In a supplementary affidavit to the petition seeking the removal of the words “secular” and “socialist” from the Preamble to the Constitition, advocate Ashwini Upadhyay has brought forth several questions of law to support his argument. The petition is expected to be heard on November 22.
The affidavit contended the insertion of the two words into the Constitution through the 42nd Amendment during the Emergency was unconstitutional and violated the original intent of the framers of the Constitution.
The crux of his argument is whether the Central government had the requisite constituent power under the Constitution to amend the Preamble when the term of Parliament had ended or when fundamental rights have been suspended.
It said the Preamble was an unalterable historical document adopted by the Constituent Assembly on November 26, 1949 and modifying it retrospectively undermined its authenticity. He also asked if the Preamble can be amended on behalf of the Constituent Assembly, which had originally passed the Preamble in 1949, when it didn’t exist in 1976.
Upadhyay said the amendment was carried out without the ratification of states. Parliament had the power to amend the Constitution but it could not alter the historical facts of the Preamble. Any changes to the Preamble must reflect the will of the people through state ratifications, he added.
The affidavit mentioned debates in the Constituent Assembly and the landmark Kesavananda Bharati judgment, stressing on the symbolic and historical importance of the Preamble as a reflection of India’s foundational values. He further said that the insertion of subjective terms like ‘socialism’, may not align with the country’s evolving democratic aspirations.
As per the affidavit, the words socialist and secular were inserted during the Emergency without following due democratic process and did not reflect the will of the people.
As a legacy to the Constituent Assembly, the Preamble should remain unchanged to preserve its historical sanctity.
The plea further contended that the addition of secular has not translated into uniform laws for all citizens, as religious laws still governed many aspects of life.
It submitted that the inclusion of socialist contradicted the nation’s economic leaning toward capitalism, making the insertion ineffective in practice. The petitioner further contended that the Preamble’s essence must remain intact, even as amendments to the Constitution adapt to changing times.
In October, the Supreme Court had dismissed similar petitions including one by BJP leader Subramanian Swamy. Justice Sanjiv Khanna, now the Chief Justice of India, and Justice PV Sanjay Kumar had heard the petitioners. Justice Khanna had said the words have been seen as integral to the basic structure of the Constitution and the apex court has ruled in favour of them.