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Preamble: A Part of The Constitution or Not

Written by: Mohit Agrawal and Romit Agrawal - V year and IV year Law Students from Aligarh Muslim University and Gujarat National Law University
Army Law
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  • Preamble:- A Part of The Constitution or Not

    The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject:
    1. Berubari case [1]
    2. Kesavananda Bharti case [2]

    On the answer to the primary question- whether the Preamble is a part of the Constitution, would depend the resolution of the next question, which follows as a corollary- whether the Preamble can be amended, if at all.

    Berubari case was the Presidential Reference Under Art. 143(1) of the Constitution of India on the implementation of the Indo-Pak agreement relating to Berubari union and exchange of enclaves which come up for consideration by a bench consisting of eight judges headed by B.P.Sinha, C.J. Justice Gajendragadkar delivered the unanimous opinion of the court. Quoting story, the eminent Constitutional jurist, the court held that the Preamble to the Constitution containing the declaration made by the people of India in exercise of their sovereign will, no doubt is a key to open the minds of framers of the Constitution which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.

    The holdings in Berubari Case has been succinctly summed up later by Shelat and Grover, JJ. In Kesavananda Bharti case as under:
    1. A Preamble to the Constitution serves as a key to open the minds of the framers, and shows the general purpose for which they made the several provisions in the Constitution;
    2. The Preamble is not a part of our Constitution;
    3. It is not a source of the several powers conferred on government under the provisions of the Constitution;
    4. Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted;
    5. What is true about the powers is equally true about the prohibitions and limitations;
    6. The Preamble did not indicate the assumptions that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty.

    Berubari case was relied on in Golaknath case [3], Wanchoo, J. said- On a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitationson the bar to amend the Constitution contained in Article 368.

    Bachawat, J. observed- Moreover the Preamble cannot control the unambiguous language of the Articles of the Constitution.

    It is a matter of regret, yet the eminent Judges constituting the bench answering the presidential reference in Berubari Case overlooked a matter of record, that constitutional history. The motion adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution. The error came to be corrected in Kesavananda Bharti case where the majority specifically ruled that the Preamble was as much a part of the constitution as any other provision therein. It would be interesting to note what some out of the thirteen Judges constituting the bench which decided Kesavananda Bharti case had to say about the preamble.

    Kesavanada Bharati Case has created a history. For the first time, a bench of 13 Judges assembled and sat in its original jurisdiction hearing the writ petition. 13 Judges placed on record 11 separate opinions. It is not an easy task to find out the ratio of the holding of the court in the same case. It was held in this case:
    a. that the Preamble to the Constitution of India is a part of Constitution
    b. that the Preamble is not a source of power nor a source of limitations
    c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.

    Moreover in Bommai case [4] the majority of nine Judges laid down a new application of the Preamble under the Constitution, which is as follows:
    1. The Preamble indicates the basic Structure of the Constitution

    2. A Proclamation under Article 356(1) is open to judicial review on the ground of violating the basic structure of the Constitution.

    3. It follows that a proclamation under Article 356(1), which violates any of the basic features, as summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional.

    4. A further extension of this innovation is that a political party, which appeals to religion in its election manifesto, acts in violation of the basic structure, and the President may impose President’s Rule on a report of the Governor that a party has issued such a manifesto.

    In the same case three of the nine Judges have opined that the word secularism in the Preamble of our Constitution.

    A discussion on Preamble cannot be complete without making a reference of Mandal Commission case [5], which was decided by a larger bench of nine Judges. A rainbow of judicial thoughts reflecting the significance, value and message of the Preamble. B.P. Jeevan, J. held that the four folding objective of securing to its citizens justice, liberty, equality and fraternity displays statesmanship of the highest order Constitution of India.. The framers of the Constitution did not rest content with evolving the framework of the state; they also pointed out the goal as spelled out in the Preamble and the methodology for reaching that goal is elaborated in parts of the Constitution of India. In the opinion of R.M. Sahai, J. the preamble to the constitution is a turning point in history. The Preamble of the constitution has the sentiments and it is the key to the minds of the framers of the Constitution.

    1. In Re:berubari union(1) (1960) 3 SCR 250
    2. Kesavananda Bharti V. state of kerala (1973) 4 SCC 225
    3. Golak Nath v. State of Punjab, !1967) 2 SCR 762
    4. S.R.Bommai v. Union of India (1994) 3 SCC 1
    5. Indra Sawhney v. Union of India AIR 1993 SC 477

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