RARELY do Supreme Court judges respond to contemporary political issues while hearing matters brought before them. The exercise of restraint helps them hear cases having a bearing on such issues with objectivity and without a semblance of bias. But when they make certain spontaneous observations on current issues in the course of hearing a matter, they do so indirectly and sometimes in exasperation. Thus, while hearing a public interest litigation petition seeking recognition for Christian courts set up under the “Canon Law” so that decrees of dissolution of marriage granted by such courts could become valid and binding, Justice Vikramjit Sen observed on February 10 that “India is a secular country, but I don’t know how long it will remain so”.
It would not be an exaggeration to say that Justice Sen had in mind the immediate political context while making these remarks, as the dust created by the controversy over the Narendra Modi government’s move to justify its failure to respect the 1976 amendment to the Preamble to the Constitution had hardly settled. The Constitution 42nd Amendment Act introduced the words “socialist secular” between the words “sovereign” and “democratic republic”, which “the people of India solemnly resolved to constitute India into”. The National Democratic Alliance (NDA) government issued an advertisement in the newspapers on January 26 on the occasion of Republic Day using an image of the Preamble to the Constitution without the words “socialist secular”.
The Press Information Bureau’s (PIB) Director-General, Frank Noronha, described the advertisement as an artistic depiction of the original version of the historical document. “I believe that the new rendering of the amendment is not available. Also, it has been used as a watermark to give an aesthetic sense to the design,” he told the media. Union Ministers were not so circumspect. At least two of them, Minister of State for Information and Broadcasting Rajyavardhan Rathore and Communications and Information Technology Minister Ravi Shankar Prasad, asked whether the governments that existed before the Preamble was amended were not secular. They favoured a debate on the subject. Sanjay Raut, Shiv Sena Member of Parliament, demanded the deletion of the two words from the Preamble.
When the controversy threatened to sully the image of the Bharatiya Janata Party (BJP)-led government and give the impression that the advertisement amounted to a violation of the oath taken by the Ministers to respect the Constitution, Ministers Arun Jaitley and M. Venkaiah Naidu and BJP president Amit Shah denied any move to amend the Preamble a second time to delete the two words. Jaitley instructed the Information and Broadcasting Ministry to issue advertisements carrying the amended Preamble in future. Ravi Shankar Prasad denied that he was in favour of the deletion of the two words. Amidst all these, Prime Minister Narendra Modi maintained a mysterious silence on the issue, which added to the prevailing suspicion of a hidden agenda to amend the Preamble.
However, the controversy has helped revive an understanding of the 42nd Amendment’s contribution to India’s constitutional history. The 42nd Amendment almost rewrote the Constitution, making Parliament the supreme sovereign body. In the words of the historian Granville Austin, the amendment had four main purposes: to further protect from legal challenges Prime Minister Indira Gandhi’s 1971 election to Parliament and future elections of her followers’ and hers; to strengthen the Central government vis-à-vis the State governments and its capability to rule the country as a unitary, not a federal, system; to give maximum protection from judicial challenge to social revolutionary legislation, whether intended sincerely or to cloak authoritarian purpose; and “to trim” the judiciary, as one Congressman put it, so as to “make it difficult for the court to upset her policy in regard to many matters”.
The amendment of the Preamble hardly fulfilled any of these purposes. Yet, the debate on the 42nd Amendment in both Houses of Parliament devoted considerable time to it. Looking back, it appears as though the authors of the amendment included the changes in the Preamble in order to make the entire amendment appear benign. In this, they were not successful. The 44th Amendment to the Constitution, enacted by the Janata Party government in 1978, repealed most of the changes introduced by the 42nd Amendment, except those in the Preamble.
Rather than remove the words added to the Preamble, the 45th Amendment Bill sought to define them. Thus, the Bill said “republic”, as qualified by the expression “secular”, meant a republic in which there was equal respect for all religions; and the expression “republic” as qualified by the expression “socialist”, meant a republic in which there was freedom from all forms of exploitation, social, political and economic.
The definitions, which Law Minister Shanti Bhushan had sought to provide then, failed to muster enough support in Parliament to ensure their passage as part of the 44th Amendment Act. Speaking on the Bill in both Houses, many members felt that mere respect alone would not give the minorities freedom and protection. The definitions, it was felt, would lead to conflict of interpretation if any disputes arose. There were other objections, too. As a result, Parliament did not find it necessary to define the two words alone in the Preamble. But there was no demand from the MPs to delete these words from the Preamble because they appeared, as the constitutional scholar D.D. Basu opined, to be vague, or “had been productive of more mischief than benefit”.
The official objective of the government in making the amendment in 1976 was to make explicit what was already provided in the Constitution but which, in the absence of such emphasis, was going to be denigrated by “vested interests to promote their selfish ends”.
Apart from the words “secular” and “socialist”, one more word was introduced in the Preamble in 1976. The pre-1976 version resolved to secure to all its citizens “fraternity assuring the dignity of the individual and the unity of the nation”. The amended version read “unity and integrity of the nation,” with the word “integrity” included through an amendment.
In his book Working A Democratic Constitution: The Indian Experience (1999), Austin mentions that A.R. Antulay (who was a member of the Rajya Sabha from 1976 to 1980) took credit for the inclusion of the word “secular” and credited the then Congress president, D.K. Barooah, for providing the word “socialist”. Antulay and Barooah were members of the Swaran Singh Committee, which initially prepared the proposals for the 42nd Amendment. Austin considers Antulay’s claim consistent with his Muslim identity.
Although Indira Gandhi herself saw the amendment of the Preamble as nothing more than providing a “frame of reference”, Antulay might have suggested the idea as a result of his perceptions as a member of the minority community. The recent controversy shows that the presence of the two words in the Preamble has more than symbolic significance. A study of the debates in Parliament on the issue in 1976 shows that many MPs indeed assumed it was so.
