Amid Preamble Debate, a Review of Jana Sangh's Role in Retaining Emergency-Era Amendments

Dattatreya Hosabale, the Rashtriya Swayamsevak Sangh (RSS)'s ‘sarkaryavah’ since 2021 and close to Prime Minister Narendra Modi, has raised a red herring on the inclusion of ‘secular’ and ‘socialist’ in the preamble of the Constitution of India.

As if to please him – and of course Prime Minister Modi – Vice President Jagdeep Dhankhar and several BJP leaders have jumped into this well of controversy without looking at the constitutional reality of the three Emergency amendments and the participation of the Jana Sangh and the RSS in them from 1976-1978. Especially for Dhankhar, this is below the dignity of his office.

June 25 reminds every democratic Indian of the horrendous internal Emergency declared 50 years ago by then-Prime Minister Indira Gandhi under Article 352 of the constitution. She resorted to this constitutional provision in order to get past the Allahabad high court's judgment on the election petition of Raj Narain, her rival from the Raebareli constituency in Uttar Pradesh, from where she had been elected as MP.

Justice Jagmohan Lal Sinha had unseated her from the Lok Sabha on certain technical grounds of misuse of the official machinery during her campaign. The judgment was preceded by the Nav Nirman and JP movements in Gujarat and Bihar. She used the ferment caused as a pretext to impose an internal emergency.

Indeed, the arrests of leaders of opposition parties and dissenting leaders made during the Emergency were bad enough and violative of the spirit of the constitution. However, the 42nd amendment of the constitution passed in November 1976 and assented to by the president in December 1976 was definitely a darker dimension of the Emergency.

The amendment was made to the preamble, which in its original form was a close replica of the Objectives Resolution drafted and moved by her father in the Constituent Assembly three decades prior on December 13, 1946 and several other provisions.

Significantly, the 42nd amendment extended the duration of the Lok Sabha and the state legislative assemblies – originally fixed for five years – by a year. Normally, in case of such a constitutional change, implementation is deferred till a new House is elected, but in this case, the change not only extended the duration of the existing Houses, but also extended the duration of the future assemblies.

This controversial amendment made 59 changes in the constitution, impacting the executive, the legislature, the judiciary and the citizens’ rights alike. According to Granville Austin,

“Building on the Swaran Singh Committee proposals, the Amendment’s … clauses had four main purposes: to further protect from legal challenges Mrs Gandhi’s 1971 election to parliament and future elections of her followers; to strengthen the [Union] government vis-a-vis the state governments and its capability to rule the country as a unitary, not federal, system; to give maximum protection from judicial challenge to social revolutionary legislation whether intended sincerely or to cloak authoritarian purpose; ‘to trim’ the judiciary, as one Congressman put it, so as to ‘make it difficult for the Court to upset her policy in regard to many matters’.”

So, the additions of “Secular Socialist” to “Sovereign Democratic Republic” and an assurance of the “unity and integrity” of the nation in the preamble – elements that were integral to and implicit in the constitution – were to create the impression of emerging threats to the nation. They were in line with Indira Gandhi’s resolve to strengthen and safeguard the ‘nation’ against them.

However, the statutory safeguards for the leader impacted both institutions and citizens’ rights.

The use of threats to national unity and integrity as the raison d'etre for imposing the Emergency and constitutional changes was an attempt to create a political and civic atmosphere of suspicion, giving credence to the hyperbole of increasing ‘anti-national’ activities.

However, in light of the red herring being created on amendments in the preamble, a study of the 43rd and 44th amendments brought by the Janata Party, of which the Jana Sangh – represented in the government by Atal Bihari Vajpayee and Lal Krishna Advani, and which was the the BJP's predecessor party – was an integral part, is essential (the Jana Sangh reincarnated as the BJP in 1980).

The 43rd amendment revised the 42nd on 11 counts. It strengthened citizens by removing Article 31D, which gave parliament power to make laws on ‘anti-national activities’ and associations, and by bringing state laws that impacted fundamental rights under judicial scrutiny. Moreover, the deletion of Article 131A restored the original jurisdiction of the Supreme Court and that of the high courts.

The 44th amendment, passed in the Lok Sabha in December 1978, made 45 changes to do away with the tampering by the 42nd amendment.

Noise makers such as the RSS's Hosabale and Vice President Dhankhar must especially read the objectives of the 44th amendment. The second ‘Statement of Objects and Reasons’ says, “It is, therefore, proposed to provide that certain changes in the Constitution which would have the effect of impairing its secular or democratic character…”

In order to protect the ‘secular and democratic’ character of the constitution, it proposed a referendum in order to check any arbitrary move by any regime. The Jana Sangh had no issue with the objective of India’s ‘secular’ character.

Significantly, after all these amendments, the preamble was left with the additional words, while the fundamental duties were retained.

Article 74, amended by the 42nd amendment to make the council of ministers’ advice explicitly mandatory for the president to follow, was qualified with the proviso that the president can return the council of ministers’ advice for reconsideration but was bound by it if it is resent unchanged; this was an unstated qualified endorsement of the earlier amendment.

Even the amended Seventh Schedule Lists 1 and 2 that strengthened the Union government's role in public security, were retained. However, Article 257A, that provided for deployment of the Union government forces in a state, was deleted because it was “not found in accordance with the scheme of things … laid down in the Constitution”.

Also, protection provided to the bureaucracy and the provision for more all-India services in Articles 311 and 312 as well as Part XIV, and Article 323 pertaining to administrative tribunals, were retained.

The retentions are as significant as the major changes introduced, but neither the Statement of Objects and Reasons, nor the discussions on the Bill, reveal much about them.

Ajay K. Mehra is a political scientist and a visiting senior fellow at the Centre for Multilevel Federalism. He was Atal Bihari Vajpayee Senior Fellow, Nehru Memorial Museum and Library, New Delhi, 2019-21 and Principal, Shaheed Bhagat Singh Evening College, Delhi University (2018).

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