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Synopsis

The Supreme Court today heard a Public Interest Litigation (PIL), 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. The plea refers it as the  “biggest fraud on the Constitution” and seeks a direction to declare the amendment void and unconstitutional.

The pleas, filed by Advocate Vishnu Shankar Jain and Subramanian Swamy and other similar pleas were tagged together along with Advocate Ashwini Kumar Upadhyay’s petition that challenges the said amendment as being against the due process of law.

The 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 ot preventive detention and there was no effective debate in parliament.”

The Parliament, according to the petitioner, was functioning only under the emergency provisions of the proviso to Article 83(2) of the Constitution and by virtue of the House of the People (Extension of Duration) Act (30 of 1976). The extension of the Lok Sabha's tenure was meant to meet emergency requirements, not to amend the Preamble, which forms the basic structure of the Constitution of India. Referencing the case of ‘Kesavananda Bharati Sripadagalvaru and Ors. v. State of Kerala’, the petitioner submitted that while Parliament has the power to amend the Constitution, it cannot alter the factual elements of the Preamble.

It was further submitted that once the Preamble was adopted by the Constituent Assembly on January 26, 1949, any alteration made in 1976, without changing the adoption date and on behalf of the Constituent Assembly—which did not exist in 1976—is manifestly arbitrary, violates Article 14, and is thus void and unconstitutional.

“Such a substantial, factual & brazen mistake and manifest arbitrariness cannot be allowed to continuously exist in the Constitution of the largest and the oldest democracy of the world. In fact, such a post facto alteration of the facts needs to be restored with immediate effect,” stated the petition.

The petitioner argued that inserting the word 'Secular' in the Preamble is harmless since secularism is inherently embedded within the constitutional provisions, including Articles 14-16 and 25-27. “The Supreme Court has held Secularism ot be a part of the basic structure of the Constitution. Similarly, Integrity is a basic dictum of rule of law and democracy. However, inserting the word Socialist" is problematic as it limits policy choices that can be made by a democratically elected government,” the petitioner emphasised.

 

Cause Title: ASHWINI KUMAR UPADHYAY v UNION OF INDIA & ANOTHER