The Preamble was used by Supreme Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India having solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens’ justice, social, economic, and political; liberty of thought, expression, belief, faith, and worship; equality of status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately, they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.

Is the Preamble part of our Constitution?

This was decided in the matter of Berubari

In Re: The Berubari Union And  vs Unknown on 14 March 1960 Equivalent citations: AIR 1960 SC 845, 1960 3 SCR 250

  1. There is no doubt that the declaration made by the people of India in the exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”.

In S.R.Bommai vs Union of India:

It was held in this landmark judgment that :

Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith, or belief of a person is immaterial. To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356.

Note: This feature of secularism was rejected by the Constituent Assembly ( Drafting of Constitution Committee) on 6th December 1948. Bommai ( Supra)  is said to be a landmark judgment of the Supreme Court on Article 356, it is true that Secularism is guaranteed as a fundamental right, but the word “Secularism” was never there in the Preamble of the Constitution of India 1949 and the insertion thereof was refused and negatived by the Constituent Assembly.

Below is the link to the discussion and decisions of the said Constituent Assembly

http://164.100.47.194/loksabha/writereaddata/cadebatefiles/C06121948.html

However, let us read here the relevant part of the said discussion for purpose of this Article.

Monday, the 6th  December 1948    The Constituent Assembly of India met in the Constitution Hall, New Delhi, at Ten of the Clock, Mr. Vice-President (Dr. H. C. Mookherjee) in the Chair.

Mr. Vice-President (Dr. H. C. Mookherjee): We shall now resume discussion on article 19.

Prof. K. T. Shah (Bihar: General): Mr. Vice-President, Sir, I beg to move:

“That in sub-clause (a) of clause (2) of article 19, for the words “regulating or restricting any economic, financial, political or other secular activity “the words” regulating. restricting or prohibiting any economic, financial political or other secular activity’ be substituted.”

The clause as amended would read: “Nothing in this article shall affect the operation of any existing law or preclude the State from making any law- regulating, restricting or prohibiting any economic, financial, political or other secular activity which may be associated with religious practice;……….”

Mr. Vice-President: The question is:

“That in sub-clause (a) of clause (2) of article 19, for the words “regulating or restricting any economic, financial, political or other secular activity” the words “regulating, restricting or prohibiting any economic, financial, political or other secular activity” be substituted.”

The amendment was negatived

Now the question arises when it was defeated by the Drafting Committee how does it comes suddenly in our preamble?

It came during the Emergency by way of The Constitution (Forty-Second Amendment) Act, 1976 [18th December 1976.]

An Act further amended the Constitution of India.

  1. Amendment of the Preamble.- In the Preamble to the Constitution,-

(a) for the words “SOVEREIGN DEMOCRATIC REPUBLIC” the words “SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC” shall be substituted;

BACKGROUND

An emergency was declared by Indira Gandhi on 25th June 1975 and it remained in force for 21 months till it was withdrawn on 21st March 1977.

The 42nd amendment, known as The Constitution (Forty-second Amendment) Act, 1976, was enacted during the Emergency (25 June 1975 – 21 March 1977) by the Indian National Congress government headed by Indira Gandhi.

Then-Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of the Minister of External Affairs Swaran Singh “to study the question of amendment of the Constitution in the light of experience”.

The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok Sabha on 1 September 1976, as the Constitution (Forty-Second Amendment) Bill, 1976 (Bill No. 91 of 1976). It was introduced by H. R. Gokhale, then Minister of Law, Justice, and Company Affairs.[ It sought to amend the Preamble and articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357, 358, 359, 366, 368 and 371F and the Seventh Schedule. It also sought to substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 51A, 131A, 139A, 144A, 226A, 228A and 257A in the Constitution. In a speech in the Lok Sabha on 27 October 1976, Gandhi claimed that the amendment “is responsive to the aspirations of the people and reflects the realities of the present time and the future”.

The bill was debated by the Lok Sabha from 25 to 30 October and 1 and 2 November. Clauses 2 to 4, 6 to 16, 18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50, and 56 to 59 were adopted in their original form. The remaining clauses were all amended in the Lok Sabha before being passed. Clause 1 of the bill was adopted by the Lok Sabha on 1 November and amended to replace the name “Forty-fourth” with “Forty-second”, and a similar amendment was made on 28 October to Clause 5 which sought to introduce a new article 31D to the Constitution. Amendments to all the other clauses were adopted on 1 November and the bill was passed by the Lok Sabha on 2 November 1976. It was then debated by the Rajya Sabha on 4, 5, 8, 9, 10, and 11 November. All amendments made by the Lok Sabha were adopted by the Rajya Sabha on 10 November, and the bill was passed on 11 November 1976. The bill, after ratification by the States, received assent from then President Fakhruddin Ali Ahmed on 18 December 1976 and was notified in The Gazette of India on the same date. Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54, and 58 went into effect on 1 February 1977, and Section 27 from 1 April 1977.

The 42nd Amendment is regarded as the most controversial constitutional amendment in history. It attempted to reduce the power of the Supreme Court and High Courts to pronounce upon the constitutional validity of laws. It laid down the Fundamental Duties of Indian citizens to the nation. This amendment brought widespread changes to the Constitution in its history since 1949. Due to widespread amendments, it is nicknamed as Mini-Constitution. It gave infinite powers to the Parliament to enact and control laws.

CHALLENGE TO THE 42nd AMENDMENT :

This 42nd amendment was partially challenged in the matter of Minerva Mills Ltd. & ors.    Vs. Union of India & ors. The ground for the challenge was the Constitution of  India  Forty  Second  Amendment       Act, Sections 4  and  55-Whether  the  Sections are beyond the amending power of the Parliament under  Article 368 of the Constitution and therefore void-Whether the  Directive Principles of  State Policy contained in  Part   IV  of the constitution can have primacy over the fundamental rights conferred by  Part 111         of the Constitution-Constitution of India Articles 14, 19, 31C, 38 and 368.

Section 4 of the 42nd  Amendment, which was brought into force with effect from January 3, 1977, amended Article 31C of the Constitution by substituting the words and figures “all or any of the principles laid down in Part IV” for the Words and figures “the principles specified in clause (b) or clause (c) of Article 39”.

These amendments were struck down by the Supreme Court in this case.

Further, it was observed that, if a  constitutional amendment cannot be pronounced to be invalid even if it destroys the basic structure of the Constitution, a law passed in pursuance of such an amendment will be beyond the pale of judicial review because it will receive the protection of the constitutional amendment which the courts will be powerless to strike down. Article 13 of the Constitution will then become         a dead letter because        even ordinary laws will escape the scrutiny of the courts on the ground that they are passed on the strength of a constitutional amendment which is  not open to challenge.

Supreme Court relied on Golaknath Case in which it was held that, basic structure of the Constitution cannot be amended. The theory is called “pith and substance’.

Comments:

The challenge was partial and so far, there was no challenge to the amendments carried in the Preamble by the 42nd amendment which inserted words, Secular, Socialist without following the process of amendment.

In 2008 42nd amendment was challenged by way of PIL On 8 January 2008, a petition, filed by Sanjiv Agarwal of the NGO Good Governance India Foundation, challenged the validity of Section 2 of the 42nd Amendment, which inserted the word “socialist” in the Preamble to the Constitution. In its first hearing of the case, Chief Justice K. G. Balakrishnan, who headed the three-judge bench, observed, “Why do you take socialism in a narrow sense defined by communists? In a broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn’t got any definite meaning. It gets different meanings in different times.” Justice Kapadia stated that no political party had, so far, challenged the amendment and everyone had subscribed to it. The court would consider it only when any political party challenged the Election Commission. The petition was withdrawn on 12 July 2010 after the Supreme Court declared the issue to be “highly academic”.

( Source Wikipedia )

Later on the words ‘Secular’ and “Socialist’ in section 29 A (5) of the Representation of People Act 1951 were added by Act No. 1 of 1989 (w.e.f. 15.06.1989) making it compulsory for the political parties when they apply for registration before Election Commission of India to make specific provision in its memorandum or rules and regulations that the association or body shall bear true faith and allegiance to the Constitution of India as by law established and to the principles of ‘Socialism’ and ‘Secularism’ and democracy and would uphold the sovereignty and integrity of India.

It reads as: “ (5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity, and integrity of India.”

 Comments:

Originally, the Indian Constitution provided 7 Fundamental Rights which have now been revised to 6 Fundamental Rights which are as follows-:

  1. Right to equality (Articles 14–18)
  2. Right to freedom (Articles 19–22)
  3. Right against exploitation (Articles 23–24)
  4. Right to freedom of religion (Articles 25–28)
  5. Cultural and educational rights (Articles 29–30)
  6. Right to constitutional remedies (Article 32)

The right to property was deleted from the list of Fundamental Rights by the 44th Constitutional Amendment Act of 1978 and made a legal right under Article 300-A in Part XII of the Indian Constitution.

Original Preamble before 42nd Constitutional Amendment Act,1976

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, DEMOCRATIC REPUBLIC and to secure to all its citizens:

JUSTICE, social, economic, and political;

LIBERTY of thought, expression, belief, faith and worship;

EQUALITY of status and of opportunity; and to promote among them all

FRATERNITY assuring the dignity of the individual and the unity of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION

After 42nd Amendment Act Preamble reads as under:

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST,SECULAR,  DEMOCRATIC REPUBLIC and to secure to all its citizens:

The insertion Challenged:

Recently in a Writ Petition insertion of the word “Secular”  is challenged in 2020 by Balram Singh vs Union of India which is pending for hearing. ( Case No 13773/2020)

Shruti Desai

7th May,2022