New Delhi: The Supreme Court on Monday said that the term “secularism” is part of the Constitution's basic structure and there are a number of judgments, which make it clear that it has been given a status of unamendable portion as it is part of basic structure.
The apex court was hearing a batch of petitions challenging the inclusion of the words "socialist" and "secular" in the Preamble to the Constitution. Petitions’ have been filed by Balram Singh, senior BJP leader Subramanian Swamy, and advocate Ashwini Kumar Upadhyay challenging the amendment to the Preamble. The matter came up before a bench comprising justices Sanjiv Khanna and Sanjay Kumar.
Justice Khanna said: “There are a number of judgments where we have said that secularism is part (of the basic structure)… and, in fact, it has been given a status of unamendable portion as basic structure. There are a number of judgments, if you want, I can cite them…”
The judge emphasised that if one looks at the right to equality and word fraternity used in the Constitution as well as the rights under Part III, there is a clear indication that secularism has been held as the core feature of the Constitution.
He said, “As far as secularism, when the Constitution was adopted and discussion was going on we only had the French model. The way we have evolved it is something different. The rights we have given….we have balanced it out”.
“Word socialist, of course, if you go by Western concept, it has a different connotation but we have not followed that. We are very happy with changes which have taken place…the economic growth which has taken place…”, the judge said.
Preamble needs rectification: Swamy
Swamy said the Preamble has a date of November 26, 1949, and what has been appended is not in consonance to that and that has to be rectified.
“The Preamble is not correct in the sense of saying…in our constituent assembly November 26, 1949 ... additions should have been as a separate paragraph,” Swamy said.
Khanna said amendments are always made and there are amendments in the Constitution, and the amendment portion is put in brackets. “Everybody knows about the 42nd amendment….there were other amendments also made in the Constitution,” he said.
Swamy said the Preamble can be in two parts, one which has the date and the other which may have the other date, and that is permissible.
The bench scheduled the matter for further hearing in the week commencing on November 18, and asked the petitioners' counsel to submit relevant documents so it could examine them. The apex court has not issued notice on the petitions so far.
'You don't want India to be secular?'
During the hearing, Justice Khanna told a counsel, representing one of the petitioners, "You don't want India to be secular?"
Advocate Vishnu Shankar Jain replied that his client, Balram Singh, is not saying that India is not secular, instead “we are challenging this amendment”. It was argued before the bench that Ambedkar had opined that the inclusion of the word "socialism" would curtail personal liberty.
'Socialist'
Khanna said that socialism can also mean that there should be equality of opportunity and wealth of the country should be distributed equally, while asking the counsel not to take the Western meaning.
Jain argued that the 42nd Amendment to the Constitution in 1976, which affected these changes, was never debated in Parliament. Khanna said the matter has been debated at length, and added, “please see Mr Jain, the words have varied interpretations. Both words have different interpretations today”.
“Even our courts have declared them, time and again, as part of the basic structure (of the Constitution)," Justice Khanna observed.
Upadhyay cited the Emergency imposed by the Indira Gandhi government during which this amendment was affected. He contended before the bench, "I don't want to say much on what Justice Khanna did and saved us….”
The bench pointed out that the apex court had struck down statutes that go against secularism.
Upadhyay vehemently argued that the two words, which were added to the Preamble opened a Pandora's box. "We have always been secular. By this insertion, a box has been opened, tomorrow the word democracy can be removed or anything," Upadhyay submitted.
Upadhyay said that there was no will of the people during the insertion of these words. "No will of 'we the people',” he reiterated.
