The need to protect the sanctity of the Preamble

Why apex court’s ruling on the amendment of the Constitution during the Emergency to include secularism and socialism in thePreamble sets off mixed feelings

The new Chief Justice of India (CJI), Justice Sanjiv Khanna, with Justice Sanjay Kumar joining him on the two-judge bench in the Preamble case, has made a valuable pronouncement (November 25, 2024). The inclusion of the words, “secular” and “socialist”, by the 42nd amendment to the Constitution of India moved by Indira Gandhi’s government in 1976 during the high noon of the Emergency, had been challenged some years ago. And after seeing many arguments advanced for and against, and many sittings, the CJI pronounced the amendment and the inclusion valid, not calling for any change.

The Constitution was sufficiently secular in spirit and socialist in direction without the Preamble saying that in as many words

Many millions among my fellow citizens cherish these two adjectives, these two concepts. They hold them to be foundational to India’s plural personality and its egalitarian ideals. Many millions among India’s population do not share that view. They are unenthused by secularism, holding it to be anti-God generally and anti-Hindu in particular. They are indifferent to socialism, regarding it as an abstract philosophy that has not helped reduce poverty in general, and unemployment-related poverty in particular. I belong to the first set of millions rather breezily described as ‘Left-liberals’ and am disturbed by the second set dubbed as “Right-wing majoritarians”.  

And so, I am relieved by Justice Khanna’s order. Paradoxically, my relief does not come from the fact that these two words in the Preamble have been protected from excision. I believe they need not have been put there, more than 25 years after the Preamble had been adopted with the rest of the Constitution with no one in the first four elected Lok Sabhas and the Rajya Sabha, with outstanding secular socialist leaders, having missed them there. The Constitution was sufficiently secular in spirit and socialist in direction without the Preamble saying that in as many words.

A right thing can be done for the wrong reasons, and I believe the 42nd amendment’s tinkering with the Preamble was exactly that. Why was it the right thing? Because I believe secularism and socialism are right and proper adumbrations of the ideals of the India that was born on August 15, 1947. Why was the reason wrong? Because I believe they were put in there not so much because the amending party in Parliament was passionate about those two ideas but because it was wanting to appear pro-poor, pro-progress, and above all, pro-Indira Gandhi. In other words, the amendment was propagandist, populist, and cultist. By amending the Preamble in a worthy-sounding and noble-seeming act, it sought to anoint and purify, by an inaugural stotra of elevation, the other lamentable amendments and measures that came in its wake, notably the proclamation of the national Emergency for utterly specious reasons, the self-perpetuating extension by the Lok Sabha of its legal life, the supersession of judges in the Supreme Court while appointing brazenly out of turn a compliant judge way down the list to the office of CJI.

When by a concatenation of democratic stars, the hated Emergency was dismantled by the people of India and a new government installed in 1977 and the 42nd amendment’s egregious acts were undone, the freshly elected Lok Sabha chose to retain the inclusion of “secular” and “socialist” in the Preamble. This Lok Sabha had within its ranks men of the eminence of Atal Bihari Vajpayee and Lal Krishna Advani, not identified with either secular or socialist tenets. Voting out the undemocratic changes made to the Constitution by the ‘Emergency government’, they nevertheless voted in support of retaining those two words.

So, why then am I not hallooing CJI Khanna’s and Justice Kumar’s protection of these two words in the Constitution?

For three reasons:

First, I cannot erase from my mind the stained aegis of their inclusion.

Second, I never felt they were needed, as the Constitution-ordained right to freedom and right to equality vouchsafed secularism and socialism in the Constitution without making shibboleths of them.

Third, by retaining them the judgment legitimises the amendability of the Preamble.

I have not sufficient law in me, nor what in Hindi would be called duhsaahas (audacity) to speak on what is and what is not the Constitution’s basic structure. But I have sufficient respect for first principles, for defining atria, for inaugural abaci, to say that some things should be deemed beyond erasure. I am not suggesting that the Preamble should be regarded as immaculate. It is not a tablet carved in heaven. But like the national flag, the national anthem, the national motto and the national emblem, it should be regarded as being beyond the quotidian quibbles of truant fancy and vagrant fetish. If these two words were brought in to serve the then political order’s vanity, their retention should not be interpreted to mean that the process can be repeated ad infinitum.

It can be argued that the removal of the words would also amount to yet another amendment, thereby reinforcing the amendability of the Preamble. It would. The point is well made.

Which brings me to what I wish the orders of Justices Khanna and Kumar had done. I wish they had said the two words are innocuous, unexceptionable and, in fact, may be seen as being salutary and so, keeping them in the Preamble offends no one and nothing. And more to the point, they could have said insofar as the Preamble is incantatory rather than a clause or sub-clause that requires constant interpreting case by case, it should be regarded differently. How differently? Differently, not in the sense of being beyond touching and being forever unamendable, but in the sense of being beyond trifling with and being essentially graven as a national ensign.

To conclude, as a votary of secularism and socialism, I am glad of the Preamble judgment, but I wish the simple and oft-used phrase, one-time exception, had been employed to describe the 1976 amendment to the Preamble, insuring it against any presumptuous facetiousness in the name of Parliament’s amending power. And I wish it had given the Preamble the additional protection of a requirement for two-thirds of the state legislatures ratifying any proposed amendment to it. And, likewise, indicated a similar protection to the national flag, the national anthem, the national motto and the national emblem. With the Preamble to the Constitution, these four comprise a pancharishi, like the saptarishi of the celestial constellation, which must guide the compass of our democratic Republic.

Kal ki kisko khabar? Who can speak of tomorrow?

An upstart wind can fell a banyan.

It is the duty of an enlightened citizenry to ensure the roots of what I would call our constitutional Ficus indianensis are protected from such a mis-happening.

Gopalkrishna Gandhi, a former administrator,is a student of modern Indian history.The views expressed are personal