Secularism part of Constitution's basic structure, says SC

The Supreme Court on Monday said secularism had always been held to be part and parcel of the basic structure of the Indian Constitution.

A bench comprising Justices Sanjiv Khanna and Sanjay Kumar passed the remark while hearing a batch of petitions filed by former Rajya Sabha MP Subramanian Swamy, advocate Vishnu Shankar Jain and others, who have challenged the inclusion of 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 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," the bench said. 

The words "socialist' and "secular" were inserted into the Preamble of the Constitution under the 42nd Constitutional amendment moved by the Indira Gandhi government in 1976.

The amendment changed the description of India in the Preamble from a "sovereign, democratic republic" to a "sovereign, socialist, secular, democratic republic".

During the hearing, Jain submitted that Dr B R Ambedkar had opined that the inclusion of the word "socialism" would curtail personal liberty. He added that preamble cannot be amended through amendments.

Justice Khanna said there were different meanings of socialism and one "should not take the meaning adopted in Western countries".

"Socialism can also mean that there should be equality of opportunity and the wealth of the country should be distributed equally," the bench said.

Advocate Ashwini Upadhyay, who too had filed a petition, said he was neither against the words "socialist, secular and integrity" nor their insertion in the Constitution but against the insertion of these words into the Preamble in 1976 and that too with a retrospective effect from November 26, 1949.

He said adding a word did not have any real effect in the country but opened a pandora's box for the future governments, who can play with it and may remove a word from the Preamble.

Swamy, on other hand, submitted the Preamble was a declaration made on November 26, 1949, and therefore adding further words to it, through a subsequent amendment, was arbitrary. 

He said 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. The bench said it would examine the matter and posted it for further hearing on November 18.

On February 9, the top court had questioned whether the Preamble of the Constitution could be amended while keeping the date of adoption, November 26, 1949 intact.

"For the academic purpose, can a Preamble that has the date mentioned, be changed without altering the date of adoption. Otherwise, yes the Preamble can be amended. There is no problem with that," Justice Datta had remarked.

Jain said that the Preamble of the Constitution of India comes with a specific date, therefore, it cannot be amended without a discussion.

Swamy said the 42nd Amendment Act was passed during the emergency (1975-77).

On September 2, 2022, the top court had tagged Swamy's plea with other pending matter -- filed by one Balram Singh and others -- for hearing.

Both Swamy and Singh had sought deletion of "socialist" and "secular" from the Preamble.

Swamy in his plea has contended that Preamble cannot be altered, varied, or repealed.

He said the Preamble not only indicated the essential features of the Constitution but also the fundamental conditions based on which it was adopted to create a unified integrated community.