Can they change the Constitution of India? Why should they change, will they destroy of democracy and federal character? There were two serious attempts were made to ‘destroy the structure of the Indian Constitution. First was during Emergency in 1975-77, the Congress Government has almost created a ‘mini-Constitution’ through problematic amendment. And now the BJP talked about and denying it attempt if they get 400 seats in current elections. This became an issue before the people of India and apprehended a danger and need to fight to protect our democracy. For voters, this is the agenda now. Only one work is there to is ‘only to Vote to secure our Bharath Constitution as constructed by Ambedkar’s team during 1950.
Attack on Mini Constitution
The 42nd Amendment changed the description of India from a “sovereign democratic republic” to a “sovereign, socialist secular democratic republic”, and also changed the words “unity of the nation” to “unity and integrity of the nation”. But it was changed at the 42nd Amendment. They added some more words to Preamble. It was called Mini-Constitution.
The Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok Sabha by H. R. Gokhale, then Minister of Law, Justice and Company Affairs. [R.C. Bhardwaj, ed. (1 January 1995). Constitution Amendment in India (Sixth ed.). New Delhi: Northern Book Centre. pp. 76–84, 190–196]
It sought to amend the Preamble and articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357, 358, 359, 366, 368 and 371F and the Seventh Schedule. It also sought to substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 51A, 131A, 139A, 144A, 226A, 228A and 257A in the Constitution. [“Forty Second Amendment”. Indiacode.nic.in. Retrieved 26 November 2013] In a speech in the Lok Sabha on 27 October 1976, Gandhi claimed that the amendment “is responsive to the aspirations of the people, and reflects the realities of the present time and the future”.[Lok Sabha Debates, Fifth Series, vol. 65, no.3, cols.141-2.][“Parliament Has Unfettered Right”. Indira Gandhi, Selected Speeches and Writings, vol.3. pp. 283–91.]
The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was being ratified by more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that ratified the amendment by: [R.C. Bhardwaj] Andhra Pradesh, Assam, Bihar, Haryana, Himachal Pradesh, Karnataka, Madhya Pradesh, Maharashtra, Manipur, Odisha, Punjab, Rajasthan, Sikkim, Tripura, Uttar Pradesh, and West Bengal. But it was not ratified by States of Gujarat, Jammu and Kashmir, Kerala, Tamil Nadu, Union Territories at that time, Meghalaya and Nagaland.
Secularism why?
If you believe God or disagree, is basic matter of freedom of expression. It is an alternative to religious orthodoxy and fundamentalist ideology. The significance of secular ideals was assimilated by human civilization. Members of one religious community either persecute or discriminate against members of other religious communities. These acts of discrimination take place more easily when one religion is given official recognition by the State at the expense of other religions. All forms of domination related to religion should end. This is the essence of secularism. The tyranny of the majority and the violation of Fundamental Rights can be very harmful to the people belonging to the minority. So, it protects people from any type of religious violence. And most importantly, it protects the freedom of individuals to exit from their religion and embrace another religion. It gives people the freedom to interpret religious teachings differently. The state should ensure the laws relating to equal inheritance rights are respected, the State can intervene in the religion-based ‘personal laws’ of communities. It is real meaning of freedom of expression and press.
The Constitution of India took up the concept of “Secularism’ though this word was omitted from Constitution in 1950. The preamble declares India as a secular state with it being officially added by the 42nd Constitutional amendment of 1976. The concept of Secularism in India is different from the western concept of the state in confrontation with the church. The Fathers of our Constitution had reasons to introduce secularism in our country: fear of disorder arising from dangerous divisive political movements associated with militant Hindu nationalism, Muslim separatism, Hindu – Muslim communalism and so on.
Secularism is scientific based on Newton‘s third law that for every action, there is equal and opposite reaction. The hate and communalism breed only hate. It even breeds terrorism and terrorism also gives incentives to communal-mongers to incite riots. At the same time, it does not mean the communal elements are not supposed promote terrorism or tolerate the destruction of society. If there is protection of people, it should be treated as law and order, not interfered with ruling party politics. It does to allow pluralism, the soul of the Preamble. Every religion teaches compassion, love for human being and universal brotherhood and should deal with hypocrisy as against. No religion preaches hatred amongst human being. It is the concept of Composite Nationalism. Keshavanada Bharti in 1973 confirmed the secular nature of the Constitution. In 1983 SC said that official government should not join religious activities while on duty and not to use the public funds for that purposes. In 1994, SC was emphatically reaffirmed importance of secularism as explained in Preamble, whether because of 42nd amendment or without that. In the same year in M Ismail Farequi vs Union of India SC held that the acquisition of religious place of worship by the government does not relate the right to freedom of religion as long as adequate compensation is provided. Recently in 2006 in Communalism Combat vs Union of India, the SC issued guidelines to prevent hate speech and communal violence by politicians and religious leaders and accord the establishment of fast-track courts to try cases relating to communal violence.
Not just preamble, the voters need to protect the entire Constitution of India, with its basic structure. In this election times, the Constitution of India is discussed as a popular ‘narrative’ either to retain or remove the statute- rule book. It was never a ‘subject’ of campaign with BJP and Congress with INDIA group. Hating ‘secular’ word and working against some communal interests and using for political and selfish reasons. They are not sincere to democracy but to perpetuate dictatorship. BJP or INDIA groups has no unrestrained power to change Constitution.
Preamble is like National Anthem
The people need to read and understand the preamble of the Constitution of India. It is like a National Anthem. What should be the policy of the State, how the Society should be organised in its social and economic side are matters which must be decided by the people themselves according to time and circumstances, said Ambedkar.
B. R. Ambedkar was opposed to declaring India’s social and economic structure in the Constitution. During the Constituent Assembly debates on framing the Constitution in 1946, K.T. Shah proposed an amendment seeking to declare India as a “Secular, Federal, Socialist nation”. Ambedkar stated, “My objections, stated briefly are two. In the first place the Constitution is merely a mechanism for the purpose of regulating the work of the various organs of the State. It is not a mechanism where by particular members or particular parties are installed in office. …It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organisation of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organisation in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organisation of society is better than the capitalist organisation of society. But it would be perfectly possible for thinking people to devise some other form of social organisation which might be better than the socialist organisation of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves. This is one reason why the amendment should be opposed.” (CONSTITUENT ASSEMBLY OF INDIA – VOLUME VII”. NIC. 15 November 1948.)
Ambedkar’s second objection was that the amendment was “purely superfluous” and “unnecessary”, as “socialist principles are already embodied in our Constitution” through Fundamental Rights and the Directive Principles of State Policy.
Referring to the Directive Principles, he asked Shah, “If these directive principles to which I have drawn attention are not socialistic in their direction and in their content, I fail to understand what more socialism can be”. Shah’s amendment failed to pass, and the Preamble remained unchanged.
Draconian law of Parliament
The 43rd and 44th Amendments repealed the 42nd Amendment’s provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament’s power to legislate against “anti-national activities”. The 42nd Amendment also added a new section to the Article on “Fundamental Duties” in the Constitution. The new section required citizens “to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities.”
The 42nd Amendment added new Directive Principles, viz. Article 39A, Article 43A and Article 48A. [Prateek Deol. “42nd Constitutional Amendment: A Draconion Act of Parliament – Gujarat National Law University”. Legalserviceindia.com] The 42nd Amendment gave primacy to the Directive Principles, by stating that “no law implementing any of the Directive Principles could be declared unconstitutional on the grounds that it violated any of the Fundamental Rights”. The Amendment simultaneously stated that laws prohibiting “anti-national activities” or the formation of “anti-national associations” could not be invalidated because they infringed on any of the Fundamental Rights. The 43rd and 44th Amendments repealed the 42nd Amendment’s provision that Directive Principles take precedence over Fundamental Rights, and also curbed Parliament’s power to legislate against “anti-national activities”. The 42nd Amendment also added a new section to the Article on “Fundamental Duties” in the Constitution. The new section required citizens “to promote harmony and the spirit of common brotherhood among all the people of India, transcending religious, linguistic and regional or sectional diversities.”[ Kesharwani, Gyan Prakash (14 July 2019). “42nd Amendment, Was it India’s or Indira’s Constitution? – CCRD”. Centre for Constitutional Research and Development. Retrieved 31 January 2020.]
The 42nd Amendment granted power to the President, in consultation with the Election Commission, to disqualify members of State Legislatures. Prior to the Amendment, this power was power vested in the Governor of the State. [Prateek Deol]
Why ‘social’ be removed?
The Supreme Court, on Jan 2008, rejected a PIL that sought the removal of the word ‘socialist’ from the Preamble. In a PIL an NGO wanted the word be struck off the Constitution, saying that it was not a part of the original Constitution that had been drafted by Dr B R Ambedkar. While rejecting this petition the then Chief Justice K G Balakrishnan, heading the three-judge bench, observed: “Why do you take socialism in a narrow sense defined by communists? In broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn’t got any definite meaning. It gets different meanings in different times.”
The petition also sought to strike down the RPA (Representation of People Act), according to which political parties were forced to swear fealty to socialism in order to be recognised. The petition also claimed that the addition of the word during the Emergency was tantamount to re-writing the Constitution.
But late, Senior Advocate Fali S Nariman, who represented the petitioner, argued before court: “It is contrary to the Constitution and to its democratic foundations that political parties be called upon to swear allegiance only to a particular mindset or ideology….Introducing the word ‘socialist’ in the Preamble breaches the basic structure and it is wholly inconsistent….The attempt to deliberately tunnel the collective view in one ideological direction is also a grave breach of the liberty provisions of the Constitution.” Though Mr Fali S Nariman is a highly renowned Constitutional lawyer, his points were not his personal views, but by the argued who hired for an NGO supporting a BJP school of thought.
Voters have onerous duty to vote out the anti-Constitutional forces.
Election Politics: ‘Hot and cold’ on our Constitution
The Parliament was given unrestrained power to amend any parts of the Constitution, without judicial review. This essentially invalidated the Supreme Court’s ruling in Kesavananda Bharati v. State of Kerala in 1973.
The BJP is struggling to say no “no we are not changing the Constitution”. People are happy to that extent that they assured to retain our rule of law book, irrespective of credibility. The Defence Minister Rajnath Singh questioned recently “I want to ask the parties promising religion-based reservation, why are you fooling people? I want to ask to Congress and RJD party that if you have courage then do not do politics by throwing dust in the eyes of the public, do politics by looking the people in their eyes.”
He has assured the people that the BJP government will never change the Constitution or end reservation. He asserted that there was no question of changing the Preamble of the Constitution. Singh accused the Congress of creating “fear psychosis” and resorting to spreading misinformation for “vote bank” politics.
Recently BJP parliamentarian Anantkumar Hegde said that the party needs 400 seats to “change the Constitution” and “if the Constitution has to be amended — the Congress fundamentally distorted the Constitution by forcefully filling unnecessary things in it, especially by bringing in laws that were aimed at suppressing the Hindu society — if all of this has to be changed, it is not possible with this (current) majority.” Of course, it may cost him a poll pass for the upcoming general election, later he has distanced itself from the Uttara Kannada MP’s remarks and the party has also demanded an explanation from the six-time MP. Quoting the PM, he said “Ab ki baar 400 paar, why 400? … We have two-thirds majority in Lok Sabha, (but) in Rajya Sabha we don’t have two-thirds majority. We have a small majority. In state governments, we don’t have an adequate majority”. This ‘guarantee’ has caused a serious controversy and apprehension about voters.
In this context, the Congress leader Priyanka Gandhi Vadra on 11th May 2024 said “if voted to power, the saffron party will change the Constitution”. She further said that it was an ‘idea’ that will be a sin and people of the country would not allow it. In the name of religion, dividing brothers, and sisters is a sin. It is sin to create confusion and misleading the people in the name of religion. In the name of religion weakening democracy and people and saying that they will change the Constitution is a sin. This Constitution was written by our elders with their struggle and blood. This Constitution was not written by Modi ji. People of this country wrote it”.
People should come to rescue
Whenever the dictators destroy the structure of Constitution against the democracy, people came to rescue, including the Judiciary was hopeless. Now the same need to fight the dictators assuming absolute powers.
The constitutionality of sections 4 and 55 of the 42nd Amendment were challenged in Minerva Mills v. Union of India, when Charan Singh was the caretaker Prime Minister. Section 4 of the 42nd Amendment, had amended Article 31C of the Constitution to accord precedence to the Directive Principles of State Policy articulated in Part IV of the Constitution over the Fundamental Rights of individuals articulated in Part III. Section 55 prevented any constitutional amendment from being “called in question in any Court on any ground”. It also declared that there would be no limitation whatever on the power of Parliament to amend the Constitution. After the 1980 Indian general election, the Supreme Court declared sections 4 and 55 of the 42nd amendment as unconstitutional. It further endorsed and evolved the basic structure doctrine of the Constitution. [Raghav Sharma (16 April 2008). “Minerva Mills Ltd. & Ors. v. Union of India & Ors: A Jurisprudential Perspective”. SSRN 1121817] In the judgement on Section 4, Chief Justice Yeshwant Vishnu Chandrachud wrote: “Three Articles of our Constitution, and only three, stand between the heaven of freedom into which Tagore wanted his country to awake and the abyss of unrestrained power. They are Articles 14, 19 and 21. Article 31C has removed two sides of that golden triangle which affords to the people of this country an assurance that the promise held forth by the preamble will 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”.[Minerva Mills case]
Justice Chandrachud said on Section 4 of Act: “Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power can not be destroyed. In other words, Parliament can not, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.”
The ruling was widely welcomed in India, and Indira Gandhi did not challenge the verdict. The Supreme Court’s position on constitutional amendments laid out in its judgements in Golak Nath v. State of Punjab, Kesavananda Bharati v. State of Kerala and the Minerva Mills case, is that Parliament can amend the Constitution but cannot destroy its “basic structure”.
Its again the duty of the voters and people of India generally including youth to protect our federation, and unity. This is the question before people of voters in India now.
Dr. M Sridhar Acharyulu, Professor of Law, Hyderabad
