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Preamble of Indian Constitution. An Overview

The Preamble to our Constitution declares: WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens: JUSTICE, social, economic and political; LIBERTY of thought, expression, belief, faith and worship; EQUALITY of status and of opportunity; and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Legislative history of Preamble
At the second reading of the draft Constitution a member suggested that the preamble should be considered at the third reading. The President of the Constituent Assembly said that this could not be done, because the Constitution as a whole had to be passed in its second reading, and the preamble was a part of the Constitution. After various amendments to the preamble had been rejected, the motion that the preamble do stand part of the Constitution was adopted.

Part XVHI of the draft Constitution (Part XXII of our Constitution) provided for a few Articles coming into force on 26 November 1949, and a member of the Constituent Assembly suggested that the preamble should also come into force on that day.

This suggestion was rejected, Sir Alladi Krishnaswamy Ayyar observing that the preamble would come into force when the Constitution came into force. It is obvious that the preamble which declared India to be a Republic could not possibly come into force on 26 November 1949, for India continued to be a Dominion till 26 January 1950. Above history overlooked in the Berubari decision of Supreme Court (AIR 1960 SC 858),

In re Berubari Union & Exchange of Enclaved, the Supreme Court held that:
the preamble to the Constitution was, in the words of Story, a key to open the mind of the makers 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, and, as Willoughby has observed of the preamble to the American Constitution.

It has never been regarded as the source of any substantive power conferred on the Government of the United States, or any of its Departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted. It is obvious that the history of the preamble had not been brought to the attention of the court; otherwise it would not have said that the preamble was not a part of our Constitution.

In Keshavananda v. Kerala the Berubari Opinion was relied upon to support the petitioner's case that the preamble was not a part of the Constitution and since Art. 368 provided for the amendment of this Constitution, the preamble was unamendable; consequently, the amending power must be so construed as not to permit a destruction of the noble objectives declared by the preamble, because it could not have been intended that the amended Constitution should conflict with an unamendable preamble.

This argument collapsed when the history of the preamble was placed before the Supreme Court, which held that the preamble was a part of our Constitution, several judges observing that on this point, the Berubari Opinion was wrong. Place of the Preamble in interpreting the constitution is however similar to what is the value of preamble of a law for interpreting that law. It has nominal value generally but in order to clarify the meaning or intention of legislature its refuse may be sought.

We the people: Opening line of preamble, In Kesavananda's Case a question arose whether the court could inquire into the correctness of the declaration We the People because, factually, our Constitution was framed by the Constituent Assembly which was elected on a very narrow franchise, and the Constitution was not submitted to the people for ratification. On this point different views were expressed in Kesavananda's Case by Hegde J. and by Mathew J.

The Indian Independence Act, 1947, undoubtedly gave legal authority to the Constituent Assembly of India to frame a Constitution for India. Whether the authority of the Constitution is derived from the Indian Independence Act, 1947, which partitioned British India into the Dominions of India and Pakistan, (a partition which the leaders of an undivided India accepted), and which, as a consequence, altered the composition of the Constituent Assembly of India by certain exclusions and inclusions or whether the authority is derived from the People, as recited in the preamble, is purely academic. The reason is that the Supreme Court owes its existence to the Constitution.

As to our Constitution being made by the People, Prof. Wheare has said with his usual insight and brevity:
 In India the people' enact the Constitution in our Constituent Assembly', but that Assembly was composed of representatives elected by a minority of the people of India and the Constitution itself was never submitted to the people directly.

Is it not unreal in any case to speak of the people' enacting a Constitution or through' a constituent assembly? It is seldom indeed that the people are asked even to approve a Constitution enacted in their name.

Moreover, once a Constitution is enacted, even when it has been submitted to the people for approval, it binds thereafter not only the institutions which it establishes, but also the people itself. They may amend the Constitution, if at all, only by the methods which the Constitution itself provides.

Preamble and amendment of the Constitution

The Preamble loomed very large in the Fundamental Rights Case, for it was contended that in view of the noble objectives of the Preamble, limitations should be implied on the amending power (Art. 368), even if the words amendment of this Constitution were given the widest meaning.

In Berubari case (AIR 1960 SC 858), held that:
Preamble is not a part of Constitution. However; in Keshavanand's case (AIR 1973 SC 1467) held that it is part of Constitution and Constitution should be read and interpreted in the light of grand and noble vision expressed in Preamble. In fact, the Preamble was relied on in imposing implied limitations on amendment under Art. 368. Held that since Preamble is part of Constitution, it can be amended, but basic features' in it can't be amended. Amending power can't change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic'.

Preamble: its three parts

The preamble can be divided into the following parts:

  1. The People of India in their Constituent Assembly adopted, enacted and gave to themselves this Constitution (i.e. the Constitution of India: Art. 393).
  2. The People of India solemnly resolved to constitute India into a:
    1. Sovereign
    2. Democratic
    3. Republic.
  3. The People of India solemnly resolved to secure to all its citizens the four objectives mentioned in the Preamble.

Preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the entire Constitution of India. It had the stamp of deep deliberation, was marked by precision: it was an epitome of the broad features of the Constitution which were an amplification of the concepts set out in the Preamble (Madhlokar, J. in Sajjan Singh v State of Rajasthan, AIR 195 5 SC 845).

  1. It indicates the source of the Constitution.
  2. A statement of objectives of the Constitution which the legislation is intended to achieve (e.g. implementation of Directive Principles). It epitomizes principles on which the Government is to function
  3. It serves as a challenge to the people to adhere to the ideals enshrined in it (Justice, Liberty, Equality, Fraternity, etc.).
  4. It is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. It is a Key-Note' i.e. key to the minds of the framers of the Constitution.
  5. Several decisions of the Supreme Court pointed out the importance and utility of it. By itself, it is not enforceable in a Court of Law, yet it states objects and aids legal interpretation of the Constitution, where language is which fits the preamble may be preferred (However, the preamble cannot override the express provisions of an Act).

Sovereign democratic republic:

content of democratic found in provisions of the Constitution when it is said that India is a Sovereign Democratic Republic, it means that both externally and internally India is sovereign. Where precisely internal sovereignty resides need not be considered at this place. The word Democratic by itself, or even in the phrase democratic constitution, is ambiguous.

However, though the preamble does not tell us what kind of democratic Republic is established in India, the enacting provisions of our Constitution show that, broadly speaking, the Constitution has set up a parliamentary democracy of the type established in the federal Constitutions of Canada and Australia. The word Republic presents no particular difficulty.

Justice, liberty, equality and fraternity: The words justice, liberty, equality and fraternity are words of passion and power, the last three were the watchwords of the French Revolution. If they are to retain their power to move men's hearts and to stir them to action, the words must be used absolutely, as they are used in the preamble. But do they throw any light on the provisions of the Constitution?

The only one of the four objectives which is directly incorporated in any Article is Justice, social, economic and political, for Art. 38 provides: The State shall strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice, social, economic and political, shall inform all the institutions of the national life.

Article 39 amplifies the concept of justice by providing that the State shall in particular (that is, especially) direct its policy towards securing the objectives set out of Clauses (a) to (f) of that Article.

Socialist and Secular: required to be defined Whether the Preamble at all needed amendment is a question of policy. However, it may be observed that the word socialist would require to be defined. It is a word of many meanings, and its appropriation by the Soviet Union would seem to suggest that a socialist form of government can be a dictatorship, which is foreign to our Constitution.

In fact, an amendment to the Preamble moved by Maulana Hasrat Mohani, namely:

We the people of India having solemnly resolved to constitute India into a Union of Indian Socialistic Republic to be called U.I.S.R. on the lines of the U.S.S.R. was rejected as inconsistent with our Constitution.

Secondly, the word secular is not precise and would itself require to be defined. Secular may be opposed to religious in the sense that a secular State can be an anti-religious State. In this sense, the Constitution of India is not secular, because the right to the freedom of religion is a guaranteed fundamental right. The word secular may mean that as far as the State is concerned, it does not support any religion out of public funds, nor does it penalise the profession and practice of any religion or the right to manage religious institutions as provided in Arts. 25 and 26.

The secular nature of our Constitution has to be gathered from these and other Articles of our Constitution, like the Articles relating to a common Citizenship (Part II) and Articles 15, 16 and 29(2). Good drafting would require that ambiguous words should not be put into a Preamble without a reason and as far as one can see, there is no reason for putting in the word socialist and the word secular, for the content of those concepts themselves would have to be found in the enacting parts of the Constitution, and by themselves the two words have certain associations which are inconsistent with the enacting provisions of our Constitution. Secularism under the Constitution Equivocalness on the definition of secularism is also reflected in the constitutional spirit.

There were three different sets of views on secularism in the Constituent Assembly:

  1. No concern theory of secularism, which separated religion and the state.
  2. No links theory between the state and religion, to prevent the demeaning of religion.
  3. The equal respect theory of secularism' which respected all religions alike and granted religious liberty to all.

In S.R Bommai v. U.O.I. court held, India can rightly be described as the world's most heterogeneous society. It is a country with a rich heritage. Several races have converged in this sub- continent. They brought with them their own cultures, languages, religions and customs. These diversities threw up their own problems but the early leadership showed wisdom and sagacity in tackling them by preaching the philosophy of accommodation and tolerance.

Notwithstanding the fact that the words Socialist and Secular were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy.

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. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation.

While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion.

Article 26 grants to every religious denomination or any section thereof, the right to establish and maintain institutions for religious purposes and to manage its own affairs in matters of religion. These two articles clearly confer a right to freedom of religion. Article 27 provides that no person shall be compelled to pay any taxes, the proceeds whereof are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.

This is an important article which prohibits the exercise of State's taxation power if proceeds thereof are intended to be appropriated in payment of expenses for the promotion and maintenance of any particular religion or religious denomination. That means that State's revenue cannot be utilised for the promotion and maintenance of any religion or religious group. These fundamental rights enshrined in Articles 15, 16, and 25 to 30 leave no manner of doubt that they form part of the basic structure of the Constitution.

Besides, by the 42nd Amendment, Part IV-A entitled Fundamental Duties' was introduced which inter alia casts a duty on every citizen to cherish and follow the noble ideals which inspired our national struggle for freedom, to uphold and protect the sovereignty, unity and integrity of India, to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities, and to value and preserve the rich heritage of our composite culture.

These provisions which have recalled briefly clearly bring out the dual concept of secularism and democracy, the principles of accommodation and tolerance as advocated by Gandhi ji and other national leader. Views expressed by Sawant, Ramaswamy and Reddy, JJ., that secularism is a basic feature of our Constitution.

Recently, an argument is advanced to state that secularism is the postscript of the Constitution introduced into it by the 42nd Amendment to the Constitution of India in 1976. This argument can even imply that the Constitution can be devoid of secularism in case the political establishment wishes it to be so. As the Supreme Court noted in S.R. Bommai v. Union of India case, Notwithstanding the fact that the words Socialist and Secular were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, what was implicit was made explicit. The words equality, fraternity, liberty as well as the word justice in the original Preamble is not precise, but they have been historically associated with the struggle for freedom.

The insertion of the word integrity in the sentence beginning with Fraternity adds to the Preamble what had been added by the 16th Amendment in Art. 19 and in the Third Schedule to the Constitution but remain undefined

Socialist Meaning: Realizing that the words secular and socialist required to be defined, the 45th Amendment Bill (which became the 44th Amendment) proposed an amendment of Art. 366 by inserting definitions of the words secular and socialist. However, this amendment was not accepted by the Council of States. Consequently, the words secular and socialist remain undefined, and it becomes unnecessary to consider the correctness of the suggested definition.

In Excel Wear v. Union the Sup. Ct. held that:
the addition of the word Socialist in the Preamble might enable the Court to lean more and more in favour of nationalization and State ownership of an industry. However, as long as the private ownership of industries was recognized, and governed an overwhelmingly large proportion of our economic structure, the principles of socialism and social justice could not be pushed to such an extent as to ignore completely, or to a very large extent, the interest of another section of the public, the private owners of the undertakings.

Liberty in the Constitution not absolute: The objective in the Preamble is not Liberty generally, but liberty of thought, expression, belief, faith and worship. This objective in its absoluteness means different things to different men, and is not reflected in any Article of our Constitution. However, subject to public order, morality and health, this objective can be related to Art. 25, which confers on every person the freedom of conscience and the right freely to profess, practise and propagate religion, for such freedom necessarily requires liberty of thought, expression, belief, faith and worship.

Further, it is possible to hold that liberty of thought and expression also covers the freedom of speech and expression conferred by Art. 19(l) (a), but here the liberty is even more severely curtailed than it is in Art. 25 as is clear from the restrictions permitted by Art. 19 (2). The result, therefore, is that the enacting provisions of our Constitution fall far short of the Liberty mentioned in the Preamble. However, there is one respect in which the liberty in Art. 25 go beyond the Preamble, for whereas the Preamble secures liberty to citizens, Art. 25, (unlike Art. 19), is not limited to citizens but extends to every person.

Equality of status and opportunity: its implications

The objective is not equality generally, but equality of status and opportunity. Equality has two aspects, negative and positive; equality may be achieved to some extent by removing inequality. Slavery was a most flagrant denial of the equality of human beings as human beings; and when slavery was abolished in the United States by the 13th Amendment, and the slave acquired the status of a citizen under the 14th Amendment, the slave secured, with other citizens, the status of a human being and a citizen.

Again, for centuries a great blot on Indian society was untouchability a doctrine held by our Supreme Court to be a part of Hindu religion, under which millions of men, women and children were untouchable: their presence in a temple defiled the temple, and their touch, and in some places, even their shadow, defiled or polluted other Hindus. The abolition of untouchability by Art. 17, secured to millions of Indian citizens equality of status as human beings.

The throwing open of Hindu Temples (other than private temples) to untouchables secured to them equality of status in matters of religion Art. 25(2) and the injunction to the State not to discriminate against citizens on the grounds of race, religion or caste, secured to untouchables equality of status by giving them equal access to shops, restaurants, hotels and places of public entertainment, and also the equal right to the use of wells, tanks, burning ghats (for the disposal of the dead) and places of public resort which are dedicated to the public or maintained wholly or partly out of State funds Art. 15(2).

But though restored to the status of human beings, untouchables belonged to backward classes, and Art. 15(4) enables the State to discriminate in their favour by taking steps to secure their advancement, and Art. 16(4) increase their opportunities of employment in the public service of the Union or the States, because posts in those services can be reserved for them.

These are massive achievements. Equality of status and opportunity not attainable absolutely, equality of status and opportunity used absolutely as they are in the Preamble cannot be realised because they mean more than the removal of inequality. No one believes that an Indian peasant is equal in status and opportunities to the Prime Minister of India. Again, opportunity is partly a matter of chance, partly a matter of capacity to seize the opportunity should it come. Opportunity can make or mar a man's life according as he rises to the opportunity or sinks under its weight.

Besides, the opportunity may be for good as well as evil. Not do they mean uniform mediocrity Art. 18, nor does equality of status involve a dead level of mediocrity. Art. 18 abolish titles, and by abolishing hereditary titles, it abolishes the artificial inequality resulting from birth. However, Art. 18 do not seek to discourage, but to encourage distinction due to merit, for it provides that No title, not being a military or academic distinction, shall be conferred by the State.

Article 14 which is the general Article on equality does not in terms provide for equality of status and opportunity. It provides that the State shall not deny to any person equality before the law or the equal protection of the laws. To some extent, these provisions help to secure equality of status and opportunity, but the doctrine of classification makes large inroads on the concept of equality of status and opportunity. In one respect, Art. 14 goes beyond the Preamble, because Art. 14 are not limited to citizens alone. Here again, it is not the Preamble which enables us to interpret the relevant Articles; it is the relevant Articles which throw light on the Preamble which goes beyond, or falls short of, those Articles.

Fraternity not reflected in any Article. Fraternity, the fourth objective in the Preamble, was added by the Drafting Committee because the committee felt that the need for fraternal concord and goodwill in India was never greater than now and that this particular aim of the Constitution should be emphasized by special reference in the preamble.

Fraternity as an object is not reflected in any Article of the Constitution, no Constitution and no law can produce brotherly feeling or concord. There are provisions of the Constitution which are designed to promote fraternity, such as a common citizenship (Art. 5) and the right of citizens of India to move freely throughout the territory of India, to reside and settle in any part of India, or to acquire, hold and dispose of property, to practise any profession, or to carry on any occupation, trade or calling in any part of India Art. 19(1)(d) to (g). There are however, other provisions which militate against fraternity, such as the division of States on linguistic lines and the provisions relating to language.

A fair and even handed executive administration can do more to promote fraternity than any constitutional or legal provision. The fourth objective refers to a moral and political ideal, and it can throw no light on the interpretation of our Constitution, nor does any provision of our Constitution give a clear content to fraternity.

Preamble amended: a criticism

The changes made in the Preamble call for a few comments. First, it would be patently false to say that the people of India, on the 26 November 1949, resolved to constitute India into a Sovereign Socialist Secular Democratic Republic.

What they did was to constitute India into a Sovereign Democratic Republic. A Preamble to a Constitution indicates the objectives of the founding fathers (who claimed to speak on behalf of the people of India), and since the Preamble is a part of the Constitution as rightly held in the Fundamental Rights Case, (Keshavanand Bharati) the Preamble can be amended.

But such a result can only be produced by setting out the original Preamble with the introductory words WHEREAS the people of India in their Constituent Assembly enacted the following Preamble and WHEREAS Parliament in the ... year of the Republic desires to add to the Preamble, be it enacted as follows: After the word sovereign' add the words socialist secular'. Any other way of amending the Preamble would be historically false and would involve a patent contradiction.

As Geyer C.J. observed in Bhola Prasad Case:
But we doubt very much whether a preamble retrospectively inserted in 1940 in an Act passed 25 years before can be looked at by the Court for the purpose of discovering what the true intention of the Legislature was at the earlier date. A Legislature can always enact that the law is,

and shall be deemed always to have been, such and such; but that is a wholly different thing from imputing to dead and gone legislators a particular intention merely because their successors at the present day think that they might or ought to have had it.

The four objectives set out in the preamble are themselves ambiguous and they cannot throw any light on the provisions of the Constitution because they stand in need of interpretation themselves. The fact that the Supreme Court judgments which have referred to the Preamble have not pointed out that the objectives of the Preamble are ambiguous, does not have the effect of making ambiguous objectives clear and distinct.

Written By: Mohd Aqib Aslam, Ph.d Research Scholar Jammu University.
Email: [email protected], Ph no: 7889397741

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