Mainstream, VOL LIII, No 8, February 14, 2015
This Is Treason, Mr Prime Minister
Monday 16 February 2015, by
An unimaginable crisis is gripping our country. Only a straightforward clear declaration by the Prime Minister can clear it. I am referring to the advertisement issued by Government of India’s I & B Ministry on Republic Day carrying in the background a watermark of the Preamble to the Constitution. But a devious interloping was done by publishing the Preamble as it was in 1950, thus deliberately omitting the words “Socialist” and “Secular” from the Preamble which are in the existing Preamble since 1976. This interpolation clearly shows that the BJP Ministers are trying to flaunt their status of being corporate-friendly and stooges of the RSS boss. I have no problem with how the Ministers present themselves. But the Indian Government would be guilty of a serious constitutional lapse and cannot be allowed to continue if by its word or action it conceals the mandate of the present Preamble containing Secularism and Socialism. In that context the Union Government would be an interloper because the Supreme Court has clearly held that the “Preamble is the key to the Constitution” and therefore the objectives of “Socialism” and “Secularism” must govern any programme and policy of the Government of India.
The perverted suggestion that “Socialism” and “Secularism” were not in the original Preamble and were incorporated in 1976, is ludicrous because the government has to follow the Constitution as it exists at any present time and not in the past. But then the RSS-tutored BJP Government is also telling us that it will not accept the invention of airplane in present times but only the “Udankhatola” thousands of years back—but perversely it would at the same time ridicule the suggestion that by the same logic Persia and the Arabs must have invented aeroplane because of the mention of the Flying Persian Carpet hundreds of years ago.
Another strained argument is that the word Socialism was not in the original Preamble. As I said, it is immaterial because the government is to see the present Preamble. But even this fatuous explanation shows ignorance of facts and the law. Thus it is recorded that at the time of framing the Constitution, it was clearly understood that in India we were setting up a Socialist State. This was brought out specifically by Dr Ambedkar in reply to Professor K.T. Shah who wanted ‘Socialism’ to be incorporated in the Constitution at the drafting stage. Dr Ambedkar, while refusing to do so for technical reasons, explained “that socialism as such was already included in the Directive Principles”. He explained thus: “What I would like to ask Prof 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.’”
As for the equally fatuous argument of the effect of incorporating Socialism in the Preamble in 1976 the Supreme Court pointed to the fallacy, as far back as 1983, thus: “Though the word ‘socialism’ was introduced into the Preamble by a late amendment of the Constitution that socialism has always been the goal is evident from the Directive Principles of State Policy. The amendment was only to emphasise the urgency.”
May I also remind the Prime Minister and his colleagues that as per Article 75(4) of the Constitution of India they took oath before entering upon their offices which requires them to swear in the name of God that they will bear true faith and allegiance to the Constitution of India as by law established. The oath covers the Preamble to the Constitution as existing at the time of taking oath and not to the original Preamble or Constitution as framed in 1950. Anyone suggesting to the contrary would be taking the ludicrous stand that the oath would not oblige the Ministers to follow the mandate of over 100 amendments to Constitution since the original Constitution of 1950. President Obama would have been horrified by this interpretation of the Union Ministers because it would mean the negation of the 14th Amendment to the US Constitution brought in almost a hundred years after the original Constitution (from which we have incorporated Article 14 of our Constitution, and which is the sheet-anchor of equality and non-discrimination for any citizen). If that was the interpretation Obama could never have been the President because the original US Constitution did not have the 14th Amendment which was one of the biggest weapons for ending racial discrimination in the USA.
The BJP leaders are speaking in contradictory terms. While Venkat Naidu says that the government is for Secularism in the Preamble, his colleague and a lawyer, Ravi Shankar Prasad, says the government wants to delete it. There can be no hedging on Secularism. In point of fact to even talk of deleting the word ‘Secularism’ from the Preamble would not only be sedition but also an impossible exercise. This is because the Supreme Court in Bommai’s case (1974) has categorically held that “Secularism is a part of the Basic Structure of the Constitution and the Preamble is a part of the provisions of the Constitution”.
In the Keshvanand Bharti case (1973) the Supreme Court has also held that the power to amend (Article 368 of the Constitution) does not enable Parliament to alter the basic structure of the framework of the Constitution. Thus Secularism, being a part of the basic structure of the Constitution, is non-amendable. In point of fact and the law Secularism, being the basic structure of the Constitution, must be held to have been incorporated automatically in the Preamble to the Constitution right from the beginning in 1950.
No Mr Prime Minister, mere denial and that too contradictory is not enough. A covert attempt to undermine the force and strength of the Preamble cannot wish away the fears in the country and especially amongst the minorities. A full-throated public repudiation in “a Man ki Baat” and TV spread by the Prime Minister that his government unequivocally and without any hesitation believes in and assuring the public that it will uphold and carry out the mandate of Secularism in the present existing Preamble of the Constitution of India is urgently required. Any wavering or inaction by the Prime Minister on this course either on account of his false sense of prestige or stubbornness would only divide the country into mutual suspicion and thus damage the progress of the nation. The public statements of the Shiv Sena, the ally of the BJP, reflects the danger of silence on the part of Prime Minister Modi. He must therefore speak out immediately because to speak is a moral duty and to keep silent a sin and thus unforgivable.
The author, a retired Chief Justice of the Delhi High Court, was the Chairperson of the Prime Minister’s high-level Committee on the Status of Muslims and the UN Special Rapporteur on Housing. A former President of the People’s Union for Civil Liberties (PUCL), he is a tireless champion of human rights. He can be contacted at e-mail: firstname.lastname@example.org/rsachar23 @bol.net.in