Why BJP will have to live with a "secular" and "socialist" Constitution

On Republic Day, a government advertisement featured a hazy watermark of the original preamble, one that did not yet contain the words "secular" and "socialist". Critics saw it as a giveaway of the Modi government's secret wish to erase the words, even the values, from the Constitution. The Shiv Sena immediately defended the offence, and demanded that the words be dropped. Even the I&B ministry asked why it was so wrong to debate the issue - the words were, after all, shoved into the Preamble during the Emergency. The flap subsided only when Arun Jaitley and Amit Shah both underlined that nobody would mess with the preamble, that the two words were there to stay. But posturing apart, it is simply not possible to scrub the words from the Preamble. Constitutional experts also point out that rooting out "secular" and "socialist" from the Constitution would destroy its very edifice; it would involve inaugurating a second Republic of India.  

How the words got there

The words "socialist" and "secular" were deliberately kept out of the original Preamble. During the Constituent Assembly debates, when KT Shah wanted to declare India a "secular, federal, socialist nation", BR Ambedkar had two objections. First, he said, the question of "how the society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances". Secondly, and somewhat contradictorily, he said that the word socialist was superfluous, given the welfarist tenor of the Constitution itself -- "if these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be"."

But the Preamble was rewritten anyway, in 1976, as part of the sweeping changes of the 42nd amendment, at a time when Indira Gandhi had moved from constitutionalism to absolutism. "We, the people of India, having solemnly resolved to constitute India into sovereign democratic republic…" was changed into "We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic…" with no regard for the cadence and elegance of the original.  The voice of opposition parties was suppressed, even Congress allies like the CPI and ADMK were overruled. Given that the press was strictly controlled and debate gagged, the 42nd amendment was bludgeoned through, rather than deliberated and enacted. It gave Parliament full freedom to make over the Constitution, and gave precedence to directive principles of state policy over fundamental rights. The changes to the Preamble were seen as Indira Gandhi's high-sounding cover for the executive power grab and curtailing of rights.

"Remember that the words 'secular' and 'socialist' were forced in during the Emergency, at a time when democracy was being strangled in this country," says the BJP's Yogi Adityanath. "Legislators are supreme in a parliamentary democracy, so why should there be a problem with a debate in Parliament?" he asks.

But even after the Emergency, the Janata government did not entirely undo the 42nd amendment.  The attempt to focus the meaning of the words was defeated in Parliament. The Minerva Mills case of 1980, which strengthened the basic structure and restored the balance of fundamental rights and directive principles of state policy, did not change the new preamble.

This is because the amended Preamble is not a meaningful departure from the original- it only makes front-and-centre what the Constitution itself declares. Says senior jurist Fali Nariman: “The Directive Principles of State Policy set out in Part-IV of the Constitution, which sets out the parameters of a welfare state, point to the obvious reason for including the word ‘socialist’ in the Preamble. The provisions in Part-III of the Constitution – particularly Articles 25 and 26 - point to the obvious reason for including the word ‘secular’.”

Socialism, as discussed in the constituent assembly, does not mean the nationalisation of means of production, or abolition of private property. Similarly, secularism does not reach into the lives and manners of citizens or blank out religion altogether. But neither word has been adequately defined. Socialism, in the broad sense of equality of opportunity and a fairer distribution of wealth, and secularism, in the sense that the state does not impose a single religion, are already hardwired into the Constitution and have been held up by the courts.

"The preamble makes no difference, because the substantive part of the Constitution is emphatically socialist and secular. The inclusion of the words in the preamble in the 42nd amendment was only to make them abundantly clear", says senior jurist and constitutional lawyer KK Venugopal. "It was intended to ensure that all political parties would abide by these values, and the Representation of Peoples Act, 1951, was amended to reflect this," he says. Every registered political party in India has to incorporate the words "secular" and "socialist" into their own constitutions and profess allegiance to these values, no matter how grating they find it.  

Basic structure or window dressing?

What is the preamble, and what force does it carry - is it the opening act or merely a frame around the document it precedes? Is it rhetorical window-dressing, or is it the inviolable essence of the Constitution?In the 1959 Berubari Union case, the courts declared the Preamble a "key to the mind of the Constitution-makers", but not part of the Constitution or source of any substantive power that could limit the powers of Parliament. But as Nariman points out, it was later established by a larger Bench of the Supreme Court in its majority judgment (7:6) in Kesavananda Bharati (1973), as well as in its majority judgement (6:3) in SR Bommai (1994) that the Preamble, as it stands amended by the 42Amendment, is part of “the basic structure of the Constitution.” In other words, "socialist" and "secular" just cannot be deleted except in the imagination or impious wish of a few. So please, perish the thought," he sums up.

This, then, is the fact that the Shiv Sena and others will have to live with - the words "socialist" and "secular", though shoehorned into the Preamble during a dark and repressive time, do not rupture the intentions of the Constitution, they reaffirm it.