Respondent's Memo - Indraprastha Moot, 2015

TEAM CODE: TC-38R 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

……………….Petitoner

Rashtriya Congress Party

- versus -

Union of Aryavarta and Ors.

.....…………Respondents

WRITTEN SUBMISSIONS ON BEHALF OF THE RESPONDENTS 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 ................................................................................................ III STATEMENT OF JURISDICTION .................................................................................. VII STATEMENT OF FACTS ................................................................................................ VIII STATEMENT OF ISSUES .................................................................................................. IX SUMMARY OF ARGUMENTS ............................................................................................ X ARGUMENTS ADVANCED .................................................................................................. 1 1.

THAT THE PRESENT PETITION IS NOT MAINTAINABLE BEFORE THE HON’BLE

CENTRAL HIGH COURT............................................................................................................. 1 A.

THAT THE CENTRAL HIGH COURT DOES NOT HAVE THE JURISDICTION TO ENTERTAIN THE

INSTANT PETITION. ...................................................................................................................... 1

B.

THAT

THE PETITIONERS HAVE NO LOCUS STANDI TO APPROACH THE COURT UNDER

ARTICLE 32. ................................................................................................................................ 2 C.

THAT THE PIL IS MOTIVATED BY PERSONAL INTEREST, THEREFORE NOT MAINTAINABLE. .. 2

D.

MOREOVER,

POLITICAL PARTIES AND OTHER ASSOCIATIONS HAVE FREEDOM OF SPEECH

AND EXPRESSION UNDER ARTICLE 19(1) (A). .............................................................................. 2

E.

THAT THE MEMBERS ARE PROTECTED BY PARLIAMENTARY PRIVILEGES. ............................ 3

(a) There is Freedom of Speech in Parliament. ......................................................................... 3 (b) Article 122 further prevents judicial scrutiny. ..................................................................... 4 (c) Principle Of Separation Of Power. ...................................................................................... 5 2.

THAT THE PREAMBLE CAN BE AMENDED ........................................................................ 5

A.

THAT ANY AMENDMENT IS SUBJECT TO BASIC STRUCTURE OF THE CONSTITUTION ............. 5

B.

THAT THE PREAMBLE MUST NOT BE SUBJECTED TO ORDINARY RESOLUTION ...................... 7

C.

THAT AN AMENDMENT MUST ADD OR ENHANCE THE CONSTITUTIONAL PROVISIONS ........... 8

3.

THAT THE WORD “SECULAR” SHOULD BE REMOVED FROM THE PREAMBLE.................. 9

A.

THE WORD “SECULAR” IS AMBIGUOUS ................................................................................ 9

B.

EXPRESS USE OF WORD ‘SECULAR’ STANDS IN CONTRADICTION TO DIFFERENT PROVISIONS

OF CONSTITUTION ..................................................................................................................... 10

I -Written Submissions on behalf of Respondents-

-TABLE OF CONTENTSC.

THE

USE OF THE WORD

“SECULAR”

WAS DELIBERATELY AVOIDED BY THE DRAFTERS OF

THE CONSTITUTION ................................................................................................................... 11

D.

THE AMENDMENT WAS UNNECESSARY ............................................................................. 12

4.

THAT EXPRESSION ‘SOCIALIST’ SHOULD BE REMOVED FROM THE PREAMBLE. ........ 13

A.

THE EXPRESSION ‘SOCIALIST’ CANNOT BE PRECISELY DEFINED. ....................................... 13

B.

CONCEPT IS WITHERING AWAY ........................................................................................ 14

C.

ECONOMIC DEMOCRACY ................................................................................................... 15

D.

GOVERNMENT SHOULD HAVE FREEDOM TO DECIDE ITS ECONOMIC POLICY ................... 16

E.

‘SOCIALIST’ IS IN CONTRADICTION TO ARTICLE 14 ........................................................... 17

F.

IN ARGUENDO, THE INSERTION OF THE EXPRESSION ‘SOCIALIST’ IS UNNECESSARY. .......... 17

THE PRAYER ...................................................................................................................... IX

II -Written Submissions on behalf of Respondents-

-INDEX OF AUTHORITIESINDEX OF AUTHORITIES

CASES REFERRED A.S. Narayan v. State of A.P., AIR 1996 SC 1765 .................................................................... 9 AkadasiPadhan v. State of Orissa, [1963] Supp. 2 S.C.R. 691 ................................................ 14 Athiest Society of India, Nalgonda District Branch v. Govt. of Andhra Pradesh, AIR 1992 AP 310........................................................................................................................................ 10 Bal Patil and Anr. v. Union of India (UOI) and Ors., AIR 2005 SC 3172 ........................ 10, 11 Balco Employees Union v. Union of India, (2002) 2 SCC 333 ............................................... 17 Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124 ................................................... 1 Banwasi Sewa Ashram v. State of U.P., AIR1987 SC 374. ..................................................... 2 Chiranjit Lal Chowdhuri v. Union of India, [1950] 1 SCR 869 ................................................ 2 Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870 .......................................................................... 1 Dattaji Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590 ....................................... 2 Davis v. Powell, [1941] 1 KB 519 ............................................................................................. 8 Desiya Murpokku Dravida Kazhagam and Anr. v. The Election Commission of India, AIR 2012 SC 219........................................................................................................................... 3 Dwarkadas Srinivas v. The Sholapur Spinning and Weaving Company Ltd., AIR 1951 Bom 86.......................................................................................................................................... 17 Excel Wear v. Union of India, AIR 1979 SC .......................................................................... 14 Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715 .................. 1 Gopal Das Mohta v. Union of India, AIR 1955 SC 1 ................................................................ 1 Gurtej Singh v. Union of India & Ors., (1990) ILR 1Punjab and Haryana 418 ...................... 10 I.C. GolakNath and Ors. v. State of Punjab and Anr., AIR 1967 SC 1643 ............................... 7

III -Written Submissions on behalf of Respondents-

-INDEX OF AUTHORITIESI.R. Coelho (Dead) By LRs. v. State of Tamil Nadu and Ors AIR2007SC861 ....................... 12 Indira Nehru Gandhi v Raj Narain, 1975 Supp SCC 1 ................................................ 4, 6, 7, 16 Indra Sawhney etc. etc v. Union of India and others, etc. etc., (1992) 3 SCC 217 ................... 7 Ismail Faruqui v. UoI AIR 1995 SC 605 ................................................................................. 10 Jagadiswarananda Avadhuta v. Commissioner of Police AIR 1990 Cal 336 .......................... 13 John Vallotam v. Union of India AIR 2003 SC 2902 .............................................................. 11 His Holiness Kesavananda Bharti v. State of Kerala, AIR 1973 SC 461 .............................. 6, 9 Kihoto Hollohon v. Zachillhu and Ors., 1992 (Supp) 2 SCC 651 ...................................... 6, 16 Kuldip Nayar v. Union of India, (2006) 7 SCC 1 .................................................................... 16 Maganbhai v. Union of India, (1970) 3 SCC 400 ...................................................................... 1 Minerva Mills v. Union of India, AIR 1980 SC 1789 ............................................................... 6 Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405 ............................................................................................................................ 16 Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, AIR 1976 SC 1455 .................................. 2 Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory Himachal Pradesh, [1972] 1 SCR 940. ................................................................................................... 5 Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Ors., AIR 1959 SC 395. ................... 4, 5 People's Union for Civil Liberties and Anr. v. Union of India (UOI) and Anr., (2014) 2 SCC(LS)648 ......................................................................................................................... 16 Pramati Educational and Cultural Trust and Ors. V. Union of India (UOI) and Ors. AIR 2014 SC 2114....................................................................................................................... 11 PV Narsimha Rao v. State, (1998) 4 SCC 626 ...................................................................... 3, 4 R.G. Garg v. Union of India, (1981) 4 SCC 675 ..................................................................... 17 Raja Rampal v. Hon’ble Speaker LokSabha, (2007) 3 SCC 184 .............................................. 3 IV -Written Submissions on behalf of Respondents-

-INDEX OF AUTHORITIESRajiv Ranjan Singh 'Lalan' and Anr. v. Union of India (UOI) and Ors., 2006(8)SCALE161 .. 2 Rev. Stainislaus v. State of Madhya Pradesh and Ors., AIR 1977 SC 908 ............................. 13 RomeshThapper v. State of Madras, AIR 1950 SC 124 ............................................................ 3 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248 ............................................. 17 S. Veerabhadran Chettiar v. E.V. Ramaswami Naicker, 1958 Cri.L.J. 1565. ........................ 10 S.N. Kabir v. Fatema Begum and Ors., 2014 34 BLD (AD) 165 .............................................. 7 S.P. Gupta v. Union of India, AIR1982 SC 149 ........................................................................ 2 Sachinanand Pandey v. State of West Bengal, AIR 1987 SC 1109........................................... 5 Saumya Ann Thomas v. The Union of India & Others, ILR 2010 (1) Kerala 805................. 10 Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others AIR 1995 SC 1531...................................................................................................................................... 11 Special Reference No. 1 of 1964, [1965] 1 S.C.R. 412 ......................................................... 3, 4 State of Himachal Pradesh v. Parent of a Student of Medical College, Shimla, AIR 1985 SC 910.......................................................................................................................................... 5 State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 ............................................................... 17 State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr., (2004) 11 SCC 26 ...... 8 State of Rajasthan v. Union of India, [1978] 1 SCR 1. .............................................................. 5 Subhash Kumar v. State of Bihar, AIR 1991 SC 420 ................................................................ 2 Subhash Shivram Sawant & Anr. v. Union of India, 2014(2)ALLMR729 ....................... 13, 17 Supreme Court Employees Welfare Association v. Union of India, (1989) 4 SCC 187 ........... 5 Supreme Court in State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr., 2003 (10) SCALE 202 ................................................................................................................. 14 Tej Kiran Jain v. N. Sanjiva Reddy, [1971] 1 SCR 612. ........................................................... 4 The State of Karnataka and Anr. v. ShriRanganatha Reddy and Anr., AIR 1978 SC 215 ...... 15 V -Written Submissions on behalf of Respondents-

-INDEX OF AUTHORITIESWamanRao and Ors v. Union of India (UOI) and Ors., (1981) 2 SCC 362 .............................. 6 Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors, AIR1975SC1788.... 10

BOOKS/JOURNALS REFERRED: 

N A Palkhivala, Fundamental Rights Case: Comment, (1973) 4 SCC (Jour) 57



Joseph Minattur, The Ratio in the KesavanandaBharati Case, (1974) 1 SCC (Jour) 73



Dr. A. Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability, 136

(Deep & Deep Publications Pvt. Ltd, 2010).



R.W.M. Dias, Jurisprudence, (Butterworths Law, 5th ed., 1985).



H.M. Seervai, Constitutional Law of India 4 (4th ed., Lexis Nexis Butterworths, Wadhwa Nagpur, 2012).



M.V. Pylee, Constitutional Amendments in India, (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2006).



MC Jain Kagzi, The Constitution of India, (6th ed. Vo. 1, State Mutual Book & Periodical Service Ltd., 2001).



M.P. Jain, Indian Constitutional Law, 9 (Lexis Nexis Butterworths, Wadhwa, Nagpur, 2000).



AparajitaBaruah, Preamble of the Constitution of India, 43 (1st ed. Deep & Deep Publications, 2007).



KC Markandan, The Preamble: Key to the Minds of the makers of the Indian Constitution, 126 (National, 1984).



O. Chinnappa Reddy, The Court and The Constitution of India, 140 (Oxford India Paperbacks, 2010)



Hayek, F. A., Law Legislation and Liberty: The Political Order of a Free People, Vol. III, Law

Legislation and Liberty, 86 (1979); Hayek, F. A., Constitution of Liberty: The

Definitive Edition, Chicago: Chicago University Press, 340-341 (1960).

VI -Written Submissions on behalf of Respondents-

-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 India, 1950. - However, the Respondent reserves the right to contest the Maintainability.-

VII -Written Submissions on behalf of Respondents-

-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 RastraSangh, demands Preamble to be restored back to its erstwhile form, before the 42nd Constitutional Amendment Act, 1976. He avered 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. -

VIII -Written Submissions on behalf of Respondents-

-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?

IX -Written Submissions on behalf of Respondents-

-SUMMARY OF ARGUMENTSSUMMARY OF ARGUMENTS

I. THAT

THE

PRESENT PETITION

IS

NOT MAINTAINABLE BEFORE THE CENTRAL HIGH

COURT. The Hon’ble Court does not have jurisdiction to entertain the present petition as there is no infringement of fundamental rights. Petitioners do not have the locus standii to approach the Hon’ble Court. Moreover, Petitoner may have filed the petition in form of Public Interest Litigation (PIL). It is submitted that the PIL cannot be filed as it is motivated by personal political interest of the petitioners. Constitution guarantees its citizens freedom of speech and expression and the statements made in the instant matter are in exercise of the same. Lastly, statements made by the members of Central Legislature are protected by Parliamentary Privileges. Therefore, the present petition is not maintainable. II. THAT THE PREAMBLE CANNOT BE AMENDED. It is submitted that, the Preamble and its objectives form a part of the basic structure of the Constitution, as highlighted by the Apex Court in catena of cases. Therefore, by inserting or amending such objectives which guide the country in its governance must be held invalid. It is due to the limited amendatory power of the Parliament, that, the Respondent contends that, any amendment to the guidance of the Constitution must be invalidated and the Parliament cannot transgress its power to that effect. III. THAT THE EXPRESSION ‘SECULAR’ SHOULD BE REMOVED FROM THE PREAMBLE. It is submitted that the insertion of the expression ‘secular’ in the preamble by way of 42nd 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. IV. THAT THE EXPRESSION ‘SOCIALIST’ SHOULD BE REMOVED FROM THE PREAMBLE. It is humbly submitted that the insertion of the expression ‘socialist’ by the Constitution (Forty Second) Amendment Act, 1976 is not in consonance with the Constitutional and socioeconomic scheme of Aryavarta. There is no precise definition of the expression ‘Socialist’ which may lead to multitudes of adverse interpretations. Moreover, the intention of the X -Written Submissions on behalf of Respondents-

-SUMMARY OF ARGUMENTSConstitution makers was to promote the goal of economic democracy and restricting the economic policy to a particular ideology is against the basic democratic setup. With globalization the concept of socialist state is withering away. It is also contended that the idea of socialism is in violation of fundamental rights.

XI -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDARGUMENTS ADVANCED 1. THAT THE PRESENT PETITION IS NOT MAINTAINABLE BEFORE THE HON’BLE CENTRAL HIGH COURT. Mr. Totoro and several members of Central Legislature of Aryavarta have made statements demanding that the expressions “secular” and “socialist”1 should be removed from the Preamble. It is submitted before the Hon’ble Court that the court does not have jurisdiction to entertain the present petition. Constitution guarantees its citizens freedom of speech and expression and the statements made in the instant matter are in exercise of the same. Moreover, Petitioner may have filed the petition in form of Public Interest Litigation (PIL). It is submitted that the PIL cannot be filed as it is motivated by personal political interest of the petitioners. Lastly, statements made by the members of Central Legislature are protected by Parliamentary Privileges. Therefore, the present petition is not maintainable. A. That the Central High Court does not have the jurisdiction to entertain the instant petition. 1

Jurisdiction of the Supreme Court under Art. 32 can be invoked only when fundamental rights have been infringed.2 No question other than relating to a fundamental right will be determined in a proceeding under Art. 32.3 Thus, where there is no infringement of Fundamental Right or scope for enforcement of any fundamental right, the writ petition is not maintainable on the fragile ground.4 No fundamental rights are being infringed by any state action in the instant matter and the court does not have jurisdiction to entertain the instant matter.

2.

It is further submitted that petitioners have approached the Court on frivolous and fragile grounds. Infringement of fundamental rights cannot be founded on remote of speculative grounds.5 There is no state action, which infringes or poses a threat to the fundamental rights of the citizens. Mere apprehension that the petitioner would be deprived of his fundamental Right is not enough to invoke the jurisdiction of the Court under Article 32.6

1 2 3 4 5 6

Vide The Constitution (Forty-Second) Amendment Act, 1976. Gopal Das Mohta v. Union of India, AIR 1955 SC 1. Coffee Bd. v. Joint C.T.O., AIR 1971 SC 870. Federation of Bar Association in Karnataka v. Union of India, (2000) 6 SCC 715. Baldev Singh Gandhi v. State of Punjab, AIR 2002 SC 1124. Maganbhai v. Union of India, (1970) 3 SCC 400.

1 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED3. The present matter is in a nature of political dispute between opposing political parties with contrasting ideologies. There is no infringement, actual or potential, of any fundamental rights. The statements made are protected by freedom of speech. Therefore, it is submitted that court does not have jurisdiction to entertain the present petition. B. That the petitioner has no locus standi to approach the court under Article 32. 1.

The present petition has been filed by Rahtriya Congress Party (“RCP”). It is humbly submitted that rights that could be enforced under Article 32 must ordinarily be the rights of the petitioner himself who complains of the infraction of such rights and approaches the Court for Relief. A petitioner cannot be heard to complain about discrimination suffered by others.7 Therefore, in the instant matter the petitioners don’t have the locus standi to approach the court. C. That the PIL is motivated by personal interest, therefore not maintainable.

1

The petitioners may have filed the petition in form of a PIL. The definition of ‘person aggrieved’ has been enlarged to include public-spirited individual or association8, provided he acts bona fide to vindicate the cause of justice and is not actuated by political motive or other oblique consideration9 or publicity oriented.10 In 2014 a right wing party, the Aryavarta Awam Party (AAP) achieved absolute majority in the central legislature and formed the government on its own. This created a heartburn amongst a whole range of left leaning parties, including RCP, and they have been trying to corner the new government on variety of issues.11 The PIL is not bona fide and has hidden political motives. PILs cannot act as a guise to settle political scores and advance the political gain.12 Petitioner cannot serve his self interest under the guise of PIL. Remedy in such cases is refused.13 D. Moreover, political parties and other associations have freedom of speech and expression under Article 19(1) (a).

1.

Article 19(1) (c) confers a fundamental right on all citizens to form associations or associate with organizations of their choice. A political party is nothing but an association of

7 8 9 10 11 12 13

Chiranjit Lal Chowdhuri v. Union of India [1950] 1 SCR 869. Mumbai Kamgar Sabha v. Abdulbhai Faizullabhai, AIR 1976 SC 1455. S.P. Gupta v. Union of India, AIR1982 SC 149; Banwasi Sewa Ashram v. State of U.P., AIR1987 SC 374. Dattaji Nathuji Thaware v. State of Maharashtra, (2005) 1 SCC 590. Factsheet ¶3. Rajiv Ranjan Singh 'Lalan' and Anr. v. Union of India (UOI) and Ors., 2006(8)SCALE161. Subhash Kumar v. State of Bihar, AIR 1991 SC 420.

2 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDindividuals pursuing certain shared beliefs.14 Political parties and other associations are not citizens, but their members are citizens. Therefore, any restriction imposed on them would directly affect the fundamental rights of their members. Article 19(1)(a) confers a fundamental right on the citizens of the freedom of speech and expression. The amplitude of the right takes within its sweep, the right to believe and propagate ideas whether they are cultural, political or personal. Discussion and debate of ideas is a part of free speech.15 Without free political discussion no public education, so essential for the proper functioning of the processes of popular government, is possible.16 Therefore, all the citizens have a fundamental right to associate for the advancement of political beliefs and opinions held by them.17 2.

It is submitted that Mr. Totoro and other members have exercised their freedom of speech as guaranteed by the Constitution and no reasonable restriction can be imposed on such exercise. E. That the members are protected by Parliamentary Privileges. (a) There is Freedom of Speech in Parliament.

1.

The term 'privilege in law' is defined as immunity or an exemption from some duty, burden, attendance or liability conferred by special grant in derogation of common right. 18 May, in his "Parliamentary Practice", has defined parliamentary privilege as the sum of the peculiar rights enjoyed by each House collectively and by members of each House individually, without which they could not discharge their functions, and which exceed those possessed by other bodies of individuals. Thus, privilege, though not part of the law of the land, is to a certain extent an exemption from the ordinary law.19 It is humbly submitted that there is freedom of speech in Central Legislature under Article 105(1). It has been held in PV Narsimha Rao v. State20 and Special Reference No. 1 of 196421 that the freedom speech is absolute and independent of Article 19 and restrictions mentioned thereunder. Freedom of speech is of the utmost importance. A full and free debate is of the essence of Parliamentary

14 15 16 17 18

19 20 21

Desiya Murpokku Dravida Kazhagam and Anr. v. The Election Commission of India, AIR 2012 SC 219. Ibid. RomeshThapper v. State of Madras, AIR 1950 SC 124. Desiya Murpokku Dravida Kazhagam and Anr. v. The Election Commission of India, AIR 2012 SC 219. Raja Rampal v. Hon’ble Speaker LokSabha, (2007) 3 SCC 184 ¶41 (Hereinafter referred to as “Raja Rampal case”). Ibid. PV Narsimha Rao v. State, (1998) 4 SCC 626 ( Hereinafter referred to as “PV Narsimha Rao case”) Special Reference No. 1 of 1964, [1965] 1 S.C.R. 412 (hereinafter referred to as “UP Assembly case”)

3 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDdemocracy.22 Moreover, Under Article 105(2) a member has immunity from liability to any proceedings in the court in respect of anything said in the Central Legislature. Clause (1) of Article 105 confers freedom of speech on the legislators within the legislative chambers and Clause (2) makes it plain that the freedom is literally absolute and unfettered.23 2.

The rule has been summarized precisely in Tej Kiran Jain v. N. Sanjiva Reddy24which has been reiterated in subsequent judgments25 where M. Hidayatullah, C.J. observed: “The article means what it says in language which could not be plainer. The article confers immunity inter alia in respect of 'anything said...in Parliament’. The word 'anything' is of the widest import and is equivalent to 'everything'. The only limitation arises from the words 'in Parliament' which means during the sitting of Parliament and in the course of the business of Parliament… Once it was proved that Parliament was sitting and its business was being transacted, anything said during the course of that business was immune from proceedings in any court. This immunity is not only complete but is as it should be. It is of the essence of parliamentary system of Government that people's representatives should be free to express themselves without fear of legal consequences. What they say is only subject to the discipline of the rules of Parliament, the good sense of the members and the control of proceedings by the Speaker. The courts have no say in the matter and should really have none.”

3.

Therefore, it is humbly stated that the statements made by the members in Central Legislature are immune from judicial scrutiny and the court cannot entertain any petition questioning the same. (b) Article 122 further prevents judicial scrutiny.

4.

Moreover, it is submitted that Indira Nehru Gandhi v. Raj Narain26, in the context of application of Article 122 observed that Article 122 debars every court from examining the propriety of proceedings "in Parliament". If any privileges of members of Parliament were involved, it was open to them to have the question raised "in Parliament" itself. All are the

22

23 24 25 26

Pandit M.S.M. Sharma v. Shri Sri Krishna Sinha and Ors., AIR 1959 SC 395. (Hereinafter referred to as “M.S.M. Sharma case”) PV Narsimha Rao case Supra 20 ¶7. Tej Kiran Jain v. N. Sanjiva Reddy, [1971] 1 SCR 612. ¶8. PV NarsimhaRao case, Supra 20; UP Assembly case Supra 21. Indira Nehru Gandhi v. Raj Narain, AIR 1975 SC 2299. (Hereinafter referred to as “Indra Gandhi case”)

4 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDinternal matters of procedure which the Houses of Parliament themselves regulate.27 Therefore, judiciary cannot interfere with the internal matters of the House in the instant matter. (c) Principle Of Separation Of Power. 5.

Moreover, under the guise of redressing a public grievance, the court cannot encroach upon the sphere reserved by the Constitution to the Executive or the Legislature. 28 No Court can go into those questions which are within the special jurisdiction of the Legislature itself, which has the power to conduct its own business.29 Courts cannot direct the legislature to amend or enact any law.30

6.

Courts cannot assume unto itself powers the Constitution lodges elsewhere or undertake tasks entrusted by the Constitution to other organs of State. The duty to act as guardian of the Constitution include the duty not to transgress the limitations of their own constitutionally circumscribed powers by trespassing into what is properly the domain of other constitutional organs. This is also a part of the doctrine of a rough separation of powers. 31

7.

Therefore, it is humbly submitted that the present petition is not maintainable before the Hon’ble Court and it should be dismissed. 2. THAT THE PREAMBLE CAN BE AMENDED It is humbly submitted before this Court that, the aims and objectives of Preamble form a part of the basic structure of the Constitution and Preamble cannot be amended to destroy or alter the aims and objectives. This is because, any amendment is subject to basic structure of the Constitution, the Preamble must not be subjected to ordinary legislations and an amendment must add or enhance the Constitutional provisions, A. That any amendment is subject to basic structure of the Constitution

1.

It is humbly submitted before this Court that, the amending power cannot be exercised so as to damage or destroy the basic structure or the framework, 32 or the identity,33 of the 27 28

29 30

31 32 33

M.S.M. Sharma case Supra 22. State of Himachal Pradesh v. Parent of a Student of Medical College, Shimla, AIR 1985 SC 910; Sachinanand Pandey v. State of West Bengal, AIR 1987 SC 1109. M.S.M. Sharma case Supra 22. Supreme Court Employees Welfare Association v. Union of India (1989) 4 SCC 187; Narinder Chand Hem Raj v. Lt. Governor, Administrator, Union Territory Himachal Pradesh, [1972] 1 SCR 940. State of Rajasthan v. Union of India, [1978] 1 SCR 1. N A Palkhivala, Fundamental Rights Case: Comment, (1973) 4 SCC (Jour) 57. Joseph Minattur, The Ratio in the Kesavananda Bharati Case, (1974) 1 SCC (Jour) 73

5 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDConstitution.34 It is by the application of this principle that we shall have to decide upon the validity of any Amendment.35 Amendments to the Constitution made, are open to challenge on the ground of being beyond the constituent power of the Parliament by damaging the basic or essential features of the Constitution.36 In order to qualify as an essential feature, a principle is to be first established as part of the constitutional law and as such binding on the legislature. Only then, it can be examined whether it is so fundamental as to bind even the amending power of the Parliament i.e. to form part of the basic structure of the Constitution. This is the standard of judicial review of constitutional amendments in the context of the doctrine of basic structure.37 This doctrine,38 has consistently evolved39 in catena of cases.40 2.

It is further submitted that, though the amending power in Constitution is in the nature of a constituent power and differs in content from the legislative power, the limitations imposed are substantive as well as procedural.41 In the instant matter, the Constitution (Forty Second Amendment) Act, 1976 which inserted the expressions ‘secular’ and ‘socialist’42 in the Preamble has changed the heart and soul of the Preamble of the Constitution. The aims and objectives of the preamble cannot be amended as they form a part of the basic structure.43 The adding of the words, thereby damaging the objectives of the Preamble of the Constitution, has henceforth, destroyed the basic structure of the Constitution of Aryavarta. It is therefore that, due to limited amendatory power,44 of the Parliament, that the Section 2(a) of the Constitution (Forty Second) Amendment Act, 1976 must be declared unconstitutional.

3.

This conclusion is aptly reflected in the following words: ‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But the constitution is a precious heritage; therefore you cannot destroy its identity’45

34

35 36 37 38 39 40

41 42 43

44 45

Dr. A. Lakshminath, Basic Structure and Constitutional Amendments: Limitations and Justiciability, 136 (Deep & Deep Publications Pvt. Ltd, 2010). Waman Rao and Ors v. Union of India (UOI) and Ors., (1981) 2 SCC 362. Ibid, ¶70. M. Nagarj v. Union of India, (2006) 8 SCC 200. Indira Nehru Gandhi Case Supra 26. Glanrock Estate (P) Ltd v. The State Of Tamil Nadu (2010) 10 SCC 96 Waman Rao v. Union of India Supra 35; I R Coelho v. State of Tamil Nadu, (1999) 7 SCC 580; M. Nagaraj v. Union of India (2006) 8 SCC 212. Kihoto Hollohan v. Zachillhu and Ors. 1992 Supp. (2) SCC 651. Vide S. 2(a), The Constitution (Forty Second) Amendment Act, 1976. His Holiness Kesavananda Bharti v. State of Kerala, AIR 1973 SC 1461. (Hereinafter referred to as “Kesavananda Bharti case”) Minerva Mills v. Union of India, AIR 1980 SC 1789. Ibid.

6 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED4.

Therefore, it is submitted that basic structure doctrine is deeply entrenched in the jurisprudence of the Constitution of Aryavarta and it does not warrant any review. Accordingly, the Respondent contends that, in the instant matter, since the erstwhile government at the Centre, had by inserting these two expressions altered the soul of the Constitution, thereby destroying the basic structure of the Constitution, in view of the limited amendatory power of the Parliament. B. That the Preamble must not be subjected to ordinary resolution

1.

It is submitted that, the Preamble, a 'part' and a basic feature46 of the Constitution, is neither a source of power nor a limitation upon that of the ideological aspirations of the peoples. 47 The aid of the preamble is taken when the meanings of the words to be interpreted are not clear and ambiguous48 which epitomizes the principles on which the Government is intended to function and these principles are later expanded into Fundamental Rights in Part III and the Directive Principles of Policy in Part IV, wherein, the latter are the obligations and the duties of the Government as a good and social Government.49

2.

After constant struggle was founded this republic with the fourfold objective of securing to its citizens justice, liberty, equality and fraternity. In the preamble, the constitution makers spelt out the goal and in Parts III and IV and elaborated the methodology to be followed for reaching that goal.50 As was the intent of the drafters of the Constitution, Preamble is considered as the soul of the Constitution,51 the ideologies of which are integral in the governance of the country. Therefore, by making an amendment in the soul of the Constitution itself, will change the direction of the Constitution, and will be a blot on the deliberation through which the Constitution has gone through. "Equality of status and of opportunity the rubric chiseled in the luminous preamble of our vibrating and pulsating Constitution radiates one of the avowed objectives in our Preamble."52

3.

The goals enumerated in the Preamble of the Constitution must remain attainable.53 Further, in addition to these objectives,54 along with liberty,55 the Constitution, is 46 47 48 49 50 51 52 53

Ibid, ¶629. Indira Gandhi Case Supra 26. S.N. Kabir v. Fatema Begum and Ors., 2014 34 BLD (AD) 165. I.C. Golak Nath and Ors. v. State of Punjab and Anr., AIR 1967 SC 1643. Indra Sawhney etc. etc. v. Union of India and others, etc. etc., (1992) 3 SCC 217. III, CAD, pp. 352 (Dr. B.R. Ambedkar). Indra Sawhney etc., Supra 50, ¶ 125. Ibid, ¶ 514.

7 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDcharacterized by months of deliberation and concerted effort to deface the society by creating caste consciousness, exploiting religious sentiments was attempted to be effaced by 'The People' when they resolved to constitute the country,56 which necessarily did not include a 'socialist' state. It is therefore contended that, these deliberations must not be discarded, and that, by making an amendment into the Preamble, which was willfully deliberated for months, must be given due consideration, and should not be amended just like an ordinary law. 4.

In the instant matter, it is contended that, just by enacting or passing an ordinary resolution the Parliament cannot transgress the limits imposed by the judicial doctrine of basic structure. The Parliament cannot operate on its whims and fancies, and must maintain the integrity of the Constitution. C. That an amendment must add or enhance the Constitutional provisions

1.

It is submitted that an amendment made into the supreme law of the land, must not be of ordinary nature, for it affects the governance of the nation. It must, therefore, be an enhancing or an enabling provision, which must be 'attainable'. The concept of 'Socialism', in 42nd Constitutional Amendment Act, might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.57 The judiciary cannot cling to age-old notions of any underlying philosophy behind interpretation. It has to move with the times. When the nature of things changes, the rules of law must change too. 58 This is a truism in that the legislature and, within limits, the courts should change rules to keep the law abreast of change.59 Therefore, the concept of Socialism, in context of Aryavarta, may be different, but still, there persists great amount of anomalies, which can be seen through the liberalization policy, and presence of private enterprises. As regards to Socialism, it is submitted that, the thread of Socialism runs through the Part III and Part IV, majorly related to the latter. However, such concept is not enforceable, because, since Part-IV, containing Directive Principles of State Policy,60 is not enforceable.61 They reflect the Socialist thoughts, 54 55 56 57 58 59 60

Ibid, ¶ 515. Ibid. Ibid. State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr., (2004) 11 SCC 26. Per Willes, C.J., Davis v. Powell, [1941] 1 KB 519. R.W.M. Dias, Jurisprudence, (Butterworths Law, 5th ed., 1985). Art. 36-51, the Constitution of Aryavarta.

8 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDhowever, it must alongside be noted that, such Socialist thought was already present in preForty Second Constitutional Amendment era, therefore, there was no 'need' per se to amend the Constitution, and to add something, which was already implicit,62 in the Constitution. Further, by tracing the elements of 'Secularism' in the Constitution, it is pertinent to note that, as has already been settled,63 that Secularism, is the basic structure,64 however, this was anyway implicit in the Constitution, before adding of the words, 'Socialist' and 'Secular', therefore, going on to merits of limited amendatory power, removing these words will not change the nature of the Constitution per se, therefore, it is submitted that, Preamble cannot be amended to an extent which changes the aims and objectives of the Constitution. 2.

It is also further to be noted that, the concept of 'Secularism' is also not absolute in the diverse country like Aryavarta. This is because, the 'Secular' activities of a religion are those which are not essential activities, and therefore, they may be regulated by the State in the interests of Public.65 Therefore, along the lines, it is submitted that, both the words 'Secular' and 'Socialist' were implicit in the Constitution, and that these concepts are not in their entirety and are subjected to the State's intervention. Further, since these were implicit, there was no such urgency to amend the Constitution, transgressing the amendatory power of the Parliament, thereby damaging the basic structure66 of the Constitution. 3. THAT THE WORD “SECULAR” SHOULD BE REMOVED FROM THE PREAMBLE It is submitted that the insertion of the expression ‘secular’ in the preamble by way of 42nd Amendment. The founding fathers of the nation did not intend to insert the word in the preamble and deliberately avoided its use. 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. A. The word “secular” is ambiguous

1.

It is submitted that the word ‘secular’ is an unnecessary insertion in the preamble. It cannot be defined in exact terms and can be interpreted in variety of manners. It might have the widest connotation of universalism, freedom and toleration and also may be construed as anti-theism on the part of State. 61 62 63 64 65 66

Art. 37, the Constitution of Aryavarta. S.R. Bommai v. Union of India [1994] 2 SCR 644. Ibid. Kesavananda Bharti case Supra 43. A.S. Narayan v. State of A.P., AIR 1996 SC 1765. Kesavananda Bharti case Supra 64.

9 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED2.

There have been several attempts by the Indian Judiciary and legal academicians to restrict the meaning to be used in the context of Aryavarta. However, all the definitions as given by various judgments only reiterate it in context of the later part of the preamble. The word has been interpreted in the light of rights granted under Part III and Part IV of the Constitution of Aryavarta.

3.

Secularism is a sense of basic fraternity, fellowship and unity among all the citizens. Secularism is a goal as well as a process.

67

The main goal of the constitution is to achieve

justice, equality and fraternity and it is these goals that form the substance of the Constitution. 4.

It is further submitted that since it is a descriptive and subjective concept, it is always in the process of evolution. To ascribe the concept in strict terms will be a limitation on the choice of people to diverge from it. It can be seen that the only limitation as recognized by the constitution makers was that the Parliament cannot impose any particular religion on the people.68 The definition of secularism has evolved from the concept of it being anti-Christ or anti- religion69, non interference of State in religious matters70, treating all religions equally71, protection of all religions under constitutional scheme72 to a constant pursuit to secure public good73. None of these constituents can be said to be constant and acceptable which is evident from the fact that despite of various deliberations on the topic neither the members of the Constituent Assembly come up with a precise definition nor the Legislature in its 45th Amendment inserted any definition. B. Express use of word ‘secular’ stands in contradiction to different provisions of Constitution

1.

It is submitted that since there can be no definition attached to the use of word ‘secular’ as inserted in the preamble, different interpretations not only lead to different conclusions but also few interpretations may make other provisions of the Constitution contradictory or unworkable. 67 68

69

70

71 72 73

Athiest Society of India, Nalgonda District Branch v. Govt. of Andhra Pradesh, AIR 1992 AP 310. Dr. B. R. Ambedkar participating in the debate of Parliament on Hindu Code Bill in 1951; S. Veerabhadran Chettiar v. E.V. Ramaswami Naicker 1958 Cri.L.J. 1565. Black's Law Dictionary; Bal Patil and Anr. v. Union of India & Ors., AIR 2005 SC 3172 “The State has no religion” Gurtej Singh v. Union of India & Ors., (1990) ILR 1 Punjab and Haryana 418 ¶ 7; Saumya Ann Thomas v. The Union of India & Others, ILR 2010 (1) Kerala 805 ¶ 31. Ismail Faruqui v. Union of India, AIR 1995 SC 605. Gurtej Singh, Supra 70. Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass Mehra & Ors, AIR 1975 SC 1788.

10 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED2.

If the interpretation of the word ‘secular’ can be taken to mean no interference by the State whatsoever or no power of the State to legislate on the matters of religion then, it will be very difficult for State to bring about reformatory enactments without them being challenged before74. The State will be handicapped of its power to legislate on the matters where intervention is necessary for the overall development of society.

3.

Articles 25- 28 which guarantee the right of freedom of religion are at the core of concept of ‘secularism’. If secularism is treated as protection of all religions, then the personal laws are protected in their operational fields. It is because of this reason that Article 44 is a dead letter in law because wherein article 25 guarantees religious freedom, Article 44 divests religion from social relations and personal law.75 Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. 76 Article 44 implies equal treatment of all religions and discourages personal laws which are protected under Article 25-28 of the Constitution.

4.

It is also submitted that where secularism exists there can be no privileges or positive rights given to religious minorities. Secularism implies that every citizen is treated equally despite his religious beliefs. And if secularism is treated in that sense then it will be in contradiction to the minority rights granted by the Constitution under Article 29-30. The objective of the Constitution makers was to guarantee these rights to the religious and linguistic minorities which is evident from the fact that they are kept in the category of Fundamental Rights. However, due to the insertion of the expression in the Preamble, the courts are erroneously reading these rights as secondary. “If, only on the basis of a different religious thought or less numerical strength or lack of health, wealth, education, power or social rights, a claim of a section of Indian society to the status of ‘minority’ is considered and conceded…. such fissiparous tendencies would be a serious jolt to the secular structure of constitutional democracy. We should guard against making our country akin to a theocratic State based on multinationalism”77 C. The use of the word “Secular” was deliberately avoided by the drafters of the Constitution

74 75 76 77

Pramati Educational and Cultural Trust and Ors. v. Union of India (UOI) and Ors. AIR 2014 SC 2114. John Vallotam v. Union of India AIR 2003 SC 2902 ¶ 44. Smt. Sarla Mudgal, President, Kalyani and others v. Union of India and others AIR 1995 SC 1531. Bal Patil case Supra 69.

11 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED1.

It is submitted that the insertion of the word ‘secular’ by the 1976 Amendment Act is wholly unnecessary and irrelevant in the light of various provisions of the Constitution which give different protections to the citizens.

2.

The constitution makers strived to set up Aryavarta as a state which guarantees different protections to all its citizens. When the constitution was being formulated, the country was going through political turmoil and a two nation theory had emerged based on religious sentiments. Even then the makers of constitution deliberately avoided the express mention of word ‘secular’ because it would have only subscribed to the two nation theory. It can be said that by placing justice, equality and fraternity as major goals of the Constitution the Founding fathers intended to create unified nation where State religion or no- religion was irrelevant.

3.

It can be also seen from the reading of Constituent Assemble Debates that the spirit of secularism can be derived from various rights under Part II of the Constitution. And if the secular character is not to be found in Part III, it cannot be found anywhere else in the Constitution because every fundamental right in Part III stands either for a principle or a matter of detail.78 The Constitution will always protect these rights which are embodied in the ethos of Aryavarta. The express insertion in the preamble does not enhance the objectives that the constitution seeks to achieve. D. The Amendment was unnecessary

1.

It is submitted that the insertion of the word ‘secularism’ was a political move and there was no pressing need for making the said Amendment. The protection of religious rights has already been granted under Articles 25-28 of the constitution. The preamble though being a part of Constitution is not enforceable. It can be said that the Amendment created more mischief than benefit.79

2.

The Statement of Objects and Reasons80 explain that the reason to bring the amendment was ‘to spell out expressly high ideas of socialism, secularism and integrity of nation’ because the institutions with vested interests are ‘trying to promote their selfish ends to great detriment of public good.’81 Such use of word implies that the only possible reason why the Amendment was brought was that the Majority Community (Aryans) in trying to promote their interests was trampling over the rights of Minority Community (Hodos and Hotos). This shows a clear 78 79 80 81

I.R. Coelho (Dead) By LRs. v. State of Tamil Nadu and Ors AIR 2007 SC 861 ¶ 58. H.M. Seervai, Constitutional Law of India 4 (4th ed., Lexis Nexis Butterworths, Wadhwa Nagpur, 2012). Vide Constitution (Forty Second) Amendment Act, 1976 M.V. Pylee, Constitutional Amendments in India, (Universal Law Publishing Co. Pvt. Ltd., New Delhi, 2006).

12 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDlack of faith in the majority community who had for so long contributed to make Aryavarta into biggest democracy in the world.82 3.

In the name of secularism, the minority has been trying to encroach upon the basic rights of the Aryans. Under the garb freedom to practice and propagate religion the minorities are trying to convert people into accepting their religion.83 Whereas the right to propagate is only restricted to exposing the person to the tenets of one’s religion it does not involve conversion.84 There has been no evidence that the Majority is trying to encroach upon the rights of minority but certain basic rights which are given to minority have been denied to the Majority.85 4. THAT EXPRESSION ‘SOCIALIST’ SHOULD BE REMOVED FROM THE PREAMBLE. It is humbly submitted that the insertion of the expression ‘socialist’ by the Constitution (Forty Second) Amendment Act, 1976 is not in consonance with the Constitutional and socioeconomic scheme of Aryavarta. There is no precise definition of the expression ‘Socialist’ which may lead to multitudes of adverse interpretations. Moreover, the intention of the Constitution makers was to promote the goal of economic democracy and restricting the economic policy to a particular ideology is against the basic democratic setup. With globalization the concept of socialist state is withering away. It is also contended that the idea of socialism is in violation of fundamental rights. A. The expression ‘Socialist’ cannot be precisely defined.

1.

It is humbly submitted that there is no precise definition of ‘Socialist’ state in the context of Aryavarta. In a recent PIL filed before the Bombay High Court 86, the court refused to give a definition of socialism. Rather, it cited the definition given by CEM Joad, an eminent Fabian Socialist, who defined socialism as“Socialism was like a hat which had lost its shape because too many people had worn it. Socialism is a chameleon like creed which changes its colour according to its environment.”

82 83 84 85

86

Factsheet ¶ 5. Factsheet ¶ 6. Rev. Stainislaus v. State of Madhya Pradesh and Ors. AIR 1977 SC 908. Jagadiswarananda Avadhuta v. Commissioner of Police AIR 1990 Cal 336 ¶35, where the right to carry Trishuls in procession is denied to Hindus but Muslims can carry open swords. Subhash Shivram Sawant&Anr. v. Union of India, 2014(2)ALLMR729.

13 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED2.

Socialism is a multi-faceted concept and there are varied form of it like utopianism, evolutionary, syndicalism, guild socialism, Christian socialism, Fabian socialism, Doctrinaire orthodox socialism, Marxian socialism, pragmatic socialism and what not.87 Socialism is a concept which cannot be described. The Apex court while discussing ‘socialism’ explained that there are two views possible. While the doctrinal concept supports the idea of nationalization and complete state-ownership on the basis of welfare of the people; the rationalist view supports that nationalisation or ownership by state should be resorted to only if it is to achieve economic efficiency and increased output of production and general notion of social welfare. This latter view is found in Parts III and IV of Constitution of Aryavarta and the insertion of ‘socialist’ is a clear digression from the pragmatic approach as intended by the Constitutional provisions.88

3.

The word ‘socialist’ in the preamble does not envisage doctrinaire socialism which insists on state ownership as a matter of policy. In India along with big public sector, the private enterprise also has a role to play.89Swaran Singh, who was the chief architect of 42nd amendment Act 1976 explained that by the word ‘socialism’ nothing more was meant than what was explained at the Awadi Session of Congress which ensured, aimed at “mixed economy”.90 B. Concept Is Withering Away

1.

The Supreme Court in State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr.91held that “Socialism might have been a catchword from our history. It may be present in the Preamble of our Constitution. However, due to the liberalization policy adopted by the Central Government from the early nineties, this view that the Indian society is essentially wedded to socialism is definitely withering away.”

2.

Courts have restrained themselves from interpreting terms in strict ‘socialist’ sense. Apex Court while interpreting the meaning of the term ‘public purpose’ acknowledged the fact that

87

88

89 90 91

MC Jain Kagzi, The Constitution of India, (6th ed. Vo. 1, State Mutual Book & Periodical Service Ltd., 2001). Akadasi Padhan v. State of Orissa, [1963] Supp. 2 S.C.R. 691; Excel Wear v. Union of India, AIR 1979 SC 25 (36). M.P. Jain, Indian Constitutional Law, 9 (Lexis Nexis Butterworths, Wadhwa, Nagpur, 2000). Aparajita Baruah, Preamble of the Constitution of India, 43 (1st ed. Deep & Deep Publications, 2007). Supreme Court in State of Punjab and Anr. v. Devans Modern Brewaries Ltd. and Anr., 2003 (10) SCALE 202.

14 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDIndia is a mixed economy and neither socialist jurisprudence nor capitalist legal culture can govern the concept of public purpose in India's mixed economy and expanding.92 3.

With new economic policy of 1991, Disinvestment of government holdings in public sector undertakings run counter to the object for which the word "socialist" which was incorporated in the Constitution. Similarly, the decision regarding permission for FDI in various sectors in the country would also be contrary to the socialism.

4.

The New Economic Policy was aimed at meeting India's competitiveness in the global market; rapid growth of exports, attracting foreign direct investment; and stimulating domestic investments. With a view to achieve standards comparable to international facilities, the sub-sector of Value Added Services was opened up to private investment. Therefore, retaining the expression ‘socialist’ will create a paradox. C. Economic Democracy

1.

It is humbly submitted that Aryavarta is an economic democracy.93Mr. Natsu, main architect of Aryavarta Constitution, stated in the Constituent Assembly Debates that apart from political democracy, it is also desirable that economic democracy should also be laid down. There are various ways in which people believe that economic democracy can be brought about; there are those who believe in having a socialistic state as the best form of economic democracy; there are those who believe in having a socialistic state as the best form of economic democracy; there are those who believe in the communistic idea as the most perfect form of economic democracy.

2.

Economic democracy may be brought about, in the directive principles, something which is not fixed or rigid. A room is left open for people of different ways of thinking, with regard to the reaching of the ideal of economic democracy94, to strive in their own way, to persuade the electorate that it is the best way of reaching economic democracy, the fullest opportunity to act in the way in which they want to act. That is the reason why the language of the articles in Part IV is left in the manner in which this Drafting Committee thought it best to leave it. 95

3.

The directive principles have a great value, for they lay down that our ideal is economic democracy. Our object in framing this Constitution is really two-fold: (i) to lay down the form of political democracy, and (ii) to lay down that our ideal is economic democracy and 92 93 94 95

The State of Karnataka and Anr. v. Shri Ranganatha Reddy and Anr., AIR 1978 SC 215. VII, CAD, pp. 494-95; Factsheet ¶3 VII, CAD, p.336 (Alladi Krishnaswamy Ayyar) Ibid.

15 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDalso to prescribe that every Government whatever, it is in power, shall strive to bring about economic democracy.96 D. Government Should Have Freedom To Decide Its Economic Policy 1.

It is humbly submitted that matters related to economic policy are complex and are decided by the Government. Looking into the Constituent Assembly Debates it can be reasonably inferred that the intention of the Assembly was that the legislature and the executive should exclusively determine policy matters. Dr. BR Ambedkar97 rejected the suggestion by Professor KT Shah to include the word Socialism in the Constitution stating that the policy of the State and organization of the society 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 will destroy the democracy altogether. He insisted that if it is in the Constitution that the social organization of the State shall take a particular form it amounts taking away the liberty of the people to decide what should be the social organization in which they wish to live. Constitution should not tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.98

2.

Moreover, the amendment attempted to create a particular ideological basis for adherence to the Constitution, which was against the principles of a multi-party democracy and which breached the unity and integrity of the nation. The ingestion of the socialist principle was antithetical to the principle of democracy, which was considered a basic structure of the Constitution. Parliamentary democracy and multi-party system are an inherent part of the basic structure of the Constitution.99 If state ideology is restricted to a particular institution, it will not only affect the right of the political parties to profess their ideology but also it restricts the rights of representatives to change the economic policy according to the will of the people. It will take away the liberty of the people to decide the ideological set-up they want to live in.

96 97 98 99

VII, CAD, pp 494-95. VII, CAD. I, CAD p. 62. Kuldip Nayar v. Union of India (2006) 7 SCC 1; Mohinder Singh Gill and Anr. v. Chief Election Commissioner, New Delhi and Ors., (1978) 1 SCC 405; Kihoto Hollohon v. Zachillhu and Ors., 1992 (Supp) 2 SCC 651; People's Union for Civil Liberties and Anr. v. Union of India (UOI) and Anr., (2014) 2 SCC (LS)6 48; Indira Nehru Gandhi Case Supra 26.

16 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCED3.

Determining the economic policy of the country is the function of the Legislature and the Executive. In Balco Employees Union v. Union of India100 Supreme Court while considering the challenge to the policy of disinvestment observed that Court does not sit over the policy of the Parliament in enacting the law, similarly, it is not for this Court to examine whether the policy of this disinvestment is desirable or not. The same approach is followed by the government in interfering with the executive policies concerning economic policies.101 It is again not for this Court to consider the relative merits of the different political theories or economic policies.102 The decision of disinvestment and the implementation was held to be purely an administrative decision relating to the economic policy of the State and challenge to the same cannot be entertained by the court.103 E. ‘Socialist’ is in Contradiction to Article 14

1.

Socialist planning, infringes on political and economic rights. There is an immediate inconsistency between the goals of socialist planning and the right to political equality. To fulfill the goal of central planning, which is to bring different individuals to the same end state, it is necessary to treat them differently, which is in direct conflict with the right to equality. Equal treatment before the law will necessarily lead to unequal distribution of resources and distributing the resources equally necessarily implies violating the equality clause. Therefore, one can either have political equality or substantive equality, but one must choose and cannot have both.104The claim put in to the Bombay High Court105 by mill owners whose concern had been taken over by the government that their fundamental right to property was violated since they received no compensation in clearly illustrates that socialism is in contradiction to Article 14. F. In Arguendo, the insertion of the expression ‘socialist’ is unnecessary.

1.

The Socialist scheme of the Constitution is clearly reflected in Part III and Part IV. Apart from the Fundamental Rights, which we have embodied in the Constitution, directive Principles of State policy place certain obligations both on the Legislature as well as the Executive to the form of their policy. Articles 38, 39, 41, 42, 43, 43-A, 45, 46 and 47 if read

100 101 102 103 104

105

Balco Employees Union v. Union of India, (2002) 2 SCC 333. State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566; R.G. Garg v. Union of India, (1981) 4 SCC 675. Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248. Subhash Shivram Sawant Anr. v. Union of India, 2014(2)ALLMR729. Hayek, F. A., Law Legislation and Liberty: The Political Order of a Free People, Vol. III, Law Legislation and Liberty, 86 (1979); Hayek, F. A., Constitution of Liberty: The Definitive Edition, Chicago: Chicago University Press, 340-341 (1960). Dwarkadas Srinivas v. The Sholapur Spinning and Weaving Company Ltd., AIR 1951 Bom 86.

17 -Written Submissions on behalf of Respondents-

-ARGUMENTS ADVANCEDwith equality clauses and ‘right to freedom’ and the right to life clauses of the Fundamental Rights, all the basic tenets of socialism may be considered satisfied.106 2.

In this connection it is submitted that the Constitution should be amended first and then the objectives of the Constitution should be placed in the preamble because the preamble is meant to reflect the content of the Constitution and not dictate the direction of Constitutional policy.107 Therefore, it is submitted that these socialist principles are already embodied in our Constitution and it is unnecessary to accept this amendment.

3.

Hence, on the basis of the arguments advanced it is submitted that Section 4 of the Constitution (Forty Second) Amendment, 1976 should be declared void.

106

107

Supra 97; O. Chinnappa Reddy, The Court and The Constitution of India, 140 (Oxford India Paperbacks, 2010) KC Markandan, The Preamble: Key to the Minds of the makers of the Indian Constitution, 126 (National, 1984).

18 -Written Submissions on behalf of Respondents-

-PRAYERTHE PRAYER

WHEREFORE IN THE LIGHT OF THE ISSUES RAISED, ARGUMENTS ADVANCED, REASONS GIVEN AND AUTHORITIES CITED, THIS COURT MAY BE PLEASED TO:

I. II. III.

DISMISS THE PETITION. HOLD AND DECLARE THAT PREAMBLE CAN BE AMENDED HOLD

AND

DECLARE THAT THE EXPRESSIONS ‘SECULAR’ AND ‘SOCIALIST’ CAN BE

REMOVED FROM THE PREAMBLE.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

SD/COUNSEL FOR THE RESPONDENTS

IX Memorandum for the Respondent