3rd March 2012
India’s 42nd amendment to the Constitution is ultra vires, illegal
India continues to be a socialist republic. Its Preamble (to the Constitution) says so. Here are some INFORMAL (unedited) thoughts from Sureshan Payyaratta, FTI member, being material that he shared on FTI's internal forum, and which I'm publishing for wider dissemination through this blog (with Sureshan's permission).
Note that Sureshan did not have time to EDIT this so please don't mind the language. The content is what matters.
The key point is that the 42nd amendment that inserted "socialism" into the Constitution is violative of the basic structure of the Constitution.
In July 2010 the Supreme Court dismissed a challenge to the Preamble of the Constitution for addition of the word "socialist" to the Constitution through the 42nd amendment.
Though I Am not holding very long experience in dealing with constitutional matters I likes to add some basic grounds ins support of the challenge to the constitution amendment incorporating the word socialism .
1) The constituent assembly after very long debates framed our Constitution. Pandit Jawharlal in his speech requested for constituting India as and Independent Sovereign Republic , He further added that All power and authority of the Sovereign Independent, India , its constitutional parts and organs of government , are derived from the people . the members of the constituent assembly had discussed every aspect and incorporated the preamble, which did not had a word socialism.
a) Framers of the constitution never thought about including the word socialism in its preamble.
b) They have given much importance to liberty and freedom to the individuals and put it in part III and warranted the states from enacting any law in contravention to part fundamental rights , Earlier right to hold property was also included as fundamental rights.
c) The directive principles of states policies are not given any enforceable. So Article 39 (b), (directive principles of State Policy) which is treated as basic source for treating this country as socialist does not have any overriding effect on any of the fundamental rights. This provision is subject personal liberty and freedom of individuals.
2) Supreme court of India and Parliament has done some voilance to the constitution by giving overriding effect to the directive principles of state policy over part III.
a) The 13 members judgment rendered by the Hon'ble supreme Court itself was not a view to treat this country as a Socialist Republic. which was prior to 42 Amendment .. The importance of this judgment itself is doubted by subsequent judgments.
b) Latest 9 judge Bench recently Headed by (Y .K. Sabharwal ) clarified the keshavananda Bharathi Judgment and given part III supremacy over part IV . Fundamental rights ..
c) So 42 amendment, which incorporated the word socialism in preamble, is ultravirus to the constitution in view of the judgement in I.R. Coelo read with keshavanada Bharathi.
1) Parliament can amend the constitution according to its original form by deleting the word socialism from the preamble.
2) Supreme Court can constitute a larger bench , If they decided to do so , and examine the correctness of basic structure judgment in the light of changed of circumstances and declare the 42 amendment as ultravirus . and reverse the judgment starting from R.C. Cooper in the light of I.R. Coeleo Decision.
MY TENTATIVE CONCLUSION (SANJEEV)
There might still be a case for a fresh petition that challenges the word "socialist" in the Preamble. This is over and above S.V. Raju's petition.