In the Supreme Court of India s2
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IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL WRIT JURISDICTION
WRIT PETITION (Civil) NO. ______OF 2007
IN THE MATTER OF:
1. GOOD GOVERNANCE INDIA FOUNDATION through its Trustee Sanjiv Kumar Agarwal, 25C/1 Belvedere Road Calcutta 700027.
2. SANJIV KUMAR AGARWAL 14/149 Golf Club Road, Calcutta 700033. ….Petitioners
Versus
1. UNION OF INDIA Through its Secretary Ministry of Law & Justice 4th Floor, A-Wing, Shastri Bhavan New Delhi - 110 001.
2. THE ELECTION COMMISSION OF INDIA Through the Chief Election Commissioner Nirvachan Sadan, Ashoka Road, New Delhi-110001. …..Respondents
WRIT PETITION UNDER ARTICLE 32 OF THE
CONSTITUTION OF INDIA
To
HON'BLE THE CHIEF JUSTICE OF INDIA
AND HIS HON'BLE COMPANION JUSTICES OF
THE SUPREME COURT OF INDIA 2
The humble petition of the Petitioner above-named
MOST RESPECTFULLY SHOWETH
1. This Writ Petition is filed in Public Interest 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. A copy of the Constitution (42nd
Amendment) Act, 1976 is annexed hereto and marked as
Annexure P-1.
As a consequence, the insertion of Section 29A(5) in the
Representation of the People Act, 1951 (RPA) by way of Section
6 of the Representation of the People (Amendment) Act, 1989 is
also being challenged herein, as it makes it incumbent upon
every political party seeking registration in India to pledge
allegiance to the socialist ideal. A copy of the Representation of
the People (Amendment) Act, 1989 is annexed hereto and
marked as Annexure P-2.
2. The First Petitioner is a Non Governmental Organization (NGO),
registered in India with branches in Delhi, Calcutta, Mumbai,
Bangalore and Hyderabad. The Petitioner is a forum for
communication and exchange amongst the service providers to
the Government & Public, the procurement decision makers and
other stakeholders in effective administration of the country with
respect to Urban Development and Housing. 3
3. The Second Petitioner resides in Calcutta (Kolkata) and is a
founder trustee of the First Petitioner. He is a public-spirited
individual concerned about the nation being limited to the
Socialist ideal by way of Constitutional Amendment and the
narrow framework thereby created for political parties to
function within.
4. A brief factual background to the instant petition is as follows:
(i) The Preamble to the Indian Constitution at the time of its
enactment read as follows:
“ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief,
faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
(ii) The Constituent Assembly of India took a considered
decision not to include within the Preamble any particular
political ideology apart from that of Democracy and a
Republican form of government. It is pertinent to note that
in fact Dr. B. R. Ambedkar specifically explained the 4
reason for the non-inclusion of the word, when it was
sought to be inserted into the preamble by another
member. He stated in the Assembly on 15th November,
1948 [CAD, Vol. VIII, pp.401-402] as follows :
“What should be the policy of the State, how the Society should be organized in its social and economic side are matters which must be decided by the people themselves according to time and circumstances. It cannot be laid down in the Constitution itself, because that is destroying democracy altogether. If you state in the Constitution that the social organization 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 organization in which they wish to live. It is perfectly possible today, for the majority people to hold that the socialist organization of society is better than the capitalist organization of society. But it would be perfectly possible for thinking people to devise some other form of social organization which might be better than the socialist organization 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.”
(iii) In the year 1976, the said word was inserted vide Sec. 2 of
the said Constitution (42nd Amendment) Act. The
statement of Objects and Reasons of the said Act inter alia
read as follows:
“ It is, therefore proposed, to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied 5
upon to frustrate socio-economic reforms for implementing the directive principles.
Thus now the preamble reads as follows:
“ WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE, social, economic and political;
LIBERTY of thought, expression, belief,
faith and worship;
EQUALITY of status and of opportunity;
and to promote among them all
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.”
(iv) It may be noted that vide the same Amendment Act,
Parliament inter alia also inserted certain significant
Directive Principles of State Policy, namely 39A, 43A,
48A and Part IV-A of the Constitution providing for
Fundamental Duties. Most significantly, Art. 31C was
amended to give Part IV precedence over Part III.
(v) In 1977, Sec. 4 of the Constitution (42nd Amendment) Act
came under challenge, and was struck down in the case of
Minerva Mills Vs. Union of India (1980) 3 SCC 625.
One of the significant dicta forming part of the ratio of
this decision was that goals set out in Part IV have to be 6
achieved without the abrogation of the means provided for
by Part III. It is in this sense that Parts III and IV together
constitute the core of our Constitution and combine to
form its conscience. Anything that destroys the harmony
between the two parts will ipso facto destroy an essential
element of the basic structure of our Constitution.
(vi) Pursuant to the insertion in the Preamble, the RPA was
amended by Act 1 of 1989 and Part IVA comprising
Section 29A was inserted, which dealt with the
Registration of Political Parties. Sub-section (5) of this
section reads as follows :
“ (5) The application under sub-section (1) shall be accompanied by a copy of the memorandum or rules and regulations of the association or body, by whatever name called, and such memorandum or rules and regulations shall contain a specific provision that the association or body shall bear true faith and allegiance to the Constitution of India as by law established, and to the principles of socialism, secularism and democracy, and would uphold the sovereignty, unity and integrity of India.”
Thus, every political party that seeks to register itself in
the country has to swear by the political and economic
ideology of socialism, even if its basis was wholly
antithetical to this view.
5. That being aggrieved by the impugned actions of the Respondent
in enacting the impugned amendments which abridge the basic
structure of the Constitution, the Petitioner is constrained to
invoke the jurisdiction of this Hon’ble Court under Article 32 of 7
the Constitution of India on the following amongst other grounds which are taken in the alternative and without prejudice to one another:-
GROUNDS
A) The Constitution (42nd Amendment) Act, 1976 is an
exercise by Parliament well in excess of the powers
enjoyed by it under Article 368 of the Constitution. The
Constituent power of Parliament arises solely from Article
368, and its scope is defined by the Constitution at its
inception. It is therefore not empowered to tamper with the
Preamble to the Constitution which lays down the glorious
ideals and aspirations for the nation. Therefore, it is
submitted that these Amendments fail the width test and
thereby violate the basic structure of the Constitution.
B) It is submitted that the Constitution (42nd Amendment Act)
1976 breaches the basic structure by amending the
Preamble, which is impermissible as it contained the ideals
and aspirations or the objects which the Constitution
makers intended to be realized by its enacting provisions.
It is a tautology to accept the proposition that the very
Preamble may be amended as and when deemed
convenient for the Government in power, thereby enabling
it to enact further provisions which would prospectively
adhere to the new Preamble. 8
C) The amendment of the Preamble has led to the creation of
a historical untruth. As stated by the very learned Gwyer
C.J. in the Privy Council in Bhola Prasad Vs. Emperor,
AIR 1942 FC 17:
“But we doubt very much whether a preamble retrospectively inserted in 1940 in an Act passed 25 years before can be looked at by the Court for the purpose of discovering what the true intention of the Legislature was at the earlier date. A Legislature can always enact that the law is, and shall be deemed always to have been, such and such; but that is a wholly different thing from imputing to dead and gone legislators a particular intention merely because their successors at the present day think that they might or ought to have had it.”
It is submitted that it is contrary to the Constitution for the
Legislature of a later day to impute inclinations to “We the
People” and consequently grant allowance for undefined
abuse, much like the Chancellor’s foot.
D) The founding fathers of the Constitution have specifically
ensured “LIBERTY of thought, expression, belief, faith
and worship” in the Preamble to the Constitution. Yet by
virtue of the 42nd Amendment, the insertion of the word
“Socialist” is wholly inconsistent with a Constitution that
encourages free thought, expression and belief. The
Socialist ideal emphasizes the transfer of property from
individual hands into that of the community. Clearly, a
directive within the Preamble seeking to bring about a
socialist structure is antithetical to all other thoughts,
expression and beliefs. This inconsistency can only be 9
cured by striking down the insertion of the word
“Socialist” in the Preamble via the 42nd Amendment,
which has caused a contradiction within the Preamble
itself.
E) As stated unanimously by this Hon'ble Court in I.R.
Coelho Vs. State of Tamil Nadu, (2007) 2 SCC 1, “the
power to amend cannot be equated with the power to
frame the Constitution”. This implies that the constituent
power of Parliament under Article 368 varies considerably
from that of the Constituent Assembly that created the
Constitution. It is submitted that the Constituent Assembly
in its wisdom had passed the Preamble after the debates on
every other provision had been concluded. It was clear that
the sentiments reflected in the Constitution found voice in
the carefully crafted Preamble. It is important to recall that
a member Shri Brajeshwar Prasad had moved an
amendment seeking the inclusion of the establishment of a
“Socialist Order” within the Preamble, and this was
rejected outright by the Assembly. It is submitted that it is
a violation of the basic structure of the Constitution to
alter in any way the original Preamble to the Constitution.
F) The 42nd Amendment attempts to create a particular
ideological basis for adherence to the Constitution, which
is against the principles of a multi-party democracy and 10
which breaches the unity and integrity of the nation,
consequently affecting its basic structure.
G) It is submitted that the spirit of democracy has always
been a basic feature of the Constitution. This has also been
the recent view of the Constitution Bench of this Hon’ble
Court in Kuldip Nayar Vs. Union of India, (2006) 7
SCC 1 at Para 332:
“ It has been authoritatively held, time and again by this Court that democracy is a basic feature of the Constitution of India, one that is not amenable to the power of amendment of Parliament under the Constitution. It has also been the consistent view of this Court that the edifice of democracy in this country rests on a system of free and fair elections. These principles are discernible not only from the Preamble, which has always been considered as part of the Constitution, but also from its various provisions.”
The Court also noted the following observations in Indira
Gandhi Vs. Raj Narain, 1975 Supp SCC 1 at Paragraph
198 with approval:
“ This Court in the case of Kesavananda Bharati held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution. All the seven Judges who constituted the majority were also agreed that democratic set-up was part of the basic structure of the Constitution. Democracy postulates that there should be periodical elections, so that people may be in a position either to re-elect the old representatives or, if they so choose, to change the representatives and elect in their place other representatives. Democracy further contemplates that the elections should be free and fair, so that the voters may be in a position to vote for candidates of their choice. 11
Democracy can indeed function only upon the faith that elections are free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular will both in reality and form and are not mere rituals calculated to generate illusion of deference to mass opinion.”
Pursuant to the Representation of the People (Amendment)
Act, 1989, S.29A was inserted in the statute which called
for every political party to state in its memorandum that it
would adhere to the principles of the Preamble (including
Socialism), failing which it could not be registered. It is
submitted that 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. In the words of this Hon’ble Court, such steps
by which non-socialist political parties are excluded are
“mere rituals calculated to generate the illusion of
deference to mass opinion”.
H) The basic features of the Constitution are culled out from
the body of the Constitution and reflect its essence through
the provisions. As far as the Preamble is concerned, every
concept finding mention therein may be traced to one or
more provisions of the Constitution except that of
Socialism. While ‘social justice’ as enunciated in Part IV
of the Constitution may be easily confused with socialism,
the distinctions between the two concepts are stark.
Socialism calls for the abolition of private property and the 12
vesting of all ownership in the community. The Indian
system is far removed from this proclaimed goal
enunciated in the Preamble. As stated in Excel Wear Vs.
Union of India, (1978) 4 SCC 224, socialism cannot be
truly applied in the Indian context, and as it has no
Constitutional or legal effect or sanction, Section 2(a) of
the 42nd Amendment ought to be struck down.
I) It is submitted that as held by this Hon’ble Court in
Minerva Mills and as followed in I.R.Coelho, the goals set
out in Part IV of the Constitution have to be achieved
without the abrogation of the means provided for by Part
III of the Constitution. Anything that destroys the balance
between the two parts will ipso facto destroy an essential
element of the basic structure of our Constitution. The
inclusion of the word “Socialist”, which is pursuant to
Articles 38 and 39 of the Constitution, has been
interpreted by this Hon’ble Court as placing limits on the
rights enshrined in Part III, and therefore, the said
insertion destroys the balance between the Parts III and IV
of the Constitution.
J) The evinced intention of the 42nd Amendment is “to make
the directive principles more comprehensive and give
them precedence over those fundamental rights which
have been allowed to be relied upon to frustrate socio-
economic reforms”. The judgments of this Hon’ble Court 13
in Minerva Mills and in I.R.Coelho have clearly stated that
any such precedence given to the Directive Principles over
the Fundamental Rights is per se unconstitutional. As this
Amendment was inserted pursuant to an unconstitutional
intent, it must be struck down.
K) As held in I.R.Coelho, Article 19 forms a part of the basic
structure of the Constitution. As a result, any amendment
to the Constitution which seeks to alter or limit the
freedoms secured therein would be a breach of the basic
structure. It is submitted that the inclusion of the
“Socialist” ideal in the Preamble is clearly such an event,
as it attempts to limit the freedom of thought and
expression to only that which is socialist.
L) It is submitted that Section 29A of the RPA violates
Article 19(1)(a) and 19(1)(c) of the Constitution as the
compulsory allegiance to socialism sought by that section
of political parties is not a reasonable restriction as
provided for under the Constitution in terms of Articles
19(2) and 19(4).
M) It is also submitted that Section 29A of the RPA breaches
Article 14 of the Constitution in view of the lack of an
intelligible differentia between those parties who have
allegiance to the socialist ideal and those who do not. 14
6. That the Petitioner has not filed any other or similar Petition
before this or any other court in respect of the issues raised in the
present Writ Petition.
PRAYER
It is therefore prayed that this Hon’ble Court may be pleased to:
a) Grant any appropriate writ striking down Section 2(a) of the
Constitution (42nd Amendment) Act, 1976 as being in violation
of the basic structure of the Constitution; b) Consequently strike down Section 29A(5) of the Representation
of the People Act, 1951 to the extent it mandates adherence to
the policy of socialism, thereby being a violation of Articles 14,
19(1)(a) and 19 (1)(c) of the Constitution. c) In the alternative, derecognize all political parties in the country
who have wrongly sworn allegiance to the socialist ideal despite
their contrary objectives as evident from Manifestoes, Political
speeches, Common Minimum Programmes and other such
documents. d) Pass such other and further orders as this Court may deem fit and
proper in the facts and circumstances of this case.
AND FOR THIS ACT OF KINDNESS, THE PETITIONER AS IN
DUTY BOUND SHALL EVER PRAY.
Drawn by: Filed by: 15
GOPAL SANKARANARAYANAN & NINAD LAUD Advocates, Supreme Court of India
Drawn On: 03.11.2007 (Advocate for the Petitioners) Filed On: ___.11.2007 16
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (c) No. ______OF 2007
UNDER ARTICLE 32 OF THE CONSTITUTION OF INDIA
IN THE MATTER OF:
Good Governance India Foundation & Anr., …PETITIONERS
Versus
Union of India & Anr., …RESPONDENTS
I, Sanjiv Kumar Agarwal, s/o. Late J.P.Agarwal, aged about 43 years, r/o 14/149, Golf Club Road, Calcutta - 700 033, do hereby solemnly affirm and declare as under:
1. That I am the Second Petitioner in the above mentioned matter,
and am also the Founder-Trustee of the First Petitioner and as
such am fully conversant with the facts and circumstances of the
case, and hence, competent to swear by way of the present
Affidavit.
2. I state that I have read the contents of the accompanying
Synopsis & List of Dates at pages __ to ___, the Writ Petition at
paragraphs ___ to ___ and the Application for Stay at pages __
to __, and I state that the facts contained therein are true and
correct to the best of my knowledge and belief. 17
3. I state that the documents annexed to the present Application are
true copies of the originals.
DEPONENT
VERIFICATION
I, the Deponent above-named, do hereby verify that the contents of my above Affidavit are true to the best of my knowledge and belief based on record. I further state that nothing material has been concealed therefrom.
Verified at New Delhi on this the day of , 2007
DEPONENT