The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947. Although not enforceable in court, the Preamble states the objectives of the Constitution and acts as an aid during the interpretation of Articles when language is found ambiguous.
In Sajjan Singh vs State of Rajasthan, Justice Madholkar said that the Preamble had the stamp of “deep deliberation”, was “marked by precision” and the “framers of the Constitution attached special significance to it.” The Preamble was “an epitome” of the broad features of the Constitution which were an amplification or concretization of the concepts set out in the Preamble.
Purpose it serves:
- It indicates the source from which the constitution comes: We the People of India.
- It contains the enacting clause which brings into force the Constitution.
- It declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established.
It is ordained by the people of India through their representatives assembled in a Sovereign Constituent Assembly. The Preamble declares in unambiguous terms that it is the people of India who have adopted, enacted and given to themselves the Constitution. It declares, therefore, that the source of authority under the Constitution is the People of India and there is no subordination to any external authority.
Objectives of the Indian Constitution:
The main objective of the Indian Constitution is to promote harmony throughout the nation. The factors which help in achieving this objective are:
- Justice:
- It is necessary to maintain order in a society that is promised through various provisions of Fundamental Rights and Directive Principles of State Policy provided by the Constitution of India.
- It comprises three elements, which are social, economic, and political.
- Social Justice – Social justice means that the Constitution wants to create a society without discrimination on any grounds like caste, creed, gender, religion, etc.
- Economic Justice – Economic Justice means no discrimination can be caused by people on the basis of their wealth, income, and economic status. Every person must be paid equally for an equal position and all people must get opportunities to earn for their living.
- Political Justice –Political Justice means all the people have an equal, free, and fair right without any discrimination to participate in political opportunities.
- Equality:
- The term ‘Equality’ means no section of society has any special privileges and all the people have been given equal opportunities for everything without any discrimination. Everyone is equal before the law.
- Liberty:
- The term ‘Liberty’ means freedom for the people to choose their way of life, have political views and behaviour in society.
- Liberty does not mean freedom to do anything; a person can do anything but within the limit set by the law.
- Fraternity:
- The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the country and all the people.
- Fraternity guarantees two things, according to the Preamble: human dignity and national integrity.
- “Dignity of the individual” signifies that the Constitution not only ensures material betterment and maintains a democratic set-up, but that it also recognizes that the personality of every individual is sacred.
- However, fraternity cannot exist unless the dignity of each individual is preserved and respected.
- To maintain this dignity, each individual must be guaranteed certain minimal justiciable rights.
Key Words in the Preamble
- We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty means the independent authority of the State, not being subject to the control of any other State or external power.
- Sovereign: Sovereignty means that nation states are free to decide for themselves about the kind of democracy that they want, the kind of rulers that they want, and their policies internally and externally. Often, the concept of sovereignty is invoked to delineate the distinction between taking decisions on their own by nation states and resisting external pressures to sway the decision-making process. In this respect, sovereign nations are expected to be autonomous and independent when they pursue policies that are in their interest and their people’s interest and not according to the dictates of a foreign power.
Internal and External Sovereignty: Internal sovereignty refers to a government capable of demanding obedience from all persons and parties within it. Or in other words, no one is free to refuse the sovereign or disobey without punishment. For instance, the United States is the sovereign power over its territory, and no one–including the heads of major corporations like Mark Zuckerberg–can refuse to obey the laws of the land. External sovereignty refers to a government that is not subordinated to another. Again, the United States is a good example.
While the US may take part in the United Nations and make compromises in the realm of international diplomacy, it cannot be commanded by any foreign leader. Taiwan is a relatively good candidate for exemplifying internal sovereignty but not external sovereignty. While the Taiwanese government carries out its administrative governance without any major internal dispute, its claim to external sovereignty is disputed by China.
- Socialist:
- The term means the achievement of socialist ends through democratic means.
- It holds faith in a mixed economy where both private and public sectors co-exist side by side.
- Democratic socialism aims to end poverty, ignorance, disease, and inequality of opportunity.
- Indian socialism is a blend of Marxism and Gandhism , leaning heavily towards Gandhian socialism.
- It was added in the Preamble by 42nd Amendment, 1976.
- Secular:
- The term means that all the religions in India get equal respect, protection and support from the state.
- It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.
- The word secular appeared in only one article, that is Article 25 (2)(a) before it was inserted into the Constitution’s Preamble.
- The state will protect every religion equally, but the state will not have any foundation on religion.
- Accordingly, Articles 25 to 28 (guaranteeing the fundamental right to freedom of religion) have been included in the constitution
- Case laws:
- In Ziyauddin Burhammudin Bukhari Vs. Brijmohan Ramdass Mehra: Justice M.H Beg said: The secular state, rising above all differences of religion, attempts to secure the good of all its citizens irrespective of their religious beliefs and practices. It is neutral or impartial in extending its benefits to citizens of all castes and creeds.
- Maitland has pointed out that such a state has to ensure, through its laws, that the existence or exercise of political or civil right or the right or capacity to occupy any office or position under it or to perform any public duty connected with it does not depend upon the profession or practice of any particular religion.
- Justice Gajendragadkar defined secularism of the Indian Constitution to mean equality of rights to all citizens as citizens with their religion being entirely irrelevant in the matter. “The State” he said “does not owe loyalty to any particular religion as such; it is not irreligious or anti- religious; it gives equal freedom to all religions”. Indian secularism sought to establish a rational synthesis between the “legitimate functions of religion and the legitimate and expanding functions of the State.
- M.C. Setalvad also believed that under a secular State all citizens are to be treated alike and not discriminated against on account of their religion.
- The Ayodhya case: The Supreme Court explained secularism thus: It is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the State itself.
- Democratic:
- The term implies that the Constitution of India has an established form of Constitution which gets its authority from the will of the people expressed in an election.
- The Indian Constitution provides for “representative parliamentary democracy” under which the executive is responsible to the legislature for all its policies and actions.
- The term ‘democratic’ is used in the Preamble in the broader sense embracing not only political democracy but also social and economic democracy.
- Republic:
- The term indicates that the head of the state is elected by the people. In India, the President of India is the elected head of the state.
- He is elected indirectly for a fixed period of five years. A republic also means two more things:
- First, vesting of political sovereignty in the people and not in a single individual like a king;
- Second, the absence of any privileged class and hence all public offices being opened to every citizen without any discrimination.
- According to Madison in The Federalist: Republic is a government which derives its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or doing good behaviour.
Status of Preamble:
- The preamble being part of the Constitution is discussed several times in the Supreme Court. It can be understood by reading the following two cases.
- Berubari Case: The SC agreed that Preamble was the key to the minds of the framers of the constitution. Where the words were found to be vague or their meaning was unclear, help of the Preamble could be taken to understand the intention of the framers and find out whether a particular word was used in a wide or narrow context. Justice Gajendragadkar said Preamble is not the part of the Constitution. Also it did not confer any substantial power upon the legislatures or other organs of the state.
- It was used as a reference under Article 143 (1) of the Constitution which was on the implementation of the Indo-Pakistan Agreement related to the Berubari Union and in exchanging the enclaves which were decided for consideration by the bench consisting of eight judges.
- Through the Berubari case, the Court stated that ‘Preamble is the key to open the mind of the makers’ but it cannot be considered as part of the Constitution. Therefore it is not enforceable in a court of law.
- Golak Nath V. State of Punjab: Justice Hidayatullah observed that the Preamble to the Constitution epitomized principles on which the Government was to function. The Preamble was the very soul of the constitution- eternal and unalterable.
- Bharti Chandra Bhavan V State of Mysore: The scope of the Directive Principles and Fundamental Rights also could be better understood in the light of the objectives enshrined in the Preamble.
- Kesavananda Bharati Case: In this case, for the first time, a bench of 13 judges was assembled to hear a writ petition. The Court held that:
- The Preamble of the Constitution will now be considered as part of the Constitution.
- The Preamble is not the supreme power or source of any restriction or prohibition but it plays an important role in the interpretation of statutes and provisions of the Constitution.
- So, it can be concluded that preamble is part of the introductory part of the Constitution.
Justice Sikri held: The Preamble was not only very much a part of the Constitution, but was of extreme importance and the Constitution should be read and interpreted in the light of grand and noble vision expressed in the Preamble. Any provisions of the Constitution could be amended under article 368 only within the broad contours of the Preamble and of the Constitution
In the words of the learned Supreme Court, The edifice of our Constitution is based upon the basic elements mentioned in the Preamble. If any of these elements are removed, the structure will not survive and it will not be the same Constitution or it cannot maintain its identity.
- The 1995 case of Union Government Vs LIC of India: The Supreme Court has once again held that Preamble is an integral part of the Constitution but is not directly enforceable in a court of justice in India.
Amendments to the Preamble
- 42nd Amendment Act, 1976: After the judgement of the Kesavanand Bharati case, it was accepted that the preamble is part of the Constitution.
- As a part of the Constitution, the preamble can be amended under Article 368 of the Constitution, but the basic structure of the preamble cannot be amended.
- As of now, the preamble is only amended once through the 42nd Amendment Act, 1976.
- The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble through 42nd Amendment Act, 1976.
- ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
- ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.
Recent Private Member Bill: It seeks to substitute “EQUITABLE” for the word “SOCIALIST” in the Preamble to the Constitution. For the words “EQUALITY of status and of opportunity”, the Bill seeks to substitute the following:
- “EQUALITY of status and of opportunity to be born, to be fed, to be educated, to get a job and to be treated with dignity.
- ACCESS to information technology and all its implications, irrespective of caste, creed, social status or income;”
- For the words “FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation”, the Bill seeks to substitute the following, namely:
- “FRATERNITY assuring the dignity of the individual and the community and the unity and integrity of the Nation
- HAPPINESS, assuring a high gross domestic happiness”.
Modification in preamble:
If we see the Preamble from a broader perspective, it seems to contain all the necessary things required for social welfare and development of India. But if we go in depth, then we could find out the necessity for constitutional reforms or modifications in Preamble.
- Preamble is a carbon copy of Government of India Act, 1935, as it had included lots of provisions of Act, 1935. Even Preamble does not reflect the political tradition of India, Interpretation of Preamble made it too bulky as interpreting every word of Preamble is too long and hectic task.
- The paradise of lawyers being too legalistic and complicated.
- Further on, the words- equality and justice had inconsistency. Justice in the political field is not done as only earning more and more vote banks (through legal/ illegal means) and political ends are there in the mind of leaders. This results in an increase in corruption. The Indian government runs on the principle of utility thus keeping aside individual interest in front of social interest. If this is happening then where equality is, as this principle does not follow the reasonable classification.
- India although declared itself as a secular country, still today, most of the fights, riots or violence are in the name of religion. The historical and cultural theme of India is based on the concept of Dharma, which is different from the concept of religion and thus, communist theory of state cannot be applied to the Indian context.
Requirement for modification
- It is considered as the conscience of the Constitution and is treated as the guiding light in the interpretation of the Constitution.
- The Preamble is widely accepted as the epitome or soul and spirit of the Indian constitution.
- Though, it is a part of the Constitution, it is a neither a source of power to legislature nor a prohibition upon the powers of legislature.
Conclusion
Thus, the analysis of various concepts and terms in the Preamble shows that the noble words of our Preamble represent the quintessence, the philosophy, the ideals or the soul of the entire Constitution of India. Other parts and provisions of the Constitution are only an elaboration and an attempt to give concrete shape, content and meaning to the words of the Preamble. It is however felt that the words like Socialist, secular used in Preamble are very ambiguous.
