Plaintiff's Memo - Indraprastha Moot, 2015

TEAM CODE: TC 38P Team Code:

BEFORE THE HON'BLE CENTRAL HIGH COURT OF ARYAVARTA

ORIGINAL WRIT JURISDICTION

W.P. (CIVIL) NO. _______ / 2015

- PUBLIC INTEREST LITIGATION -

FILED UNDER ARTICLE 32 OF THE CONSTITUTION OF ARYAVARTA

……………….Petitioner

Rashtriya Congress Party

- versus -

Union of Aryavarta and ors

.....…………Respondents

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENT Most Respectfully Submitted to the Hon’ble Central High Court of Aryavarta

4TH INDRAPRASTHA NATIONAL MOOT COURT COMPETITION, 2015 UNIVERSITY SCHOOL OF LAW AND LEGAL STUDIES GURU GOBIND SINGH INDRAPRASTHA UNIVERSITY

-TABLE OF CONTENTSTABLE OF CONTENTS INDEX OF AUTHORITIES .................................................................................................. II STATEMENT OF JURISDICTION ................................................................................... VI STATEMENT OF FACTS .................................................................................................. VII STATEMENT OF ISSUES ............................................................................................... VIII SUMMARY OF ARGUMENTS .......................................................................................... IX ARGUMENTS ADVANCED .................................................................................................. 1 1. THAT THE PRESENT PETITION IS MAINTAINABLE BEFORE THE HON’BLE CENTRAL HIGH COURT............................................................................................................. 1 A.

THAT

FUNDAMENTAL RIGHTS AND COURT HAS JURISDICTION UNDER ARTICLE 32 TO ENTERTAIN THE PETITION. ................................................ 1 B.

THAT THE PETITION IS MAINTAINABLE AS PUBLIC INTEREST LITIGATION. .................. 3

THERE IS A THREAT TO THE

C.

THAT PARLIAMENTARY PRIVILEGES CANNOT BE INVOKED IN THE INSTANT MATTER AND HENCE THE PETITION IS MAINTAINABLE. .............................................................................. 3 2.

THAT THE PREAMBLE CAN BE AMENDED ................................................................ 6

A. THAT ONLY THE OBJECTIVES FORM A PART OF THE BASIC STRUCTURE OF THE CONSTITUTION ............................................................................................................................ 6 B.

THAT THE AMENDING POWER OF THE PARLIAMENT IS VERY WIDE AND SHOULD NOT BE CONSTRUED IN A NARROW SENSE ........................................................................................... 7 C.

THAT THE PREAMBLE NEEDS TO BE AMENDED TO GUIDE THE GOVERNMENT. ............. 7

3.

THAT THE WORD “SECULAR” SHOULD NOT BE REMOVED FROM THE PREAMBLE10

A.

THAT THE WORD “SECULAR” IS NOT AMBIGUOUS ..................................................... 10

B. THAT SECULARISM IS THE BASIC STRUCTURE OF THE CONSTITUTION .................................. 12 4. THAT THE EXPRESSION ‘SOCIALIST’ SHOULD NOT BE REMOVED FROM THE PREAMBLE. .............................................................................................................................. 14 A.

THAT THE WORD “SOCIALIST” HAS A PRECISE DEFINITION ........................................ 14

B.

THAT THE OVERALL SCHEME OF CONSTITUTION IS SOCIALIST .................................. 15

C.

INTENTION OF THE LEGISLATURE .............................................................................. 16

PRAYER................................................................................................................................IX

I - Written Submissions on behalf of the Petitioner -

-INDEX OF AUTHORITIESINDEX OF AUTHORITIES

CASES REFERRED A.S. NarayanaDeekshitulu v. State of Andhra Pradesh and Others AIR1996SC1765............ 12 Ahmedabad St. Xaviers College Society v. State of Gujarat [1975]1SCR173, 72. ......... 10, 11 Ambika Prasad Mishra v. State of U.P. and Ors., (1980) 3 SCC 719. ...................................... 6 Ashoka Kumar Thakur v. Union of India (UOI) and Ors. (2007)4SCC361............................ 13 AtamPrakash v. State of Haryana and Ors. AIR1986SC859. .................................................. 14 Athiest Society of India, Nalgonda District Branch v. Govt. of Andhra PradeshAIR1992AP310 ....................................................................................................... 11 B. Archana Reddy and Ors. v. State of A.P., rep. by its Secretary, Law (Legislative Affairs and Justice) Department and Ors. 2005(6)ALD582 .......................................................... 13 Bal Patil and Anr. vs. Union of India (UOI) and Ors. AIR 2005 SC 3172. ........................... 10 C Channabasavaiah v. State of Mysore, (1965) 1 SCR 360 ...................................................... 2 D.A.V. Collgev. v. State of Punjab, (1971) 2 SCC 261............................................................. 1 D.S. Nakara and Ors. v. Union of India AIR 1983 SC 130 ............................................... 14, 16 Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 ........................................................... 1, 3 Dattaraj NathujiThaware v. State of Maharashtra, AIR 2005 SC 540....................................... 3 Dr. M. Ismail Faruqui v. Union of India AIR (1995) SC 605. ............................................... 13 Excel Wear and Ors. v. Union of India, (1978) 4 SCC 224. ................................................ 1,14 Gurtej Singh v. Union of India (UOI) and Ors. (1990)ILR 1Punjab and Haryana418............ 11 His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461…. .................................................................................................................................... 4, 6, 7, 8 Indra Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. .......................................................... 2

II - Written Submissions on behalf of the Petitioner -

-INDEX OF AUTHORITIESIndra Sawhney etc. etc v. Union of India and others, etc. etc., (1992) 3 SCC 217. .............. 8, 9 IR Coelho v. Union of India, (1981) 2 SCC 362 ....................................................................... 2 Ismail Faruqui v. UoI AIR 1995 SC 605 ................................................................................. 12 Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892 ...................................................................... 3 KihotoHollohan v. Zachillhu and Ors. 1992 Supp. (2) SCC 651. ............................................. 7 Krishna Pillai and Ors. v. Infant Jesus hurch and Anr. O.P. Nos. 1292, 1607 and 8171 of 1995...................................................................................................................................... 13 KuldipNayar v. Union of India (2006) 7 SCC 1 .................................................................... 2, 4 KumariShrilekhaVidyarthi and Ors. v. State of U.P. and Ors., (1991) 1 SCC 212. .................. 6 M. Nagaraj and Ors. v. Union of India, (2006) 8 SCC 212. ...................................................... 6 Madhusudan Singh and Ors. v. Union of India & Ors. AIR1984SC374. ................................ 17 Mahanagar Ghaziabad Chetna Munch through its President, Sri Ram AvtarAgarwal and Ors.v. State of U.P. through Principal Secretary and Ors. 2007 2 AWC1113All .............. 11 Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206 ........................................... 2, 4, 8, 13 New Brunswick Broadcasting Corporation v. Nova Scotia Speaker, 1993 (1) SCR 391. ........ 4 Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545. .......... 16 P.M. Bhargava and Ors. v. University Grants Commission and Anr. AIR 2004 SC 3478 .... 13 Pramati Educational and Cultural Trust ® & Ors. v. Union of India & Ors. AIR2014SC2114 .............................................................................................................................................. 13 Prem Chand Garg v. Excise Commissioner, AIR 1962 SC 996. ............................................ 1,2 Rahmat Ali v. State of U.P. and Ors. (2001)ILR 1All387 ...................................................... 13 Raja Rampal v. Hon’ble Speaker Lok Sabha, (2007) 3 SCC 184 ..................................... 3, 4, 5 Rajesh HimmatlalSolanki v. Union of India (UOI) through Secretary and 3 Ors. (2011)1GLR782 .............................................................................................................. 11,13 Randhir Singh v. Union of India (UOI) and Ors. AIR1982 SC 879. ....................................... 15 III - Written Submissions on behalf of the Petitioner -

-INDEX OF AUTHORITIESRustom Cavasjee Cooper v. Union of India, [1970]3SCR530. ................................................. 4 S.P. Anand, Indore v. H.D. DeveGowda (1996) 6 SCC 81 ....................................................... 3 Sanjeev Coke Manufacturing Company and Anr. v. Bharat Coking Coal Ltd. AIR 1983 SC 239.................................................................................................................................. 14, 17 Sardar Taheruddin Syedna Saheb v.State of Bombay AIR1962SC853 .................................. 10 Saumya Ann Thomas v. The Union of India & Others ILR 2010 (1) Kerala 805................... 11 Special Reference No. 1 of 1964, [1965] 1 SCR 413 ............................................................ 3, 4 SR Bommai v. Union of India, [1994] 2 SCR 644 ............................................ 2, 10, 11, 12, 13 State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia AIR 2004 SC 2081 ...................... 10 State of Tamil Nadu and Ors. v. L. Abu Kavur Bai and Ors. AIR1984SC326 ...................... 17 Sub-Committee on Judicial Accountability v. Union of India AIR1992SC320 ........................ 5 Sukhdev & Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331 ................................................... 3 Supreme Court Bar Association v. Union of India AIR 1998 SC 1895 .................................... 5 T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481 ........... 8, 9 Tata Iron and Steel Co. v. S.R. Sarkar, AIR 1961 SC 65 .......................................................... 1 Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898 ..................................................... 1 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors.AIR1975 SC 1788 ........................................................................................................................................ 11, 13 Books/Journals Referred: M.V. Pylee, Constitutional Amendments in India, (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2006). Aparajita Baruah, Preamble of the Constitution of India, 43 (1st ed. Deep & Deep Publications, 2007). Dr. A. Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability (Deep & Deep Publications Pvt Ltd 2010) 136 Tony Benn, Arguments for Socialism, (Penguin Books, U.K., 1980). IV - Written Submissions on behalf of the Petitioner -

-INDEX OF AUTHORITIESNehru, J., An Autobiography, 547 (Penguin Book., New Delhi, 2004). O Chinnappa Reddy. The Court and the Constitution of India: Summits and Shallows, 139 ( Oxford India Paperpacks, 2013). Constitutional Assembly Debates. STATUTES: THE CONSTITUTION OF ARYAVARTA (PARI MATERIA WITH THE CONSTITUTION OF INDIA).

V - Written Submissions on behalf of the Petitioner -

-STATEMENT OF JURISDICTIONSTATEMENT OF JURISDICTION

Rashtriya Congress Party, in the instant matter, has approached the Hon'ble Central High Court of Aryavarta under Article 32 of the Constitution of Aryavarta.

VI - Written Submissions on behalf of the Petitioner -

- STATEMENT OF FACTSSTATEMENT OF FACTS Aryavarta (hereinafter "the country") is a country of continental dimensions resembling those of India's politico-economic and legal entrenchments. The country has three main communities, Aryans, Hodos, and Hotos. Among these, Aryans are in clear majority, whereas Hodos and Hotos, along with some other indigenous communities are in minority. In 2014, Aryavarta Avam Party (hereinafter "AAP") achieved an absolute majority in the Central Legislature. Aryavarta Rastra Sangh is said to be the ideological parent of AAP. Mr. Totoro, a senior leader of Aryavarta Rastra Sangh, demands Preamble to be restored back to its erstwhile form, before the 42nd Constitutional Amendment Act, 1976. He averred that the word 'secular' was 'intentionally' avoided by the drafters of the Constitution. Another member of the Central Legislature, Mr. Sonaka, claimed that, the word, 'socialist' and 'secular' are inconsistent with the provisions of the Constitution of the country. He also highlighted that, the 45th Constitutional Amendment Act was rejected by the Central Legislature, which had aimed to define these two words, in Article 366 of the Constitution. The Prime Minister of the country has gone on record to dismiss all claims of Mr. Totoro, and claimed that they had nothing to do with the statements of Mr. Totoro. Meanwhile, Mr. Murakami, demanded the words 'socialist' and 'secular' to be removed from the Preamble of the Constitution of the country due to their inconsistency with the other provisions of the Constitution of the country. He further, had gone on to highlight the limited amending power of the Parliament, and therefore, averred the 42nd Constitutional Amendment Act, 1976, to be declared as unconstitutional due to the vires of the Parliament. Infuriated by such demands and allegations, the Rashtriya Congress Party, has approached the Central High Court of Aryavarta, accusing the AAP government, of destroying the basic structure of the Constitution, by deleting these two controversial words.

- The matter is listed for hearing at the Central High Court on 10th-11th Oct, 2015. -

VII - Written Submissions on behalf of the Petitioner -

- STATEMENT OF ISSUES STATEMENT OF ISSUES

ISSUE I: Whether the instant petition is maintainable?

ISSUE II: Whether the Preamble can be amended?

ISSUE III: Whether the expression 'Secular' should be removed from the Preamble?

ISSUE IV: Whether the expression 'Socialist' should be removed from the Preamble?

VIII - Written Submissions on behalf of the Petitioner -

-SUMMARY OF ARGUMENTSSUMMARY OF ARGUMENTS

THAT THE PRESENT PETITION IS MAINTAINABLE BEFORE THE CENTRAL HIGH COURT. It is submitted that Hon’ble Central High Court has the jurisdiction under Article 32 of the Constitution of Aryavarta to entertain the petition. The statements given by Mr. Totoro and several members of Central Legislature demanding removal of words “secular” and “socialist” from the Preamble. There is a reasonable apprehension of a potential threat of violation of the fundamental rights and substantial alteration of the basic politico-legal setup which the constitution has established for the people of Aryavarta. Therefore, Hon’ble Court has jurisdiction to entertain writ petition in form of a Public Interest Litigation (“PIL”) under Article 32.Moreover, these statements are not protected by Parliamentary Privileges and therefore, the petition is maintainable. THAT THE PREAMBLE CAN BE AMENDED. In the instant matter, it is submitted that, as per the doctrine laid down by the Hon'ble Supreme Court, only the objectives of the Preamble form a part of the basic structure of the doctrine. Apart from such, the amendatory power is plenary under Art. 368, of the Constitution of Aryavarta, and therefore, it is submitted that, by deriving such power under the umbrella of the Constitution of Aryavarta, the Parliament had amended the Preamble of the Constitution. THAT THE EXPRESSION ‘SECULAR’ SHOULD NOT BE REMOVED FROM THE PREAMBLE. It is submitted that the insertion of the expression ‘secular’ in the preamble by way of 42 nd Amendment which was neither intended nor foreseen by the founding fathers of the nation. The constitution makers deliberately avoided the use of this express term. It is because the word has multitudes of meanings and if taken in strict sense it would stand in contradiction to substantive provisions of the Constitution. The presence of this word in the Preamble is wholly unnecessary if seen in the light of rights granted under Part III of the Constitution. THAT THE EXPRESSION ‘SOCIALIST’ SHOULD BE REMOVED FROM THE PREAMBLE. It is submitted that the expression ‘socialist’ as inserted by the Constitution (Forty second) Amendment Act, 1976 should be retained in the Preamble. This expression is the window to IX - Written Submissions on behalf of the Petitioner -

-SUMMARY OF ARGUMENTSthe goals sought to be achieved by the Constitution and it conforms to objectives of the Constitution makers in truest sense. It is submitted that the expression ‘socialist’ can be defined precisely in the context of Aryavarta and can be found in the overall scheme of Constitution of Aryavarta. It is in the context of Aryavarta that the expression has been construed to give effect to the ethos of the citizens.

X - Written Submissions on behalf of the Petitioner -

- ARGUMENTS ADVANCEDARGUMENTS ADVANCED 1. THAT THE PRESENT PETITION IS MAINTAINABLE BEFORE THE HON’BLE CENTRAL HIGH COURT. Several members of Central Legislature of Aryavarta and senior leader of Aryavarta Rashtra Sangh (“ARS”) have made statements demanding that the expressions 'secular' and “socialist”1 should be removed from the Preamble. Central Legislature (Parliament) is within the ambit of ‘State’ under Article 12 of the Constitution. It is submitted that these statements give rise to a reasonable apprehension of a potential threat of violation of the fundamental rights and hence the Hon’ble Court has jurisdiction to entertain writ petition in form of a Public Interest Litigation (“PIL”) under Article 32of the Constitution.2Moreover, these statements are not protected by Parliamentary Privileges and therefore, the petition is maintainable. A. That there is a threat to the Fundamental Rights and Court has jurisdiction under Article 32 to entertain the petition. 1.

The right to approach this Hon'ble Court in case of violation or a threat to fundamental rights is itself a fundamental right enshrined in Article 323 and is not merely a discretionary power of the Court.4 It is an absolute right.5It is submitted that to invoke the writ jurisdiction of the Hon’ble Court it is not necessary that an actual violation of fundamental rights should take place, and even a threat of infringement to the fundamental rights is sufficient. 6A petition under Article 32 will be entertained even if a prima facie case is made out that there is threat to fundamental rights, and it is not necessary for the petitioner to wait till the actual threat has taken place.7

2.

In the instant matter, Aryavarta Awam Party (“AAP”) has absolute majority in the Central Legislature whose ideological parent is ARS.8 It can be reasonably apprehended that by using the absolute majority in the Central Legislature, AAP government can easily remove the 1 2 3 4

5 6 7 8

Vide The Constitution (Forty Second) Amendment Act, 1976. Constitution of Aryavarta pari materia with Constitution of India, Factsheet ¶1. Art. 32, the Constitution of Aryavarta; Kochhuni v. State of Maharashtra, AIR 1959 SC 725.. Daryao v. State of Uttar Pradesh, AIR 1961 SC 1457 (Hereinafter referred to as “Daryao Case”); Tilokchand Motichand v. H.B. Munshi, AIR 1970 SC 898. Prem Chand Garg v. Excise Commissioner, AIR 1963 SC 996. Tata Iron and Steel Co. v. S.R. Sarkar, AIR 1961 SC 65. D.A.V. Collgev. v. State of Punjab, (1971) 2 SCC 261. Factsheet, ¶4.

1 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDexpressions 'secular' and 'socialist' from the preamble thereby destroying the essential features9 of the Constitution which will adversely alter and affect the basic politico-legal system of the country. It will be a direct attack on the democratic setup of the country. Democracy is the basic structure10and altering it will further violate the fundamental rights of the citizens namely, Articles 14, 15, 25-18, 29. It will also alter the scheme of the constitution by nullifying several provisions of Part-IV, to name a few- Articles 38, 41, 47 etc. fundamental rights and directive principles must be read together.11 This is a reasonable threat of violation of fundamental rights. There is greater threat to democracy and basic structure at large. A modern democracy is based on the twin principles of majority rule and the need to protect the fundamental rights. It is the job of the judiciary to balance the principles ensuring that the Government on the basis of number does not override fundamental rights.12 3.

A writ petition, generally, does not lie unless the opposite party is a state within the meaning of Article 12.13 Though the primary relief in a petition is against the State, those who have been benefitted by the impugned order and who would necessarily be affected if the impugned order is quashed should be made parties as respondents and appropriate relief can be granted by the court against such persons as well.14 This Court also has the jurisdiction to enforce against private bodies and individuals.15

4.

In the instant matter, Mr. Totoro has made statements condemning the insertion of the expression ‘secular’ in the Preamble and has demanded for anti-conversion laws.16 Subsequent to his statements, Mr. Totoro’s admirer, Mr. Sonaka has made similar statement in the Central Legislature supporting Mr. Totoro.17Meanwhile several places of worship of Hotos have been vandalized.18 
It is submitted that Mr. Totoro being a senior leader of ARS has influence on the thought process and actions of various members of ARS as well as other 9

10

11 12

13 14

15 16 17 18

SR Bommai v. Union of India, [1994] 2 SCR 644 (Hereinafter referred to as “SR Bommai case”); Excel Wear v. Union of India Infra 101. KuldipNayar v. Union of India (2006) 7 SCC 1 (Hereinafter referred to as “KuldipNayar case”); Indra Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. Minerva Mills Ltd. v. Union of India, [1981] 1 SCR 206. ( Hereinafter referred to as “Minerva Mills case”) IR Coelho v. Union of India, (1981) 2 SCC 362, ¶72; D.D. Basu, Shorter Constitution of India, 550 (14th Ed. Lexis Nexis, Wadhwa Nagpur ). Prem Chand Garg v. Excise Commissioner, AIR 1962 SC 996. C Channabasavaiah v. State of Mysore, (1965) 1 SCR 360; D.D. Basu, Shorter Constitution of India,586 (14th Ed. Lexis Nexis, Wadhwa Nagpur ) D.D. Basu, Shorter Constitution of India,548 (14th Ed. Lexis Nexis, Wadhwa Nagpur). Factsheet, ¶ 5,6. Factsheet, ¶7. Factsheet, ¶9.

2 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDmembers of the society. His fundamental right of freedom of speech and expression are subject to the reasonable restrictions of Article 19(2). In the instant matter, these restrictions can be invoked and therefore the present petition is maintainable against Mr. Totoro. 5.

Therefore, it is submitted that the court being guarantor and protector of the fundamental rights19, it is the duty of the court to protect the fundamental rights guaranteed by the Constitution20and therefore, has jurisdiction to entertain the instant matter B. That The petition is maintainable as Public Interest Litigation.

1.

A PIL can be filed against the State for the violation of Fundamental rights under Article 32 of the Constitution.21 A person acting bona fide and having sufficient interest in maintaining action for judicial redress for public injury to put the judicial machinery in motion22 and such a person will have the locus standi.23Public interest should be involved to file a PIL.24 In the instant matter, there is an imminent threat to the democratic setup of the country, as a result of which there is a threat to violation of fundamental rights of the citizens. Therefore, it is in public interest that petitioners have approached the Hon’ble Court to protect the fundamental rights of the citizens, basic structure of the Constitution and politico-legal system established under it. C. That Parliamentary Privileges cannot be invoked in the instant matter and hence the petition is maintainable.

1.

Constitution guarantees Parliamentary Privileges under Article 105 of the Constitution. It is however submitted that Parliamentary Privileges cannot shield the members in the instant matter. It is submitted that absolute sovereignty which, can be claimed by the Parliament in England, cannot be claimed by any legislature in Aryavarta in the literal absolute sense.25 Thus, Parliamentary Privileges are not absolutely immune from judicial scrutiny. 26 It was held by a Constitutional Bench in Raja Rampal v. Hon’ble Speaker Lok Sabha that there is no scope for a general rule that the exercise of powers by the legislature is not amenable to 19 20

21 22 23 24 25 26

Daryao case, Supra 4. Raja Rampal v. Hon’ble Speaker Lok Sabha, (2007) 3 SCC 184. (Hereinafter referred to as “Raja Rampal case”). Sukhdev & Ors v. Bhagat Ram and Ors. AIR 1975 SC 1331, ¶ 95. Janta Dal v. H.S. Chowdhary, AIR 1993 SC 892. Dattaraj NathujiThaware v. State of Maharashtra, AIR 2005 SC 540. S.P. Anand, Indore v. H.D. DeveGowda (1996) 6 SCC 81. Special Reference No. 1 of 1964, [1965] 1 SCR 413 ¶40. (Hereinafter referred to as “UP Assembly case”). Raja Rampal case, Supra 20.

3 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDjudicial review; such a proposition will be in contradiction to the spirit of our Constitution.27 The judicial organ of the State has been made the final arbiter of Constitutional issues and its authority and jurisdiction in this respect is an important and integral part of the basic structure of the Constitution of Aryavarta. The court held that in case gross illegality or violation of constitutional provisions is shown, the judicial review will not be inhibited in any manner by Article 122 or Article 105.28 An act of unconstitutionality i.e. violation of constitutional provisions will not save the Parliamentary proceedings from the scope of judicial review, the Court has the jurisdiction to examine the procedure adopted.29 One part of the Constitution cannot be abrogated or diminished by another part of the Constitution.30 2.

In the instant matter, members of Central Legislature have made a direct attack on the basic structure of the Constitution by expressing the intention to remove expressions ‘secular’ and ‘socialist’ from the Preamble. Removing these expressions will substantially alter the politico-legal system established by the Constitution, democracy31 being the essential feature. Anything which is against the basic structure is unconstitutional.32Therefore, the matter is not protected by Parliamentary Privileges.

3.

Moreover, provisions of the Constitution are required to be read conjointly as to the effect and operation of fundamental rights of the citizens when the State action infringed the rights of the individual.33

4.

The proposition that fundamental rights cannot be invoked in matters concerning Parliamentary privileges is not acceptable.34 The fundamental rights and directive principles are held to be the conscience of the Constitution and disregard of either would upset the equivalence built up therein.35Legislative supremacy of the Parliament is controlled by the provisions contained in Part III of the Constitution. In UP Assembly case36 the court held “If the legislatures trespass on the fundamental rights of the citizens in a manner not justified by the relevant articles dealing with the said fundamental rights, their legislative actions are

27 28 29 30 31 32 33 34 35 36

Ibid. Ibid, ¶265. Raja Rampal case Supra20; UP Assembly case Supra25. New Brunswick Broadcasting Corporation v. Nova Scotia Speaker, 1993 (1) SCR 391. KuldipNayar case, Supra10. His Holiness Kesavanada Bharti v. State of Kerala Infra 40. RustomCavasjee Cooper v. Union of India, [1970] 3 SCR 530. Raja Rampal case ¶231, Supra20. Minerva Mills case, Supra11. UP Assembly case, Supra25.

4 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDliable to be struck down by courts in India. Therefore, though our legislatures have plenary powers, they function within the limits prescribed by the material and relevant provisions of the Constitution”. 5.

Written Constitution is the "higher law" and acts as a limitation upon the legislature and other organs and the concept is one of 'limited government'. Judicial review is an incident of and flows from this concept; the judicial wing is the interpreter of the Constitution and, therefore, of the limits of authority of the different organs of the State. 37An attempt to read a limitation into Article 122 so as to restrict the court's jurisdiction to examination of the Parliament's procedure in case of unconstitutionality would amount to doing violence to the constitutional text. Applying the principle of "expression unius est exclusio alterius" (whatever has not been included has by implication been excluded), it is plain and clear that prohibition against examination on the touchstone of "irregularity of procedure" does not make taboo judicial review on findings of illegality or unconstitutionality. 38

6.

In the instant matter, there is an imminent threat of violation of the fundamental rights and the basic structure of the Constitution. The statements made by the members attack the very root and spirit of the Constitution. This court has wide powers and it can make pass any order or direction in a matter pending before it to do complete justice under Art. 142.39 Therefore, it is humbly submitted that the present petition is maintainable before the Hon’ble Court.

37 38 39

Sub-Committee on Judicial Accountability v. Union of India AIR1992SC320 ¶61. Raja Rampal Case ¶253, Supra 20. Supreme Court Bar Association v. Union of India, AIR 1998 SC 1895.

5 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCED2. THAT THE PREAMBLE CAN BE AMENDED It is humbly submitted before this Court that, the Preamble does not form a part of the basic structure of the Constitution and hence, can be amended. This is because only the objectives form a part of the basic structure of the Constitution; the amending power of the Parliament is very wide and should not be construed in a narrow sense and the Preamble needs to be amended to guide the Government. Insertion of the words 'secular ' and 'socialist' has enhanced the objectives of Preamble. A. That only the objectives form a part of the basic structure of the Constitution 1.

It is humbly submitted that, Preamble is a part of the Constitution and the edifice of our Constitution is built upon the concepts crystallized in the Preamble. 40 The objectives that form a part of the basic structure doctrine,41 constitutes Justice, Liberty, Equality and Fraternity.42 The Apex Court has time and again specified that these are objectives which the Preamble of our Constitution seeks to achieve, and that every State action must be aimed at achieving these goals in the light of Part IV.43 Further, Justice, Social, Economic and Political, is the sum total of the aspirations incorporated in part IV.44 Moreover, principles of federalism, secularism, reasonableness and socialism etc., make the Constitution an organic whole.45 Axioms like secularism, democracy, reasonableness, social justice etc. are overarching principles and stand at the pinnacle of the hierarchy of constitutional values.46

2.

The Indian Constitution is a radical document, a charter for socio-politico-economic change and geared to the goals spelt out in the Objectives Resolution which commits the nation to a drive towards an egalitarian society, a note struck more articulately by the adjective 'socialist' to our Republic introduced by a recent Amendment and survives after Parliament, differently composed, had altered the 42nd Amendment, by way of 44th Amendment.47

3.

Therefore, it is submitted that, since, only the objectives of the Preamble form a part of the basic structure of the Constitution, and the words 'Socialist' and 'Secular' have enhanced and 40

41 42 43 44 45 46 47

His Holiness Kesavananda Bharati Sripadagalvaru v. State of Kerala, AIR 1973 SC 1461.(Hereinafter referred to as "Kesavananda Bharti Case") Ibid. The Preamble to the Constitution of India. Kumari ShrilekhaVidyarthi and Ors. v. State of U.P. and Ors., (1991) 1 SCC 212. Ibid, at ¶ 4. M. Nagaraj and Ors. v. Union of India, (2006) 8 SCC 212. Ibid,. at ¶ 21. Ambika Prasad Mishra v. State of U.P. and Ors., (1980) 3 SCC 719.

6 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDreinforced the objectives of the Constitution, therefore, the impugned Constitution Amendment Act,48 does not violate the basic structure doctrine laid down by the Apex Court. B. That the amending power of the Parliament is very wide and should not be construed in a narrow sense 1.

It is submitted that, every provision of the Constitution can be amended provided in the result the basic foundation and structure of the constitution remains the same.49 The power of amendment is plenary and includes within itself the power to amend the various articles of the Constitution, including those which may be said to relate to essential features.50 Certain limitations may be there which restrict the field of the exercise of the amending power.51 However, there is no such restriction imposed on the 'amendatory' power of the Parliament in respect of Preamble of the Constitution, therefore, it is accordingly argued that, the Preamble can be amended from time to time, to enhance the goals and directions of the State, to give effect to the Part-IV of the Constitution, and to act as a welfare State.

2.

The phrase “amendment of this Constitution” is the nerve-centre of Art. 368. It is determinative of dominion as well as the magnitude of the amending power. The words “this constitution” embrace the entire Constitution.52 Therefore, the word ‘amendment’ in Art. 368 has a clear and definite import and it connotes a power of widest amplitude to make additions, alterations or variations.53 The amending procedure under Art. 368 is understandably simple and clearly indicated that the founding fathers did not want to exclude any part of the Constitution from the purview of Art. 368.54

3.

It can accordingly be concluded that the grant of power under Art. 368 was plenary, unqualified and without any limitations except as to the special procedure to be followed.55 C. That the Preamble needs to be amended to guide the Government.

1.

It is submitted that, the goals and objectives of the Preamble are not mere semantics. The essence of our Constitution is built upon the concepts crystallized in the preamble. We 48 49 50 51 52 53 54

55

The Constitution (Forty-Second Amendment) Act, 1976. Kesavananda Bharti Case Supra 40. Per H.R. Khanna, J., Kesavananda Bharti Case Supra 40. Kihoto Hollohan v. Zachillhu and Ors. 1992 Supp. (2) SCC 651. Kesavananda Bharti Case Supra 40, 896, 97 Kesavananda Bharti Case Supra 40, 964-67. Dr. A. Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability 136 (Deep & Deep Publications Pvt Ltd 2010). Kesavananda Bharti Case Supra 40, 603, 04.

7 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDresolved to constitute ourselves into a Socialist State which carried with it the obligation to secure to our people justice-social, economic and political. The three prongs of the Justice have been clearly mentioned in the ideals of our Constitution. Part IV into our Constitution containing directive principles of State policy therefore, specify the socialistic goal to be achieved. Giving a new definition to the concept of Socialism, as compared to the western philosophy, it is argued that, the words 'Socialist' and 'Secular' were added to further the interests of the weaker section of the society. This was commended by the Apex Court in the famous case of Minerva Mills v. Union of India.56 2.

Further, the Constitution gives the people, a democratic polity which carries with it the obligation of securing to the people liberty of thought, expression, belief, faith and worship; equality of status and of opportunity and the assurance that the dignity of the individual will at all costs be achieved. Therefore, Part III includes the essence in our Constitution conferring those rights on the people. The end is, as mentioned earlier, has been specified in Part IV. It is in this sense that Parts III and IV together constitute the core of our Constitution and, combine to form its conscience.57

3.

Therefore, it is submitted that, at the instance of the demand being raised inside the Parliament,58 to abrogate the impending relation between the Part III and Part IV must be checked into. This is because, deleting the expressions ‘secular’ and ‘socialist’, will create a gap of achievement of the goals specified under the Directive Principles of State Policy.

4.

It is to be noted that the minorities to whom various rights are given, have been conferred to ensure that the majority, who due to their numbers would be politically powerful, did not prevent the minorities from establishing and administering their own educational institutions.59 In so providing, the basic feature of the Constitution, namely, secularism and equality for all citizens, whether majority or minority was being kept in mind.60 Since the very blood and soul of our Constitutional scheme are to achieve the objectives of our Constitution as contained in the preamble,61 so it is incumbent to lift the veil and see the notable aspirations of the Constitution.62 The vital objectives of the Preamble, 'to secure, to all its citizens justice, social, economic and political; Liberty of thought, expression, belief, 56 57 58 59 60 61 62

Minerva Mills Case Supra 11. Ibid. Fact Sheet, ¶ 5 at p. 3. Article 29 of the Constitution of Aryavarta. T.M.A. Pai Foundation and Ors. v. State of Karnataka and Ors., (2002) 8 SCC 481, ¶ 404. Kesavananda Bharti Case Supra 40. IndraSawhney etc. etc v. Union of India and others, etc. etc., (1992) 3 SCC 217. (¶ 135).

8 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDfaith and worship; Equality of status and opportunity and to promote among them all Fraternity assuring dignity of the individual' was not a matter of enactment sake, but was an ideal set-up by the drafters of the Constitution.63 Therefore, pursuant to this, the Parliament had amended and inserted the words 'socialist' and 'secular' to enhance the ideologies of the Constitution and for achieving an egalitarian society in terms of the basic structure of our Constitution as spelt out by the preamble.64 5.

Although the idea of secularism may have been borrowed in the Indian Constitution from the west. It has adopted its own unique brand of secularism based on its particular history and exigencies which are far removed in many ways from secularism as it is defined and followed in European countries, the United States of America and Australia.65 The Constitution does envisage the involvement of the State in matters associated with religion and religious institutions, and even indeed with the practice, profession and propagation of religion in its most limited and distilled meaning66

6.

Therefore, it is submitted that, by tracing the intention of the drafters of the Constitution, to make Aryavarta, a secular and socialist country which is effectively reflected throughout the constitution.

63 64 65 66

Ibid, ¶ 627. Ibid,. ¶ 135. Ibid, ¶ 332. T.M.A. Pai Foundation Case Supra 60.

9 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCED3. THAT THE WORD “SECULAR” SHOULD NOT BE REMOVED FROM THE PREAMBLE The word ‘Secular’ was inserted by an amendment to the preamble to the Constitution of Aryavarta by the 42nd Amendment Act, 1976. There has been recent uproar by members of Central Legislature to remove this word from the Preamble and restore it in original form on account of it being ambiguous67 and a slur on the face of majority68. It is submitted that the expression ‘secular’ should be retained in the constitution because it is not a vague concept and forms the foundation on which the democracy survives. A. That the word “Secular” is not ambiguous 1.

It is submitted that the word ‘secularism’ has been used by different people in different context over different periods of time. However, in Indian context, the use of the word “secular” and “secularism” predates the insertion of the word in the Preamble. 69 This implies that Aryavarta is not a stranger to the idea of ‘secularism’ and it has its own concept of secularism.

2.

The term 'Secular' has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit.70 However, this does not mean that the Constitution makers did not intend to keep the word within the preamble.71

3.

The founding fathers of Constitution and various legal stalwarts have made attempts to identify the constituents of Indian Secularism.72 Secularism is not to be confused with communal or religious concepts of an individual or a group of persons. It means that State should have no religion of its own and no one could proclaim to make the State have one such or endeavor to create a theocratic state. 73

4.

Secularism is neither anti-God, nor pro-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the State and ensures that no one shall be

67 68 69 70 71

72 73

Factsheet ¶ 5 Ibid. SardarTaheruddin SyednaSahebv.State of Bombay AIR1962SC853 S. R. Bommai Case Supra 9, 29. VII, CAD (H.V. Kamath) p.420; Ahmedabad St. Xaviers College Society v. State of Gujarat [1975]1SCR173, 72. The concept will be in consonance with that of Aryavarta. State of Karnataka & Anr. v. Dr. Praveen Bhai Thogadia, AIR 2004 SC 2081 p 6; Bal Patil and Anr. v. Union of India (UOI) and Ors. AIR 2005 SC 3172.

10 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDdiscriminated against on the ground of religion.74 The concept of secularism in a multicultural society like Aryavarta, takes the form of altruism and egalitarianism. The Secular State, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds.75 5.

Aryavarta, a country with a hoary past and multi-lingual, multi-ethnic, multi-cultural society76 has derived its concept of secularism from its ancient ethos and past experience.77 Humanism and toleration were, by and large, a part of the spiritual, cultural and intellectual ethics in the ancient Aryavarta78. The State is secular in the sense that the Government will not associate itself directly with any religion; but at the same time, every religion and faith are equally honoured and every citizen is free to practice his own religious belief. Secularism represents, in a true sense, universalism and freedom, which are the essential characteristics of secularism.79

6.

The core of Constitutional secularism is the realistic understanding and acceptance that the religions shall not transgress into domains and areas where religion is and ought to be irrelevant.80 Secular means that the Constitution requires scrupulous neutrality by the State as among religions and protection of all religions. No preference can be given to a particular religion, sect or denomination.81 Secularism is a broad religio-traditional consensus and can be termed based on the principles of "Vasudeva Kutumbakam" i.e. live and let other live.82 Unity in diversity is the Indian philosophy, from which concept of secularism has been borrowed in the Indian Constitution.83

7.

Secularism is a descriptive concept and the essential ingredients constituting secularism in the context of Aryavarta can be derived from 9 judge bench judgment 84 The constitution prohibits the establishment of a theocratic state. State is also prohibited to identify itself with

74 75 76 77 78 79 80 81 82 83

84

Ahmedabad St. Xaviers Supra 71. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra and Ors., AIR1975 SC 1788. Factsheet ¶ 1. Factsheet ¶ ¶1, 5. Athiest Society of India, Nalgonda District Branch v. Govt. of Andhra Pradesh, AIR 1992 AP 310. Ibid. Saumya Ann Thomas v. The Union of India & Others, ILR 2010 (1) Kerala 805, ¶ 31. Gurtej Singh v. Union of India (UOI) and Ors., (1990) ILR 1Punjab and Haryana 418, ¶ 7. Rajesh Himmatlal Solanki v. Union of India (UOI) through Secretary and 3 Ors., (2011)1 GLR 782. Mahanagar Ghaziabad Chetna Munch through its President, Sri Ram Avtar Agarwal and Ors. v. State of U.P. through Principal Secretary and Ors., 2007 2 AWC 1113 All. S.R. Bommai Case Supra 9.

11 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDor favour a particular religion because State is enjoined to accord equal treatment of all religions.85 8.

True secularism is humanism in action and perceives divinity in everyone.86 Pluralism is the keystone to Indian culture and religious tolerance is the bedrock to Indian secularism.87 In this light it is submitted that the claims made by different members of Aryavarta Awam Party that the word ‘secular’ is vague and an impasse are wholly irrelevant. The rulings of the courts enumerate all the constituents of secularism as it is understood in the present context. These rulings are still followed and secularism is considered the basic essential of democracy. It is achieved by the cooperation and understanding between the majority and minority for the greater good of nation. B. That Secularism is the basic structure of the Constitution

1.

It is submitted that the founding fathers of constitution wanted to setup a secular state and it is evident from various provisions of the constitution. The commitment to a secular state can be seen in Articles 14-16 which ensure equality before law regardless of religious afflictions, Articles 25- 28, 30 which assure right to freedom of religion and Article 51A (e) which makes it a positive duty of every citizen to promote harmony transgressing the boundaries of religion. It is a thread which runs throughout the Constitution.88

2.

An amendment was proposed by Prof. K. T. Shah to constitute India into a 'socialist' and 'secular' state which was also supported by Sri H. V. Kamath but due to opposition raised against the insertion of word ‘socialist’ the whole motion was negative. The constituent assembly debates consistently reiterate that India is a secular nation.89

3.

Secularism has come to be treated as a part of fundamental law, and an unalienable segment of the basic structure of the country's political system.90 The Constitution-makers certainly intended to set up a 'Secular Democratic Republic' the binding spirit of which is summed up by the objectives set forth in the preamble to the Constitution. This is an agreement with the people of the basic essentials which could unite the citizens together despite all the

85 86 87 88 89 90

Ismail Faruqui v. UoI, AIR 1995 SC 605. A.S. Narayana Deekshitulu v. State of Andhra Pradesh and Others, AIR 1996 SC 1765. Aparajita Baruah, Preamble of the Constitution of India, 43 (1st ed. Deep & Deep Publications, 2007). SR. Bommai Case Supra 9. IV, CAD, p. 402. SR. Bommai Case Supra 9; Kesavananda Bharti Case Supra 40.

12 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDdifferences of religion, race, caste, community, culture, creed and language.91This promise is necessary in a country where these differences can generate powerful emotions and the democracy cannot survive without the understanding of secular democracy.92 4.

As per the Preamble, India is a secular state and secularism is forms the basic structure of our constitution.93 The express mention in the preamble the various other provisions under the Constitution do make it abundantly clear that secularism is the core or basic character of our Constitution94 . Though the concept of "secularism" was not expressly engrafted while making the Constitution, its sweep, operation and visibility are apparent from fundamental rights and directive principles and their related provisions.95

5.

Secularism is the basic feature of our constitution and any privilege granted by state has to be balanced in such a manner so as not to destroy the basic structure. 96 The 42nd Amendment to the constitution only made explicit what was present as the core of basic structure of the Constitution.97 The preamble expresses the main objectives and goals of the constitution. It identifies Aryavarta as a united nation despite its diversity. If the word ‘secular’ is removed from the preamble, not only the basic structure has a serious threat but a promise made to people is broken. It has been held by the Apex Court that the insertion of the word ‘secular’ furnishes the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution.98

6.

It is further submitted that the fact that secularism forms the basic structure of the constitution is well accepted by the Legislature and the elected representatives recognize the need for insertion of the expression within the Preamble. This is evident from the fact that while the changes brought about in substantive provisions of the Constitutional (Forty Second Amendment) Act 1976 were diluted by the 44th Amendment Act 1978, the changes made to the preamble were kept intact. 91 92 93

94 95 96 97 98

Ziyauddin Burhanuddin Supra 75. Factsheet ¶ 9. B. Archana Reddy and Ors. v. State of A.P., rep. by its Secretary, Law (Legislative Affairs and Justice) Department and Ors. 2005 (6) ALD 582; P.M. Bhargava and Ors. v. University Grants Commission and Anr. AIR 2004 SC 3478; Rahmat Ali v. State of U.P. and Ors. (2001) ILR 1 All 387; Pramati Educational and Cultural Trust ® & Ors. v. Union of India & Ors. AIR2014SC2114; Krishna Pillai and Ors. v. Infant Jesus Church and Anr. O.P. Nos. 1292, 1607 and 8171 of 1995, 17552 and 17668 of 1996 and 1969 and 8597 of 1998 etc. Decided On: 22.11.1999. Rajesh Himmatlal Solanki v. Union of India (UOI) through Secretary and 3 Ors. (2011)1 GLR 782. S.R. Bommai Supra 9; Dr. M. Ismail Faruqui v. Union of India AIR (1995) SC 605. Ashoka Kumar Thakur v. Union of India (UOI) and Ors. (2007) 4 SCC 361. SR Bommai Case Supra 9. Minerva Mills Case Supra 11.

13 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCED4. THAT

THE EXPRESSION

‘SOCIALIST’ SHOULD NOT BE REMOVED FROM THE

PREAMBLE. It is submitted that the expression ‘socialist’ as inserted by the Constitution (Forty Second) Amendment Act, 1976 should be retained in the Preamble. This expression is the window to the goals sought to be achieved by the Constitution and it conforms to objectives of the Constitution makers in truest sense. It is submitted that the expression ‘socialist’ can be defined precisely in the context of Aryavarta and can be found in the overall scheme of Constitution of Aryavarta. It is in the context of Aryavarta that the expression has been construed to give effect to the ethos of the citizens. A. That the word “Socialist” has a precise definition 1.

It is submitted that Socialism expresses a concern for the social welfare of the oppressed, the unfortunate and the disadvantaged and affirms the values of equality, a classless society, freedom and democracy.99 Justice Desai in D.S. Nakara v. Union of India100 emphasized that the principal aim of Socialism is to eliminate inequality in income, status and standard of life.

2.

Socialism is a word that has gone through many changes from thinkers to thinkers.101 The principal aim of a socialist State is to eliminate inequality in income and status and standards of life. The basic framework of socialism is to provide a decent standard of life to the working people. It means that the economic form that is contemplated under the Constitution supports the idea of welfare of people rather than exploitative abuse through market mechanism. 102 In all, Part-IV of the Constitution containing directive principles of State policy which specify the socialistic goal to be achieved103 advance the principle of egalitarian society.104

3.

The expression ‘socialist’ must be interpreted in the light of rights and directions enshrined in Part III and Part IV of the constitution and an interpretation must be given to the word which is consistent with the scheme of constitution. A socialist state is one that is opposed to oppressive feudalistic society and strives for general welfare subject to availability of resources and circumstances.105 Ownership, control and distribution of national productive 99

Tony Benn, Arguments for Socialism, (Penguin Books, U.K., 1980). D.S. Nakara and Ors. v. Union of India AIR 1983 SC 130 (Herreinafter “D. S. Nakra case”). 101 Excel Wear and Ors. v. Union of India, (1978) 4 SCC 224. 102 D.S. Nakara Case Supra 100 ¶ 35. 103 Minerva Mills Ltd. and Ors. v. Union of India and Ors., ( 1980 ) 2 SCC 591. 104 Sanjeev Coke Manufacturing Company and Anr. v. Bharat Coking Coal Ltd. AIR 1983 SC 239. 105 Atam Prakash v. State of Haryana and Ors. AIR 1986 SC 859. 100

14 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDwealth for the benefit and use of the community and the rejection of a system of misuse of its resources for selfish ends is what socialism is about and the words and thought of Article 39(b) but echo the familiar language and philosophy of socialism as expounded generally by all socialist writers.106 B. That the overall scheme of Constitution is socialist 1.

Socialist Scheme of the Constitution can be traced in Part III and Part IV of the Constitution of Aryavarta. It is submitted that in many debates in the Constituent Assembly, socialism was used, often interchangeably, to mean two different things. The first was socialist ideals or goals, which was mainly economic egalitarianism. The second was socialist means towards those goals, which was centralized state planning of the economy. During the debates, despite these differences of opinion, a great effort was made to find common ground and reach consensus within a constitutional framework.

2.

It was believed that the main objective of a democratic set up will be that of alleviating the poor. Democracy and capitalism grew up together in the nineteenth century, but they were not mutually compatible. There was a basic contradiction between them, for democracy laid stress on the power for many, while capitalism gave real power to the few.107

3.

Though the word Socialism was not expressly used in the Constitution but the attributes of Socialism have always been engrained in the Directive Principles of State Policy.108 The various socialist goals engrained in the Constitution are: Securing a social order for the promotion of the welfare of the people109; policy for adequate means of livelihood110; policy for control of material resources of the society for the common good111; policy against concentration of wealth112; policy for equal pay for equal work113; health of workers114; protection of childhood against exploitation115; free legal aid116; provision for securing right

106

Randhir Singh v. Union of India (UOI) and Ors. AIR1982 SC 879. Nehru, J., An Autobiography, 547 (Penguin Book., New Delhi, 2004). 108 O Chinnappa Reddy. The Court and the Constitution of India: Summits and Shallows, 139 ( Oxford India Paperpacks, 2013). 109 Art. 38, the Constitution of Aryavarta. 110 Art. 39(a), the Constitution of Aryavarta. 111 Art. 39(b), the Constitution of Aryavarta. 112 Art. 39(c), the Constitution of Aryavarta. 113 Art. 39(d), the Constitution of Aryavarta. 114 Art. 39(e), the Constitution of Aryavarta. 115 Art. 39(f), the Constitution of Aryavarta 116 Art. 39A, the Constitution of Aryavarta. 107

15 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDto work, to education, to public assistance, provision for just and humane conditions of work117 etc. 4.

The direction in which the State action-must move, the welfare State which we propose to build up, the constitutional goal of setting up a socialist State and the assurance in the Directive Principles of State Policy, all are in consonance with and furtherance of the goals of the Constitution to set up a socialist state. For example, it can directly be seen through the operation of pension schemes, as was specifically highlighted by the Apex Court.118 Therefore, Directive Principles, which are fundamental in the governance of the country, must serve as a beacon light to the interpretation of the Constitutional provisions.119

5.

It was always intended by the founding fathers120 of the Constitution that Aryavarta should be a socialist state and though they did not mention it expressly, the seeds of ideas of socialism are embedded in the fruits given by the Directive Policy under the constitution. It is these high ideas that the 42nd Amendment intended to promote 121 and though there was a change in government and the effect of Amendment had been diluted, the intention of the legislature remained the same. It can be clearly seen122 from the 44th amendment123 made to the constitution that socialist ideas were not only accepted but also promoted. C. Intention of the Legislature

1.

It is submitted that the constituents of Socialism were always present and cherished in the Part II and IV of the Constitution. Moreover, over the years when pure market economy has fallen flat on its face and proved itself to be oppressive and exploitative the Legislature has shown more commitment to protect the rights of the people by inclining towards the social legislations.

2.

This approach can be seen in the power of Government to acquire estate124 and making any law for public state owned corporations125 granted under the First Amendment to the Constitution. Subsequently by the Nationalization of Banks in 1969, insertion of Article 31C 117

Art. 41, the Constitution of Aryavarta. D.S. Nakara Supra 100 ¶ 37. 119 Olga Tellis and Ors. v. Bombay Municipal Corporation and Ors., (1985) 3 SCC 545. 120 Vol. I, CAD p. 62. 121 Statement of Objects and Reasons, The Constitution (Forty Second) Amendment Act, 1976. 122 Statement of Objects and Reasons, The Constitution (Forty Fourth) Amendment Act, 1978. 123 S. 2(a)(ii), The Constitution (Forty Fourth) Amendment Act, 1978 wherein the Fundamental right to property was made a legal right; Ss. 9 The Constitution (Forty Fourth) Amendment Act, 1978. 124 Art. 31A, the Constitution of Aryavarta. 125 Art. 19(6) (ii), the Constitution of Aryavarta. 118

16 -Written Submissions on behalf of the Petitioner-

- ARGUMENTS ADVANCEDwhich reaffirms the importance of Directive Principles126, the insertion of word ‘socialist’ in the preamble and the removal of right to property from the fundamental right127 it can be reasonably inferred that the Legislature has advocated and time and again reaffirmed its ‘socialist’ approach. 3.

It is further submitted that Article 31C of the Constitution saves, all the laws which give effect to the policy of the State towards securing all or any of the principles laid down in Part IV of the Constitution, from being declared void even if they are inconsistent with or takes away the fundamental rights conferred by article 14 and 19. From the above article it can be inferred that the Constitutional scheme has always been for the socialist principles. The reason for this is that Article 31C was not merely a pragmatic approach to socialism but imbibed a theoretical aspect by which all means of production, key industries, mines, minerals, public supplies, utilities and services, may be taken gradually under public ownership, management and control.

128

It is to be noted that the Industrial Policy Resolution

of 1956 of Government of India mentions in its preamble the adoption of the Socialist pattern of society as the national objective, thus further proving that Socialism has always been the goal and the amendment was only to emphasize the urgency.129 4.

In this light the Apex Court clarified the importance of Article 31 C and object of securing welfare of people as “the doctrine of nexus cannot be extended to such an extreme limit that the very purpose of Article 39(b)&(c) is defeated.... If the nexus is present in the law then the protection of Art, 31C becomes complete and irrevocable”. 130

5.

Therefore, it is humbly submitted that the insertion of the expression ‘socialist’ is justified and promotes the basic idea on which a democratic country functions i.e. welfare of people. If the constitutional provisions are interpreted in the light of this word the scope of misuse of power can be reduced and the constitutional goals will be easy to achieve.

126

The Constitution (Twenty fifth) Amendment Act, 1971. The Constitution (Forty Fourth) Amendment Act, 1978. 128 State of Tamil Nadu and Ors. v. L. Abu Kavur Bai and Ors. , AIR 1984 SC 326. 129 Sanjeeva Coke Manufacturing Supra 104. 130 Madhusudan Singh and Ors. v. Union of India & Ors. AIR 1984 SC 374. 127

17 -Written Submissions on behalf of the Petitioner-

- PRAYERPRAYER WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO: I. II. III.

ALLOW THE PETITION. HOLD AND DECLARE THAT THE PREAMBLE OF THE CONSTITUTION CAN BE AMENDED. HOLD AND DECLARE THAT THE WORD 'SECULAR' SHOULD NOT BE REMOVED FROM THE PREAMBLE.

IV.

HOLD

AND

DECLARE

THAT THE WORD

'SOCIALIST' SHOULD

NOT BE REMOVED FROM

THE PREAMBLE.

V.

DIRECT

THE

CENTRAL LEGISLATURE

TO REFRAIN FROM MOVING AN

AMENDMENT

TO

REMOVE THE EXPRESSIONS 'SECULAR' AND 'SOCIALIST' FROM THE PREAMBLE.

AND ANY OTHER RELIEF THAT THIS COURT MAY BE PLEASED TO GRANT, IN FAVOR OF JUSTICE, EQUITY AND GOOD CONSCIENCE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

SD/COUNSEL FOR THE PETITIONER

IX - Written Submissions on behalf of the Petitioner-