Tag: #Democratic

Is Preamble a part of Constitution: An Analysis

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Introduction

In a document, a preamble is an opening statement that gives an idea about the aims and approach of the document and the objects it seeks to achieve. Therefore, the Preamble to the Constitution of India tells us about the values and aspirations for which the nation had struggled under British rule, the intention of the Constituent Assembly, and the morals and principles of the country.

It is built on the model of the Objective Resolution, which was presented by Jawaharlal Nehru. It was moved by him in the Constituent Assembly on December 13, 1946, and adopted on January 22, 1947. However, it was adopted only after the approval of the Draft Constitution.

Components of the Preamble

There are four main components of the Preamble:-

  1. The Preamble states that the people of India are the source for the authority of the Constitution. 
  2. According to the Preamble, India is sovereign, socialist, secular, democratic and a republic in nature.
  3. It states the securing of liberty, equality, and justice for its citizens and the promotion of fraternity as its objectives.
  4. It declares the date of adoption of the Constitution, i.e., November 26, 1949.

Keywords in the Preamble

Some of the keywords which are mentioned in the Preamble are described below:-

  • Sovereign – This means supreme power. Thus, this implies that India is an independent state and no other state can rule over it or dominate it. 
  • Socialist – In India, socialism means democratic socialism. It incorporates the concept of a mixed economy where both, the public sector and the private sector exist side-by-side. 
  • Secular – The concept of positive secularism is followed in India. It means that all the religions in India are equal and they receive equal respect, status, and support from the state.
  • Democratic – This means that in India, people elect their representatives who then form the government. In other words, the government derives its power from the will of its citizens expressed through elections.
  • Republic – It is a form of government in which the citizens elect the head of the state. In India, the head of the state is the President, who is elected indirectly for a term of five years.
  • Justice – The Preamble talks about social, economic, and political justice which are guaranteed through the Fundamental Rights and the Directive Principles of State Policy given in Part III and Part IV of the Constitution respectively. Social justice refers to the just and equal treatment of all citizens without any discrimination. Economic justice means the abolition of inequality in matters of wealth, income, and possessions. Political justice means all citizens have equal political rights and access to political participation.
  • Liberty – It means the absence of restrictions on an individual’s activities and to secure the freedom of expression, thought, faith, etc. However, this liberty is not absolute and is subject to certain limitations. 
  • Equality – It means the absence of any form of discrimination and the availability of equal opportunities for all.
  • Fraternity – It implies developing a sense of brotherhood among the citizens in order to maintain unity in the country and the dignity of the individual.

Is the Preamble a Part of the Constitution?

One of the main controversies related to the Preamble was whether it is a part of the Constitution or not. This question has been dealt with by the Apex Court in the following two cases:- 

  1. In re Berubari Union case:- At the time of partition between India and Pakistan, Sir Radcliffe was given the task of demarcation of boundaries between the two nations. Radcliffe awarded Thana ‘Berubari’ in Jalpaiguri district of West Bengal to India but this was not mentioned in the award’s written text. As a result, Pakistan claimed that Berubari was a part of their territory. This dispute continued till 1958 when the Nehru-Noon Agreement was signed between India and Pakistan. According to this agreement, the territory of Berubari was to be distributed equally between both countries. However, the Union Government faced criticism and its authority of transferring the territory was questioned. The matter was then referred by the President to the Supreme Court of India under Article 143(1) of the Constitution. 

The Court stated that the Parliament can diminish territory under Article 3 of the Constitution but it cannot cede the territory. Hence, to give effect to the Agreement the Parliament will have to amend the Constitution according to the provisions of Article 368. 

Further, the Court held that though the Preamble shows the objective of the Constitution, it is not a  part of the Constitution.

  1. Kesavananda Bharati v. State of Kerala:- The main issue, in this case, was regarding the power of the Parliament to amend the Constitution. In Shankari Prasad v. Union of India and Sajjan Singh v. the State of Rajasthan, the Parliament was granted the power to amend any part of the Constitution. However, in Golaknath v. State of Punjab, the Court overruled the judgment given in earlier two cases and held that the Fundamental Rights were non-amendable. To neutralize the effect of the Golaknath case, the Parliament made some major amendments to the Constitution. 

In the present case, Kesavananda Bharati was the head of a Matha in Edneer, Kerala. He questioned the Kerala government’s efforts, under two-state land reform Acts, to place restrictions on the control of the property (Matha) and challenged the Constitution (29th Amendment) Act, 1972, the 24th Amendment Act (fundamental rights), 25th Amendment Act (property rights) and 26th Amendment Act (privy purses). This case was heard by a 13 Judge Bench. 

The Preamble to an Act is not considered a part of that Act because it is not introduced and passed by the legislative body like other provisions of the Act, however, the Preamble of the Constitution of India was introduced, discussed, and enacted by the same process as the other provisions of the Constitution. This distinction was not detected in the Berubari case, but it was pointed out in the Kesavananda Bharati case. 

Here the Supreme Court held that the Preamble is a part of the Constitution of India, but it is not a source of power or limitations. Also, the seven judges who constituted the majority emphasized the Preamble and stated that the Parliament does not have absolute power of amending the Constitution and it cannot alter the basic structure of the Constitution.

In LIC of India v. Union Government, the Supreme Court has again stated that the Preamble to the Constitution of India is a part of the Constitution.

Can the Preamble be Amended or Enforced

The Preamble is a part of the Constitution and so it can be amended, but its basic structure should not be modified. It has been amended only once through the 42nd Amendment Act, 1976. This Amendment added the words “Socialist”, “Secular”, and “Integrity” to the Preamble.

The Preamble is non-justifiable, i.e., orders cannot be passed by the Courts to enforce it. But it can be used for interpretation of the constitutional provisions if there is any ambiguity.  

Conclusion

The Preamble is an important component of the Constitution. Its scope might be limited but it is very helpful in cases of ambiguity. It limits the power of the legislation to avoid arbitrariness and also highlights the principles and ideals on which the Constitution is based. 

Bibliography

  1. Case Analysis: THE BERUBARI UNION CASE, Lawsisto, https://lawsisto.com/legalnewsread/OTA4MA==/Case-Analysis-THE-BERUBARI-UNION-CASE.
  2. Dr JN Pandey, Constitutional Law of India, Fifty-Seventh Edition.
  3. Om Marathe, The Preamble: What does it say, and what does it mean to India and its Constitution?, The Indian Express (Jan. 24, 2020), https://indianexpress.com/article/explained/the-preamble-what-does-it-say-and-what-does-it-mean-to-india-and-its-constitution-6232014/.    
  4. Percival Billimora, Faraz Sagar, India: Kesavananda Bharati v. State Of Kerala And The Basic Structure Doctrine, Mondaq (Oct. 02, 2017), https://www.mondaq.com/india/constitutional-administrative-law/633634/kesavananda-bharati-v-state-of-kerala-and-the-basic-structure-doctrine. 
  5. Preamble to the Constitution of India, Lawctopus, https://www.lawctopus.com/academike/preamble-constitution-india/. 
  6. The Preamble of Indian Constitution – Meaning and Significance, Enterslice, https://enterslice.com/learning/the-preamble-of-indian-constitution-meaning-and-significance/.

Why Kesavananda Bharati vs State of Kerala case is considered landmark in India’s independent history¸ India TV News, https://www.indiatvnews.com/fyi/what-is-kesavananda-bharati-case-vs–state-of-kerala-basic-structure-constitution-fundamental-rights-647544.

This article is written by Muskan Harlalka, a 2nd-year law student from the School of Law, Mody University of Science and Technology, Lakshmangarh, Rajasthan.

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