DAYA SAGAR
Words Secular and social were added in the preamble of Constitution of India by 42nd Constitution Amendment Act in 1976. Recently some have professed that these additions have not been proper and may be removed. Such questions even if wrong must be addressed to satisfy the wisdom of the any citizen who may have doubt. Before taking the issue further let us in common man language take that term socialist addresses the democratic republic of India where the republic takes the duty for addressing the minimum needs of each and every citizen irrespective of the quantum of contribution one makes to state revenue ( as welfare state) and the term secular refers to the Government/ Parliament of democratic republic that would rule & serve the citizens as one ‘religion’/ one sect/ one class/ one sex , in brief separation of ‘religion’ and State in India. The Constitution of India has spirits of socialism and secularism enshrined in the spirits of Constitution of India as variety of structural elements of Articles like Art 25,26,27,28,29,30, 38(2), 39 , 39A, 41, 45,46,47 and the two terms added in the preamble are just to make the basic enshrined spirit more vivid.
According to the Constitution of India, Parliament and the state legislatures in India have the power to make laws within their respective jurisdictions but the constitution can be amended by Parliament only. This power is not absolute in nature. The Constitution vests in the judiciary, the power to adjudicate upon the constitutional validity of all laws/acts of Parliament . If a law made by Parliament or the state legislatures violates any provision of the Constitution, the Supreme Court has the power to declare in full or part such a law invalid or ultra vires. Notwithstanding review jurisdictions, those who drafted the constitution through the Constituent Assembly surely wanted the Constitution to be an adaptable citizen friendly democratic socialist document accommodating the wide heterogeneity in religions , castes , sects , customs , languages, geographical locations , indigenous traditions, economic levels & the likes of the common Indian people and the acceding princes of Princely states but they were also very much conscious of their limitations , circumstances in hand , having no any previous experience of practically having lived in such like system of governance & experience of the type , so since they also did not want to give their generations a rigid constitutional framework so they had also kept a provision in Art 368 for amendment by Parliament using the constituent ( constituent power ) but not beyond the principles enshrined in the final document.
Article 368 of the Constitution may give to some the impression that Parliament’s amending powers are absolute and encompass all parts of the document but the position is not like that. Not only that , it was also provided that the Supreme Court can go for checks through reviews and according LT after 1950 has at occasions acted for suitable checks on legislative enthusiasm of those elected to sit in Parliament after independence. In line with the intention of preserving the original ideals enshrined there in by the visionary constitution-makers, the Supreme Court of India has also laid down in 1973 ( through the Judgment 13 judge Constitution Bench in The Kesavananda Bharati judgment ( Kesavananda Bharati Sripadagalavaru etc. v. State of Kerala and another etc. Writ Petitions Nos.135/70, 351-52i~73-74 and L±UO of 1972 , delivered on 24 April 1973 ) that Article 368 can not be used by Parliament to amend the constitution so as to distort, damage or alter the basic features of the Constitution under the pretext of amending it.
Although the phrase ‘basic structure’ itself” is not found in the Constitution but the The Supreme Court had placed before the citizens this concept in black &white for the first time in the Kesavananda Bharati case in 1973 as something like commonly understood as Doctrine of Basic Structure . Supreme Court has been the interpreter of the Constitution and . the arbiter of all amendments made by Parliament but supreme court has in a way reserved the jurisdiction to ‘self’ to name the elements of basic structure of COI as and when case for review comes before the apex court. It is not out of place to note here that constitutionally the President of India has been delegated on oath in terms of Art-60 dutyto protect , preserve and defend the constitution of India so it should be clear that Parliament under Art 368 is not supposed to have unlimited power to amend the constitution and Presidential duty under Art-60 also directs towards the working of Parliament too.
To be continued
(The writer is a Sr Journalist & analyst of J&K Affairs)