Rethinking 'Socialist' and 'Secular': Is It Time to Revisit the 42nd Constitutional Amendment?

Clause 2(a) of the 42nd amendment bill said, “In the Preamble to the Constitution, for the words "Sovereign, Democratic Republic” the words "Sovereign, Socialist Secular Democratic Republic” shall be substituted.”

Ever since the Emergency was revoked, questions had been raised about the sanctity and constitutionality of this amendment, as there was no opposition in Parliament. Also, if we look at the discussion in the Constituent Assembly of India, the 42nd amendment seems devoid of any rational logic.

During the Constituent Assembly debate, K.T. Shah, a member from Bihar, proposed that the phrase “Secular, Federal, Socialist Union of States” be added to Article 1 to delineate the political character of India. However, Dr. B.R. Ambedkar argued that the policy of the state and how society should be organised—socially, economically—must be decided by the people themselves, according to time and circumstances, and cannot be specified in the Constitution. Further, he said that the amendment was unnecessary because there were other sections in the Constitution that covered the principles of state policy.

Forty-Second Amendment

While Hosabale has rightly pointed towards the need to have a relook at the inclusion of the words ‘socialism’ and ‘secular’, the debate on the 42nd amendment needs to be expanded as there were several other draconian measures that were introduced through this amendment.

This amendment was also aimed at giving unrestricted power to Parliament and the state legislatures. And it is well known that it was only the Congress and its allies that were ruling states as well as the Centre. The opposition-led government, headed by M. Karunanidhi of Dravida Munnetra Kazhagam (DMK) in Tamil Nadu, was dismissed on 12 March 1976 and President’s Rule was imposed. Another opposition-led government was in Gujarat that came to power on 11 June 1975, two weeks before the Emergency was imposed. This was a Janata Morcha government led by Babu Bhai Patel that collapsed under the pressure of the Emergency in March 1976. Congress wrested the power in December 1976 after a brief period of President’s Rule, with Madhav Singh Solanki, a Congress leader, becoming the Chief Minister.

Through the 42nd amendment, two clauses were inserted in Article 368. These were Clause (4) and Clause (5). Clause (4) said, “No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article, whether before or after the commencement of section 55 of the Constitution (Forty-second Amendment) Act, 1976, shall be called into question in any court on any ground.”

Clause (5) said, “For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation, or repeal the provisions of this Constitution under this article.”

The insertion of these clauses effectively meant that no constitutional amendment would be open for judicial review and that Parliament had unlimited power to amend the Constitution. In addition, through the expansion in the scope of Article 31(C), the 42nd amendment gave all Directive Principles primacy over Fundamental Rights enshrined in Articles 14 and 19.

Article 14 enforces the principle of equality before the law and equal protection of the laws, meaning that all persons are treated equally under the law and are subject to the same laws, with the state being prohibited from discriminating on grounds like religion, race, caste, sex, or place of birth, while permitting reasonable classification for legitimate state objectives. Article 19 guarantees six fundamental freedoms to all citizens: freedom of speech and expression, assembly, association, movement, residence, and profession.

The Supreme Court struck down both Clause (4) and Clause (5) of Article 368 in the famous Minerva Mills vs Union of India case in 1980. It also struck down, in the same case, the new provisions made through Article 31(C) by the 42nd amendment, restoring the balance between fundamental rights and directive principles.

It is clear that a much wider debate is needed on the provisions of the 42nd amendment, the intent behind bringing this amendment, and the threats posed to the Indian Constitution by this amendment. The possibility of relooking at the insertion of ‘socialist’ and ‘secular’ in the Constitution’s preamble may be seen in this larger context.

Earlier RSSFACTS columns can be read here.