Why Shanti Bhushan Kept 'Secular' & 'Socialist' in Preamble: Justice Nariman Reveals Constitutional Sagacity

New Delhi – In a powerful reflection on one of Indian law's most pivotal figures, former Supreme Court Justice Rohinton Nariman has shed light on a lingering constitutional question: why did Shanti Bhushan, as the Law Minister in the post-Emergency Janata Party government, not remove the words “secular” and “socialist” from the Preamble, despite his government’s mission to undo the excesses of the 42nd Amendment?

Speaking at the Shanti Bhushan Centenary Memorial Lecture, Justice Nariman provided a definitive answer rooted in Bhushan's profound understanding of the Constitution's inherent nature. The decision, he explained, was not an oversight but a deliberate act of constitutional sagacity.

“He didn't even attempt to get rid of this because it is obvious that this is a secular Constitution and the Directive Principles of State Policy Chapter shows that it is a socialist Constitution,” Justice Nariman recounted. This revelation underscores Bhushan's belief that the terms, while added explicitly by the Indira Gandhi government in 1976, merely articulated principles already woven into the fabric of the constitutional text.

The Post-Emergency Constitutional Reset

Justice Nariman's lecture painted a vivid picture of the monumental task Shanti Bhushan faced as Law Minister. His primary mandate was to pilot the 43rd and 44th Amendments to dismantle the authoritarian framework erected by the 42nd Amendment. Bhushan successfully reversed numerous draconian provisions, achieving what Nariman estimated to be "75% of what he set out to do."

Key achievements under his stewardship included:

* Abolishing Anti-National Provisions: Deleting the notorious Article 31D, which created a separate category of laws for “anti-national activities.”

* Restoring Judicial Review: Reinstating the Supreme Court's direct jurisdiction over challenges to the elections of the President and Vice President.

* Strengthening Emergency Safeguards: Critically, ensuring that fundamental rights under Articles 20 (protection in respect of conviction for offences) and 21 (protection of life and personal liberty) could never be suspended, even during an Emergency.

Bhushan also successfully moved the Representation of the People Act and the Maintenance of Internal Security Act (MISA) out of the Ninth Schedule, exposing them to judicial scrutiny once more. His tenure also saw the right to property removed as a fundamental right, a significant structural change.

Despite these successes, Nariman noted that Bhushan's efforts to fully restore the pre-Emergency constitutional balance were stymied by a Congress-majority Rajya Sabha. His proposals to define "secular" as equal respect for all religions and "socialist" as uplifting the downtrodden failed to pass. Similarly, his attempts to delete Articles 368(4) and (5) (which sought to nullify the basic structure doctrine) and to move forests and education back to the State List were thwarted.

A Man of Unflinching Principle: From the Courtroom to the Cabinet

Justice Nariman's tribute went beyond Bhushan’s ministerial role, celebrating him as a lawyer and citizen of immense courage and conviction. He recalled Bhushan’s fearless representation of Raj Narain in the landmark case that led to the voiding of Prime Minister Indira Gandhi’s election—a judicial earthquake that precipitated the Emergency.

Nariman praised the "unsung" trial judge, Justice Jagmohan Lal Sinha of the Allahabad High Court, for his integrity. "Like Justice Khanna, he was a man who resisted every pressure, applied the law as he saw it, and ultimately declared the election of a Prime Minister as void," Nariman said, highlighting the immense pressure and inducements the judge faced.

The lecture detailed the subsequent constitutional crisis, where the 39th Amendment was passed to retroactively validate the election and place it beyond judicial review. It was Shanti Bhushan’s legal acumen, Nariman explained, that persuaded the Supreme Court to apply the nascent basic structure doctrine—even by judges who had earlier opposed it in Kesavananda Bharati —to strike down the amendment.

Confronting Constitutional Blots: ADM Jabalpur and the Ninth Schedule

Justice Nariman also addressed what he termed the "blots" on India's constitutional jurisprudence, many of which Shanti Bhushan confronted directly. He spoke of the infamous ADM Jabalpur case, where the Supreme Court held that the right to liberty could be suspended during an Emergency. Bhushan, representing detainees, argued that liberty was a pre-constitutional, natural right that existed independently of Article 21.

While his argument was rejected by the majority, Justice H.R. Khanna’s lone dissent, which cost him the office of Chief Justice, was vindicated decades later. "So all of us in the Privacy judgement said that this was a nine judge bench and this blot on our Constitution should not remain,” Nariman stated, referring to the nine-judge bench in Puttaswamy that unanimously overruled ADM Jabalpur .

Another "great blot" Nariman identified is Article 31B and the Ninth Schedule, which shields any law placed within it from judicial review, even if it has been previously struck down by the Supreme Court.

The lecture also touched upon a moment of profound institutional dilemma for Bhushan as Law Minister: whether to supersede Justice Y.V. Chandrachud for his majority opinion in ADM Jabalpur . After consulting with Supreme Court judges and High Court Chief Justices, Bhushan chose to uphold the principle of seniority, as all but two advised him to do so, prioritizing institutional stability over personal conviction.

Shanti Bhushan's career, as portrayed by Justice Nariman, was a testament to unwavering commitment to constitutionalism, the rule of law, and secular values. His political journey saw him join the BJP in 1980, only to resign in 1985 on the grounds that the party was not secular. This principled stand, along with his refusal to retract a controversial statement in court about judicial corruption, defined a man who, in Nariman's words, "believed in what he said and who stood up for what he said."

In concluding, Justice Nariman remembered his last meeting with a 95-year-old Bhushan, whose recall of every case he argued remained impeccable. "He lives in our hearts and our minds forever," Nariman said, cementing the legacy of a lawyer and statesman whose life was a masterclass in constitutional courage.