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Synopsis

Chief Justice of India Sanjiv Khanna led bench today refused to entertain a petition challenging the 42nd Amendment of the Constitution in 1976, which inserted the words 'Socialist Secular and Integrity’ in the Preamble of the Constitution of India. 

"Power to amend unquestionably rests with the Parliament. Amending power extends to the PREAMBLE", CJI Khanna observed today while reading from the order.

Advocates Ashwini Upadhyay and Vishnu Shankar Jain were present before Court today, along with BJP leader Dr. Subramanian Swamy.

"It has opened a Pandora's Box..If secularism can be added, tomorrow something else can be added.. please see my note..no will of the people taken into consideration to include...", Advocate Upadhyay had told a bench on an earlier instance.

Advocate Upadhyay called the inclusion of the terms to be “biggest fraud on the Constitution” and seeks a direction to declare the amendment void and unconstitutional.

His petition highlights that the term “We the People” in the preamble signifies the will of the people and there was no such will as “When the Lok Sabha and Rajya Sabha debated the Constitution (Forty- fourth Amendment) Bil, 1976, the Proclamation of internal emergency dated 25.06.1975 was in operation and most of the opposition members of the both the Houses of Parliament were in jail due to preventive detention and there was no effective debate in parliament.”

Earlier, while the writ petition filed under Article 32 filed by Dr. Subramanian Swamy, the bench of Justices Sanjiv Khanna and Dipankar Datta observed it cannot be said that the preamble cannot be amended.

Swamy has contended that the insertion was beyond the amending power of the Parliament under Article 368 of the Constitution, and against the Rights of Freedom of Religion. It was further contended that it was even against the concept of Judicial Review, which is an integral part of the Basic Structure of the Constitution. The said insertion was alleged to be void ab initio and ultra-vires to Articles 13, 25, 26, 141 and 142 of the Constitution. The petition also challenged the validity of Section 29A (5) of the Representation of Peoples Act.

Seeking the Supreme Court's indulgence in nipping in the bud the tendency to rewrite the constitutional ethos of this nation, Communist Party of India Member Binoy Viswam had also filed an impleadment application in the instant plea.

In his IA, the Rajya Sabha Member has told Top Court that secularism and socialism are inherent and basic features of the Constitution and the petitioner’s intent in the writ petition, is to have a free reign on Indian polity leaving behind secularism and socialism.

Case Title: Subramanian Swamy and Another vs. Union of India and Another