Is Preamble A Part of Constitution?
This is a guest blog by Natasha.
The Constitution of India begins with a Preamble .It lays down certain ideals to be included in the Constitution. The preamble refers to the introduction and preface to the constitution. It is based on the ‘objectives resolution’, drafted and moved by Pandit Nehru, and adopted by the constituent assembly on 26 November 1949.It contains the ideals, objectives and basic principles of the Constitution.
It is interesting to know that the Preamble, though the Constitution opens with it, was not the first part to come into existence. It was the last piece of draft adopted by the Constituent Assembly at the end of the first reading of the Constitution and then placed at the beginning of the Constitution. The motion to adopt the Preamble was moved on 17th October, 1949. Several amendments were suggested to the Preamble but they all were negated. At the end, the President moved the motion- “That the Preamble stands part of the Constitution.” The motion was adopted on November 2, 1946. The Preamble was added to the Constitution.
One of the members of the Constituent Assembly (Pundit Thakur Das Bhargav) rose to poetic heights when he said, “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution.”
Reading through the Preamble, one can see the purpose that it serves, namely, the declaration of (1) the source of the constitution, (2) a statement of its objectives and (3) the date of its adoption. The Preamble, in brief, explains the objectives of the Constitution in two ways: one, about the structure of the governance and the other, about the ideals to be achieved in independent India. It is because of this, the Preamble is considered to be the key of the Constitution.
The objectives, which are laid down in the Preamble, are:
- Description of Indian State as Sovereign, Socialist, Secular, Democratic Republic. (‘Socialist and secular’ were added by 42nd Amendment, 1976).
- Provision to all the citizens of India i.e.,
- a) Justice social, economic and political
- b) Liberty of thought, expression, belief, faith and worship
- c) Equality of status and opportunity
- d) Fraternity assuring dignity of the individual and unity and integrity of the nation.
“We, the people of India” – It is the resolve of the people of India to constitute India into a Sovereign, Democratic, Republic. From the Preamble of the Constitution it is clear that the framers attached importance to the sovereignty of the people. The ideas reassert the sovereignty and paramountcy of the people’s will over everything. The idea of republic indicates the representative character of democracy. It means that the absolute power vested in the people of India under the Constitution is to be exercised by them through their duly elected representatives in the various union and states legislatures.
Sovereignty is one of the foremost elements of any independent State. It means absolute independence, i.e., a government which is not controlled by any other power: internal or external. A country cannot have its own constitution without being sovereign. India is a sovereign country. It is free from external control. It can frame its policies. India is free to formulate its own foreign policy. “Sovereignty” is therefore a term of art rather than a legal expression capable of a precise definition.
The word socialist was not there in the Preamble of the Constitution in its original form. In 1976, the 42nd Amendment to the Constitution incorporated ‘Socialist’ and ‘Secular’, in the Preamble. The word ‘Socialism’ had been used in the context of economic planning. It signifies major role in the economy. It also means commitment to attain ideals like removal of inequalities, provision of minimum basic necessities to all, equal pay for equal work. Socialism is implicit in the Preamble and the directive principle of the Constitution. The term “economic justice” in the Preamble denotes India’s resolve to bring socio-economic revolution. The Directive Principles, particularly Article 39 (b) and (c) of Constitution are charters of social and economic liberties of the people. The word ‘socialism’ has, however, no definite meaning. Generally, the term implies a system of government in which the means of production are wholly or partially controlled by the State. In D.S. Nakara v. Union of India, the Supreme Court held that the basic framework of socialism is to provide a decent standard of life to the working people and especially provide security form cradle to grave.
In the context of secularism in India, it is said that ‘India is neither religious, nor irreligious nor anti- religious.’ It implies that in India there will be no ‘State’ religion – the ‘State’ will not support any particular religion out of public fund. This has two implications,
a) every individual is free to believe in, and practice, any religion he/ she belongs to, and,
b) State will not discriminate against any individual or group on the basis of religion.
Articles 25 to 28 of the Constitution guarantee to every person the freedom of conscience and the right to profess, practice and propagate religion. In St. Xaviers College v. State of Gujarat,the SC had held, “although the words ‘SECULAR STATE’ are not expressly mentioned in the Constitution but there can be no doubt that Constitution-makers wanted to establish such a state” and accordingly Articles 25 to 28 have been included in the Constitution.
In S.R. Bommai v. Union of India the Supreme Court held that “secularism is the basic feature of the Constitution.”
There is no mysticism in the secular character of the State. Secularism is not anti-God; it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the ground of religion.
Democracy is generally known as government of the people, by the people and for the people. Effectively this means that the Government is elected by the people, it is responsible and accountable to the people. The democratic principles are highlighted with the provisions of universal adult franchise, elections, fundamental rights, and responsible government.
The Preamble also declares India as a Republic. It means that the head of the State is the President who is indirectly elected and he is not a hereditary ruler as in case of the British Monarch.
Justice promises to give people what they are entitled to in terms of basic rights to food, clothing, housing, participation in the decision-making and living with dignity as Human Beings. The Preamble covers all these dimensions of justice – social, economic and political, besides, the granting of political justice in the form of universal adult franchise or the representative form of democracy.
The Preamble also mentions about liberty of thought and expression. These freedoms have been guaranteed in the Constitution through the Fundamental Rights. Though freedom from want has not been guaranteed in the Fundamental Rights, certain directives to the State have been mentioned in the Directive Principles. The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court viz., Govt of A.P. and others vs. P. Laxmi Devi and Deepak Bajaj vs. State of Maharashtra and others. In these cases, the Supreme Court had emphasized the importance of liberty for progress, and had observed that the judiciary must act as guardian of the liberties of the people, protecting them from executive or even legislative arbitrariness or despotism. Liberty, Equality and Fraternity are not to be treated as separate entities but a trinity. They form a union in that and to divorce one from the other is to defeat the very purpose of Democracy.
Equality is considered to be the essence of modern democratic ideology. The Constitution makers placed the ideals of equality in a place of pride in the Preamble. All kinds of inequality based on the concept of rulers and the ruled or on the basis of caste and gender, were to be eliminated. All citizens of India should be treated equally and extended equal protection of law without any discrimination based on caste, creed, birth, religion, sex etc. Similarly equality of opportunities implies that regardless of the socio-economic situations into which one is born, he/she will have the same chance as everybody else to develop his/ her talents and choose means of livelihood.
Fraternity, Dignity, Unity and Integrity
In the background of India’s multi-lingual, multi-cultural and multi- religious society and keeping in view the partition of the country, the framers of the Constitution were very much concerned about the unity and integrity of our newly independent country. There was a need for harmonious co-existence among various religions, linguistic, cultural and economic groups. Inclusion of phrases like ‘dignity of individuals’, ‘fraternity among people’ and ‘unity and integrity of the nation’ in the Preamble highlight such a need.
Can Preamble Be Amended Under Article 368 of The Indian Constitution
This question was raised for the first time before the Supreme Court in the historic case of Kesavanada Bharati v. State of Kerala. In that case the Attorney-General argued that by virtue of the amending power in Article 368 even the Preamble can be amended. It was said that since the Preamble was a part of the Constitution it could be amended like any other provisions of the Constitution. The petitioners, however, contended that the amending power in Article 368 is limited. Preamble creates an implied limitation on the power of amendment. Consequently, amending power cannot be used so as to destroy or damage these basic features mentioned in the Preamble. It was urged that Preamble cannot be amended as it is not a part of the Constitution. The Supreme Court however held that the Preamble is a part of the Constitution.
On the question whether the Preamble can be amended the majority held that since the Preamble is the part of the Constitution it can be amended but subject to this condition that the “basic feature” in the Preamble cannot be amended.
The Court said, “The edifice of our Constitution is based upon the basic elements mentioned in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same Constitution or it cannot maintain its identity.
Whether or Not Preamble is A Part of the Indian Constitution?
The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject:
- Beruberi Case
- Kesavananda Bharati case
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.
Beruberi case was the Presidential Reference “under Article 143(1) of the Constitution of India on the implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of Enclaves” which came up for consideration by a bench consisting of eight judges headed by the Chief Justice B.P. Singh. Justice Gajendragadkar delivered the unanimous opinion of the Court. The court ruled out 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 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.
The error came to be corrected in Kesavananda case where the majority specifically ruled that the Preamble was as much a part of the Constitution as any other provision therein.
Kesavananda Bharati case has created history. For the first time, a bench of 13 judges assembled and sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on record 11 separate opinions. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the majority in Kesavanada Bharati case leans in favor of holding:
I. that the Preamble to the Constitution of India is a apart of Constitution;
- that the Preamble is not a source of power nor a source of limitations or prohibitions;
III. the Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of the Constitution.
An interesting argument advanced in Kesavananda case has been noted by Y.V. Chandrachud,J. that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, we cannot amend the Constitution so as to destroy the Preamble. Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the Constituent Assembly leaves no scope for this contention.
Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368.
A Preamble indicates only the general purposes for which the people ordained and established the Constitution. It cannot be regarded and has never been regarded as the source of any source of any substantive power conferred on the Government or any of its departments.
A Preamble provides significant help in the interpretation of the Constitution when words actually are ambiguous. Under such circumstances it is the key to open the minds of the makers of the Act. But if the language of the Article is sufficiently clear, it is not to be interpreted in the light of the Preamble in preference to the obvious meaning thereof. The objectives in the Preamble are just a part of basic structure of the Constitution and nothing more than that. So Preamble of the Constitution is a part of the Constitution, and therefore the Parliament can amend the same under the provisions of Article 368. However, it may be noted that, such an amendment under Article 368 of the Indian Constitution shall not affect the basic structure of the Constitution.