The Supreme Court has accepted the writ petition of BJP MP Subramanian Swamy seeking to remove the words socialism and secularism from the Preamble of the Constitution. This will be considered along with the petition filed by Adv. Satya Sabharwal, raising the same demand. The court will make an appropriate decision on this rather technical demand. At the same time, it provides an opportunity to further clarify the fundamental values of the Constitution and of the country. More than the content of such a demand, what carries greater significance is the fact that four and a half decades after those words were added to the Constitution, such a petition is coming in the new situation. It was the Indira Gandhi government that changed the wording 'Sovereign, Democratic Republic' in the preamble of the constitution to 'Sovereign, Socialist, Secular and Democratic Republic'. There is merit in the contention that this cannot exist as per the Constitution itself. Firstly, it was after the Constituent Assembly under the leadership of Ambedkar had detailed consultations that it reached a consensus on the Preamble. And in 1976, the Indira government added the new language without even holding much discussion in Parliament. Further, the Preamble cannot be amended or tampered with by Parliament under Article 368 of the Constitution. Therefore, the contention that the 42nd Amendment with the added wording has no existence is not wrong.
However, a question can arise whether the content of the new petition deviates from the discussions held so far on this issue. It has been pointed out several times that words like secularism need not be added and that secularism is ingrained in the spirit of the Constitution without adding it in the Preamble. The Supreme Court judgment in the famous Keshavananda Bharti case (1973) is crucial in this. The judgment held that Parliament has the power to amend the Constitution but not to change its 'basic structure'. It was pointed out that the power to amend should not be used to destroy. Although the term 'basic structure' is not defined, it includes secularism as defined in the content of the Constitution and various court judgments. Indira Gandhi, who got criticized for excessive use of power during the Emergency, added 'secularism' and 'socialism' to demonstrate that she is committed to the basic values of the Constitution. It has been pointed out multiple times even by the Supreme Court that those values are not derived from Indira government but they are in the basic principles of the Constitution from the very beginning.
In the 'Minerva Mills' case, the Supreme Court's justification for not invalidating the 42nd Amendment was that it only emphasized the values already existing in the Constitution. The Allahabad High Court in the 'Hindu Front for Justice' case also said: "These values have always been enshrined in the Constitution". In a speech, Justice Fali Nariman in a speech opposed the 42nd Amendment, which added secularism and socialism, saying that they were already the essence of the Constitution and need not to be mentioned in the Preamble. In short, whether the amendment is repealed or retained, the basic nature of the Constitution does not change.
But Subramanian Swamy's argument is different. He says that secularism and socialism were not in the mind of the framers of the constitution. In his view, adding such words would amount to denying the freedom of choice to the citizens. Perhaps it can be said so when the word 'secularism' is used in the Western sense of secularism implying rejection of religion itself. Maybe that could be why Ambedkar and others did not add that term in the Preamble. At the same time, our Constitution clearly guarantees the citizens complete 'freedom of thought' and freedom of worship and propagation of the faith. It contains the principles necessary to protect minorities from the encroachments by the majority in a democratic and parliamentary system. Our secularism is not the secularism of the West meaning negation of religion, but neutrality in religion. Its core is that the nation has no religion of its own. It gives to every one the right to adopt any religion or even live without one.
Let the 42nd Amendment stand or be repealed. The basic values of the constitution must remain as such. The current problem of the country is not the constitution but the attempts to undermine its foundations. As the Supreme Court asserted in the Bommai case in 1994, years after the passage of the 42nd Amendment, "secularism is the basic feature of the Constitution" and should remain so.