Secularism core feature of India's constitution: Supreme Court on petition to delete ‘socialist’ and ‘secular’ from Preamble

The Supreme Court of India has reaffirmed that secularism is an integral part of the Constitution’s basic structure. A bench of Justices Sanjiv Khanna and Sanjay Kumar made this declaration during a hearing on petitions challenging the inclusion of the words "socialist" and "secular" in the Preamble of the Constitution.

“This court has in a number of judgments held that secularism was always part of the basic structure of the Constitution. If one looks at the right to equality and the word 'fraternity' used in the Constitution, there is a clear indication that secularism has been held as the core feature of the Constitution,” remarked Justice Khanna during the hearing.

Controversy over the 42nd Amendment

The controversy centres around the 42nd Constitutional Amendment, passed in 1976 during the tenure of Prime Minister Indira Gandhi. This amendment added the terms "socialist" and "secular" to the Preamble, altering the description of India from a "sovereign, democratic republic" to a "sovereign, socialist, secular, democratic republic."

Advocates Vishnu Shankar Jain and Subramanian Swamy, among others, have filed petitions challenging this change. Jain argued that the insertion of these terms was unnecessary and claimed that Dr. B.R. Ambedkar himself had expressed concerns that including the term "socialism" would limit personal liberty. He further asserted that the Preamble, with its original date of adoption on November 26, 1949, cannot be retroactively amended.

Swamy took a similar stance, stating that it was wrong to depict that, as per the present Preamble, the Indian people agreed on November 26, 1949, to make India a socialist and secular republic. According to him, adding words to the Preamble through later amendments undermines the intent of the original framers of the Constitution.

A matter of interpretation

During the hearing, Justice Khanna acknowledged that socialism has different interpretations in various countries. “Socialism can also mean that there should be equality of opportunity and the wealth of the country should be distributed equally,” he noted, countering the Western concept of socialism that Jain had referred to.

While the petitioners questioned the legality and timing of the amendment, some, like advocate Ashwini Upadhyay, clarified they were not against the words "socialist" and "secular" themselves. Upadhyay’s concern lies with the retrospective application of the amendment from 1949, fearing it could set a precedent for future governments to alter the Preamble in ways that could open a "Pandora's box."

Judicial considerations

The court has expressed interest in addressing a key academic question: can the Preamble be amended without altering the date of its adoption? On this matter, the bench remarked, “For academic purposes, can a Preamble that has the date mentioned be changed without altering the date of adoption?”

Swamy, on his part, emphasised that the 42nd Amendment, which made these changes, was passed during the Emergency (1975–77), a time when civil liberties were severely restricted, casting further doubt on the legitimacy of the amendment.

The Supreme Court has scheduled the next hearing on November 18, where it will continue examining the constitutional validity of the amendment and whether secularism and socialism should remain embedded in the Preamble.

The outcome of this case could have far-reaching implications for the interpretation of the Constitution and the fundamental values that define India’s democratic identity.

(With inputs from agencies)