PREAMBLE OF INDIAN CONSTITUTION
TABLE OF CONTENT
Chapter 1: Introduction……………………………………………………………………………..07 1.1 Meaning of Preamble……………………………….……………………………….07
1.2 History
of Preamble…………………………………...…………………………….08
1.3 The Preamble of the Constitution………………………...…………………………10
1.3 Object and Scope of Preamble……………………………………………………….10
1.4 Is it part of our Constitution or not…………………………………………………..13
Chapter 2: Content of
Preamble……………………………...……………………….15
2.1 We, the people of India…………………………………………………...…………16
2.2 Sovereign..............................................................................................................…...17
2.3 Socialist.....................................................................................................................
18
2.4 Secular
......................................................................................................................
20
2.5 Democratic ..................................................................................................................21
2.6 Republic……………………………………………………………………………...23
2.7 Justice……………………………………………………..…………….……………24
2.8 Liberty………………………………………………………………………………..25
2.9 Equality………………………………………………………………………….…...25
2.10 Fraternity……………………………………………………………….…………...26
Chapter 3: Interpretational value of the
Preamble………………………………..…30
3.1 Preamble as Projector of ‘Desired Established
State’……………………………….31
3.2 Preamble as an aid to interpretation of other
statutes…………………………….....32
3.3 Preamble as provider of Authority to
the Indian Constitution………………………33
Chapter 4: Preamble to Constitution:
Comparative study…………………………..35
4.1 Preamble of constitution of
USA…………………………………………………….36
4.2 Preamble of constitution of
Canada………………………………………………….39
Chapter 5: Conclusion…..……….…………………………………………………......41
Bibliography …………….……….……………………………………………………..43
INTRODUCTION
After the attainment of independence the
people of India were looking for a government of their own to fulfil the
aspirations they had cherished during the freedom struggle. As the leaders had
promised that after the independence India will have a government based on the
ideas of democracy and justice, it was hence, necessary to give a proper shape
to these ideas and ideals.[[1]]These were enshrined by the Constituent
Assembly in the Constitution of India
The Constitution is the documentation of the
founding faiths of a nation and the fundamental directions for their fulfilment.
So much so, an organic, not pedantic, approach to interpretation, must guide
the judicial process. The healing art of harmonious construction, not the
tempting game of hair-splitting promoters the rhythm of the
rule of Law.[[2]]
1.1
Meaning of Preamble
Preamble means a preliminary or introductory statement, especially attached to a
statute or constitution setting forth its purpose.[[3]]Preamble
is introductory part of the Constitution. The constitution of India opens with
Preamble. The Preamble to a constitution is expected to embody the fundamental
value and the philosophy on which the constitution is based and the aims and
objectives which the founding fathers enjoined the polity to strive to achieve.
Therefore, it is also regarded as the key to open the mind of the makers
of the Constitution which may show the general purposes for which they
made several provisions in the Constitution.[[4]] For these reasons the Preamble is also a legitimate
aid in the interpretation of the provisions of the Constitution. It expresses
“what we thought or dreamt for so long”[[5]].
It can be said that the constitution embodies a solemn form of all the ideas
and aspirations for which the country had struggled during the British regime.[[6]] In
simple words the Preamble serves as an introduction to the Constitution and
highlights in brief the basic ideas for which the constitution stands and what
the frames of the Constitution sought out to achieve for the citizens of India.
1.2
History of the Preamble:
The
Preamble to Indian constitution is based on “Objective Resolution” of
Nehru. Jawaharlal Nehru introduced objective resolution on December 13, 1947
and it was adopted by Constituent assembly on 22 January 1947. The Objective
Resolution[[7]] reads as follows:
A.
This Constituent Assembly declares its firm and
solemn resolve to proclaim India as an Independent Sovereign Republic and to
draw up for her future governance a Constitution;
B.
WHEREIN the territories that now comprise British
India, the territories that now form the Indian States, and such other parts of
India as are outside British India and the States as well as such other
territories as are willing to be constituted into the Independent Sovereign India,
shall be a Union of them all; and
C.
WHEREIN the said territories, whether with their
present boundaries or with such others as may be determined by the Constituent
Assembly and thereafter according to the law of the Constitution, shall possess
and retain the status of autonomous Units, together with residuary powers and
exercise all powers and functions of government and administration, save and
except such powers and functions as are vested in or assigned to the Union, or
as are inherent or implied in the Union or resulting there from; and
D.
WHEREIN all power and authority of the Sovereign
Independent India, its constituent parts and organs of government, are derived
from the people; and
E.
WHEREIN shall be guaranteed and secured to all the
people of India justice, social economic and political : equality of status, of
opportunity, and before the law; freedom of thought, expression, belief, faith,
worship, vocation, association and action, subject to law and public morality;
and
F.
WHEREIN adequate safeguards shall be provided for
minorities, backward and tribal areas, and depressed and other backward
classes; and
G.
WHEREBY shall be maintained the integrity of the
territory of the Republic and its sovereign rights on land, sea, and air
according to justice and the law of civilized nations; and
H.
This ancient land attains its rightful and honoured
placed in the world and make its full and willing contribution to the promotion
of world peace and the welfare of mankind.
The
drafting committee of the assembly in formulating the Preamble in the light of
“Objective Resolution” felt that the Preamble should be restricted to defining
the essential features of the new state and its basic socio-political
objectives and that the other matters dealt with Resolution could be more appropriately
provided for in the substantive parts of the Constitution. The committee
adopted the expression ‘Sovereign Democratic Republic’ in place of ‘Sovereign Independent Republic’ as used in the “Objective Resolution,” for it thought
the independence was implied in the word Sovereign. The committee added word Fraternity which did not occur in the Objective Resolution. “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 new Constitution should be
emphasized by special mention in the Preamble.”[[8]]In
other respect the committee tried to embody in the Preamble “the spirit and, as
far as possible, the language of “Objective
Resolution.”
1.3
The Preamble of the
Constitution:
The
Preamble reads:
WE, THE PEOPLE
OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST[[9]]SECULAR[[10]] 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][[11]] of
the Nation;
IN
OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY
ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
1.4 Object and
Scope of Preamble:
Unlike the
constitution of Australia, Canada or the USA, the Constitution of India has an
elaborate Preamble. The purpose of Preamble is to clarify who has made the
Constitution, what is its source, what are ultimate sanctions behind
it; what is the nature of the polity which is sought to be established by the
constitution and what are its goals and objectives?
The Preamble
does not grant any power but it gives a direction and purpose to the
Constitution. It outlines the objectives of the whole Constitution. The
Preamble contains the fundamentals of the constitution. The preamble to an Act
sets out the main objectives which the legislation is intended to achieve.[[12]]
Preamble states
the objects which our constitution seeks to establish and promote and also aids
the legal interpretation of the constitution where language is found ambiguous.[[13]] For
a proper appreciation of aims and aspirations embodied in our constitution,
therefore, we must turn to the various expressions contained in the Preamble. Combining
the ideals of political, social and economic democracy with that of equality
and fraternity, the Preamble seeks to establish what Mahatma Gandhi described
as The India of my dreams[[14]],
namely
“An India, in which the
poorest shall feel that it is their country in
whose making an effective
voice? an India in which all
communities shall live in
perfect harmony”.
-
The Preamble to
our Constitution serves several purposes:
a)
It contains the enacting clause which brings the
Constitution into force.
b)
It declares the great rights and freedoms which
people of India intended to secure to all its citizens.
c)
It declares the basic type of government and polity
which is sought to be established in the country.
d)
It indicates the source from which our Constitution
derives its authority.
Preamble
indicates ultimate source for the validity of and the sanction behind the
constitution is will of the people. Thus the source of the Constitution are the
people themselves from whom the Constitution derive s its ultimate sanction.
This assertion affirms the Republican and Democratic character of the Indian
polity and Sovereignty of the people. The People of India thus constitute the
sovereign political body who hold the ultimate power and who conduct the government
of their elected representatives. As regard the nature of the Indian Polity,
the Preamble to the Constitution declares India to be ‘Sovereign Secular
Democratic Republic.’ As to the grants objectives and socio-economic goals to
achieve which the Indian Polity has been established, these are stated in the
Preamble.
These are:
i.
social, economic and political Justice
ii.
Liberty of thought, expression, belief,
faith and worship;
iii.
Equality of status and of opportunity;
iv.
and to promote among them all Fraternity assuring
the dignity of the individual and the unity and integrity of the Nation.
1.5 Is it part
of our Constitution or not
It has been highly a matter of arguments and
discussions in past that whether Preamble should be treated as a part of constitution
or not, that means whether or not a citizen of a nation to which he is subject
to can challenge in the court of law if in case his rights have been infringed
which were mentioned in the Preamble. And if not, then whether the Preamble is
merely a preface or introduction piece of page in the book of our Constitution.
And also 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.
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. Beruberi Case[[15]]
2. Kesavananda Bharati case[[16]]
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 Gajendra Gadkar 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.[[17]]
Kesavananda Bharati[[18]]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 favour of holding,
I.
That
the Preamble to the Constitution of India is a apart of Constitution;
II.
That
the Preamble is not a source of power or 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.
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. He termed submission that the Fundamental Rights
are an elaboration of the Preamble, as “an overstatement and half- truth”.
Undoubtedly, the Constitution is intended to be a vehicle by which the goals
set out are hoped to be reached.
It can be concluded that Preamble is
introductory part of our Constitution. Preamble is based on the Objective
Resolution of Nehru. Preamble tells about the nature of state and objects that
India has to achieve. There was a controversial issue whether Preamble was part
of Indian Constitution there were number of judicial interpretation but finally
Kesavanada Bharati case it was held that the Preamble is a part of the
Constitution.
Chapter 2
Contents of Preamble
Preamble is
part of our constitution. The contents of Preamble play an important role in
interpretation of our constitution. The Preamble to an Act sets out
the main objectives which he legislation is intended to achieve.[[19]]
It contains in a nutshell the ideals and aspirations of the Act. It is a sort
of introduction to the statue and many a times very helpful to understand the
policy and legislative intent. It embodies in a solemn form all the ideals and
aspirations for which the country had struggled during the British regime.[[20]]
The preamble is a key to open to the minds of the makers .The Preamble
declares:
WE, THE PEOPLE
OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST[[21]] SECULAR[[22]] 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][[23]] of
the Nation;
IN OUR
CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT,
ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
The aforesaid provision may be explained under the
following headings :
2.1 We,
the People of India:
The Constitution, as its preamble states, is
a creation of the will of “the People of India” who have, as the preamble
enunciates, solemnly resolved to constitute India into a “Sovereign Democratic
Republic.” The idea of sovereignty involves freedom from all foreign
control or domination. Both ideas combined together reassert the sovereignty
and paramountacy of the people’s will over everything[[24]] the same has been taken up from the Constitution of the United States of
America and the United Nations Charter.
The words “we the people” indicate that the
people of India are the source of authority behind the Constitution. The opening words of the preamble ('we the people of
India') emphasize the ultimate authority of the people from whose will the
constitution emerges. Since the Constituent Assembly enacted and adopted the
constitution in the name of the people of India, the question has been asked
whether the Assembly was really representative of the people of India.[[25]] This question was raised
both within and outside the Assembly. The circumstances under which the
Constituent Assembly came into being shows that it was impracticable to
constitute such a body in 1946 with adult suffrage as its basis. No part of the
country had the experience of adult suffrage. Dr. Ambedkar said in the floor of the Constituent
Assembly in 1949, "I say that the Preamble embodies what is the desire of
every members of the House, that the constitution should have its root, its
authority, its sovereignty from the people that it has".
The Supreme Court in Union of India v. Madangopal, [[26]]referred to the words “We the people of
India” in the Preamble and observed that “our Constitution, as appears from the
Preamble, derives its authority from the people of India.”
To sum it up we can say that the supreme
power of the land rests with the people of India and the true sovereignty
lies with the citizens of India as evident from the Preamble
2. 2. Sovereign:
Sovereign defined by R.H. Soltan[[27]]“Sovereignty
is the exercise of the final legal coercive power of the State.” According to another
definition by Woodrow Wilson “Sovereignty is the daily operative power of
framing and giving efficiency to the laws.”[[28]]In
other words “sovereign” stands for the power which is absolute and uncontrolled within its own sphere. In the words of Cooley, “A State is sovereign
when there resides within itself a supreme absolute power, acknowledging no
superior.”[[29]]
India is 'Sovereign',
in as much as it is free from any external control and having independent power
and authority. Sovereignty of India does not come in the way of its remaining a
member of the Commonwealth of Nations. Though the Queen of the UK is its
symbolic head, it is a voluntary association and so does not violate India's
sovereign status.
The word sovereign in the preamble means
supreme or independent, India is internally and externally sovereign -
externally free from the control of any foreign power and internally, it has a
free government which is directly elected by the people and makes laws that
govern the people. She allies in peace and war. [[30]]
It means that sovereignty is permanent, and
it continues un-interrupted as long as the state exists, and also it doesn’t
ceases with the death or temporary dispossession of a particular bearer or the
reorganization of the state but shifts immediately to a new bearer as the
centre of gravity shifts from one part of a physical body to another when it
undergoes an external change. It means that the powers are not divisible
between sovereign and any other person, as the sovereign is absolute authority
in a sovereign state. We find divisibility of powers in India when we see our
so called “sovereign” of the country, he has no absolute authority over
anything, neither can he make his own law of his own discretion nor can he
revoke any of them. A sovereign in a state is exclusive and has none to be
competed with. This characteristic of sovereignty is nowhere found in India as
we see that the there is no “exclusive sovereign” or a Individual sovereign.
It’s very much obvious that for a country claiming to be having sovereignty
must have a sovereign and if we consider the real meaning of sovereignty, it
means that a sovereign state is to be headed by a supreme power known as the
sovereign which in strict sense is absent in India .
2.3 Socialist :
The term Socialist
has been inserted in the Constitution of India by 42nd Amendment Act, 1976.
Even prior to this amendment the idea was implicit in the constitution, in the
form of directive principles of state policy and in the words of Preamble,
'Justice social, economic and political' as well as 'Equality- of status and
opportunity.' General meaning of socialism implies the control of state over
the means of production. In
the context of Indian constitution, we can say our move is for democratic
socialism and not for provided communistic socialism. Insertion of this word
does not imply any commitment to a particular economic order.
Our constitution appears more committed to
the object or outcome of socialism i.e. justice social economic and political,
there may be different ways or means to realise these objectives. This way may
be different or some time contrary to the classical and conventional concept
and ideals of socialism. However all these means must nourish the guarantee for
a system free from all kinds of exploitation. Socialism in India has been accepted in the meaning of 'Democratic
Socialism'. The main aim of the expression was to bring about a balance in the
existing economic disparities.[[31]]
In D.S. Nakara v. Union of India,[[32]] the Court observed that “the basic framework
of socialism is to provide a descent standard of life to the working
people and especially provide from cradle to grave. This amongst others
on economic side envisaged economic equality and equitable distribution of
income.” The principal aim of a socialist State, the Supreme Court held, was to
eliminate inequality in income and status and standard of life. Thus we can say
that democratic socialism aims to end poverty, ignorance, disease and
inequality of opportunity.[[33]]
In Excel
Wear v. Union of India ,the
supreme court considered the effect of the word socialist in the preamble .the
court held that the addition of the word “socialist” might enable he courts to
lean more in favour of nationalization and state ownership of an industry but
so long as private ownership of industries is recognized and governs an
overwhelming large proportion of our economic structure, the principles of
socialism and social justice cannot be punished to such an extent so as to
ignore completely, or to a very large extent, the interest of another section
of the public namely – the private owners of the
undertaking.
2.4. Secularism:
The word 'secular'
has also been added by the 42nd constitution Amendment Act, 1976. It highlights
that the state shall have no religion of its own and all persons shall be
equally entitled to freedom of conscience and right freely to practice and
propagate religion. The provisions of right to freedom of religion ensuring
freedom of conscience and free profession, practice and propagation of
religion, freedom to manager religious affairs and right to equality, clearly
implied that India is a "secular Republic”. The Preamble reflects the way of life adopted by
Indian citizens for themselves after independence. In fact every civilization
has also been a mirror of way of life as well as reflecting movement of human
spirit. Religion in each civilizastion has indicated about the faith of human
beings in absolute values and a way of life to realize them.
The notion of secularism that developed in
India has been vastly different from its original western notion. The
traditional western vision of secularism has been the negation of all things
religious in political functioning. However the Indian concept of secularism is
completely different, stemming from Sarva Dharma Sambhava: it
is not that the state has nothing to do with religion and religion has nothing
to do with the state, but the concept of secular state has been understood as
one in which all religions have an equal status in the eyes of the state. In a Secular State, the State regulates the relationship
between men. It is not concerned with the relation of man with God[[34]].
The concept of Secularism is also contained
in Articles 25 to 30 of the Constitution by way of Right to Freedom of
Religion. The Supreme Court in St. Xavier’s College v. State of Gujarat,[[35]] explained that India “is neither anti -God, nor pro-God; it treats alike the
devout, the antagonistic and the atheist. It eliminates God from the matters of
the State and ensures that no one shall be discriminated against on t he ground of religion.” That every person
if free to go to the God or Heaven in his own ways. And, that worshipping
God is left to be dictated by his own conscience.[[36]]
2.5. Democratic:
That this Democratic stands for the good of all the
people is embodied in the concept of a Welfare State that inspires the
Directive Principles of State policy. The economic justice assured by
the Preamble can hardly achieved if the democracy envisaged by the Constitution
were confined to a political democracy. Dr. Radhakrishnan has put it-
“Poor people who wander about, find no work, no
wages and starve, whose lives are a Continual round of sore affliction and
pinching poverty, cannot be proud of the constitution or its law.”
This shows that
the Indian Constitution provides not only political but also social democracy,
as explained by Dr. Ambedkar in his speech in Constituent Assembly:
“Political democracy cannot last unless there lies
at the base of it social democracy. What does social democracy mean? It means a
way of life that recognizes liberty, equality and fraternity, which are not to
be treated as separate items in a trinity. They form a union of trinity in the
sense that to divorce one from the other is to defeat the very purpose of
democracy. Liberty cannot be divorced from equality; equality cannot be
divorced from liberty. Nor can liberty and equality be divorced from
fraternity.”
The state in a democratic society derives its
strength from the cooperative and dispassionate will of all its free and equal
citizens. Social and economic democracy is the foundation on which political
democracy would be a way of life in the Indian polity . The banishment of
poverty, not by expropriation of those who have, but by the multiplication of
the national wealth and resources and an equitable distribution thereof amongst
all who contribute towards its production, is the aim of the state envisaged by
the Directive Principles to the extent that this goal is reached. The ideal of
economic justice is to make equality of status meaningful and life worth living
at its best removing inequality of opportunity and of status- social, economic
and political.
Democracy is a form
of government in which people are governed by their own elected
representatives. It is a government of the people, for the people and by the
people. In this system of government, it is the people who are supreme and
sovereign. They control the government. They are free to elect a government of
their own choice. Freedom of choice is the core of democracy .India is
'democratic', as it has chosen a representative and responsible system of
government under which those who administer the affairs of the state are
elected by the electorate and accountable to them.[[37]] In practice,
people depict majority of the population which has vested powers to take decisions
in the matters. They very resolutions are carried and obeyed by the masses of
the country. The concept does not permit the enforcement of the decisions on
minority by majority. Rather, democracy thrives on the willing co-operation of
minority with the majority. In other, words minority and opposition parties to
have a vital role in the working of a democratic set up. Democracy guarantee
some basic rights and freedom for individuals and its voters. These rights are
known as fundamental rights. Democracy imposes rule by the adopted President of
India. The practice continues for all the matters pertaining ruling in
democracy. The system guarantees freedom for speech, equality and right for
worship among other rights to the people.
The Supreme Court in the case of Union
of India v. Association for Democratic Reforms,[[38]] Observed: “a successful democracy posits an ‘aware’
citizenry”. “Democracy cannot survive without free and fair elections,
without free and fairly informed voters.” This clearly emphasizes the
value of the power bestowed upon the citizens of India to elect the government
which is also essential for the functioning of the democracy.
2.6. Republic:
The term republic is used in distinction to
‘monarchy’, in other words India is a republic because the head of the state is
not a hereditary monarch. Hence, in India the head of the state is not a
hereditary positions as seen in the case of queen of England; the head of the
state in India is an elected person elected by the citizens of India. The
constitution of India sets up in India a ‘republican form of
government’, in which, the ultimate power resides with the body of people, enfranchised
by universal adult franchise. The president is the executive head of the state,
is elected by the people and holds office for the term of five years.[[39]]
2.7 Justice:
The term justice briefly speaking is the
harmonious reconcilement of individual conduct with the general welfare of the
society. An act or conduct of a person is said to be just if it promotes
general well being of the community. The constitution of India professes to
secure to its citizens
i.
Social justice: Social is a fundamental right. Social
Justice is the comprehensive form to remove social imbalance and will build up
a welfare state . Combining the ideals of political, social and economic democracy
with that of equality and fraternity, the Preamble seeks to establish what
Mahatma Gandhi described as The India of my dreams, namely
“An India, in which the poorest shall feel that it
is their country in whose making an
effective voice? An India in which all communities shall live in perfect
harmony.”
The term
"social justice" implies several sound and eminently desirable
concepts enunciated for the good of society in general, and of course it covers
fair play for every section, especially the weaker groups in the population.
This seems
unexceptionable and no one, however prejudiced or narrow minded, would object
to the promotion of this ideal. And yet the actions of countless people in this
country, day after day, believe their words. The reckless flouting of the
concept of social justice, and the denial of equal opportunities in life which
this postulates, all reflect a tendency that is anti-national and marks totally
unfair and unjustified behavior.
ii.
Economic justice: Economic justice means justice from
the standpoint of economic force. In short, it means equal pay for equal work,
that every person should get his just his dues for his labour, irrespective of
his caste, creed, sex and social status.
iii.
Political justice: Political justice means the absence of any
arbitrary distinction among men in political matters. The constitution has
adopted the system of universal adult suffrage to secure political justice. In
order that the justice in real sense be secured to the people of India, the
constitution, not only secures equality of status and of opportunity by
prohibiting discrimination on various grounds.
2.8 Liberty:
Liberty has been derived from Latin word
‘liber’ which means free. The term ‘liberty’ is used in both positive as well
as negative sense. As a negative concept liberty means the absence of all undue
or arbitrary interference with individual’s action on the part of the state. In
positive sense, liberty comprises of liberties or rights which are considered
essential for an individual to attain his potentialities and for the perfection
of national life. The constitution of India professes to secure liberty of
thought, expression, belief, faith and worship, which are regarded essential to
the development of the individual in the nation.
2.9 Equality:
Equality of status and opportunity is secured
to the people of India by abolishing all distinctions or discriminations by the
state, between citizen and citizen , on the ground of race
,religion, caste, sex or place of birth and by throwing open ‘public places’ to
all the citizens. The constitution also abolishes untouchability and titles by
Article 17 and 18 respectively .this helps in securing equality of opportunity
in matters of employment or appointment to any office under the state under
article 16 of the Constitution.
The concept of equality does not mean
absolute equality-among human beings which is physically not possible to
achieve. It is a concept implying absence of any special privilege by reason of
birth, breed or the like in favour of any classes to the ordinary law of the
land. The guarantee of equality before law is an aspect of what Dicey calls the
"Rule of Law" in England. The rule has got some exceptions under the
provisions of the Constitution for instance, foreign diplomates, President of
India, State Governors. Article 14 permits classifications but prohibits class
lagislations. The classification is to be reasonable and it must fulfil two
conditions, namely, it must be founded on intelligible differentia and the differentia
must have a rational relation to the object sought to be achieved.
In Maneka Gandhi Justice Bhagwati propounded
that the concept of equality is a dynamic concept with many aspects, and
dimensions and it cannot be imprisoned within traditional and doctrinaire
limits.
2.10 Fraternity:
The fraternity
which is professed in the Preamble is not confined within the bounds of the
national territory; it is ready to overflow them to reach the loftier ideal of
universal brotherhood; which can hardly be better expressed than in the
memorable words of Pandit Nehru:
“the only
possible, real object that we, in common with other nations, can have is the
object of co-operating in building up some kind of a world structure, call it
one world, call it what you like.”
Fraternity means feeling of brotherhood,
brotherliness, a feeling that all people are children of the same soil, the
same motherland. There is no provision in the constitution which reflects
‘fraternity’ as an object. However there are provisions in the constitution
such as common citizenship, the right of the citizen to move freely, to reside
and settle in any part of the territory of India etc., which generate there
spirit of brotherhood.[[40]]
The Unity and Integrity[[41]]of
the Nation sounds the concern of the founding fathers of the Constitution
regarding the maintenance of the Independence of the nation as well as the
success of the democracy in India. Therefore, while securing rights and
freedoms for the individuals, they incorporated in the Constitution elaborate
provisions conferring on the powers in the form of emergency
provisions as to help contain any forces threatening and endangering the unity
and integrity of the country. India has been declared as a Union of States
and is intended to put an end to the separatist tendencies.
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." The
Preamble of the Constitution of India is one of the best of its kind ever
drafted. Both in ideas and expression it is an unique one. It embodies the
spirit of the constitution to build up an independent nation which will ensure
the triumph of justice, liberty, equality and fraternity.
42ND AMENDMEND OF THE CONSTITUTION
India after 25 years of its constitution as a republic was now a
sovereign, Socialist, Secular, Democratic Republic. Nothing was changed in the
main body of the constitution to match these adjectives. The other portions of
the 42nd amendments
were to give the autocratic power to the executive by suspending the
fundamental rights of the citizens. This act in itself was neither socialist
nor secular. Thus logically the amendment accepted that the constitution in its
originality was secular and socialist enough that it did not need any
modification to suit the additions in preamble. The funniest part of this
exercise is that after the end of Indira Rule and Janta Party coming in power
the emergency provisions were removed from the constitution by the 44th
amendment but the additions to the preamble were left untouched. Thus endorsing
the enhanced emphasis on the socialist and secular nature of the constitution.
Though there are no changes in the original
provisions, in practice secularism is being unnecessarily pronounced in all the
governmental actions. The political parties for their petty electoral benefit
tend to appeasement of so called minorities in the name of secularism.
Secularism is used to denigrate everything traditional and Hindu in origin. The
famous instance of the controversy over Saraswati Puja in the convention of
education ministers during the NDA rule started by the objection raised by a
few politicians. The issue was raised under the garb of secularism. Media gave
great publicity to the issue. No one bothered to check the constitutionality of
the claim. Recently the issue of Ayud Puja and Sarasavati Puja was raised
before the Madras high court in a PIL. The high court has rejected the
contention that performing Puja in the offices is against the secular nature of
the government. “Showing respect to the place of work and the objects of work
will in no way offend the feelings of others or affect secularism. Ayudha Puja
is referable to prayer, reverence or respect given to objects through which an
individual performs his profession or occupation. Ayudha Puja in its real terms
transcends all religion,” a division bench of Justice R Sudhakar and Justice
Aruna Jagadeesan has said. This should make the constitutional position clear
on the issue. The practice of the media and intellectuals is very pathetic on
this issue as it was well demonstrated by the Jaipur Lit fare issue. Even
though on his very channel every representative of Islam from Lakhnau to
Hyderabad was vociferously demanding that Sulman Rushdie should not be allowed
to come to India, the star anchor Arnab Goswami kept on saying fringe elements
of the Muslim society are opposed. This is the way the faulty concept of
secularism corroborated by another unfounded concept of minority has developed
into a divisive element in the constitutional discourse.
Socialism is very hard to define. But it can be said
without slightest of doubt that the Indian state in last two decades has
abandoned socialism as an economic policy. From 1991 we claim to have tried to
follow the liberal free market economics. But according to the constitution
Indi India is still a Socialist Republic.
Chapter 3
Interpretational Value of the Preamble
This chapter deals with the importance and
role of preamble of Indian Constitution and provides for why it is immensely
important to have the preamble as it plays numerous roles indicating the source
from which the constitution derives its authority, states the objects which the
constitution seeks to establish and promote, acts as a guiding principle in the
interpretation of constitution and framing of other important statutes.
The Preamble of Indian Constitution reflects
the basic structure and the spirit of the Constitution. It is regarded as the
preamble serves as a channelizing tool for the interpretation of the
constitution as a whole. The preamble acts as the preface of the constitution
of India and lays down the philosophical ideas. It represents the entire
constitution in its written words. It contains the basic structure of the
constitution and thus considered to be a vital part. The preamble is
significant because it highlights the type of society and government it wishes
to establish. However, the preamble does not contain laws enforced in a court
but, no law can be enacted or amended in a manner that violates the spirit of
the preamble. Thus the preamble of the constitution of India is un-amendable.
Preamble of Constitution of India is an
introductory note to the constitution. It is like summary for our constitution,
regard as soul of it. To understand the motto of constitution Preamble works as
a guide so we can understand how Preamble is important.
The Preamble declares four aims in the
governance of India-
i.
Justice-
social, economic and political;
ii.
Liberty of
thoughts, expression, belief, faith and worship;
iii.
Equality
of status and opportunity; and
iv.
Fraternity
assuring the dignity of the individual and the unity and integrity of the
nation.
3.1 Preamble as
Projector of ‘Desired Established State’
The Preamble proclaims the solemn resolution
of the people of India to constitute India into a 'Sovereign socialist, secular
democratic republic. The Preamble was adopted with the constitution in the
constituent assembly. It came into effect in 1950 along with the constitution.
The original draft of the constitution opened with the words ‘Sovereign
Democratic Republic’ in the first line. The words ‘Socialist and Secular’ were inserted
by the 42nd amendment in 1976. The same amendment contributed to the changes of
the words unity of the nation into unity and integrity of the nation. The
significance of the preamble of Indian constitution lies in the ‘We the
People’. These words emphasizes that the ultimately the powers are vested in
the hands of the people of India. The expression state that the constitution is
made by and for the people of India. In addition to that the preamble also lays
down the essential national goals for every citizen justice, liberty, equality
and fraternity.
According to the preamble of the constitution
of India, the word Sovereign occupies a vital role in the country. It means
supreme or independent and embodies India is internally and externally
sovereign and is free from the control of any foreign power. Furthermore, the
country has a free government which is directly elected by the people and makes
laws that govern the people[[42]].
The word Socialist also has
enormous significance as it implies economic and social equality. The word was
added by the 42nd amendment act[[43]], 1976 during the emergency. In addition to
that Social equality identifies the absence of discrimination on the grounds
only of caste, colour, creed, sex, religion or language. Besides, social
equality has equal status and opportunities. The preamble also guarantees
secularism.[[44]] The
word Secularism was also inserted into the preamble by the 42nd amendment act
1976. Secularism implies equality of all religions and religious tolerance and
does not identity any state religion.
The preamble of Indian Constitution also puts
forth the words Democratic and Republic. India follows a Democratic form of
government. The people of India elect their government at all levels such as
Union, State and local by a system of universal adult franchise. India is also
a Republic, in a country where the head of the state is elected directly or
indirectly, for a fixed tenure. The president of India is the titular head of
the state. Thus, the preamble plays a pivotal role and serves two important
purposes including and indicate to the source from which the constitution
derives its authority and stating the objects, which the Constitution seeks to
establish and promote.
3.2 Preamble as
Interpreter of Legislation and statutes:
The Constitution of India starts with a
preamble which contains the spirit of the constitution and every legislation
framed is in conformity with the spirit of the preamble and thus the
constitutionality and objects of the statutes are tested. The preamble also
bears the aims and objectives that the people of India seek to establish with
the establishment of Indian Constitution , any legislation made is made with
the purpose and in accordance with the objectivity of the preamble itself. So,
‘Preamble is the Legislation in a nutshell’. It is a preparatory statement. It
contains the recitals showing the reason for enactment of any legislation and
prevents the legislation to fall in the arms of ambiguity.
In Kashi Prasad v. State of UP[[45]] the
court held that even though the preamble cannot be used to defeat the
provisions of the legislation itself, but it can be used as a vital source in
making the interpretation of the legislation
3.3 As provider
of Authority to the Indian Constitution:
The preamble to the constitution of India
begins with ‘We the People of India’, thus conferring that the authority of the
constitution lies in the people of India, who have themselves led to the
enactment of constitution for their own governance.
The provision of the constitution of India
cannot be overridden by the Preamble.
In Re Berubari[[46]],
the Supreme Court held that the Preamble was not a part of the constitution and
therefore it could not be regarded as a source of any substantive power[[47]].
In Keshavananda Bharati’s case[[48]],
the Supreme Court rejected the above view and held the preamble to be a part of
the constitution. The constitution must be read in the light of the preamble.
The preamble could be used for the amendment power of the parliament under Art.
368 but basic elements cannot be amended. The 42nd Amendment has inserted the
words “Secularism, Socialism and Integrity” in the preamble.
General
rules of interpretation of the constitution
1. If the words are clear and unambiguous,
they must be given full effect.
2. The constitution must be read as a whole.
3. Principles of Harmonious construction must
be applied.
4. The constitution must be interpreted in a
broad and liberal sense.
5. The court has to infer the spirit of the
constitution from the language.
6. Internal and External aids may be used while
interpreting.
7. The Constitution prevails over other
statutes.
Amendment to The Preamble
The issue that whether the preamble to the
constitution of India can be amended or not was raised before the Supreme
Court in the famous case of Keshavanand Bharti Vs. State of
Kerala,1973. The Supreme Court has held that Preamble is the part of
the constitution and it can be amended but, Parliament cannot amend the basic
features of the preamble. The court observed, "The edifice of our
constitution is based upon the basic element in the Preamble. If any of these
elements are removed the structure will not survive and it will not be the same
constitution and will not be able to maintain its identity."[[49]]
The preamble to the Indian constitution was
amended through the 42nd amendment act 1976. And the words Socialist, Secular
and Integrity were added to the preamble by the 42nd amendment Act, 1976, to
ensure the economic justice and elimination of inequality in income and
standard of life. Secularism implies equality of all religions and religious
tolerance and does not identity any state religion. The word integrity ensures
one of the major aims and objectives of the preamble ensuring the fraternity
and unity of the state.
Chapter 4
Preamble to Constitution: Comparative Study
Preamble is introductory part of the Constitution.
Every constitution has its own preamble. There is comparative study of preamble
of USA and Canada as below:
4.1 The Preamble of the Constitution of USA
The preamble of the constitution of USA as
follow:
“We the people of united states, in order to
form a more perfect union, establish justice, insure domestic tranquillity,
provide for the common defence, promote the general welfare, and secure the
blessing of liberty to ourselves, and our posterity, do ordain and establish
this constitution for united states of America
Along with the title is mentioned, the date
of signing the constitution by its framers and also the date on which it comes
into effect. The preamble doesn’t acknowledge the fact that the constitution
was framed by the delegates of the thirteen original states meeting in a
convention, or that it was ratified, subsequently, by the states that had
framed the constitution
a) The preamble of the constitution of United
States of America may be analysed and commented upon clause by clause:“WE the
people of united states”: These words emphasize the ultimate sovereignty of the
people and indicate that the constitution is founded on the authority flowing
from the people.
b) “In order to form a more perfect union”: The
constitution which existed at that time had merely brought into existence or a
sort of league of friendship. The feeble government was unable to cope up with
its responsibilities and it was realized that if the union were to last , it
must be strengthened . However it was an open matter whether the union as
contemplated in that material time was to be a viable one or was to be one from
which a state could break away at its will .The answer was ultimately provided
by the result of the civil war, which established the principle that the
authority conferred upon the union government by the various state was an
irrevocable authority and that no state had the right to secede from the union.
c) “Establish justice”: Under the Article of co federation,
there was no system of national court. In particular there was no machinery to
decide inter – state disputes. The absence of the machinery was one more lacuna
which was sought to be filled in by the new constitution
d) “Insecure domestic
tranquility”: Shay’s rebellion in Massachusetts had demonstrated the
complete helplessness of the co federal government to provide effective aid to
the state government.
e) “Provide for the common defence:” The co
federal government had no power to raise men or money although it had the power
to declare war. It was imperative , therefore to give such power to the new
central government
f) “Promote the general welfare and secure the
blessing of liberty to ourselves and our posterity:” The co federal government
had no power of legislation whatsoever, and was, therefore not entirely
feasible to formulate or implement any policy for the welfare of the nation.
g) “Do ordain and establish this constitution
for the United States of America:” For the first time the country had a
sovereign national government .The constitution marked the emergence of the
United States of America into a fully blossomed nationhood.
The preamble of the constitution of the USA,
in a precise form contains a “declaration” and a descriptive
objective. The declaration is to the effect that the people of
United States “ordain and establish” the constitution for the United States of
America. It is not a mere article of agreement among the thirteen states
On the other hand, the preamble of the
constitution of India has serves two purposes:
a. It indicates the source from which the
constitution derives its authority, and
b. It also states the objects which the
constitution seeks to establish and promote. It is a key to open the mind of
the makers
The constitution of India, like that of the
united state of America, strikes one as a monumental piece prepared by men of
great eminence and patriotism. Undoubtedly there is a difference between the
constitution of U.S.A and India in phraseology and emphasis – more than a
century and half has passed between the adoptions of two Constitutions, many
world events of far-reaching social and economic consequence had taken in the meantime
and people’s ideas had passed through radical transformations.
The constitution of U.S.A is the supreme law
of the land. It guarantees fundamental right of person, property, and liberty.
It is however , noteworthy that these right were incorporated in the
constitution by a number of amendments effected after the
constitution was promulgated .They were not enumerated in the
original draft of the constitution .But by subsequent amendment individual
liberty has been effectively safeguarded .Only 133 years later with 19 th
amendment ,women acquired the right to vote
The rights of the citizen are made
enforceable by recourse to judiciary. These right cannot be modified or
suspended except by a constitutional amendment .Freedom of speech, Freedom of
worship, of habeas corpus, no unreasonable search and seizure which constitute
hallmark of a just society has become part parcel of the constitution
Rutgers Law Professor Albert Blaustein has
pointed out “civil and political right of abstinence. They are right against
the state .When you start talking about social and cultural right, you are
asking for right of action, affirmative rights” . Another area of silence in
the constitution –economic rights – the right to a job, the right to shelter,
the right to food.
The constitution of U.S.A is based on popular
sovereignty in the U.S.A is attributed to the people. Unlike the United Kingdom
where the hereditary monarchy is the head of the state, the United States of
America is a republic with the president as the elected head of the state. The
constitution has derived its authority from the people.
Former C.J .Warren E. Burger chairman of the
commission on the bicentennial of the United State Constitution has stated “no
other charter of government had recognised so clearly that all legitimate
political power flows from the people.
The constitution of the U.S.A
opened a new era in the history of constitution , not only by its explicit
description of the power of a balanced representative government but also by
its birth in a public forum of the printed words .Widely literate people could
read n judge the very words by which they would be governed
The constitution that emerged from the
Philadelphia convention in mid September 1787 ,according
to James Madison , “was nothing more than the
draft of the plan , nothing but a dead letter , until life and validity were
breathed into it by the voice of people , speaking through the several state
convention “ .
Thus the constitution of the U.S.A is a
unique constitution presenting a constitutional model entirely different from
U.K. Its stability and strength is the envy of the different constitution of
the world .Some of the developing democracies like Sri Lanka and Pakistan have
opted for it . The constitution has aura of the sacred about it. It occupies a
shrine up in the higher stretches of American reverence.[[50]]
3.2 The Preamble of the Constitution of the
Canada
The constitution of Canada consists of many
laws as well as political convention and judicial practices. the preamble state
that the province of Canada nova Scotia and new Brunswick have
expressed their desire to be federally united into one domain under the crown
with the constitution similar in the Principle to
that of the united kingdom
The preamble of the constitution has cited
the four –fold objective:
i.
To
fulfil the desire of the constituent units of Canada to
form into a union under the crown.
ii.
That
such a union would be conductive to welfare of the provinces and promote the
interest of the British empire
iii.
That
a legislative authority and an executive government be provided for and
iv.
To
enable the eventual admission into the union of other parts of british north
America
In compare to Canada Preamble Indian Preamble
lays down main objective of state to be
i.
To
establish democratic, republic, sovereign, socialist and secular state
ii.
To
achieve Justice- social, economic and political
iii.
Liberty of
thoughts, expression, belief, faith and worship;
iv.
Equality
of status and opportunity; and
v.
Fraternity
assuring the dignity of the individual and the unity and integrity of the
nation.
Prof. A. V. Dicey thought that preamble of
Canada was inaccurate when it described the constitution of Canada .he has
stated that if preamble were intended to express anything like whole
truth ,for the world “kingdom “ ought to have been substituted
by the states .[[51]]
As Indian Preamble lays down the basic
structure of Indian Constitution which is not as such depicted in the Preamble
of Canada and USA, so it can be concluded that Indian Preamble is more
structured than Preamble of USA and Canada.
Chapter 5
Conclusion
The
Constitution of India begins with a Preamble. The Preamble contains the ideals,
objectives and basic principles of the Constitution. The salient features of
the Constitution have evolved directly and indirectly from these objectives
which flow from the Preamble.
Preamble is an
introductory statement, stating the aims and objectives of the constitution.
Accordingly, the preamble to the Indian constitution spells out the basic
philosophy contained in the body of the Indian Constitution. The Preamble is so
important because it highlights the type of society and government it wishes to
establish. The preamble does not contains any law that can be enforced in the
court of law but no law can be enacted or amended in a manner that it violates
the spirit of Preamble[[52]].
In conclusion I
would like to just say that this is very true that preamble is the basic part
of any document and it is but obvious to our constitution because it is the
supreme law of our country, but Is it true that our constitution is so complete
and perfect. As we all knows that we have more than 108 amendments in our
constitution. So before making any basic structure we have to first finalise
the structure and the provisions of our constitution. And another thing is that
if it is the part of our constitution or the basic structure of it then why we
need these many cases or judicial reviews to finalise its existence. According
to me the preamble is the topic which gives its status from the very beginning
when any document, act or provision enacted. It gives the overview of that
particular act so we can easily take the idea of what the act is all about. In
constitution we can say that this plays a very big role to understand the
provisions of the constitution. So if something plays a great role to
understand the provision of any act then how that thing cannot be the part of
it, and what is the other thing which talks about the preamble as the part of
our constitution .this is the only answer to that according to me.
Bibliography
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REFERED
ü
Basu, Durga
Das, Shorter Constitution of India, Volume 1, Lexis Nexis Butterworths Wadhwa,
Nagpur, 2010.
ü
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ü
Singh, Mahendra P. , Constitution of India., Eastern Book Company Lucknow, 2008.
ü
Kumar,
Narender, Constitutional Law of India, Allahabad Law Agency, 2008.
ü
Kumar,
Narender, Introduction to the Constitutional Law of India, 1st Ed., Allahabad Law Agency, Allahabad, 2009.
ü
Gauba, OP, An Introduction to Political Theory, Macmillan India Ltd., Delhi, 2007.
ü
Oxford
Dictionary & Thesaurus, 9th Impression, 2007.
ü
Majumdar , P.K., & Kataria , R.P, Commentary on the Constitution of India, Volume 1, Orient Publishing Company, Allahabad,
2009.
ü
Bakshi , P.M.,
The Constitution of India, Universal Law Publishing Co., Delhi,2008.
ü
Krishnaswami, Sir Alladi, Constituent Assembly Debates. Vol.
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Delhi, 2010.
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