-by Deepanshi Rajput
The idea of preamble is taken from the USA. And, USA is the first country which have used the preamble very first time. The concept of “we the People” structured copied from USA. Nani Palkivale is the God of lawyers which defined the preamble is the “Identity Card of the constitution”. So, Preamble is the summary and essence of the constitution. “objective Resolution”, drafted and moved by Pandit Nehru. It is not the plan, on which the constitution has made, rather it is the objective resolution on 13th December, 1946 and later on 22nd January, 1947 we have adopted the preamble and adopted by Constituent Assembly. The main objective of Indian Constitution is as to Justice, liberty, fraternity, dignity of individual and unity & integrity of nation.
Importance of Preamble-
- It shows our political, moral & religious philosophy.
- Political Horoscope- by KM Munshi.
- It has been described the keynote of the constitution of India.
- Preamble gives us the direction (lighthouse) true or false.
- Preamble is summary of the Constitution.
Is it amendable?
Amended only once but can’t remove the ideals like Democratic, Republic, Secularism- Basic structure part. Preamble can be amendable as a whole. Socialist, Secular, Intergrity amended by 42nd Amendment, 1976.
Objectives of the Preamble
- The ultimate aim of the makers of the constitution was to have a welfare state and an egalitarian society projecting the aim and aspirations of the freedom movement.
- The preamble was adopted by the constituent assembly only after the constitution had been approved. The idea was to express in a few words the provisions of the Constitution.
Constitutional Value of Preamble
- The Preamble is a legitimate aid in the construction of the provisions of the constitution –observed by Maxwell.
- For the purpose of interpretation, the preamble of the constitution stands in the same position as the Preamble of an Act. –observed by Lord Halsbury, LC in Powell vs Kempton Park Race Course Co., 1899.
- The preamble of Act can be referred to explain the elucidate only the ambiguous and inexplicit provisions of the Act. The Preamble is not considered to be a part of the act – observed by Lord Normand in Attorney General vs H.R.H Prince Emest Augustus of Hanover, 1957.
- The preamble to the Indian Constitution was not a part of the constitution –observed by Gajendragadkar, J in Re Berubari Union & Exchange of Enclave, AIR 1960 SC 845.
- The preamble to the constitution was a part of the constitutions and the observations to the contrary in Berubart union were not correct –observed by Keshavnanda Bharti v. State of kerala, AIR 1973.
Ideals or nature of the Indian constitution
- SOVEREIGN: Sovereignty is one of the essential attributes of state in jurisprudential terms. COOLEY defines a sovereign state as one where there resides within itself a supreme and absolute power acknowledging no superior. However it is submitted that in this sense, no state today can be said to be an absolute sovereign as international obligations, treaties etc. put restraints and erode sovereignty. However it can be to the contrary, also be argued that even international obligations are undertaken by the states with their own violation. Nevertheless in domestic area, a sovereign state has absolute sovereignty. The Preamble to the US constitution speaks in the name of “we the people of united states”. The history of the constitution clearly brings out the fact that sovereignty in US is divided between the union and the states. But in India, despite a division of powers between the centre and states, there is no division of sovereignty. The union can override the states in national interest during emergencies, and even during normal times, it can invade the state’s sphere by legislating on state subjects on same occasions. The federal supremacy, despite a federal structure, has been asserted State of West Bengal vs Union of India, 1962 & State of Rajasthan vs Union of India, 1977. There is no division of sovereignty in India and the states have no right to succeed from the union. Articles 1 to 4 of the constitution clearly depict the supremacy of the union in matter of cession, acquisition of territories and also alteration of names and boundaries of states or the diminishing of their areas. The citizenship is also only one in India and not a dual citizenship as in the U.S. thus there is no division of sovereignty in India.
Where does the sovereignty vest?
The preamble uses the words “we the people of India”. Seervai was the earlier of the view that constitution is a result of India Independence Act and not “We the people”. This view was strongly opposed by Prof. Tripathi who was supported by Prof. Conard who said: Constitutions are self created and not a combination of some other laws, Seervai later on, changed his view and deleted the words from his book. In all constitutions it is the people who give the constitution. e.g. US constitution was made by representatives of the colonies and its ratification was done by the colonies. Yet it starts with “we the people of the US”. The idea behind this is that a constitution is a creation of all the people and not a group of individuals or some older law. Case- Synthetics and chemicals Ltd. vs State of U.P., 1999 ISCC 109, in this case court held that sovereignty is the exercise of sovereign power which gives the state sufficient authority to enact any law subject to the limitations of the constitution to discharge its functions.
The India state, within the centre and the states has sovereign power to legislate on all branches subject to the limitations as to the division of power between the centre & the states and also subjects to the fundamental rights guaranteed under the constitution. Police power is not the same as the sovereign power of state. - SOCIALIST: It was added by the 42nd Amendment. Earlier also, the resolve to secure to all citizens economic, justice and equality of status & opportunity was there in the preamble. Article 39(b) & (c) of DPSP are the charters of social and economic liberties of the people. To various men, it means various things Marxist or Leninist socialism is different from Nehruian and Gandhian socialism. However, it is difficult to define socialism as it has no where defined in the constitution. The 45th amendment tried to define it mean ‘free from all forms of exploitation- social, economic and political’. Case- Delhi Science forum vs Union of India, 1996 2 SCC 405, in the case Supreme Court held that constitution does not lay down any economic policies. The privatization of telecom sector cannot be held invalid only on the ground that it is the contrary to the idea of socialism. India socialism is different from Marxist socialism.
There are manifold implications of this Judgment-
- Laws cannot be invalidated only on the ground of the Preamble. Specific limitation have to be read in the constitution itself.
- Socialism will continue to have a different meaning unless a necessity arises to delete it.
- Even in China an essentially communist country, a free market economy has been without changing the constitution.
- Most significantly the validity of socialist in the preamble has not been challenged yet.
3. SECULAR: This was added by 42nd amendment. Secular is a vague term to be defined. Dictionary defines it as ‘irreligious’ or ‘not concerned with religion’. An academic definition has been attempted by Donald Eugene Smith- “the secular state is a state which gives individual and corporate freedom of religion is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion. - Justice Desai added to the above definition that a secular state deals with the individual as a citizen irrespective of his religion.
- Equality ofreligions is the only meaning that can be attributed to the term secularism owning to the peculiarity of the Indian situation. Secularism does not mean ‘irreligious’ or ‘anti-religious’.
- ‘Indian secularism sought to establish a rational synthesis between the legitimate functions of religion and the legitimate & expanding functions of the state’ –observed by Justice Gajendragadkar.
- Before the 42nd amendment, as per Article 25(2) the state was empowered to regulate or restrict any “secular activity” associated with religious practice. Here, the word ‘secular’ essentially meant non- religious. The 42nd amendment merely made explicit what was earlier implicit in the constitution. Keshavananda Bharti Case, 1972; Minerva Mills Case, 1980; S.R. Bommai Case, 1994; in these cases SC held that Secularism is a basic structure feature of the Indian constitution.
- Democratic: Democratic, as opposed to autocracy, aristocracy or monarchy means a government by people. Demos means ‘people’ and Kratos means ‘government’ which means the people irrespective of factors like, caste, religion, economic level etc. are equal in the eyes of law and manage their own affairs themselves. They have an inalienable right to rule themselves. The concepts of justice, equality, liberty & fraternity are an embodiment of democratic principles in the preamble. In India democracy is in the wider sense of political, economic & social democracy. The institution set up under the constitution shall seek to give effect to democracy in India which is to be sustained by adult suffrage, fundamental rights and independent judiciary.
- Case: Indira Nehru Gandhi vs Raj Narain, 1975, in this case SC held that Democracy is a basic structure feature of the Indian Constitution and free & fair elections is also impliedly a basic feature.
- Republic: “A rebulician form of government as ‘a government by representatives chosen by the people” defined by Cooley. “Republic as a government which derives its powers directly or indirectly from the great body of the people and is administered by personal holding their offices during pleasure, for a limited period, or during good behavior” defined by Madison.
In a republic the executive head or the president is not a hereditary monarch but elected representatives. Even India’s membership of the common wealth of nations does not detract it from its republican character. That is an external arrangement and the queen has not been recognized as the head of the country.
B.R. Ambedkar was Father of Indian Constitution
Deepanshi Rajput 