Justice M. Hidayatullah memorably wondered whether our Constitution was the “plaything of a special majority”. That was in Sajjan Singh vs State of Rajasthan in 1965. In 1967, in I.C. Golaknath and Others vs State of Punjab and Another, the Supreme Court ruled that the fundamental rights
enshrined in Part III of the Constitution may not be taken away or abrogated by Parliament through the amendment of the Constitution under Article 368. In 1973, the judgment on Kesavananda Bharati vs State of Kerala articulated the doctrine of basic structure and the essential features of the Constitution, laying down that “secularism”, “socialism” as well as the Preamble to the Constitution (which may not be amended unless it was according to prescribed constitutional procedure) were integral to them. With effect from January 3, 1977, the Constitution (Forty-second Amendment) Act amended the Preamble and India was declared a sovereign, secular, socialist, democratic republic. Although the 42nd amendment was reversed in key aspects by the post-Emergency 44th amendment, which took effect from June 20, 1979, the amended Preamble was not changed. It has remained unchanged since 1977.
This snapshot of constitutional and legal positions has unfortunately become necessary because the ministry of information and broadcasting recently released an advertisement with Republic Day greetings and an inset of the unamended Preamble. Instead of a public and national apology for its obvious mistake, it reportedly defended the release by saying that the original Preamble, as prepared by illustrious figures such as Nehru and Ambedkar, was of historical interest.
The ministry’s action has been widely deplored by the political opposition as well as by some leading human rights activists. In the wake of the Shiv Sena’s strident insistence that the Constitution be amended to delete the two “offensive” words, “secularism” and “socialism”, from the Preamble, Parliamentary Affairs Minister Venkaiah Naidu said “secularism is in our blood” and that the government had “no intention to drop the word”. Prime Minister Narendra Modi, however, has not spoken on the matter so far.
Going strictly by constitutional law, there is nothing called an original Preamble. True, when it was adopted, the Constitution did not include the terms “socialist” and “secular” as it now does. And it does so because the Supreme Court of India willed it before Parliament and the political executive did. Today, there is only one Preamble, that which is enforced by the amendment that came into force in January 1977. No ministry at the Central or the state level is legally competent to say otherwise. The Constitution may not be amended by the executive. Only Parliament has the legal power to amend and even this would be valid if the justices of the Supreme Court were to hold that the amendment did not offend the basic structure or the essential features of the Constitution.
The right to freedom of speech and expression, under the 44th amendment, may not be taken away or abrogated by an executive proclamation of emergency, and a citizen may pursue that right, subject to other reasonable restrictions that Parliament may impose on the grounds stated under Article 19(a) and validated by the Supreme Court. Parliament remains free to initiate an amendment under Article 368. Although the better view is that any amendment of the basic structure is simply forbidden since Kesavananda, the Preamble may be amended by a simple majority in Parliament.
In any event, the legislators and ministers have to take an oath or affirmation as prescribed by the Third Schedule of the Constitution. They are thus duty-bound to observe “the Constitution as by law established”. It cannot be denied by anyone that the duty extends to the Preamble, which is now the law that binds until it is changed. The Constitution and the court are silent about the consequences when the oath is demonstrably violated. Whether or not the large majority of un-oathed citizens may recall such legislators or the concerned legislators and ministers may cease to hold office, this much is clear: no Central ministry may issue a public advertisement that violates the Constitution as by law established.
The 42nd amendment also introduces Part IVA (Article 51A), which enjoins all citizens to observe their fundamental duties. These include the duty to “cherish and follow the noble ideals which inspired our national struggle for freedom” and to “value and preserve the rich heritage of our composite culture”. However one may interpret these, it is clear that constitutional secularism is a direct result of these ideals. So is the notion of a “composite culture”. The Constitution does not contemplate an unreligious society. A social order that venerates plurality for its own sake is the constitutional idea of India. There may be, and are, other ideas about India but an abiding regard for fundamental duties alone will make these constitutional, not the other way around.
Finally, it has been argued that socialism is made redundant by the advent of hyperglobalisation and neoliberalism. But the constitutional perspectives on Indian development forbid such a conclusion. Articles 38 and 39 still remain the guiding directive principles of state policy. The elimination of “economic inequality” still remains our national goal. The MGNREGA, and the Food Security Act, despite some proposed amendments, and the Jan Dhan Yojana are the direct results of Article 39(b), which commands “that the ownership and control of the material resources of the community are so distributed as best to subserve the common good”. Many economic and national policies still emanate from Article 39(d), which directs that “the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment”. The constitutional idea of development may be defined in one sentence: development programmes and policies that disproportionately benefit the constitutionally worst off are just.
What is more, the Supreme Court has begun to give many directives the status of fundamental rights under Article 21 — the right to live with dignity itself has now become a fundamental and basic human right. In its social action, it has been practising demosprudence over jaded jurisprudence. Not only has it, in Justice Goswami’s immortal words, become the “last refuge for the bewildered and the oppressed”, but it has also emerged as a national policy actor, co-governing the nation. We do not need political “hacktivism” but social activism in preserving what has been bequeathed to us so wisely and well by the Constitution makers and the Supreme Court.
The writer is professor of law, University of Warwick,and former vice chancellor of Universities of South Gujarat and Delhi