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Judiciary

Supreme Court to assess legality of 'Socialist, Secular, Integrity' inclusions in 42nd Constitution Amendment

By Jhanak Singh      01 May, 2024 01:55 PM      0 Comments
Supreme Court to Assess Legality of Socialist Secular Integrity inclusions in 42nd Constitution Amendment

New Delhi: In a recent legal development, a writ petition has been filed under Article 32 as a Public Interest Litigation (PIL) by Supreme Court advocate Ashwini Kumar Upadhyay challenging the legitimacy of the amendments made to the Preamble of the Indian Constitution through the 42nd Amendment in 1976. Petitioner Upadhyay asserts that the inclusion of the words "Socialist, Secular, and Integrity" during the Emergency period is unconstitutional, citing violations of Article 14 and the due process of law.

The 42nd Amendment, enacted during a time marked by political turmoil and the proclamation of Emergency by then Prime Minister Indira Gandhi, inserted the contested words without altering the original adoption date of the Constitution, November 26, 1949. The petition highlights that these amendments were made purportedly on behalf of the Constituent Assembly, which no longer existed at the time.

Legal experts point to the Kesavananda Bharati case of 1973, where the Supreme Court declared that while the Constitution could be amended, such amendments must respect the "basic structure" doctrine. The petitioner argues that the 42nd Amendment fails this test, as it was passed without proper representative mandate, under the extended tenure of a Lok Sabha whose original mandate had expired.

Further complicating the legality of the amendment, during the Emergency, significant opposition figures were detained, the press was censored, and fundamental rights were suspended, undermining the democratic process. The petitioner contends that the amendment was passed without an effective debate in Parliament, constituting a "fraud on the Constitution."

Historical debates from the Constituent Assembly also underline the contentious nature of the words "Socialist" and "Secular." Proposals to include these terms in earlier drafts of the Constitution were explicitly rejected, indicating that their later inclusion in 1976 contradicted the original intent of the framers.

The Supreme Court has been petitioned to declare Section 2 of the Constitution (42nd Amendment) Act, 1976, void and unconstitutional. This case not only challenges the procedural integrity of the amendment process but also questions the substantive changes made to the foundational text of the nation during a period of political crisis.

This PIL brings to the fore longstanding debates about the nature of constitutional amendments and their alignment with democratic principles. As the Supreme Court gears up to hear this case, it reopens discussions on the balance between amendability and the preservation of constitutional ideology in the world's largest democracy.

Constitutional Amendment of Preamble Under Legal Scrutiny Amid Historical Controversies

Historically, the framing of the Indian Constitution was a meticulous process, where concepts like socialism and secularism were hotly debated. Records from the Constituent Assembly debates indicate that attempts to explicitly include these terms in earlier drafts were repeatedly rejected. For instance, on November 15, 1948, and again on subsequent dates, amendments proposed by Prof. K.T. Shah to include 'Secular' and 'Socialist' were decisively negatived by the Assembly.

The legal challenge also draws heavily on the Supreme Court's landmark 1973 decision in the Kesavananda Bharati case, which introduced the "basic structure" doctrine. This doctrine asserts that the fundamental framework of the Constitution cannot be altered by any amendment. The petitioner argues that the 42nd Amendment, enacted under the shadow of emergency provisions, skirts this doctrine by altering the Preamble without genuine democratic endorsement.

The emergency period itself is noted for severe restrictions on civil liberties, including the jailing of opposition leaders, press censorship, and suspension of fundamental rights, which, according to the petitioner, stifled any semblance of a democratic process during the passage of the amendment. This backdrop casts a long shadow over the legitimacy of the amendments made during this period.

With the Supreme Court set to deliberate on this pivotal case, it not only revisits the procedural integrity of the 42nd Amendment but also re-examines the substantive alterations made to the Preamble against the original intentions of the Constitution's framers. This case could potentially reshape the narrative around the adaptability and sanctity of the foundational document of India.

Next hearing is scheduled in the first week of July.

 



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