The period from 1970 to 1980 is often labelled as the most tumultuous decade in the era of post-independent India. Tranquility was disturbed constantly throughout the decade. Whether it be due to the Bangladesh Liberation War, the imposition of Emergency, or for that matter, the formation and the unceremonious dissolution of the first non-Congress government; this decade witnessed everything.
Whenever the Emergency is discussed, the 42nd amendment to the Constitution headlines it. The words socialism and secularism are the defining features of this amendment. They have sparkled a decade which continues to influence us till date. Right wing groups have been canvassing for the removal of the above-mentioned terms on the grounds that they were never envisaged by the founding fathers in the original preamble in the Constitution. Although socialism was nowhere to be found in the Constitution prior to the amendment, the word ‘secular‘ was already mentioned Article 25(2). There’s one question which arises now. Is there a case for removal of secularism and socialism from the Constitution?.
Socialism dominated the political and economic landscape of India for the first forty years after independence. The seeds of socialism were sowed by Jawaharlal Nehru, who like many other freedom fighters of the time were influenced by the communist revolution in Russia. But no one embraced socialism like Mrs Indira Gandhi. India’s tryst with full blown socialism started in 1969, with the nationalisation of 14 private sector banks. This earth- shaking move ensured that the large population of India, which was devoid of banking facilities, was covered within the ambit of the banks. Next pit-stop on the topsy-turvy path of socialism was India’s bonhomie with communist Russia that resulted in the Indo–Soviet Treaty of Peace, Friendship and Cooperation in 1971. While framing the Constitution, the founding fathers never adhered to any political or economic ideology. The basic logic put forth was that every political dispensation which comes to power is well within its rights to frame and implement policies in accordance with its ideology,be it; socialism, capitalism, communism or welfare state. Despite socialism being enshrined in the Constitution, courtesy of the 42nd amendment, there is no constitutional limit on any party to abide or frame policies in compliance with socialism. Starting from the 1990s, successive governments of Congress and the Bharatiya Janata party (BJP) have shifted India’s economy towards liberalisation and privatisation.
In the landmark case of Kesavananda Bharti vs State of Kerala, by a majority of 7:6, the court ruled that Article 368 doesn’t give unlimited power to the Parliament to alter the ‘ basic structure’ of the Constitution. The entire bench never collectively defined the basic structure but several judges tried to tabulate the basic structure in their individual capacity.
Justice Sikri, for example, listed the following as the ‘basic features’ of the Constitution:
1. Supremacy of the Constitution.
2. Republican nature.
4. Separation of powers and federalism.
Justice Hegde and Justice Mukherjea listed:
3. Democracy & Individual freedom as a basic feature of the Constitution.
Another judge, Justice Khanna counted secularism and democracy as vital constituents of Constitution which can’t be compromised.
In the case Indira Gandhi vs Raj Narain, Justice Chandrachud laid down the following as basic features of the Constitution:
4. Freedom of Conscience
5. Rule of Law
As we can see, secularism has been counted as the basic feature of the Constitution, which is not the case with socialism. Moreover, by including socialism in the Preamble, you are indirectly forcing the government of the day to follow socialist policies. Secularism on the other hand forms the soul of the Constitution, as reiterated in various judgements, which can’t be done away with.