A preamble is often seen as a special text for several reasons.
First, as the Supreme Court of India (SC) noted in Kesavananda Bharati v. State of Kerala in 1973, it is a useful tool of interpretation for the judges. It is the easiest key to ascertain the true intent behind constitutional articles, which might otherwise seem both convoluted and complex.
Second, the preamble has a larger-than-life role to play in the public imagination. If you ask non-lawyers about the specific article of the constitution that provides, for example, the right to speech and expression, it is hard for them to recollect, but a preamble, owing to its concise formulation, is much easier for them to recollect. The preamble, arguably then, is the most recognizable part of the Constitution of India.
The Preamble to the Constitution of India is Unique
The Preamble to the Constitution of India is different from all other preambles. Remember, each Act of parliament has a preamble, which describes the purpose of the Act, and the goals it intends to pursue.
However, these are often statements filled with morals but do not give rise to any substantive obligations to the government. This is also why, when an Act is discussed and voted upon clause-by-clause in the Parliament, this statement of objectives or ‘preamble’ is neither discussed nor voted upon.
On the other hand, the Preamble to the Constitution holds a special place. Not only was it re-drafted over the course of the workings of the Constituent Assembly of India, but it was also debated and then voted upon, before being added to the text.
Despite the great lengths to which the constitution drafters went to grant the preamble legitimacy, the SC, only in 1973 recognized it as truly a part of the Constitution. In doing so, they also highlighted how the Preamble was the last item to be voted upon and added. This meant, that the Preamble was designed to reflect the final understanding and aspirations of the Constitution.
Why is the Preamble in Hot Waters?
The original Preamble to the Constitution did not include the words “Secular” or “Socialist”. India was defined as a “Sovereign Democratic Republic”. Those two words were added to the Preamble, via the 42nd Amendment in 1976. This late addition of the words to the Preamble has come under scrutiny, although the true reason is unknown. Let’s look at a few instances, that have fueled misguided speculations as to whether India truly is “Secular” or “Socialist”.
In September 2023, the New Parliament of India was unveiled and inaugurated with high-pitched gusto. As a part of the welcome package, all Members of Parliament (MPs) were given a copy of the Constitution. The Preamble in this copy of the Constitution omitted the words “Secular” and “Socialist”, leading to an uproar in political and academic circles. The Law Minister defended this action by calling it the “original preamble”, but one can only imagine if it also carried the original, un-abrogated Article 370.
In January 2024, the official page of the Government of India, and some other ministers, shared the “original preamble” of the Constitution. It asked citizens to reflect on the last 75 years and determine how ‘New India’ had fared against these principles. Again, the popular perception seems to be that India became ‘Secular’ and ‘Socialist’ only in 1976.
This popular perception has become a toy for political parties and leaders, who advance the ‘original’ or ‘amended’ preamble, depending on where they find themselves in the political spectrum. In yet another misguided effort to remove these words from the constitution, veteran leader Subramanian Swamy has brought the Preamble to the SC asking them to consider removing these words.
The Challenge Before the Supreme Court
This is not the first case before the SC demanding the removal of these words, and it certainly will not be the last, as political opportunists with legal backgrounds run to get on this moving train. While one would expect such a case to be dismissed on Day 1 at the SC, the SC’s lenient standards for admission of cases have allowed it a few extra days in the sun.
As the hearings in this case continue, two effects demand our attention. One, since the SC is streamed live on YouTube and is transcribed on websites and social media platforms in real-time, it allows for tangential statements made by judges to become fodder for ‘public opinion’ regardless of how misinformed these ‘opinion-holders’ are. Two, owing to the pace of content creation, the reporting of court exchanges without context, has a detrimental effect on the legitimacy of the Preamble. So, let’s look at the main contention that seems to have gained the attention of the SC.
The SC inquired about the appropriateness of having amended the preamble to the Constitution while keeping the date of enactment and adoption the same i.e. 26th November 1949.
It needs to be remembered, that the date of enactment and adoption refers to not just the Preamble, but the entire Constitution. If this logic-- that if the text is changed, the date of adoption cannot be the same-- is to be followed, then the SC will also have to throw out all 106 amendments to the Constitution of India because none of them changed the date of adoption.
Dr Swamy also argued that the amendment was passed through Parliament, without debate, which raised concerns about its legitimacy. However, this is a can of worms, that I don’t believe the SC will open. This is especially true given how the last few Parliamentary sessions have proceeded- with wholesale suspension of MPs, and passage of Acts despite protests to discuss more pressing matters in the well of the Parliament houses, and outside.
Why Should the Preamble retain ‘Secular’ and ‘Socialist’?
India has always been secular. Even though this word was not included in the original Preamble, it pervades throughout the chapter on fundamental rights and directive principles of the Constitution of India.
India has always been socialist. While we may have liberalized the economy in 1991, a large section of the population still needs to social welfare schemes of the central and state governments to survive.
The Preamble, as the most recognizable part of the Constitution, needs special protection from vested interests. The SCI has a phenomenal, once-in-a-century opportunity to clarify the importance of these words in the Preamble and describe for the uninitiated, how the text of the Constitution includes these values, without re-using the exact words.
(The author teaches Constitutional Law at Jindal Global Law School, is a visiting faculty at NLSIU, Bangalore and a Senior Research Associate at the Centre for Constitutional Law Studies. He can be reached at sahibnoorsidhu@gmail.com. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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