Rewriting the foundation: The question of amending the Preamble

Rewriting the foundation: The question of amending the Preamble

-Navya Chadha

Himachal Pradesh National Law University

INTRODUCTION

In the Constitutional Assembly debates, Sir Alladi Krishnaswami Iyer opined that the Preamble is an expression of “what we thought for or dreamt for so long.” Our Preamble outlines the objectives of the whole Constitution [1]. It is regarded as the “soul” – a reflection of the core values or ideals upon which the nation was founded. The Constitution makers gave the Preamble a place of pride. The "Objective Resolution" initially introduced by the Constitutional Assembly and later adopted as the Preamble, laid the cornerstone for creating the Constitution. The founding fathers regarded it as a guiding principle or something that breathes life into humankind. In the case of Kesavananda Bharti [2], it was held that “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, but all importance must be attached to the Preamble in a constitutional statute. The Constitution makers gave to the Preamble a place of Pride.” The court further held that the Preamble is a key to interpreting the Constitution's provisions .

Therefore, the Preamble has a great significance in the Constitution. But the main question before us is whether it prudent to alter the foundational ideals that have shaped our nation since its inception, or are we putting at risk the principles that form the bedrock of India's identity?

THE CONSTITUTIONAL CONTROVERSY SURROUNDING 42^ND AMENDMENT

A constitutional debate was sparked from the petition filed by Dr. Subramanian Swamy, challenging the changes made in the Preamble by the 42nd Amendment of the Constitution. One of the grounds for challenging it was the retrospectivity of the insertion in 1976, which resulted in falsity as the Constitution was adopted on the 26th day of November 1949. This contention was rejected by the division bench led by Sanjiv Khanna, CJ stating that the date of adoption does not limit the power under Article 368, as the retrospectivity argument, if accepted, would apply to any constitutional amendment, despite Parliament's unquestionable authority to amend under this provision [3] .

However, even though the Parliament has the power under Article 368 to amend any part of the Constitution, it cannot alter the basic structure. In the landmark case of Kesavananda Bharti, the court held that the Preamble is a part of the Constitution and relates to the basic structure or framework of the Constitution. But was the 42nd amendment within the basic structure? 

The Preamble begins with "WE THE PEOPLE OF INDIA," signifying that the founding fathers, who claimed to speak on behalf of the people of India, adopted it with mutual consensus on the date specified in the Preamble, considering it as a final declaration of the nation's constitutional identity. In his commentary, Prof. H.M. Seervai said it would be patently false to say that the people of India, on the 26^th day of November, 1949, resolved to Constitute India into a “Sovereign, Socialist, Secular, Democratic, Republic.” What they did was to constitute India into a Sovereign Democratic Republic [4]. 

It is clear that Preamble can be amended, but such a result can only be produced by setting aside the original Preamble with the introductory words or by adding another paragraph, so it does not infringe the basic structure of the Preamble. Therefore, altering the Preamble in such a way that it negates the significance of the date mentioned would make it inconsistent with the Constitution's original framework, thereby violating its basic structure.

Furthermore, Sanjiv Khanna, CJ himself made it clear that even if amendments are made during an emergency, they can still be challenged in court if they violate the Constitution's basic structure. 

CONSTITUENT ASSEMBLY DEBATE

Another ground for challenging the amendment was that the words “socialist” and “secular” were deliberately eschewed by the Constituent Assembly. This argument was rejected by the court stating that “the Constitution is a living document, with power given to the Parliament to amend it in terms of and in accord with Article 368. Furthermore, the interpretation of these words has changed with time. [5]” 

However, the court overlooked the reasoning behind the initial omission of these words. In the case of S.R. Chaudhuri v. State of Punjab and others [6], the court has stated that it is a settled position that debates in the Constituent Assembly may be relied upon as an aid to interpret a Constitutional provision because it is the function of the Court to find out the intention of the framers of the Constitution. 

Dr. B.R. Ambedkar in his speech in the Constituent Assembly opposed the incorporation of these words in the Preamble because that concept is a political thought concerning the country's governance. He further said that “the Constitution is a mere mechanism and no political principles or policies need or should be incorporated in it. Political principles or policies should be dictated by the people themselves through their votes and posterity should never be fettered by an announcement of policy or principle.[7]"  

Indeed, the Constitution is a living document and must change according to the needs of society. But, adding these words in the Preamble would impose a fixed political ideology on the people, restricting their liberty of thought, as given in the Preamble. The policy and structure of a state should be determined by the people itself according to the needs of time and circumstances. Given the evolving needs of society, there may be situations where Socialism no longer aligns with the community's social fabric. Socialism and Secularism are rigid ideals. Imposing a fixed social order in the Constitution would undermine the essence of freedom, denying future generations the democratic right to choose their preferred path.  

VAGUE AND UNCERTAIN WORDS

The words introduced through 42^nd Amendment are vague and uncertain. The original Preamble used clear and definite terms like "justice," "liberty," and "equality," which was crafted with a definite and clear intent to ensure a precise interpretation. In the Kesavananda Bharati Case, the court held that “the Preamble of the Constitution of India does not seem to prescribe any vague doctrines like the law of natural justice even if the latter, contrary to many decisions of our Court be considered vague.”

Introduction of the words ‘Socialist’ and ‘Secularism’ leaves ambiguity and opens it to various interpretation. This shift can be seen as a reflection of the political culture of the time, where changes were driven more by whim and caprice, often playing to the gallery rather than based on a thorough, long-term vision for the nation. 

John Seldon, introduced a term Chancellor’s Foot [8], which means that the fairness of a decision depends on the conscience of the Chancellor, who is the judge.  It represents the subjectivity of equitable justice, highlighting how its interpretation can differ from one judge to another. 

In the case of State of Gujrat v. Lal Singh [9], it was held that it is a well-settled law that a Judge is expected to act in consonance of and accord of with the legal principles. He cannot assume the power on the basis of his individual notion or perception. Thus, adding vague and subjective terms in the Preamble, such as "socialist" and "secular," challenges this principle. These terms, open to varied interpretations, invite personal judgment rather than adhering to clear and fixed legal standards.

According to Merriam-Webster dictionary ‘the word Secularism’ means “the belief that religion should not play a role in government, education, or other public parts of society." Therefore, the commonly accepted meaning of this word is the separation of religion and state. In a secular country, laws should be neutral and not favor any particular religion. However, we have witnessed various instances where the state has enacted laws that benefit specific faiths, such as providing subsidies for Hajj, different personal laws for different religions, and so on. Also, the state has repeatedly interfered in the matters of religion to deliver social justice. 

The word Socialism means a political and economic theory of social organization that advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole. In the case of Property Owner Association v. State of Maharashtra [10], the court differentiated between “Socialism” and “economic democracy,” asserting that only latter is realized through the constitutional directive of a welfare State under Part IV. CJ. DY. Chandrachud stated that not every resource owned by an individual can be considered as a 'material resource of the community' merely because it meets the qualifier of “material needs.” He further said that it was Dr Ambedkar's prescient warning that the Constitution must not be interpreted in a way that imposes a rigid economic structure. The doctrinal error in the Krishna Iyer approach was, postulating a rigid economic theory, which advocates for greater state control over private resources, as the exclusive basis for constitutional governance. A single economic theory, which views the acquisition of private property by the state as the ultimate goal, would undermine the very fabric and principles of our constitutional framework.

Therefore, India cannot be considered a fully socialist country. The distinction between socialism and economic democracy reflects India’s commitment to a mixed economy, where both public and private sectors coexist, rather than being solely socialist in nature. 

ANALYSIS

After Kesavananda Bharti, it is firmly established that while the Preamble can be amended, its basic structure must remain intact. The author is not contesting that the Preamble cannot be amended, but altering the Preamble in such a way that it negates the significance of the date mentioned would make it inconsistent with the Constitution's original framework, thereby violating its basic structure, rendering the Preamble’s set-up as a falsehood. The date mentioned in the Preamble holds great significance as it represents a moment of consensus and finality in forming India’s constitutional identity. Furthermore, the recent judicial pronouncement holds greater significance as it clarifies that India is not a socialist State, yet the Preamble continues to describe it as such, which creates an apparent inconsistency. Additionally, adding such ambiguous and vague words gives room for misinterpretation. This matter raises a significant question of Constitutional Interpretation. Therefore, a larger bench should be constituted to clarify and eliminate the ambiguity surrounding these constitutional changes.

[1]  A.K. Iyer, Constituent Assembly Debates, vol. 10 (Oct. 17, 1949), https://cadindia.clpr.org.in/constitution_assembly_debates/volume/10/1949-10-17.

[2]  Kesavananda Bharati v. State of Kerala, (1973) 4 S.C.C. 225 

[3]  Dr. Subramanian Swamy & Others v. Union of India & Others, W.P. (C) 1467/2020 (SC) (order dated 10 July 2024).

[4]  H.M. Seervai, Constitutional Law of India: A Critical Commentary, vol. 1, at 260–61 (4th ed. 1991)

[5]  Dr. Subramanian Swamy & Others v. Union of India & Others, W.P. (C) 1467/2020 (SC) (order dated 10 July 2024).

[6]  S.R. Chaudhuri v. State of Punjab and others, (2001) 7 S.C.C.  126

[7]  B.R. Ambedkar, Constituent Assembly Debates, vol. 7 (November 15, 1948), https://cadindia.clpr.org.in/constitution_assembly_debates/volume/7/1948-11-15.

[8]  John Selden, Table Talk of John Selden 43, (Frederick Pollock, 1927)

[9]  State of Gujrat v. Lal Singh @ Manjit Singh (2016) AIR 3197

[10]  Property Owner Association v. State of Maharashtra (2024) INSC 835