Secularism, socialism are part of the Constitution’s basic structure and an amendment to the Preamble will not change that

SanjayHegdeIndia’s constitution, crafted to serve as a roadmap for a nascent democracy, was born at a time when the horrors of the Second World War and the accompanying Jewish holocaust had given way to the drab and earnest socialism of post-war Britain’s labour government. The horrors of the Stalinist gulags were yet to be revealed and the socialistic belief that a man could, by society and by law, be compelled to love his neighbour, was yet to be shattered by Thatcherism. India itself had emerged bisected along communal lines, but was home to a huge population of minorities that had rejected the two-nation theory. Violence during Partition had cost more than a million lives. In an uncertain hour was born that tryst with destiny, and it needed an assembly of wise men to craft a constitution for a new republic where secularism and socialism were woven into the constitutional fabric.

On November 26, 1949, the Constituent Assembly, after nearly two years of labour, built over the skeletal framework of the Government of India Act of 1935. It was fleshed out with fundamental rights, directive principles, and other provisions to produce a living and breathing constitution, among the world’s longest. The document now needed a face – a mission statement to tell posterity about the kind of republic into which the constitution makers hoped the nation would evolve to.

The original Preamble read:


When we carefully read and do not merely scan it, it is apparent that the Preamble makes no reference to God. Unlike the United States, which pledged to make “one nation under God”, the Constituent Assembly “solemnly affirmed” its resolve without seeking the munificence of any deity or supernatural power of any denomination. A solemn affirmation of the people’s resolve was sufficient to assure to its all its citizens “social, economic and political JUSTICE and EQUALITY of status and of opportunity”. A reader may well recognise in these phrases, a nascent republic intent on socialism. When the preamble further promised “LIBERTY, of thought, expression, belief, faith and worship”, it provided for the atheist, theist, and the agnostic alike. Secularism as a guiding principle was writ large.

In the Constituent Assembly, on November 15, 1949, B.R. Ambedkar, while replying to an amendment, said,

B.R.AmbedkarSir,…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.

The second reason is that the amendment is purely superfluous. My Honourable friend, Prof. Shah, does not seem to have taken into account the fact that apart from the Fundamental Rights, which we have embodied in the Constitution, we have also introduced other sections which deal with directive principles of state policy. If my honourable friend were to read the Articles contained in Part IV, he will find that both the Legislature as well as the Executive have been placed by this Constitution under certain definite obligations as to the form of their policy. Now, to read only Article 31, which deals with this matter: It says:

“The State shall, in particular, direct its policy towards securing –

(i) that the citizens, men and women equally, have the right to an adequate means of livelihood;

(ii) that the ownership and control of the material resources of the community are so distributed as best to subserve the common good;

(iii) that the operation of the economic system does not result in the concentration of wealth and means of production to the common detriment;

(iv) that there is equal pay for equal work for both men and women;….”

There are some other items more or less in the same strain. What I would like to ask Professor Shah is this: 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…”

It is thus certain that Ambedkar, while discussing the economic philosophy of the Constitution, felt that what was already implicit in the constitution, need not be reiterated. He took it for granted that the body of the constitution already had its guiding principles, including socialism and secularism, woven into the fabric.

It is wrong to think that it was only with the Forty-Second Amendment, which inserted the words “socialist” and “secular” into the Preamble, that these alien concepts were brought into the Constitution. The amendment only made explicit in the preamble that which was already implicit in the body. The sovereign democratic republic of India of November 26, 1949, did not on January 3, 1977, during the Emergency, morph into a secular socialist republic. Even today, merely because some government advertisements have chosen to stick to the original version of 1949, the Preamble and the Constitution have not ceased to be secular or socialist. Nor will the Constitution itself cease to be secular or socialist even if by an amendment these words are dropped again at a later date. Secularism and socialism are woven into the constitutional fabric and any effort to eradicate these principles will fall afoul of the basic structure doctrine, which is used to invalidate constitutional amendments.

Shanti Bhushan (left) with Prashant Bhushan and Atal Behari Vajpayee in 1984. Photo courtesy: Kartik Seth, an advocate practising at the Supreme Court of India.

Shanti Bhushan (left) with Prashant Bhushan and Atal Behari Vajpayee in 1984. Photo courtesy: Kartik Seth, an advocate practising at the Supreme Court of India.

After the Emergency, the Forty-fourth Amendment passed by the Janata government undid most of the damage of the Forty-second Amendment. Even this amendment however, chose to preserve the addition of secular and socialist to the Preamble. Shanti Bhushan was the Union Law Minister who piloted the amendment and among his colleagues in the Cabinet were L.K. Advani and A.B. Vajpayee.

Their inheritors today cannot presume to forget constitutional history. They cannot assume that constitutional values are just meaningless words to be redacted from a mere book. Secularism and socialism are inherent in the basic structure of the national book, and are beyond the power of transient parliamentary majorities to efface or abridge. “Insaan ko insaan se ho bhaichara” is inherent in the secular and socialist framework of rights and directive principles, which have given meaning to the Constitution all these years.

Sanjay Hegde is an advocate practicing at the Supreme Court of India.


Article 370 – Understand the historical context and the text before you talk about repeal

RichaKaur_myLawPrime Minister Narendra Modi revived the debate over Article 370 of the Constitution of India during his election campaign. A brief tour of the factors that influenced the drafting of that constitutional provision and the interpretation of its text will provide better context to the debate that has followed Mr. Modi’s remarks. These factors include some of the events that transpired between the departure of the British from the subcontinent in August 1947 and the adoption of the Constitution of Jammu and Kashmir in January 1957.

The events that should inform any discussion about Article 370

Out of the 562 princely states in India, Kashmir was among those that the British did not rule directly. The British government transferred the state forever to Maharaja Gulab Singh under the Treaty of Amritsar, 1846, and fixed a nominal annual payment to protect his territories from external enemies. A key development in the history of Jammu and Kashmir in the twentieth century is the crystallisation of the popular opposition to the Maharaja’s rule through the Jammu and Kashmir National Conference, led by Sheikh Abdullah. With India’s independence, Maharaja Hari Singh, the ruler of Kashmir in 1947, had three options: to remain independent, merge with India, or merge with Pakistan. Pressing the Maharaja, who initially wanted to remain independent, to accede to India, Prime Minister Jawaharlal Nehru, in one of his letters said,

It is of the most vital importance that Kashmir should remain in the Indian Union. But however much we may want this, it cannot be done ultimately except through the goodwill of the mass of the population. Even if military forces held Kashmir for a while, a later consequence might be a strong reaction against this. Essentially, therefore, this is a problem of psychological approach to the mass of the people and of making them feel being in the Indian Union will benefit them. If the average Muslim feels that he has no safe or secure place in the Union, then obviously he will look elsewhere. Our basic policy must keep this in view, or else, we fail.

From left to right – Hari Singh, Nehru, and Sheikh Abdullah.

When Hari Singh declared Jammu and Kashmir independent in 1947, Pakistan immediately launched a guerrilla war to free the region, which had a majority of Muslims, from Hindu rule. The Maharaja, realising his inability to protect his territory, requested the Indian government for help. The Indian government insisted that Kashmir accede to India before it would send its army. The Maharaja agreed to the same and the Indian government and the Maharaja signed the accession treaty (“the Instrument”) on October 26, 1947.

Importantly, Clause 5 of the Instrument said that it could not be altered without the state’s consent. Clause 7 specifically protected the state’s right to ratify the application of any future constitution of India in its territory. It read:

Nothing in this Instrument shall be deemed to commit me in any way to acceptance of any future Constitution of India or fetter my discretion to enter into arrangements with the Government of India under any such future Constitution.”

The Instrument did not result in the merger of Kashmir – governed by its own Constitution of 1939 – into India and only created a temporary settlement under which India’s government would look after the subjects of defence, foreign affairs, and communication while Kashmir would have its own constitution, flag, and Prime Minister. In a broadcast on November 2, 1947, Nehru spoke of the temporary nature of the Instrument.

“…Both the Kashmir government and the National Conference pressed us to accept this accession and to send troops by air, but made condition that the accession would have to be considered by the people of Kashmir later when the peace and order were established…

AdvancedProfessionalCertificationinCorporateLawPractice_apcclpSome of the other important events that influenced the drafting of Article 370 were the political turmoil in Jammu and Kashmir, the United Nations resolutions calling for a plebiscite in the state on the issue of accession to India, the governments of both India and Pakistan establishing political control over the territories of Kashmir under their control, and the representatives of all the other states choosing, in India’s Constituent Assembly, to not assert their right to separate constitutions.

Jammu and Kashmir, unlike the other princely states, was not willing to accept the Constitution of India and was adamant on acting only on the basis of the terms of Instrument, specifically Clause 7. Gopalaswami Ayyangar, a Minister without portfolio in Nehru’s government, moved the Bill for Article 370 in India’s Constituent Assembly. He made the following argument.

Till India became a Republic, the relationship of all the States with the Government of India was based on the Instrument of Accession. In the case of other Indian States, the Instruments of Accession will be a thing of the past in the new Constitution; the States have been integrated with the Federal Republic in such a manner that they do not have to accede or execute a document of accession for becoming units of the Republic. It would not be so in the case of Kashmir since that particular State is not yet ripe for this kind of integration due to special conditions prevailing in Kashmir. In the first place there has been a war going on within the limits of Jammu and Kashmir State — part of the State is still in the hands of the enemies, and in the second place, the Government of India have committed themselves to the people of Kashmir in certain respects. They have committed themselves to the position that an opportunity will be given to the people of the State to decide for themselves the nature of their Constitution.

Sardar Patel, the then Minister of States in India, declared in the Constituent Assembly,

In view of the special problem with which the Jammu and Kashmir Government is faced, we have made special provisions for the continuance of the State with the Union on the existing basis.

Soon after India adopted its constitution, the National Conference’s leader Sheikh Abdullah — the interim Prime Minister of the state and the most popular leader of the state’s Muslims —called for independence from India. The government of India dismissed his government and placed him in preventive detention. Seven years after the Constitution of India was adopted, the Constitution of Jammu and Kashmir came into full force. Among its 158 sections is Section 3, which clearly states that, “The State of Jammu and Kashmir is and shall be an integral part of the Union of India” and is not amenable to change even using the amending provisions of that constitution.

Apart from these events, we can also learn much from the text of Article 370, including the use of the word “temporary” in its title.

Lessons from the text of Article 370

Mr. Ayyangar had said in the Constituent Assembly that Article 370 is labeled a ‘temporary’ provision in order to keep the door open for the day when the state of Jammu and Kashmir would merge with India and fully accept the Constitution of India.


Sub-clause (a) of Clause (1) states that Article 238, which regulated the relationship between the Union and the princely states before the Seventh Amendment repealed it in 1956, shall not apply in relation to Jammu and Kashmir. Sub-clause (b) provides that the Parliament can make laws for the state of Jammu and Kashmir on matters in the Union and the Concurrent Lists (in Schedule Seven of the Constitution of India) only if the President (after consultation with the government of the state) declares that such a subject fits the description of the matters of defence, communication, finance, and external affairs. Sub-clauses (c) and (d) make it clear that at the time the Constitution came into effect, only Article 1 – which defines the components of the Union of India – and Article 370 itself, applied to the state. Other constitutional provisions can only be made applicable to the state with the agreement of the state government.

Therefore, even though Jammu and Kashmir is a constituent state of the Union of India under Schedule 1 of the Constitution of India, it is exempt from many provisions of the Constitution and is even allowed to have a separate constitution. With Union laws – other than those governing the subjects of defence, external affairs, finance, and communications – not applicable to the state without the permission of the government of Jammu and Kashmir, the state’s residents live under a separate set of laws, including those related to citizenship, ownership of property, and fundamental rights. The provisions of Article 370 and the other exceptions in the Constitution regarding the state have created a unique relationship between the Union government and the state. As MP Jain points out, “the two characteristic features of this special relationship are, (1) the State has much greater measure of autonomy and power than enjoyed by the other States and (2) Centre’s jurisdiction within the State is more limited than what it has with respect to other States.

Today, a number of provisions of the Constitution of India stand extended to the state of Jammu and Kashmir. Important amongst these are Article 356, which deals with the imposition of President’s rule in a state and the jurisdictions of the Supreme Court, the Election Commission, and the Comptroller and Auditor General. There is however, a vast area that still remains under the exclusive jurisdiction of the state government. The Indian Penal Code, 1860, the Prevention of Corruption Act, 1988, the Religious Institutions (Prevention of Misuse) Act, 1988, and the Delhi Special Police Establishment Act, 1946 are some crucial Union laws that are not at all applicable to the state. The Protection of Human Rights Act, 1993, the Commissions of Inquiry Act, 1952, the Unlawful Activities (Prevention) Act, 1967, and the Representation of the People Act, 1951 are only partly applicable.

Can Article 370 be amended under the provisions of the Constitution?

Article370(2)and(3)_annotatedThe answer is no. Article 368, which contains the provisions governing the amendment of the Constitution, applies to all the other states of India except Kashmir. In relation to Kashmir, a proviso has been added to Article 368 by the Constitution (Application to Jammu and Kashmir) Order, 1954, which says that no constitutional amendment “shall have effect in relation to the State of Jammu and Kashmir” unless applied by an order of the President of India, under Article 370. Clause 3 of Article 370 states that the President can issue a notification to cease the operation of Article 370 or to restrict it operation only on the recommendation of the Constituent Assembly of the state.

Thus any modification or deletion of this Article requires the recommendation of the state’s Constituent Assembly — an improbable condition, given that the Constituent Assembly of Jammu and Kashmir was dissolved in November 1957.

A solution that has been suggested to this obstacle is an amendment of the Constitution of India to remove the requirement that the recommendation of the Constituent Assembly is necessary to remove the Article. But even such an amendment under Article 368 requires issuance of a Presidential order under Article 370, which in turn will require the state government’s concurrence by the President under Clause (1)(d) of the current provision.

The consequences of repeal

Given that Article 370 represents Jammu and Kashmir’s “unique relationship” with India, a probable consequence of its repeal would be the undermining of the position of the state in relation to India. A.G. Noorani has argued that Article 1, which lists the territories of India, is applicable in relation to the state of Jammu and Kashmir only through Article 370 and that, therefore, the extinction of Article 370 would mean the exclusion of Jammu and Kashmir from the constitutionally listed territories of the Union of India. If, as he says, the application of Article 1 to Jammu and Kashmir is subservient to Article 370, the abrogation of Article 370 would sever the constitutional link between India and Jammu and Kashmir and the Indian constitution will automatically cease to be applicable to Jammu and Kashmir. As the former Chief Justice of the Jammu and Kashmir High Court, BA Khan argued last year, “if Article 370 is abrogated, then technically and legally, the foundation of Jammu and Kashmir’s accession to India would cease to exist.”

(Richa Kaur is part of the faculty on

(The article has been amended to reflect the fact that the proviso to Article 368 for the purpose of Jammu and Kashmir, has been added by the Constitution (Application to Jammu and Kashmir) Order, 1954. – Ed.)