituent power is not just the pow­er to amend a constitution. If that were the case, there would be little difference between a legislature enacting and repealing laws and changing a constitution at will. If this distinction were to be erased, there would be no difference between a constitution and an ordinary law, defeating the purpose of a constitution. There are good reasons why the task of writing a constitution belongs to a constituent assembly and not an ordinary legislature.

India came close to that moment in November 1976 when the 42nd Amendment to the Constitution was passed by Parliament. Fifty-six articles, including the Preamble, were amended. It was as close India got as writing a new Constitution. The fact that it was Parliament that made these changes and not an assembly specially convened for the purpose made the amendment dubious. To add in­sult to injury, India was in a state of Emergency when deliberations needed to make those changes were meaningless. The next govern­ment undid most of the changes made by the 42nd Amendment but did not re-amend the Preamble and restore it to its original self.

One can say that after a gap of nearly half-a-century controver­sies about the words ‘secular’ and ‘socialist’ seem academic or even pedantic. India is hardly socialist as it was in an earlier age—left­ists even dispute whether India was ever socialist—even if large sections of its intellectual class remain wedded to it for ideological reasons. The word ‘secular’, however, is more troublesome. The word and the idea behind it have a troubling legacy, one that has not been resolved. Any attempts to do so are met with stout resis­tance at the intellectual level. Perforce, the issue is being resolved politically. The process has been bruising for some.

The apex court had its own reasons for not entertaining a request for expunging these words from the Preamble. Procedur­ally, the court was right to state that the petition was filed in 2020; 44 years after the words socialist and secular were added to the Preamble. There is such a thing as efflux of time. The right forum for the amendment desired by the petitioners is Parliament and not the Supreme Court.

The substantive reasons given by the court, however, are open to debate. On secularism, the 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.” These ideas were available to the Constituent Assembly as well but it chose not to add the word ‘secular’ to the Preamble. The fact that rights for minorities were added in the list of Fundamental Rights but the word ‘secular’ was purposely omit­ted from the Preamble tells a story, one that the court did not deem worthwhile to explore.

The real reason why the court is least likely to touch the ex­pression ‘secularism’ is different. That idea is on the list of Basic Features and it makes no sense for the court to even entertain the idea of whittling it down, let alone eliminate it from the Constitu­tion. As such, the court has come close to justifying the residue of the 42nd Amendment.

About The Author

Siddharth Singh

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