A lethal touch to the ‘Preamble’ of India’s Constitution

Amita Singh

The politics of our country is on a test drive of majoritarianism being ferociously provoked as a cause for achieving national unity. In consequence and eventually, everyone starts feeling insecure and the state appropriates a role for wartime preparedness against the heightened environment of insecurity.

Can people in top public spaces be excused of their deadly contributions to aggravating turbulence in national governance? Most recently, such a disproportionate use of their right to ‘freedom of expression’ in firing illogical and perilous cannons against modern India’s security heritage, the Constitution is disturbing if not shocking. The Chief Justice of a High Court of the country’s most sensitive state and a seasoned bureaucrat turned politician lead the chorus against the ‘Preamble’. It is doubtless that the current government’s rise to power was on a radical Hindu card and for that reason lashing the snaky wand of ‘Hindu Rashtra’ to divert people from looking into many of its other ethical and legal lapses in the Parliament, appears to be part of a larger strategic design. The Chief Justice of Jammu & Kashmir High Court Justice Pankaj Mithal who wants Preamble to rewrite ‘Secular India’ as a “Spiritual Republic of India” followed by an experienced bureaucrat turned BJP politician K.J. Alphons, who introduced a private members’ Constitution (Amendment) Bill, 2021 to substitute ‘socialism’ to ‘equitable’. 

In both cases, demands are made to confuse state authorities from more concrete and clearer tools of governance to a fuzzy and mystic garden of free atoms. An insight into an epistemological history of either ‘spiritualism’ or of ‘equity (equitable)’ suggests that despite massive intellectual debates, court battles and wars, these two words or metaphors have never reached any definitional agreement. Moreover, these suggested changes in the ‘Preamble’ is not an end of a benignly appearing demand but a grinding wheel of anarchy that this nation would be left to suffer as even on a minimal scale it would need massive and far-reaching changes in all other Chapters from Citizenship, Fundamental Rights, Directive Principles of State Policy, Fundamental Duties, Union and State relations, Parliament, Local Governance, Election and Representation laws, Chapter XII of Finance, Property, Contracts and Suits and Chapter XX of Amendment Procedure given in the Constitution. Are people ready to take this fatal dive into a surreptitious sea of self-destruction that our neighbours are entangled in and struggling with?

The Preamble is the life and blood of our Constitution and constitutes its basic structure as explained comprehensively in the 42nd Amendment Act. It is the opening statement of the Constitution but was the last to be brought together in the Constituent Assembly as a gist or a spirit of how the Republic would be governed. There are many instances when members of the Constituent Assembly rose up to express, what came in news as ‘poetic heights’ such as Pundit Thakur Das Bhargav’s unambiguous utterance in the Assembly that, ‘the Preamble is the most precious part of the Constitution. It is the soul of the Constitution….It is a key to the Constitution. It is a jewel set in the Constitution.’ Yet, despite mammoth support, Nehru and Ambedkar could not insert secularism in the Preamble. Three decades later it was left to Indira Gandhi to complete that task which had become indispensable for a nation that also carried with it religious brigades and personal laws which consistently challenged the state to resolve religious inconsistencies. It became important that the state remain distanced and separated from the sphere of religion.

Secularism keeps belief systems of the state separated from the belief systems of private and personal or of the faith practised by communities. The public school systems should not be driven by religion and should take to religious teaching in books and in classrooms, the coexistence of all faiths and belief systems. As Sardar Patel had expressed in one of his speeches on 5 June 1949 that “…a healthy secular outlook is the foundation of true democracy.” Nehru had, however, expressed to Andre Malaurx during the freedom struggle that his biggest challenge is to “.. to create a secular state in a religious society”. Everyone knows the circumstances in which the Union of India was created through the stupendous diplomacy of Sardar Patel and timely action by Indian forces. Many compromises were made to win freedom from the British and the biggest was to accept the idea of Jinnah’s Pakistan and accommodate 566 Princely states. Yet while this was being done Patel was also taking stringent action against the banned RSS outfit led by Golwalker to accept in writing his allegiance to the national flag and the Constitution of India which he was not ready to give. The most obvious expression to keep religious brigades at bay or out of the governance of the country was to accept ‘secularism’ as a basic feature of our country.

In contrast to this enduring ideal of ‘secularism’, the CJ Mithal suggests a precarious idea of its replacement by ‘spirituality’. Ironically, the judge seems to be ignorant about the vast cross-cultural analytical literature on the subject. There is no single, widely agreed-upon definition of spirituality. A wide-ranging field of definitions emerges from the oldest scripture Vedas to Mesopotamian, Judaism, Islamic and Catholic definitions of spirituality. The word is open-ended and becomes more obscure when attempts are made to define it within a particular faith but it rarely gets attention outside any faith. This word glows up every faithful and connects them to their universal ideal and raises the individual from gross worldly existence to ‘beyond body experiences’.An interesting historical review of ‘Spirituality’ by Walter Principe in his 1983 work, ‘Toward Defining Spirituality’ found the term portentously undefinable. As he expressed that even after accumulating more than 100 definitions one is probably further away from its true meaning. However, the suggested ‘Spiritual Republic’ by the Judge would have to choose a historical context, a religious ideal to connect to the Supreme in a realm of the spirit or the transcendent. This comes into play even though spirituality differs from religion because human spirituality is composed of relationships, values and life purposes that religious doctrines inscribe in human brains from birth. Spirituality is truly practised by saints who can renounce the world and look down on worldly pleasures while giving away whatever they possess. There are many saints in every religion and to say that spirituality can still become a unifying bond practised by the state will only bring back the pre-renaissance or pre-Bhakti Yuga period of persecution of innocent citizens at the altar of Churches, Mosques or Temples. God forbid if that’s the future some people are imagining for a progressively advancing free Indian nation.

Similarly, ‘equitable’ is again fraught with many undefinable questions. Interestingly, the language of the law is more meaningful than a legal document itself. ‘Equitable’ is a word within which is embedded a notion of goodness, fairness, justice, equality and a life of dignity but all these embedded notions are further defined in their own ways which make enforcement of ‘equitable’ impossible. Socialism promotes equitable distribution in the context of a society that has a definable database for distribution. Why are such unnecessary terminological conflicts being created without proper homework on legal semantics? In legal language, the semantic domain provides a most appropriate meaning to issues in law as these abstract words by their very nature are not static and can never be defined the way they are being suggested for the Preamble. Alphons missed the point! 

The Keshavananda Bharati v. State of Kerala 1973 unambiguously explains that the ‘Constitution is not a document for fastidious dialectics but the means of ordering the life of people’ and its core values are various facets of the spirit that pervades our Constitution in different scenarios. Justice Holmes in Abrams v United States (250 US 616) made an apt comment on such controversies, ‘A Constitution is an experiment as all life is an experiment.’ In Nakara v. Union of India, the Supreme Court settled the fact that the basic framework of Socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This primarily envisages economic equality and equitable distribution of income. So where is the perceived need for replacement of ‘socialism’ by ‘equitable’?

The politics of our country is on a test drive of majoritarianism being ferociously provoked as a cause for achieving national unity. In consequence and eventually, everyone starts feeling insecure and the state appropriates a role for wartime preparedness against the heightened environment of insecurity. Much can be read in the words of Felix Frankfurter in his tribute to Justice Holmes, “Whether the Constitution is treated primarily as a text for interpretation or as an instrument of Government may make all the difference in the word”. The private member’s Amendment Bill is explainable as a distracting design from more important matters which need our attention but CJ Mithal is merely playing a good host.

Read at: Thedailyguardian | Opinion | A lethal touch to the ‘Preamble’ of India’s Constitution | Amita Singh | 9 Dec 2021

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About the Author:

Amita Singh

Prof Amita Singh is president of Network Asia Pacific Disaster Research Group (NDRG), Senior Fellow at the Institute of Social Sciences (ISS), and former Professor of Administrative Reforms and Emergency Governance at JNU.

Youtube Video: Special Lecture by Prof Amita Singh on Administrative Reforms towards AtmaNirbhar Bharat