Can the Preamble to the Constitution be amended by the Parliament?

The Preamble to the Constitution of India was amended by the Parliament through the 42nd Amendment in November 1976, by Prime Minister Indira Gandhi’s government during Emergency. This amendment also introduced the words “Socialist” and “Secular,” making the Preamble state that India is a “Sovereign Socialist Secular Democratic Republic”.

The legal objection does not lie in the assertion that the Preamble cannot be amended per se; rather, it is rooted in the fact that the Preamble, as drafted by Dr. B.R. Ambedkar, was adopted on November 26, 1949. This date holds constitutional significance, marking the day the Constituent Assembly finalized the document. The date reflects the unified vision of the framers and the national consensus at the time of independence, establishing India as a sovereign, democratic republic. Altering the Preamble compromises this historical context and national sentiment, which was integral to the creation of the Constitution.

Based on this reasoning, legal experts like H.M. Seervai have held that the Preamble to the Indian Constitution cannot be amended because it was adopted as a historically specific and solemn commitment on the part of the framers. Altering it undermines the foundational context in which it was framed.

In the case of an ordinary statute, the preamble may not hold significant importance. However, the preamble to a Constitution bears substantial weight and does not operate independently. Its full effect is realized only when the Constitution itself comes into force.

Shri Alladi Krishnaswami Ayyar (Constituent Assembly Debates Vol. 10, p.417): “So far as the Preamble is concerned, though in an ordinary statute we do no attach any importance to the Preamble, all importance has to be attached to the Preamble in a Constitutional statute, there is no such thing as the Preamble immediately coming into force. The Preamble will come into force in all its plentitude when the Constitution comes into force. There is no reason to say that the Preamble will come into force earlier than when the Constitution comes into force.”

The Preamble, as a key to understanding legislative intent, plays a crucial role in interpreting ambiguous provisions of any legislative enactment. It is a settled principle of law that the Preamble can be referred to in cases where the language of the statute is ambiguous or unclear. However, any attempt to alter the legislative intent behind the original Constitution undermines this purpose.

The Supreme Court in Tribhuban Parkash Nayyar vs The Union of India (SC 1969) observed:

“A preamble is a key to open the mind of the legislature but it cannot be used to control or qualify precise and unambiguous language of the enactment. It is only when there is a doubt as to the meaning of a provision that recourse may be had to the preamble to ascertain the reasons for the enactment and hence the intention of the Parliament. If the language of the enactment is capable of more than one meaning, then that one is to be preferred which comes nearest to the purpose and scope of the preamble. In other words, the preamble may assist in ascertaining the meaning, but it does not affect clear words in a statute. The courts are thus not expected to start with the preamble for construing a statutory provision, nor does the mere fact that a clear and unambiguous statutory provision goes beyond the preamble give rise, by itself, to a doubt on its meaning.”

Shiva Rao, in his book Framing of India’s Constitution (Chapter 3 – Preamble, p.130-132), observes that the Preamble was framed last to ensure it conformed to the Constitution.

He further notes:

“Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.”

The matter is currently under consideration by the Hon’ble Supreme Court through Dr. Subramanian Swamy’s PIL, which challenges the inclusion of the terms “Socialist” and “Secular” in the Preamble through the 42nd Amendment.

The framers of the Indian Constitution intentionally omitted these terms, favoring a more flexible approach to governance. Dr. B.R. Ambedkar, during parliamentary debates, specifically opposed including any fixed ideology in the Constitution, arguing that the future generations should have the freedom to determine India’s economic and social systems. This demonstrates that the framers did not intend to restrict India to a socialist or secular model.

He said,

“I do not see 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 reinforces the view that binding India to specific ideologies was not the goal of the framers.

The Indian Express states,

“Socialism is an Apple of Sodom which is delightful to behold but poisonous to the body politic.”

In legal systems like that of the United States, courts have often stated that the Preamble is an introduction to the Constitution and does not confer any enforceable rights or obligations by itself. For instance, the U.S. Supreme Court has mentioned that the Preamble “is not the source of any substantive powers conferred on the government or any rights on individuals.” It merely introduces the Constitution, outlining its objectives and purposes but does not hold legal authority in the way substantive articles or provisions do.

United States Courts define preamble as:

“The preamble is an introduction to the highest law of the land; it is not the law. It does not define government powers or individual rights. It does not define government powers or individual rights.”

The words “socialist” and “secular” were inserted into the Preamble during the Emergency through the 42nd Constitutional Amendment (1976), an era marked by authoritarian governance under Prime Minister Indira Gandhi. This aspect is further accentuated by Gazette Notification for observance of designating June 25 as ‘The Murder of Constitution Day’, commemorating the imposition of Emergency by the government in 1975.

The 42nd amendment has been criticized for being politically motivated, aiming to align India closer to the Soviet Union’s ideology at the time.

Reports, including those from the Mitrokhin Archives, indicate that the Soviet Union had a significant influence on Indian policy, particularly during the Emergency, steering the government towards socialist ideologies. This external interference raises serious concerns about the legitimacy of incorporating terms like socialist and secular into the Preamble.

According to the Mitrokhin revelations, Indira Gandhi allegedly received 20 million rupees from the Soviets in exchange for sensitive information, with the Soviet officials noting that she did not even return the bag in which the money was delivered. Much like Nehru, Gandhi was reportedly influenced by the Soviet narrative, believing in the Communist revolution as a guiding force and often praising the supposedly ‘revolutionary’ systems in Soviet factories, carefully orchestrated during her visits.

Further, the archives assert that seven cabinet ministers from Indira Gandhi’s government were elected with Soviet financial backing, echoing the earlier support provided to Defense Minister V. Krishna Menon during Nehru’s tenure. The Communist Party of India (CPI) was also heavily funded by the Soviets, receiving funds through unconventional methods, such as cash handouts during Delhi traffic.

By 1972, the KGB had reportedly placed over 10 Indian newspapers on its payroll and influenced the publication of over 3,500 articles. The Mitrokhin Archives also allege that Soviet financing extended to the 1977 elections, where campaigns for 21 non-communist leaders were covertly funded by the KGB.

This historical backdrop calls into question the independence of the policy decisions that led to the amendment of the Preamble, casting doubt on its validity given the Soviet influence during that period.

Evidence from historical records, particularly from foreign intelligence sources like the CIA’s assessment, can be instrumental in demonstrating the politically motivated nature of this insertion in their report titled as “The Soviets in India: Moscow’s Major Penetration Program”:

“Publishing house subsidies. The USSR sells Soviet books and publications at a 60-65 percent discount to Peoples Publishing House (PPH), an Indian Company wholly owned by CPI. Although the Soviets search broadly for potentially vulnerable and cooperative politicians, they appear to target those more likely to have major political influence- such as sitting members of Parliament and MP candidates…….as many as 40 percent of the Congress-I MPs in Mrs Gandhi’s last government had received Soviet political contributions…..many Congress-I politicians are also businessmen who trade with the USSR; the soviets reportedly seek out these individuals as trading partners because they know money from business transactions will be siphoned off for political purposes.”

“Helps maintain a pro-Soviet lobby within the Congress-I party. According to the majority of MPs interviewed by a US Embassy Officer, the pro- Soviet Lobby in the last days of Mrs. Gandhi’s government consisted of some 10 to 25 MPs of the 346 Congress-I seats in parliament, as well as other officials who have consistently promoted closer Indo-Soviet relations. The Soviets use party connections to get endorsement of their disinformation campaigns.”

The word “socialist” in the Preamble no longer reflects India’s current economic model. Since 1991, India has embraced liberalization, privatization, and globalization, with capitalism and entrepreneurship playing vital roles in the economy.

Also Read: 25th June 1975: Was emergency really a black spot in Indian History?

The Supreme Court has acknowledged that India’s economic framework includes private ownership, even after the insertion of “socialist” in the Preamble.

In Excelwear Etc Vs Union of India (Supreme Court, 1978), the Court highlighted the need for a pragmatic approach to socialism, suggesting that the term should not be interpreted doctrinally to exclude capitalist practices.

“The difference pointed out between the doctrinaire approach to the problem of socialism and the pragmatic one is very apt and may enable the courts to lean more and more in favour of nationalisation and State ownership of an industry after the addition of the word ‘Socialist in the Preamble of the Constitution. But so long as the private ownership of an industry is recognised and governs an overwhelmingly large proportion of our economic structure, is it possible to say that principles of socialism and social justice can be pushed to such an extreme so as to ignore completely or to a very large extent the interests of another section of the public namely the private owners of the undertakings?”

The judiciary has recognized that ownership rights in a socialist republic need to evolve. This demonstrates that socialism, as understood in Indian constitutional law, is pragmatic and not doctrinal, yet its continued presence in the Preamble limits the country’s economic evolution.

In Bharat Heavy Plates and … Vs Unknown (1985, Order of Andhra Pradesh High Court)

“But this assumption is not correct. Common law concept of ownership is a historical social institution and is not an eternal and universal legal principle. So, man can unmake it if he so chooses. In my humble opinion, with the inauguration of our Constitution, at any rate with the Forty-second Constitutional Amendment, the common law concept of ownership has undergone radical and fundamental changes in our polity. The preamble to our Constitution, as amended by the Forty Second Constitutional Amendment, provides evidence of this change. The preamble to our Constitution declares the character of our Democratic Republic as Socialist. The declaration contained in our basic charter cannot be without profound legal significance to our legal system. Today, it is an accepted proposition of our constitutional law that the preamble to our Constitution is itself an integral part of the Constitution.”

“The decision of the Supreme Court in Kesavananda Bharati’s case is a refutation of the old theory that looks down upon the constitutional preamble as somewhat of a sleep-walker. As a part of the Constitution, the preamble will enjoy the same legal status and significance as other parts of the Constitution do. It, therefore, becomes necessary to ascertain the legal significance of the preamble declaring India to be a Socialist Democratic Republic. What is the significance of the addition of the word ‘Socialist’ in the preamble to our Constitution? Addressing itself to somewhat a similar question, the Supreme Court in Excelwear v. Union of India, outlined the legal significance of description made by the preamble of our Democratic Republic as Socialist. In that decision, the Supreme Court first rejected the theoretical meaning of the word ‘Socialist’ as unacceptable. It next opted for the pragmatic meaning of the word ‘Socialist’. Finally, it indicated the legal change that this word ‘Socialist’ inserted into the preamble by the 42nd Constitutional Amendment has brought about.”

The inclusion of “secular” in the Preamble has led to conflicting interpretations. While it is meant to ensure the state’s neutrality towards all religions, in practice, the term has been subject to political misuse and has caused legal ambiguities. Different political and legal groups interpret secularism either as equal respect for all religions or as a complete separation of religion and state, leading to inconsistency in its application.

India’s historical practice of religious pluralism and tolerance predates the term “secular” being added to the Preamble. The legal codification of secularism was not required to ensure the protection of religious rights, as these values were already embedded in the fabric of Indian society.

The term secular is defined across various dictionaries as:

• Oxford Dictionary defines secular as “not connected with spiritual or religious matters.”
• Cambridge Dictionary defines secular as “not having any connection with religion.”
• Black’s Law Dictionary defines secular as “not spiritual; not ecclesiastical; relating to affairs of the present world.”

Given these definitions, the inclusion of the term secular in the Preamble to the Constitution is problematic because the Preamble is intended to express the foundational principles of the state. By adding secular, which expressly denotes the absence of religious connection, it imposes a specific ideological stance on governance. This contradicts the original intent of the framers of the Constitution, who aimed for a more flexible and inclusive approach to defining the nature of the Indian state.

The Kesavananda Bharati case (1973) established the principle that the basic structure of the Constitution cannot be amended. The insertion of the terms “socialist” and “secular” through the 42nd Amendment alters the Constitution’s basic structure by tying the nation to specific ideologies. The Minerva Mills case (1980) reaffirmed that amendments that distort the basic structure are unconstitutional, which can be used to challenge the legitimacy of these additions. Hence, changing the Preamble accounts for altering the soul of the Constitution.

The collapse of the Soviet Union in 1991 is a historical lesson in the dangers of adhering rigidly to a particular ideology, such as socialism. The USSR’s downfall is a warning against tying India to any fixed ideology. India, as a democratic republic, should remain flexible and open to diverse approaches in governance, especially in the socio-economic domain.

The term “socialist” was added during the Cold War, reflecting geopolitical realities of that time. As those conditions no longer exist, retaining the word in the Preamble serves no current purpose. On the contrary, it creates confusion for foreign investors and diplomats who may misinterpret India’s economic policies as being rooted in socialism.

“It’s socialism’s appropriation by the Soviet Union seems to suggest that a socialist form of government can be dictatorship, which is foreign to our Constitution,” said HM Seervai in his Constitutional Law of India.

The Indian Constitution is often described as a living document, meant to evolve with time. Removing the terms “socialist” and “secular” would modernize the Constitution, shedding of extra baggage and aligning it with contemporary realities where economic pragmatism, capitalism, and cultural pluralism are central to India’s governance.

The terms “socialist” and “secular” can be removed to provide a clearer, more consistent identity for the Indian state, one that reflects the current practices and ideologies rather than Cold War-era politics or economic ideologies that are no longer relevant.