Wednesday, July 14, 2010

"Socialism" in Preamble: another perspective

Guest Blogger: Kaushik Krishnan

The Supreme Court recently dismissed a petition filed by an NGO arguing for the removal of the word `socialist' from the Constitution's Preamble. The Court's reasoning was simply that since no political party has objected to it, and that the Election Commission has not yet had an occasion to derecognise a party that refuses to reaffirm its commitment to `socialism', there really is no cause, other than the academic importance of the question, that merits the hearing of this case.

As background, the whole question of the Election Commission derecognising political parties comes from Section 29A(5) of the Representation of People Act, 1951 which requires that each political party have a memorandum of association. This memorandum must include a specific provision that the `body shall bear true faith ... to the principles of socialism, secularism and democracy'. Without this, a body cannot be recognised as a political party.

V.Venkatesan wrote that through this dismissal, the Court has unwittingly given its approval to political parties to lie to the Election Commission regarding their commitment to the cause. Second, he says that it's important for academic questions to be resolved while they are still academic.

I wouldn't go that far on either claim. Regarding the Court's implicit approval, all the Court has said is that no political party has come out in opposition to the inclusion of `socialism' in our Constitution. Does this statement of fact, necessarily imply the Court's indirect declaration that political parties actually do not like socialism? Hardly. For starters, I'm sure that no political party will take lightly to being described as not `socialist'. Despite dictionaries defining the term as `a political theory advocating state ownership of industry' (Wordnet), the Indian meaning has become so diluted and ambiguous that political parties probably find it useful to latch on to a vague and overused term.

Incidentally, the Supreme Court shares a large portion of the blame for the way in which socialism has bloated in India. Its judgments have reaffirmed on many occasions that socialism aims to `end poverty, ignorance, disease and inequality of opportunity' (Secretary HSEB v. Suresh) and that it `aims at providing all opportunities for pursuing the [sic] educational activity' (DS Nakar v. Union of India). I'd like to see any political party step up and say it doesn't believe in that.

In fact, Anantrao Joshi moved a proposal in 2005 to amend the Representation of People Act, 1951 to remove the requirement that political parties adhere to the socialist requirement. In his speech, Joshi gave eight good reasons for its deletion. (All this comes from Shubhankar Dam's informative two part article on the topic in the Daily News, Pakistan). Needless to say, nothing came of it.

Second, on the question of academic debates, I find the Court's reasoning to be spot on. When none of the groups that could be affected by the term's presence have objected to it, why fix it? Yes, there may be many citizens who have strong reservations to the presence of the term in our Preamble (myself included), but it doesn't really legally affect our lives. Despite the frequent Supreme Court reaffirmations that socialism is an important guiding principle for Indian governance, the only law in India that actually requires some group to pay heed to this requirement seems to the Representation of People Act in Section 29.

Sure, we can also say that any government in power has to abide by `socialism', but has that really happened in the last decade and a half? It depends on how you look at it. If we take socialism, as it is properly understood, India is far from socialist today. If we take it, as the Supreme Court and political parties choose to understand it, it can at least be argued that India may be socialist.

This brings me to the third, and most important point. There may come a time when our political institutions attain the sufficient maturity that is required to concede openly that we are not really socialist. When that time comes, the body that should make this declaration should be the Parliament and not be the Supreme Court. It should not be the function of this Court to decide the content of our Constitution to the extent that it declare a word in our preamble to be void. It's easy for proponents of the judicial review and the basic structure theory to argue that the Court can do this.

The more pertinent and difficult question is whether the Court should. The basic structure theory was evolved at a time when the Court had the political and institutional credibility to make such a declaration. Since then, with each subsequent intrusion into the domain of law making, the Court has undermined that credibility. Today, it is overworked, understaffed, mismanaged and under constant criticism. The Court seems to have realised that the depth of its power exists only as long as such power is used sparingly and in the most deserving circumstances.

To use its power of review to entertain a question such as this is an unnecessary measure by the Court. Its restraint and respect for institutions of democracy is, in my opinion, noteworthy. I only hope that this is a sign of the beginning of a more mature and responsible judiciary.

(Kaushik Krishnan recently graduated from NUJS, Kolkata)
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