Source: Indian Express 

Introduction 

The recent remarks by the Vice President about the Emergency-era addition of the words "socialist" and "secular" to the Constitution's Preamble have reopened a long-standing constitutional debate. These words were added through the controversial 42nd Amendment in 1976 and continue to spark political and ideological disagreements. While the Supreme Court has consistently upheld their inclusion as valid, questions about whether they were necessary, why they were added at that time, and how they affect the spirit of the Constitution are still important. 

Was the 42nd Amendment's Timing Politically Motivated Rather Than Constitutionally Necessary? 

• The 42nd Amendment was enacted during the Emergency period of 1975-1977, when Indira Gandhi ruled by decree and fundamental rights were suspended.  
• The addition of "socialist" and "secular" to the Preamble was part of a comprehensive overhaul that included 59 amendments to various constitutional provisions. The timing suggests these changes were driven by immediate political objectives rather than constitutional imperatives. 
• Indira Gandhi's leftward shift was evident in her nationalization of banks in 1969, abolition of privy purses in 1971, and her "Garibi Hatao" campaign slogan. 
• The inclusion of "socialist" aligned the Constitution with her economic agenda and served to give constitutional legitimacy to her policies.  
• The Statement of Objects and Reasons explicitly stated that the directive principles should take precedence over fundamental rights that had been used to "frustrate socioeconomic reforms." 
• The addition of "secular" coincided with the rise of the Bharatiya Jana Sangh as a political force, having won 35 seats in the 1967 elections.  
• The timing suggests an attempt to constitutionally entrench secularism as a counter to the growing influence of parties with religious nationalist ideologies. 

Do These Additions Fundamentally Alter the Constitution's Original Character? 

• The Supreme Court has consistently held that the Preamble additions made no substantive changes to the Constitution's structure or meaning.  
• In the landmark Kesavananda Bharati v. Union of India case of 1973, even before the 42nd Amendment, the Court recognized secularism as a basic feature of the Constitution that cannot be altered through amendments. 
• The Constitution already embodied secular principles through Articles 14, 15, and 16, which guarantee equality and prohibit discrimination based on religion. Similarly, Part IV of the Constitution, containing Directive Principles of State Policy, already outlined socialist objectives for the state.  
• The Minerva mills v. union of India (1980) noted that the framers had resolved to constitute a "Socialist State" even without explicit mention in the Preamble. 
• The Court's 1994 Bommai ruling and the recent November 2024 judgment by a bench led by then Chief Justice Sanjiv Khanna have reaffirmed that these additions do not restrict legitimate governmental policies or violate the Constitution's basic structure. 

Can the Preamble Be Amended, and What Are the Legal Implications? 

• The constitutional validity of amending the Preamble has been settled through judicial precedent. The Supreme Court has held that while the Preamble is not a source of substantive power, it can be amended through the constitutional amendment process, provided such amendments do not violate the basic structure doctrine. 
• The Berubari Union case of 1961 established that the Preamble serves as "a key to open the mind of the makers" of the Constitution but is not enforceable in courts. However, subsequent judgments have recognized the Preamble's interpretive value in understanding constitutional provisions and the founding vision of the republic. 
• The legal implications of any future amendments to the Preamble would depend on whether they conflict with the Constitution's basic structure. Given that secularism and socialism have been recognized as basic features, any attempt to remove these terms would likely face judicial scrutiny under the basic structure doctrine established in Kesavananda Bharati. 

Should Constitutional Amendments Made During Emergency Periods Be Subject to Special Scrutiny? 

• The Emergency period represents a unique chapter in India's constitutional history when democratic norms were suspended and the Constitution was extensively amended. The 42nd Amendment alone made 59 changes, many of which were subsequently reversed by the 44th Amendment in 1978. However, the Preamble additions were retained, suggesting a legislative consensus about their appropriateness. 
• The question of whether Emergency-era amendments deserve special scrutiny raises broader issues about constitutional continuity and democratic legitimacy. While the circumstances of their enactment were extraordinary, these amendments have been subject to judicial review and have withstood constitutional challenges over nearly five decades. 
• The Supreme Court's approach has been to evaluate each amendment on its constitutional merits rather than its political origins. The Court has struck down specific provisions that violated the basic structure while upholding others that remained within constitutional bounds. 

Conclusion 

The debate over the socialist and secular additions to the Preamble reflects deeper questions about constitutional interpretation, political legitimacy, and the evolving nature of India's founding vision. While the timing and circumstances of the 42nd Amendment raise legitimate concerns about Emergency-era governance, the legal validity of these additions has been consistently upheld by the judiciary. The Supreme Court's recent reaffirmation in November 2024 suggests that these terms, regardless of their controversial origins, have become integral to India's constitutional identity and cannot be easily discarded without fundamental constitutional restructuring.