Preamble

INTRODUCTION #

The Constitution of India commences with a preamble. The preamble is like an introduction or preface of a book. As an introduction, it is not a part of the contents but it explains the purpose and objectives with which the document has been written. So is the case with the “Preamble” to the Indian constitution. As such the preamble provides the guidelines of the constitution. The preamble, in brief, explains the objectives of the constitution in two ways;

One – About the structure of the governance.

Two – About the ideals to be achieved in inde- pendent India.

It is because of this, the preamble is considered to be the key of the constitution.

PURPOSE OF PREAMBLE #

Preambles are attached to laws to make sense of the provisions of the enactment. In the absence of preamble, it may be difficult to make sense of the provisions of law. Just like other laws, constitution, which are the Fundamental law or Basic law, gov- erning a political system also carries a preamble.

Significances   of    Preamble   in    Indian Constitution #

• According to K.M. munshi preamble is a hor- oscope of Indian constitutional system. The purpose of horoscope is to get basic informa- tion about the person, personality, place of birth, or prediction about the future. The preamble of Indian constitution also highlights the key features of Indian state, the vision of Indian state, the source of constitution of India, its date of enactment and adaptation.

• Granville Austin considers preamble along with Fundamental Rights and Directive prin- ciples as the soul of Indian Constitution.
• Alladi Krishnaswamy Aiyer, member of Drafting committee, said that preamble expresses the vision of Constituent Assembly, the dream perused by Indian national move- ment for so long.
• Supreme Court of India in Keshavananda Bharati case acknowledged that the ideas expressed in preamble do form the “Basic Structure” of the Indian Constitution. Pream- ble reflects the nobel vision which was kept before the court by the framers of Indian Constitution. And earlier, in Berubari case of 1960, Supreme Court held that Preamble is the key to open minds of makers of the constitution or to understand the purpose for which they have made several provisions in the constitution.

CONTENT OF THE PREAMBLE #

Preamble explains the Nature of Indian state, and Ideas and objectives of Indian state.

Nature of Indian State #

• Sovereignity: It means absolute Indepen- dence, i.e. a government which is not con- trolled by any other power internal and ex- ternal. Being sovereign means being the supreme authority in its own sphere and hav- ing complete political freedom.

However, the sovereignity of state has been a legal fiction, and has never been a politi- cal reality. In domestic sphere- customs, tra- ditions and in external sphere – international

law, world order, other states, determines the extent of sovereignity.

Therefore, when India acquired Sovereign status, as a result of the independence of In- dia Act, India found itself, placed in a world order where it was not possible to be able to exercise sovereignity in external sphere. In such situation, we invented the policy of Non-Alignment to assert the sovereignity in international sphere.

Internally, the process of nation building had not fully consolidated. Here we preferred the approach of developing consent and consen- sus .Hence many objectives of Indian state were made directives and not enforceable with immediate effect. It is for this reason, that uniform civil code, remains a directives.

In present context, the sovereignity of state is getting increasingly compromised under forces of globalization and due to the asser- tion of civil society.

• Socialist: In a country with mass poverty, extreme concentration of power and an im- balanced development, Socialism has been a natural choice. There was inclination towards socialistic vision of Indian Society even be- fore independence leaders like Gandhi ji , Jawaharlal Nehru, Jayprakash Narayan etc believed in the philosophy of Socialism or Sarvo dayo.

After Independence Nehru ji gave a vision of ‘’Socialistic pattern’’ of Indian society based on Febian Socialism. It means the process of ‘evolutionary socialism’. Though the term ‘socialist’ was added in 1976, various part of Indian constitution, especially Fundamental Rights and Directive principles of state pol- icies reflected socialist vision. We do not ac- knowledge violent method of social change but socialism through democratic methods is premissible.

• Secularism: The term secular was added by the 42nd constitutional Amended Act 1976. In the context of secularism in India, it is said that ‘’India is neither religious nor anti -reli- gious’’ Now What does this imply? 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:

• Every individual is free to believe in, and practice, any religion he/she belongs to.
  • State will not discriminate against any individual or group on the grounds of re- ligion.

State maintain equidistance, and its better to called positive distance. As state intervenes in different religion in different content, there are different parameters and rational for state’s intervention or non –intervention.

So the main characteristic features of Indian secularism are as follows:

• State is not identified by a particular re- ligion, but state is not entirely averse to public character of religion.
• There are no strict boundries or sepa- ration. Porus boundries exists between state and religion. State may intervene to help or to hinder
• No active hostility or passive indifference.
• Secularism is based on the idea of Liber- ty, Fraternity, peace and Toleration.
• Indian Secularism is not based on any over arching ideology or doctrine.

Debates and issues related with Secularism #

There is an outgoing debate with respect to the Nature of Secularism found in the constitution and practiced on ground. Some critiques, often talk about “Pseudo Secularism”, they accuse that Indian poli- tics is actually a politics of “minority appeasement”. Their arguments are –

• Uniform civil code remains a directive de- spite repeated direction by supreme court to anact it.
• There are special rights for minorities.
• The constitution permits active intervention of state to perform Hindu religious practices but no such parallel provision with respect to other religion as mentioned is Article 25(2)

(b). Another major and hotly debated issue is the proposal by government for the intro- duction of communal violence Bill which has been amended several time but still many

provisions remains controversial.(Please check the present status of the Bill). In con- clusion, it can be said that, for all of us secu- larism should become a habit, a value system, way of life and thinking. Secularism in India should be based on – Democracy, Human Rights and human Dignity.

• Democratic Republic: Democracyis gen- erally 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 the case of British monarch.

OBJECTIVES OF THE CONSTITUTION #

1.   Justice #

The term justice in the Preamble talks about comprehensive & distributive justice that is social, economic and political justice. As observed by Pan- dit Nehru and Dr. Ambedkar, political justice is of no consequence, unless a democracy assures social and economic justice as well. To ensure ‘political justice’ held out by the preamble, the constitution has adopted universal adult suffrage, has offered equal opportunity to citizens irrespective of their religion, caste, creed, race, sex or place of birth in matters of public employment and has provided special rights to minority communities.

The social and economic justice is sought to be provided by the constitution as enshrined in the preamble, mainly through theDirective Principles of state policy. Accoording to Dr. B.R. Ambedkar, “Social justice means a way of life which recognises liberty, equality and fraternity which are not be treated as separated items in a trinity”. Economic justice broadly means equitable distribution of wealth among citizens and avoidance of concentra- tion of wealth in fewer hands. The ideal of a just and egalitarian society remains as one of the foremost objectives.

2.   Liberty #

Democracy cannot be established unless certain minimal rights which are essential for a free and civilized existence are assured to every member of the community. Therefore, the preamble mentions these essential individual rights such as freedom of thought, expression, belief, faith and worship which are assured to every member of the community against all the authorities of states by Part-III of the constitution.

3.   Equality #

Equality substantiates Democracy and Justice. Without equality, weaker individuals would not be able to avail the freedoms granted by state. Our con- stitution assures equality of status and opportunity to every citizen for the development of the best in him. Every citizen of India is entitled to equality before law and equal protection of law. Inequality in all forms present in our social structure has been prohibited. Many provisions assuring equality to all individuals irrespective of their religion, race, caste, sex or place of birth, etc. have been guaranteed. Also the provision of affirmative action has been made to bring everybody on par.

4.   Fraternity #

Fraternity stands for the spirit of common brotherhood. It is a feeling that all citizens feel that they are all children of the same soil. In the absence of that, a plural society like India stands divided. Therefore, to give meaning to all the ideals like justice, liberty and equality our Constitution gives ample stress on fraternity. Democracy has been given the responsibility to generate this spirit of brotherhood amongst all sections of people. This has been a foremost objective to achieve in a country composed of so many races, religions, languages and cultures. Article – 51A(e) therefore, declares it as a duty of every citizen 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. Article 51A (f) further asks each citizen to value and preserve the rich heritage of our composite culture. However,

D.D. Basu believes that, Fraternity will be achieved not only by abolishing all communal or sectional or

even local or provincial but also anti-social feelings which stand in the way of unity of India.

5.   Dignity of the individual #

All the above ideals or objectives would not be achieved if the dignity of an individual is not respected. Unless and until dignity of an individ- ual is not recognized, due right of an individual including liberty and equality would not be secured from the state and society. Therefore, Constitution makers attached supreme importance to it. Our constitution therefore directs the state through the Directives enshrine in the Part-IV of our constitution to ensure the development of the quality of life to all sections of people. Our constitution acknowledges that all citizens, men and women equally, have the right to an adequate means of livelihood (Art-39 a) and just and humane conditions of work (Art.-42). Article-17 has abolished the practice of untoucha- bility by declaring it as a punishable offence. Our Constitution too directs the state to take steps to put an end to exploitation and poverty.

6.   Unity and integrity of the Nation #

This phrase too was inserted by the 42th Amend- ment Act, 1976.To maintain the independence of the country intact and enduring, unity and integrity of the nation is very essential. Therefore, the stress has been given on the ideal of fraternity which would foster unit amongst the inhabitants with a spirit of brotherhood amongst the people, the ideals of unity and integration of people and nation, to uphold and protect the unity and integrity of India as a matter of duty.

CONTROVERSY ASSOCIATED WITH PREAMBLE #

1.        The first controversy is that whether pream- ble is a part of the constitution or not. #

Through various judgements, the supreme court has cleared the status of the preamble. Those judge- ments are as under follows –

(i)    Berubari Case, 1960 #

In this case, though the supreme court recog- nised that the preamble is the key to open the mind of maker of the constitution, yet it did not accept that preamble is a part of the constitution.

Approach of the Supreme Court in Berubari Case #

• In this case supreme court was guided by the “traditional views”. As per the traditional views, constitution is a ‘power map’. Power map means it should tell powers or limitations of power of different political institutions. In Berubari case, supreme court held that pre- amble on its own is not the source of any substantive power to any organs. It means preamble on its own can not empower an organ to act which is otherwise forbidden for that organs. It is also not a source of prohibition of any power which is explicitly give to a particular institution.
  • Supreme Court further clarified that preamble will act as a light house to throw the light in case of ambiguity in Indian constitution. If there is any lack of clarity or more than one interpretation of any provision of Indian Constitution is possible then provision to be interpreted in the light of ideas in preamble.
  • In this way Supreme Court taken into con- sideration the tradition followed in USA. It is said that in USA, “Preamble walks before the constitution”. Preamble is not considered as an essential part of the constitution.

(ii)  Kesavananda Bharti Case , 1973 #

• In this case, Supreme Court had over-ruled its earlier decision of Berubari case and held that preamble is an integral part of Indian constitution. Supreme Court further said that it is subject to the amending power of parliament like any other provisions of the constitution, provided the “basic structure of the constitution” as found in the preamble is not destroyed.
  • Moreover, Supreme Court had also admitted that, it has overlooked some of the historical aspects related to Indian Constitution which makes a difference in the status of preamble in Indian Constitution from that of U.S Con- stitution. Those historical aspects are –

Firstly, The motion by which preamble was passed in constituent assembly, had mentioned that preamble stands as a part of Indian Constitution.

Secondly, In USA, preamble walks before the constitution, but in India, the preamble was passed at the last in the Constituent Assembly, so that harmony must exist between preamble and the Constitution.

2.        Second Controversy is, Whether preamble can be Amended or not. #

The situation arised because under Article 368, power of procedure of amendment of Indian consti- tution is given. Now the question arised, Whether preamble can be amended or not. The simple answer to the question is whether the preamble is a part of the constitution or is it not a part of the Indian constitution.

In the Berubari Vs. Union case (1960) the Supreme court held that preamble is not a part of the constitution. On this basis it was argued that since it is not a part of the constitution, parliament can not amend the preamble by virtue of its amending powers under article 368 of the constitution. How- ever, the supreme court in the Kesavananda Bharati case (1973) over ruled its earlier decision and held that the preamble is a part of the constitution and it is subject to the amending power of parliament like any other provisions of the constitution, provided ‘the basic structure’ of the constitution as found in the preamble should not destroyed. Consequently, the 42nd Constitutional Amendment Act of 1976, amended the preamble and added three new words viz. socialist, secular and integrity to it.

3.        Third Controversy is that, Whether pream- ble should be an aid in the interpretation of the constitution or not. #

• In the A.K Gopalan Case, 1950 Supreme court held that preamble is not a “Guiding Star” in the interpretation of Indian constitution. Pre- amble can not be used to modify the meaning of explicit provisions of Indian Constitution. Hence, supreme court rejected to accept the “Doctrine of Due process of Law”.
• In the Berubari Case (1960) Supreme Court held that, Preamble is the light house in case of any ambiguity of the provision of the constitution.

• However in the Kesanananda Bharti Case (1973),Supreme court held that, the preamble offers valuable guidance in interpretation of Indian Constitution. Constitution should be read and interpreted in the light of grand and nobel vision expressed in preamble.

UTILITY OF THE PREAMBLE #

• Preamble indicates that the people of India who had enacted, adopted and given the constitution themselves. The source of all authority under the constitution emanates from the people of India, that means sover- eignty ultimately resides with the people.
• Preamble declares the rights and freedom which the people of India intended to secure to all its citizens and the mode of realization of these ideas and operations.
• Preamble declaresthe basic type of government and polity which is sought to be established in the country.
• Preamble aids in the legal interpretation where the language of the constitution is found to be ambiguous.
• Lastly, the date of adoption of our constitution is clearly mentioned in the preamble.

LIMITATION OF THE PREAMBLE #

• Preamble can not be enforced in a court of law.
• Preamble can not over ride the express pro- visions of the constitution.
• Preamble can be resorted to only when there is an ambiguity in the provisions of the con- stitution.
• Preamble is not regarded as the source of any substantive government power.
• Lastly, Preamble cannot place any limitation on exercise of powers of the organ of the constitution, mainly the executive, legislative and Judiciary.