Thoughts on economics and liberty

Record of actions/ PILs against socialism in India’s preamble/ ROP Act

This is a placeholder, in preparation of a possible PIL.

SV Raju’s 1994 petition for Swatantra Party Maharashtra that was denied registration by ECI

Details here. The 1994 Writ Petition (PDF).

2005 private members bill in Rajya Sabha by Sharad Joshi

Details here.

2007 PIL against 42nd Constitutional amendment and ROP Act requirement

In 2007, Good Governance India Foundation lodged a PIL questioning the validity of Section 2 of the Constitution (42nd Amendment) Act, 1976, by virtue of which the word “Socialist” was inserted in the Preamble of the Constitution.

Download a Word version of the PIL.

The petition was dismissed. Download the judgement and other details here.

Report in Economic Times

Look at socialism in broader perspective: Supreme Court
Jan 9, 2008

NEW DELHI: The Supreme Court on Tuesday refused to entertain a suggestion in a PIL which had sought deletion of the word “socialist” from the Constitution. The word “socialist” was added through the 42nd Amendment to the Constitution.

A bench comprising Chief Justice K G Balakrishnan, Justice R V Raveendran and Justice J M Panchal said, “Why do you (petitioner) take socialism in a narrow sense defined by (the) Communists. In broader sense, it means welfare measures for the citizens. It is a facet of democracy.”

The court was hearing a PIL seeking direction to delete the word “socialist” from the Preamble to the Constitution on the ground that it was originally not there, and addition of the word amounted to re-writing of it.

“It hasn’t got any definite meaning. It gets different meaning in different times,” the bench observed.However, it agreed to hear the PIL which also sought to strike down the provision of the Representation of People Act (RPA) requiring a political party to adhere to socialism for being recognised.

The court will look into the issue of derecognising political parties which have wrongly shown allegiance to socialism in their manifesto despite their contrary objectives.The court, after hearing the contention of the petitioner, issued notices to the Centre and the Election Commission.

“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,” said senior advocate Fali S Nariman, appearing for the petitioner, Kolkatta-based NGO Good Governance India Foundation.

Mr Nariman said, “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,” Mr Nariman said, seeking direction to strike down Sec 29A of the Representation of People Act.

The Supreme Court on Monday dismissed as withdrawn a writ petition challenging the validity of Section 2 of the Constitution (42nd Amendment) by virtue of which the word ‘socialist’ was inserted in the Preamble to the Constitution.

The petition, filed by the Good Governance India Foundation, also challenged the validity of Section 29 A (5) of the Representation of the People Act, which was inserted by way of Section 6 of the RP (Amendment) Act, 1989 making it incumbent upon every political party registered in India to pledge allegiance to the socialist ideal, failing which such a party would be rejected from registration.

A three-Judge Bench comprising Chief Justice of India S.H. Kapadia and Justices K.S. Radhakrishan and Swatanter Kumar, after hearing senior counsel Fali Nariman, Solicitor-General Gopal Subramaniam for the Centre and counsel Meenakshi Arora for the Election Commission permitted the petitioner to withdraw the petition saying that the issues raised would be left open and decided as and when the situation arose.

Mr. Nariman submitted that the 42nd Amendment, evolved in the climate of national Emergency, violated the basic structure of the Constitution. Prior to the amendment, the Preamble read as follows “We, the people of India, having solemnly resolved to constitute India into a sovereign democratic republic.” After the amendment, the Preamble read: “We, the people of India, having solemnly resolved to constitute India into a sovereign socialist secular democratic republic.”

So far no political party has challenged this and every one has subscribed to it: Justice Kapadia

See also in The Hindu: Petition against term “socialist” in Constitution rejected

 

More reports on the case: India a socialist nation? SC says keep the tagIndia – a `socialist secular democratic republic’?  | An Analysis Of The Indian Socialist MovementSocialism and the Supreme CourtSC notice to Centre, EC | “Socialism” in Preamble: another perspective

New Delhi, January 8
The Supreme Court today issued notices to the Centre and the Election Commission on the validity of the 42nd Constitutional Amendment defining Indian State as a proponent of “socialism” effected by the Indira Gandhi government during the Emergency.

The effect of the Amendment in Article 1 “Preamble” of the Constitution made in 1976, declaring India a “socialist” state had resulted in insertion of section 29A(5) in the Representation of People Act (RPA) that made it mandatory for the political parties to swear by “socialism”.

Noted constitutional laywer Fali S. Nariman, challenging the Amendment on behalf of an NGO, Good Governance India Foundation, said it was against the basic structure of the Constitution.

Taking cognisance of Nariman’s strong arguments on a vital constitutional question, a Bench of Chief Justice K.G. Balakrishnan and Justices R.V. Raveendran and J.M. Panchal, issued notices to the Centre and the EC, seeking their replies.

By inserting the word “socialist” in the Preamble by Parliament on a move by the then government, had, in fact, changed the whole character of the Constitution, which had never aspired to force the ideology of “socialism” or any other ideology on political parties in a democratic set-up sought to be established by the framers of the Constitution, Nariman argued.

During an interesting argument, the Bench put various questions on the political ideologies to Nariman and the noted constitutional expert said even Dr B.R. Ambedkar had “specifically” explained the reasons for “non-inclusion” of the world socialist in the Constitution when it was approved.

Section 29A(5) of the RPA makes it mandatory for all political parties to swear by “socialism” under the effect of the 42nd Amendment. “It is hypocritical for the political parties who do not believe in it. It is a live issue for a vast section,” he argued.

Therefore, the question needs to be defined by the Supreme Court whether the insertion of word “socialist” in the Preamble of the Constitution does not amount to tampering with its basic structure.

“The political philosophy in a democracy has to change with the change in circumstances and passage of time,” Nariman said.

When the court said why it should be looked in “narrow” sense and why a “wider” perspective not be given to it, Nariman said: “A permanent doctrine cannot be fixed for the political parties in a democracy”.

The court, after his forceful argument, issued notices only on two out of the four reliefs sought by the Foundation.

Of the two, the first prayer sought striking down Section 29A(5) of the RPA to the extent that makes it mandatory for political parties to adhere to the policy of socialism.

The second prayer sought derecognition of all political parties who have “wrongly” sworn allegiance to the socialist ideals “contrary” to their objectives as evident from their manifestos, political speeches and the common-minimum programmes.

2013 PIL seeking a definition of socialism

PIL seeking definition of socialism quashed
Rosy Sequeira, Aug 18, 2013

MUMBAI: To give a precise definition of “socialism” would be extremely difficult, said the Bombay high court dismissing a PIL which urged it to direct the Centre and six political parties to define the word “socialist” in the Preamble to the Constitution . The court told the petitioners—opposed to the government’s liberal policies —that it is Parliament’s prerogative to enact a law.

A division bench of Chief Justice Mohit Shah and Justice M S Sanklecha heard a petition by activist and trade union leader Subhash Sawant and businessman Ajay Mafatlal for restraining the respondents—including Congress, BJP, CPI , CPI (M) , NCP and BSP—from supporting and espousing “action and inaction” contrary to the object of the word “socialist” .

The petition relied on Dr B R Ambedkar’s words—on November 15, 1948, before the Constituent Assembly—that by stating in the Constitution that the social organization of the State shall take a particular form, is taking away the liberty of people to decide what should be the social organization in which they wish to live.

Their advocate Bhavesh Parmar argued that in spite of Dr Ambedkar’s words, “socialist” came to be added to the Preamble by the 42nd amendment in 1976. He said once the word “socialist” has been added to the Preamble, the respondents cannot take any action or inaction contrary to its object. “Decisions like disinvestment of government holdings in public sector undertakings would run counter to the object for which the word “socialist” was incorporated in the Constitution . Similarly, the decision regarding permission for FDI retail in the country would also be contrary to the socialism,” said Parmar.

In the November 15, 2013, order, the judges said the petition is “clearly misconceived” . They said in the Balco case, the Supreme Court while considering the challenge to the disinvestment policy observed it is not for the court to consider the relative merits of different political theories or economic policies. Also, that while the court has the power to strike down a law on the ground of want of authority, it will not sit in appeal over the policy of the parliament in enacting a law.

The judges said while Parmar does state that the Directive Principles of State Policy embody the ideals of socialism , it is not open to HC in a PIL to direct the respondents to define “socialism”. They said any endeavour to define socialism would bring to one’s mind celebrated words of eminent Fabian socialist, C E M Joad that “socialism was like a hat which had lost its shape because too many people had worn it”.

Status of the Preamble

Note that the Preamble is not an integral part of the Indian Constitution, as decided by the Supreme court of India in the BeruBari case. In re Berubari Union case, the Supreme Court held that the Preamble is not a part of the Constitution. It is only “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, therefore “it has never been regarded as the source of any substantive power. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted if necessary. However, if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought from the objectives enshrined in the preamble and construction which fits the Preamble may be preferred.

Berubari case was relied in C. Golaknath v. State Of Punjab case and it was held that the preamble sets out the main objectives which the legislation is intended to achieve.

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Sanjeev Sabhlok

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