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SUPREME COURT OF INDIA
SANJIV KHANNA, CJI, SANJAY KUMAR, J.
Dr. Balram Singh and Others – Petitioners
Versus
Union of India and Another – Respondents
Writ Petition (Civil) No. 645 of 2020, Writ Petition (Civil) No. 1467 of 2020, Miscellaneous Application No. 835 of 2024
Decided On : 25-11-2024
Constitution of India – Articles 32 and 368 – Validity of insertion of words ‘socialist’ and ‘secular’ in Preamble to Constitution of India by Constitution (Forty-second Amendment) Act in 1976 – Power to amend unquestionably rests with Parliament – This amending power extends to Preamble – Amendments to Constitution can be challenged on various grounds, including violation of basic structure of Constitution – Fact that Constitution was adopted, enacted, and given to themselves by people of India on 26th day of November, 1949, does not make any difference – Date of adoption will not curtail or restrict power under Article 368 of Constitution – While it is true that Constituent Assembly had not agreed to include words ‘socialist’ and ‘secular’ in Preamble, Constitution is a living document, with power given to Parliament to amend it in terms of and in accord with Article 368 – In 1949, term ‘secular’ was considered imprecise, as some scholars and jurists had interpreted it as being opposed to religion – Over time, India has developed its own interpretation of secularism, wherein State neither supports any religion nor penalizes profession and practice of any faith – This principle is enshrined in Articles 14, 15, and 16 of Constitution which prohibit discrimination against citizens on religious grounds while guaranteeing equal protection of laws and equal opportunity in public employment – Article 29 safeguards distinct culture of every section of citizens, while Article 30 grants religious and linguistic minorities right to establish and administer their own educational institutions – Despite these provisions, Article 44 in Directive Principles of State Policy permits State to strive for a Uniform Civil Code for its citizens – In essence, concept of secularism represents one of facets of right to equality, intricately woven into basic fabric that depicts constitutional scheme’s pattern – Similarly, word ‘socialism’ in Indian context should not be interpreted as restricting economic policies of an elected government of people’s choice at a given time – Neither Constitution nor Preamble mandates a specific economic policy or structure, whether left or right – In Indian framework, socialism embodies principle of economic and social justice – There is no legitimate cause or justification for challenging this constitutional amendment after nearly 44 years – Circumstances do not warrant this Court’s exercise of discretion to undertake an exhaustive examination, as constitutional position remains unambiguous, negating need for a detailed academic pronouncement – Writ Petitions dismissed. (Paras 2, 3, 4, 5 and 7)
Facts of the case:
These writ petitions seek to challenge insertion of words ‘socialist’ and ‘secular’ in Preamble to Constitution of India by Constitution (Forty-second Amendment) Act in 1976. Challenge is on various grounds, namely, retrospectivity of insertion in 1976, resulting in falsity as Constitution was adopted on the 26th day of November 1949; the word ‘secular’ was deliberately eschewed by Constituent Assembly, and the word ‘socialist’ fetters and restricts economic policy choice vesting in elected government, which represents will of the people. Besides, it is submitted that Forty-second Amendment is vitiated and unconstitutional as it was ‘passed’ during the Emergency on November 2, 1976, after normal tenure of Lok Sabha that had ended on March 18, 1976. Therefore, it is argued, that there was no will of the people to sanction the amendments.
Findings of Court:
Majority judgment of this Court in 9-Judge Constitution Bench in Property Owners Association and Others v. State of Maharashtra and Others, 2024 INSC 835 has cleared any doubt and ambiguity, as it is held that the Constitution, as framed in broad terms, allows the elected government to adopt a structure for economic governance which would sub-serve the policies for which it is accountable to the electorate. Indian economy has transitioned from the dominance of public investment to the co-existence of public and private investment.
Result : Writ Petitions dismissed.
ORDER :
Writ Petition (C) No. 645 of 2020 and Writ Petition (C) No. 1467 of 2020
1. These writ petitions seek to challenge the insertion of the words ‘socialist’ and ‘secular’ in the Preamble to the Constitution of India by the Constitution (Forty-second Amendment) Act in 1976. The challenge is on various grounds, namely, retrospectivity of the insertion in 1976, resulting in falsity as the Constitution was adopted on the 26th day of November 1949; the word ‘secular’ was deliberately eschewed by the Constituent Assembly, and the word ‘socialist’ fetters and restricts the economic policy choice vesting in the elected government, which represents the will of the people. Besides, it is submitted that the Forty-second Amendment is vitiated and unconstitutional as it was ‘passed’ during the Emergency on November 2, 1976, after the normal tenure of the Lok Sabha that had ended on March 18, 1976. Therefore, it is argued, that there was no will of the people to sanction the amendments.
2. The writ petitions do not require detailed adjudication as the flaws and weaknesses in the arguments are obvious and manifest. 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. 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 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.
3. 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, as noticed above with power given to the Parliament to amend it in terms of and in accord with Article 368. In 1949, the term ‘secular’ was considered imprecise, as some scholars and jurists had interpreted it as being opposed to religion. Over time, 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 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. 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 permit
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