Bench of Mr. Justice Mohit S. Shah and Mr. Justice M.S. Sanklecha summarily dismissed a PIL seeking definition of ‘Socialist’ in the Preamble and restraining State from policies like disinvestment or FDI.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION
PUBLIC INTEREST LITIGATION NO.21 OF 2013
…
Subhash Shivram Sawant & Anr. ...Petitioners v/s. Union of India & Ors. ...Respondents
Mr.Bhavesh Parmar i/b Vijay Prakash Yadav & D.Shukla for petitioners.
Mr.Ashutosh Kaushik for respondent No.1.
CORAM: MOHIT S. SHAH, C.J. & M.S.SANKLECHA, J. DATE : 7 AUGUST 2013
ORAL ORDER ( PER CHIEF JUSTICE)
In this petition, purporting to be public interest litigation, a trade-union leader (petitioner No.1) and a businessman (petitioner No.2) have prayed for following directions against the Union of India and six political parties:-
(i) To define the word “Socialist” in the Preamble of the Constitution of India.
(ii) To declare and interpret the true and correct definition and meaning of the word “Socialist” in the Preamble of the Constitution of India.
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(iii) To direct the respondents to abide by the true and correct definition and meaning of the word “Socialist” in the Preamble of Constitution of India, as may be decided in the present proceedings.
(iv) To restrain and refrain the respondents from suggesting, supporting and espousing actions and inactions contrary to the object sought to be achieved by the incorporation of the word “Socialist” in the Preamble of the Constitution of India.
“What should be the policy of the State, how the Society should be organized 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 is destroying democracy altogether. If you state in the Constitution that the social organization of the State shall take a particular form, you are, in my judgment, taking away the liberty of the people to decide what should be the social organization in which they wish to live. It is perfectly possible today, for the majority people to hold that the Socialist orgnization of society is better than the capitalist organization of society. But it would be perfectly possible for thinking people to devise some other form of social organization which might be better than the Socialist organization of today or of tomorrow. I do not see therefore why the Constitution should tie down the people to live in a particular form and not leave it to the people themselves to decide it for themselves.”
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A Constitution to be living must be growing. If the impediments to the growth of the Constitution are not removed, the Constitution will suffer a virtual atrophy. The question of amending the Constitution for removing the difficulties which have arisen in achieving the objective of socio-economic revolution, which would end poverty and ignorance and disease and inequality of opportunity, has been engaging the active attention of Government and the public for some years now.
2. The democratic institutions provided in the Constitution are basically sound and the path for progress does not lie in denigrating any of these institutions. However, there could be no denial that these institutions have been subjected to considerable stresses and strains and that vested interests have been trying to promote their selfish ends to the great detriment of public good.
3. It is, therefore, proposed to amend the Constitution to spell out expressly the high ideals of socialism, secularism and the integrity of the nation, to make the directive principles more comprehensive and give them precedence over those fundamental rights which have been allowed to be relied upon to frustrate socio-economic reforms for implementing the directive principles. It is also proposed to specify the fundamental duties of the citizens and make special provisions for dealing with anti-national activities,whether by individuals or associations.
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33. While considering the validity of the Banking Companies (Acquisition and Transfer of Undertakings) Ordinance 1969, this Court in Rustom Cavasjee Cooper vs. Union of India, (1970) 1 SCC 248 at page 294 observed as under :-
"It is again not for this Court to consider the relative merits of the different political theories or economic policies. This Court has the power to strike down a law on the ground of want of authority, but the Court will not sit in appeal over the policy of the Parliament in enacting a law..."
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34. Applying the analogy, just as the 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 Court also referred to the decision in State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 and R.G. Garg v Union of India, (1981) 4 SCC 675 that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion, etc. The Court also referred to the following admonition given by Frankfurter, J. in Morey v Doud, (1957) 354 US 457 :-
“In the utilities, tax and economic regulation cases, there are good reasons for judicial self-restraint if not judicial deference to legislative judgement. The legislature after all has the affirmative responsibility. The Courts have only the power to destroy, not to reconstruct. When these are added to the complexity of economic regulation, the uncertainty, the liability to error, the bewildering conflict of the experts, and the number of times the judges have been overruled by events self-limitation can be seen to be the path to judicial wisdom and institutional prestige and stability.”
The Court then made the following pertinent observations :-
“What we said in that case in regard to legislation relating to economic matters must apply equally in regard to executive action in the field of economic activities, though the executive decision may not be placed on as high a pedestal as legislative judgment insofar as judicial deference is concerned. We must not forget that in complex economic matters every decision is necessarily empiric and it is based on experimentation or what one may call 'trial' and error method' and, therefore, its validity cannot be tested on any rigid 'a priori' considerations or on the application of any strait-jacket formula. The Court must while adjudging the constitutional validity of an executive decision relating to
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economic matters grant a certain measure of freedom or 'play in the joints' to the executive. "The problems of government" as pointed out by the Supreme Court of the United States in Metropolis Theatre Co. v. State of Chicago.
`are practical ones and may justify, if they do not require, rough accommodations, illogical, it may be and unscientific. But even such criticism should not be hastily expressed. What is best is not discernible, the wisdom of any choice may be disputed or condemned. Mere errors of government are not subject to our judicial review. It is only its palpably arbitrary exercises which can be declared void.'
The Government, as was said in Permian Basin Area Rate cases, is entitled to make pragmatic adjustments which may be called for by particular circumstances. The Court cannot strike down a policy decision taken by the State Government merely because it feels that another policy decision would have been fairer or wiser or more scientific or logical. The Court can interfere only if the policy decision is patently arbitrary, discriminatory or mala fide.”
The Supreme Court then finally concluded as under :-
“89. The decision to disinvest and the implementation thereof is purely an administrative decision relating to the economic policy of the State and challenge to the same at the instance of a busybody cannot fall within the parameters of public interest litigation.”
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“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.”
So to give a precise and concrete definition of socialism would be extremely difficult.
CHIEF JUSTICE
(M.S.SANKLECHA, J.)
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2 issues framed by the court
Whether the High Court can direct the State to define the word ‘Socialist’ in the Preamble of the Constitution.
Whether the High Court can restrain respondents from taking actions contrary to the object of socialism embodied in the Preamble.
Colour shows how this judgement treated each authority
Balco Employees Union v/s. Union of IndiaExplained¶36
Balco Employees Union v/s. Union of India, (2002) 2 SCC 333 · Who else cites this
Rustom Cavasjee Cooper vs. Union of IndiaExplained¶37
Rustom Cavasjee Cooper vs. Union of India, (1970) 1 SCC 248 · Who else cites this
State of M.P. v. Nandlal JaiswalExplained¶41
State of M.P. v. Nandlal Jaiswal, (1986) 4 SCC 566 · Who else cites this
R.G. Garg v Union of IndiaExplained¶41
R.G. Garg v Union of India, (1981) 4 SCC 675 · Who else cites this
Morey v DoudExplained¶43
Morey v Doud, (1957) 354 US 457
Metropolis Theatre Co. v. State of ChicagoExplained¶51
Metropolis Theatre Co. v. State of Chicago
Permian Basin Area Rate casesExplained¶53
Permian Basin Area Rate cases
Subhash Shivram Sawant & Anr.
Union of India & Ors.
MOHIT S. SHAH
M.S. SANKLECHA
As recorded by the court registry
Litigation brought on behalf of the public interest rather than a personal grievance, relaxing the usual rule of locus standi.
Judgements on the same questions, provisions and authorities, from every court
