The words secular and socialist were introduced in the Indian Constitution during the Emergency by Indira Gandhi’s government, which had questionable legitimacy and was keen to prove that it was true to the spirit of the Constitution, even when its conduct was undermining the protections for civil liberties that were enshrined in the same Constitution. It was that government’s attorney general, Niren De, who had argued before the Supreme Court that the right to life is qualified during an Emergency. The words secular and socialist were added to reassure the nation that minorities would be safe and the moneyed class would not dominate the economy.
India amends its Constitution so often that it becomes hard to argue about its original intent in the Indian context, unlike, say, the US, where the Supreme Court judges could reasonably try to find the real meaning of what the Constitution’s drafters intended. Since 1950, India has amended the Constitution 99 times; since 1789, the US constitution has been amended only 33 times.
There is a long-respected doctrine of the Indian Constitution, which says its basic structure cannot be altered by Parliament. It is rooted in the seminal 1973 case, known as Kesavananda Bharati. There, the Supreme Court ruled that even if Parliament amended any part of the Constitution, it could not change its basic structure. The power to amend is not the power to destroy, it ruled.
Various judges have given differing definitions of the basic structure. But the key phrases were supremacy of the Constitution; republican and democratic government; federal and secular character of the Constitution; maintenance of separation of powers; mandate to build a welfare state under the directive principles of state policy; maintaining unity and integrity of India; sovereignty of the country; essential features of individual freedoms; provision of socio-economic justice; liberty of thought, belief, expression, faith and worship; equality of status and opportunity.
The basic structure doctrine, in other words, already contained within it the principles of secularism and socialism. But Indira Gandhi wanted to assert parliamentary supremacy over the judiciary, and she felt it necessary to amend the Constitution to make those two ideas part of the Constitution’s preamble. Another explanation of her actions is that her government had severely weakened civil and political rights so she was probably keen to demonstrate her commitment to social and economic rights. And to do so, she wanted to enshrine the idea of a socialistic pattern of society and give it a scope that went way beyond what was envisaged in the times of her father Jawaharlal Nehru. She had also abolished the privy purses of former princely states and nationalized banks during her radical phase in the late 1960s.
During the Emergency, she sought to make the directive principles of state policy, or the duties of the state, superior to fundamental rights, or individual rights of citizens. As part of the 42nd amendment, her government had introduced two provisions in the Constitution which did not allow courts to question constitutional amendments. In the Minerva Mills case in 1980, the Supreme Court ruled that Parliament could not use its limited power and turn it into an absolute power, and upheld the basic structure doctrine. Justice Y.V. Chandrachud struck down the provisions of the Emergency-era 42nd amendment that were not repealed by the Janata Party through its 44th amendment.
He wrote: “Three Articles of our Constitution, and only three (14, prohibiting discrimination; 19, guaranteeing personal freedoms; and 21, the right to life), stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power." The 42nd amendment removed the assurance Indians had that the promise of the preamble would be “performed by ushering an egalitarian era through the discipline of fundamental rights, that is, without emasculation of the rights to liberty and equality which alone can help preserve the dignity of the individual."
More than a decade later in 1994, in the Bommai case, the Supreme Court added that secularism was a basic feature of the Constitution. The Preamble embodies the Republic’s founding values, and whether or not it can be amended, it has provided a reference point to interpret the Constitution. The Articles of the Constitution as well as the spirit of the Preamble both underscore the spirit of socialism and secularism. In the Preamble, the people of India resolve to secure all citizens social, economic and political justice, and this resolution is made solemnly, and not by invoking any divine power.
The Shiv Sena’s trial balloon—that socialism and secularism be dropped—and noises from the Bharatiya Janata Party (BJP) suggesting it is worth a debate are both part of a larger political project. Discarding socialism from the Constitution would provide the government the excuse to dismantle the rather weak social protection the government offers to the poorest. Dropping secularism would permit the government to introduce all sorts of mythical and religious concepts into education—in history and science, but elsewhere too, which would only produce an intellectually stunted generation in future. Besides, it would enable the state to remove protection for minorities from discrimination, by citing reverse discrimination.
This is not to suggest that India has a great record in promoting secularism. Indian practices have devalued the concept into appeasing gatekeepers of all religions, instead of treating people equally and eliminating discrimination. Nor is the record particularly illustrious in socialism’s own terms. In the first 44 years till 1991, when India embarked on economic liberalization, growth was slow and India was redistributing not wealth but poverty. During that period entrepreneurial instincts had to be restrained and curbed and the pernicious permits and license raj grew, which spawned corruption. (The reality is not much different after liberalisation: crony capitalism survives, but there is real economic growth, and tens of millions have been lifted out of absolute poverty in the past 23 years.)
The Preamble is an aspiration, a collective resolution. But successive judgments have relied upon it because the Preamble is what gives meaning to the sovereignty of the Indian Republic. Indira Gandhi’s purpose of introducing the two words may have been cynical, but they made explicit the commitments the nation had already made to itself. The constitutional guarantees against discrimination will remain regardless of politicians tinkering with the preamble, and so would the guarantees that enable Indians to live their lives with dignity. But the removal of explicit assurance can in theory weaken the resolve of subsequent governments, and possibly judiciaries, to protect and extend the rights of the vulnerable.
Of greater danger would be attempts by the current government to dismantle actual constitutional provisions or laws that give meaning to those rights—that’s the real battle Indian liberals must fight.