Shanti Bhushan Didn't Remove 'Secular' & 'Socialist' From Preamble Because Constitution Is Obviously Secular & Socialist: Justice Nariman

Former Supreme Court judge Rohinton Nariman on Wednesday said that when Shanti Bhushan was Law Minister after the Emergency, he chose not to remove the words “secular” and “socialist” that had been added to the Preamble by the 42nd Amendment.

Justice Nariman delivered the Shanti Bhushan Centenary Memorial Lecture, recounting the legal and political career of senior advocate and politician Shanti Bhushan, who served as India's Law Minister in the Janata Party government.

The words “secular” and “socialist” were added in 1976 by the Indira Gandhi Government through the 42^nd Amendment.

Justice Nariman explained that while Shanti Bhushan, as Law Minister in the Janata Party government, undid many changes to the Constitution, he chose not to remove these two words when he piloted the 43rd and 44th Amendments. Justice Nariman explained that this was because the Constitution itself is secular and socialist in nature.

“When it came to 42nd amendment other parts, fortunately Shanti Bhushan's sagacity kept 'secular' and 'socialist', which were two words that were added to the Preamble by the Amendment. He didn't even attempt to get rid of this because it is obvious that this is a secular Constitution and the Directive Principles of State Policy Chapter shows that it is a socialist Constitution”, Justice Nariman said.

Nariman said Bhushan had instead sought to define “secular” as equal respect for all religions and “socialist” as lifting up the downtrodden, but these definitions were not approved by the Rajya Sabha, which then had a Congress majority.

Nariman also highlighted Bhushan's actions during the Janata government to reverse several provisions introduced by the 42nd Amendment during the Emergency. He said Bhushan succeeded in deleting Article 31D on “anti-national activities”, restoring earlier positions relating to disqualification of MPs and MLAs, restoring direct Supreme Court jurisdiction over challenges to the election of the President and Vice President, strengthening the safeguards governing declaration of Emergency, and ensuring that Articles 20 and 21 could not be suspended during Emergency.

Bhushan also moved the Representation of the People Act and MISA out of the Ninth Schedule and removed the right to property as a fundamental right, he noted. According to Nariman, Bhushan achieved 75% of what he set out to do.

Nariman also recalled Bhushan's refusal to retract his public statement that as many as eight Chief Justices are corrupt. He said Bhushan maintained his stance before the court.

“He was a man of tremendous commitment, a man who believed in what he said and who stood up for what he said. He said that he may be right or he may be wrong but as many as eight Chief Justices are corrupt. And he stood up to it. When he was asked in the court, 'do you retract it?', he said, 'No, I am here.' He had this kind of commanding presence even in court. He said, 'alright, if I need to take Contempt come on, commit me for Contempt.' But nobody could commit him for Contempt”, Justice Nariman recalled.

While recounting the Zamindari case in which Shanti Bhushan appeared as Advocate General of Uttar Pradesh, Justice Nariman explained that Articles 31A to 31C, inserted by the First Amendment to the Constitution, created a situation where one part of the Constitution was insulated from challenge under another part.

He said Article 31B, which shields laws placed in the Ninth Schedule from judicial review, remains “a great blot”, as any law inserted into the Schedule becomes immune even if the Supreme Court has already struck it down.

Nariman then turned to the case challenging Prime Minister Indira Gandhi's election, in which Bhushan represented Gandhi's opponent Raj Narain. He noted that through Indira Gandhi's cross examination, Bhushan proved that corrupt practices had occurred in the month between her announcing her candidacy and the nomination date. He also proved that Yashpal Kapoor acted as her election agent while still a government servant, which Justice Jagmohan Lal Sinha of the Allahabad High Court held to be a corrupt practice.

Justice Nariman said that Justice Sinha was an unsung man who resisted every pressure and declared the election of a Prime Minister void.

“Justice Jagmohanlal Sinha is one of those great men, unsung men, as it turned out because Justice Khanna was very much sung. But like Justice Khanna, he was a man who resisted every pressure, applied the law as he saw it, and ultimately declared the election of a Prime Minister as void. It's an amazing thing he did and he did it in the course of his judicial duty. He was told, as Shantiji tells us, 'you know of course great things await you once you decide this case, that you would be moved up etc.' But it made the least difference to him”, Justice Nariman said,

During the pendency of the appeal, Nariman noted, Gandhi pushed through the 39th Amendment to the Constitution placing the election of the President, Vice President, Prime Minister and Lok Sabha Speaker beyond judicial review.

He highlighted that Bhushan persuaded four judges who had rejected the basic structure doctrine in Kesavananda Bharati case to still apply it, resulting in the amendment being struck down. He noted that Gandhi had also placed the Representation of the People Act in the Ninth Schedule and made two retrospective changes: redefining “candidate” to the date of nomination, and deeming resignations of government servants effective on the date they were tendered rather than on the date of notification. Given these changes and the Ninth Schedule protection, the Court upheld Gandhi's election.

He then recalled the ADM Jabalpur case in which Bhushan represented some detainees and argued that liberty exists independently of Article 21. Four judges rejected this, and Justice HR Khanna dissented.

Nariman said he was proud to later be part of the Privacy judgment in which a nine-judge bench overruled ADM Jabalpur. Khanna, he added, knew his dissent would cost him the Chief Justice's office and told his wife he would be superseded.

“So all of us in the Privacy judgement said that this was a nine judge bench and this blot on our Constitution should not remain”, he said.

Nariman then turned to Shanti Bhushan's tenure as Law Minister, when he faced the question of whether Justice YV Chandrachud should be superseded for his majority opinion in ADM Jabalpur case. Nariman said Bhushan consulted all Supreme Court judges and 18 High Court Chief Justices, and except for one judge of the Supreme Court and one Chief Justice of a High Court, all supported adherence to the seniority rule.

Nariman detailed other constitutional changes Bhushan attempted but could not achieve, including deleting Articles 368(4) and (5) which did away with the basic structure doctrine, reversing tribunalisation under Article 323A, and moving forests and education back to the State List from the Concurrent List.

He noted that after the Janata Party split, Bhushan joined the BJP in 1980 but resigned in 1985 saying the party was not secular. He later joined the Aam Aadmi Party and left when he felt unsuitable candidates were being fielded. Nariman described him as “a man of tremendous commitment” who stood by his positions.

Nariman ended by recalling his last meeting with Bhushan, saying the 95-year-old retained vivid recall of every case he argued. He concluded that although Bhushan was no longer alive, “he lives in our hearts and our minds forever.”

The lecture can be watched here.