DR. RAM MANOHAR LOHIA NATIONAL LAW UNIVERSITY, LUCKNOW 2012-2013
CONSTITUTIONAL LAW I TOPIC: PREAMBLE: A BULWARK OF THE CONSTITUTION OF INDIA
SUBMITTED To: ATUL SINHA
SUBMITTED By : ABHISHEK YADAV
Asst. Prof. Law
ROLL NO. 06
Dr. RMLNLU,
SECTION: A
LUCKNOW
( 3rd SEM.) B.A.LLB.(hons) B.A.LLB.(hons)
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ACKNOWNELDGEMENT
I would like to express my special thanks of gratitude to asstt. prof . Mr. Atul Sinha, who gave me a golden opportunity opportunity to do such vital vital research on Preamble of constitution of India. By encashing this opportunity I consider myself more fortunate, now I came to know about so many new things, . I especially want to thank Prof. C.M. Jariwala, being our constitutional law teacher.By this project, i came across so vital knowledge , and I am sure it will be useful through out my career. And Secondly I would also like to thank my seniors and friends who helped me a lot in finishing this project within t he limited time.
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Table of content 1.0 Introduction 2.0 Preamble : a general meaning 3.0 Preamble And Constituent Assembly Debate: Objectives Resolution 4.0 Preamble and its contents 4.1.0 We, the people of India 4.2.0 Sovereign 4.3.0 Socialist 4.4.0 Secular 4.5.0 Democratic 4.6.0 Republic 4.7.0 Justice 4.8.0 Liberty 4.9.0 Equality 4.10.0 Fraternity 5.0.0 Preamble is a part of constitution or not 6.0 Conclusion: (an bulwark) 7.0 Bibliography
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Cases referred: 1. In Re:berubari union(1) (1960) 3 SCR 250
2. Kesavananda Bharti V. state of kerala (1973) 4 SCC 225 3. Golak Nath v. State of Punjab, !1967) 2 SCR 762 4. S.R.Bommai v. Union of India (1994) 3 SCC 1 5. Indra Sawhney v. Union of India AIR 1993 SC 477
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Topic: Preamble : A bulwark of constitution of India
1.0Introduction Constitution making is the culmination of the aspirations of an emancipated people and a grand finale to the freedom of struggle of enslaved nation. The constitution of a country will be in the nature of statute emanating directly from inherent authority of the people.
The
constitution of a country is the supreme law of land to which all other law must conform to be valid and binding. Contrary to ordinary legislation, constitution is an extraordinary legislation derived direct from the people acting in their sovereign capacity for setting up the structure of government, laying down the extent of distribution of powers and the modes and principles of its operation, as well as embrace the settled policy of nation. It grows with the growth of nation. So, in sum it can be inferred that constitution is a well comprehensive document which envisaged a structure of a law abiding nation. Therefore, in order to understand the direction of a nation one need to study its constitution. But, no reading of any constituti on can be complete without reading it from the beginning to the end. While the end may change or may expand, the point of commencement can never change. It is the Preamble wherefrom the constitution commences. Hence, the significance of Preamble can never ever be compromised. It will not be a exaggeration to say that the preamble to the constitution of India is its spirit and backbone or a bulwark, bastion of constitution of India. This bastion defending the constitutional boundaries vigilantly, consciously. Though, it had faced some intrusion but on the whole those intrusions proves to be worthy enough and brought sharp pointed approach to the constitution of India in achieving goals set by constitution of India. The Preamble to a Constitution embodies the fundamental values and the philosophy, on which the Constitution is based, and the aims and objectives, which the founding fathers of the Constitution enjoined the polity to strive to achieve. The importance and utility of the Preamble has been pointed out in several decisions of the Supreme Court of India.
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2.0Preamble: A General meaning “A preamble is a preliminary statement of the reasons which have made the passing of statute of desirable, and its position is located immediately after the title and date of issuing the presidential assent. A preamble may also be used to introduce a particular section or group of sections”1 The plain dictionary meaning of the word preamble is “ preamble as an opening statement explaining the purpose of book, lecture, etc.”2 “a preamble is said to be a the key of the statute, to open the mind of makers as to the mischief which are to be remedied and the objects which are to be accomplished by the provisions of statute.”3 “a preamble means preface, introduction, especially that of an act of parliament, giving its reasons and purpose- prelude”4 Black‟s dictionary states that a preamble means a clause at the beginning of constitution or statute explanatory of the reasons for its enactment and objectives sought to be accomplished.5 Generally, a preamble is a recital at very beginning of statute/constitution, made by legislature, in order to define the purpose behind enacting a particular law. At the time of ambiguity in the subject-matter in the cases, judges are free to refer to the preamble of the law so as to clear the clouds. It is of great importance while interpret ting a provision either of any act or constitution itself. Judges rely on the goals mentions in it and then examine the veracity of act whether it falls within the circumference of act or outside. A gateway to a statute.
1
rd
Halsbury’s Law of England, 3 Edition, Vol. 31, p.370. Oxford Advanced Learner’s Dictionary, 3 Aiyar’s, P. Ramanath. “The Law Lexicon” ,Wadhwa and company law Publishers,New Delhi,2006,pp1494. 4 Chamber’s twentieth century dictionary. 5 As Quoted In Baruah, Dr. Aparajitha, “Preamble Of The Constitution Of India: A Insight.....Constitutions” , 2
D&D Publications Pvt. Ltd., New Delhi, 2007
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3.0Preamble And Constituent Assembly Debate: Objectives Resolution Constituent assembly was formed under the terms of cabinet mission plan and subsequently the members of constituent assembly were elected in july, 1946. On 9th dec‟1946 first meeting of assembly took place under the acting chairman, Dr. Sacchidanand Sinha and later on Dr. Rajendra Prasad, performed the work of permanent chairman of assembly.Constituent assembly derived its legislative competence to frame the constitution from s8(1) of Independence act of 1947. B.N. Rau, constitutional adviser, prepared the draft of constitution.6 One of the first task was to formulate the objectives and the guiding principles that would be the basis of constitution and reflect the constitution spirit that constitution stands for.7 Therefore, Objectives Resolution drafted and moved by Jawaharlal Nehru in the assembly on the 13th dec‟1946 . It is regarded as the foundation work of preamble.The objectives resolution runs as follows:8 "(1) 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; (2) 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 (3) wherein the said territories, whether with their present boundaries or with such others 25 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 suck powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and
6
Baruah, Dr. Aparajitha, “Preamble Of The Constitution Of India: A Insight.....Constitutions” , D&D Publications Pvt. Ltd., New Delhi, 2007, pp 10 7 8
Ibid pp 11 Constitutional assembly debates(CAD), Vols 1-2, p59
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(4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5) 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 (6) wherein adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and (7) 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 civilised nations; and (8) this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind."
While introducing resolution, Nehru remarked on the spirit of resolution as
“It is a
Resolution and yet, it is something much more than a resolution. It is a Declaration. It is a firm resolve. It is a pledge and an undertaking and it is for all of us I hope a dedication. And I wish this House, if I may say so respectfully, should consider this Resolution not in a spirit of narrow legal wording, but rather to look at the spirit behind that Resolution. Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation's passion. And so, I cannot say that this Resolution at all conveys the passion that lies in the hearts and the minds of the Indian people today. It seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.”9 The distinctiveness of resolution in the words of B. Shiva Rao was that it is “a solemn pledge to the people to be redeemed in the constitution they would frame: the resolution was a declaration, a firm resolve, a pledge, an undertaking and for all a dedication. It had been drafted after mature deliberation and no effort had been spared to avoid all controversy. The resolution dealt with fundamentals which were commonly cherished and accepted by the people.”10
9
CAD Vol. 1, p.61 As quoted in Lahoti, R.C., ‘Preamble: the spirit and backbone of constitution’,EBC, lucknow,p.28
10
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The objectives resolution was described by the founding fathers as „something breathes life in human minds‟11, a sort of special preamble which will pervade every section, every clause and every schedule of the constitution‟12 Then resolution was placed for discussion, before the members of the assembly, there some very crucial and important views, suggestion were proposed. The view of some members like Dr. Ambedkar and others are of utmost importance. Ambedkar‟s main area of concern was its socialistic aspect as one of the goal, which according to him seems unrealistic at that time.13 And many more contentions on resolution were raised like abstinence of Muslim Legue. of . After several suggestions and amendments proposed in the debate and the very first draft of preamble appeared in the assembly, prepared by BN Rao as: “We the people of India, seeking to promote the common good, do hereby, through our chosen representatives enact, adopt and give to ourselves this constitution.”14 It was clear from the intention of members that preamble would be based on the Objective Resolution. But due to the partition of the country consideration of preamble was postponed. When it again comes for formulating the preamble in the light of the objectives resolution and thereby felt that the preamble should be restricted to defining the essential features of new independent state and its basic socio-political objectives and the other matters dealt with in the resolution could be more appropriately provided for in the substantive. The making of preamble literally passed through stages. The text of draft of constitution October 1947 has provided for the preamble of the proposed federation. In this draft, the objective was to- the common good. Dr. Ambedkar‟s memorandum included a pr oposal was not given cognisance.15 16Thereafter drafting committee redrafted the objectives resolution as:
11
CAD Vol. 1, p.57(as per Nehru) CAD Vol. II, p.138 (as per NV Gadgil) 13 th CAD Vol. 1, accessed on https://www.maupatra.com , date 19 ‘oct’12, at 17.59 12
14 15
As quoted in Baruah, Aprajita.’preamble of the constitution of India’, p.21
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WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR 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 of the Nation; IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
4.0Preamble and its contents
We, the people of I ndi a
The opening words of the preamble ('we the people of India') emphasise 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.
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. To prepare an electoral roll on the basis of adult suffrage for the country and to hold elections on that basis would have certainly taken a number of years. It was rightly thought unwise to postpone the task of constitution making until such an election was held. This was the main justification for accepting the Cabinet Mission Plan for constituting the Assembly through indirect election. Everyone will definitely agree with what Dr. Ambedkar said in the floor of the Constituent Assembly in 10
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".17 In the case of union of india v. Madan gopal18 it was held that our constitution, as appears from the preamble, derives its authority from the people of india. However, this finding itself is based on the contents of the preamble. The fact remains that neither the constitutent assembly nor the people of India have ever doubted the represented capacity of the assembly and their authority as acting for and on behalf of the people of India.19
Sovereign 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.20 In the republican form of governments, which mostly prevailed in the democratic world, sovereignty shifted towards elected representatives of the people. In the case of N,Nagendra Rao & co. v.state of AP Sovereign as used in the constitution is different from the old and archaic concept of sovereignty which has ceased to survive. Sovereignty now vests in the people of India and the USA and both recognised that the people are the basis of all sovereignty. The legislature, executive and the judiciary are constitutd to serve the people.21
Socialist The word socialist was not there originally in the preamble. It was added to the preamble by the 42nd amendment. Thus, the concept of socialist made explicit and the India‟s commitment to this ideal has been underlined and strengthened. The term socialist has not been defined in the constitution. It doesnot however envisage doctrinaire socialism in the
17
http://www.preservearticles.com/201104235906/essay-on-the-preamble-of-indian-constitution.html 1954 SCR 541 19 Lahoti, Justice R.C. “ Preamble : the spirit and backbone of constitution of India” , EBC, LUCKNOW, 18
2004,pp 32
21
(1994)6 SCC 205
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sense of insistence on the state ownership as a matter of policy. It does not mean total exclusion of private enterprise and complete state ownership of the material resurces of nation.22 In India, there has always been emphasis on mixed economy. The government accepts the policy of mixed economy where both public and private sectors co-exist side by side. The word socialism among others, has many facets includes state socialism of collectivism which means that all means of production should be owned by tha state or brought under state control.The connotations of socialism varied from Gandhian socialism, fabian socialism, national socialism of third reich in germany to scientific socialism of the Marxian ideology.23 The supreme court has in number of cases referred to the concept of socialism and has used this along with DPSP to asses and evaluate the economic legislation. The court has derived the concept of social justice and an economic egalitarian society from concept of socialism. According to supreme court, “the principal aim of socialism is to eliminate inequality of income and status and standard of life, and to provide a decent standard of life to the working people ”24 In samatha v. State of Andhra Pradesh,25 the SC has stated while defining socialism: “establishment of the egalitarian social order through rule of law is the basic structure of constitution” One of the important aspect of this – by reading the word „socialist‟ in the preamble with the fundamental rights contained in articles 14&16 the supreme court has deduced the fundamental right to equal pay for equal work and compassionate appointment.26 The word „socialist‟ used in the preamble can be achieved from the goals that articles 14,15,16,17,21,23,38,39,46, and all other cognate articles seek to reduce inqualities in income and status and to provide equality of opportunity and facilties.27
22
Jain, Prof. M.P , “ Indian constitutional law”, 6 th edition, lexis nexis, Nagpur, 2012 pp14
23
Baruah, Dr. Aparajitha, “Preamble of the constitution of india: A insight.....constitutions” , D&D Publications Pvt. Ltd., New Delhi, 2007, pp40 24 Jain, Prof. M.P , “ Indian constitutional law”, 6 th edition, lexis nexis, Nagpur, 2012, p15 25 (1997)8 SCC 191 26 Jain, Prof. M.P , “ Indian constitutional law”, 6 th edition, lexis nexis, Nagpur, 2012, pp15 27 Baruah, Dr. Aparajitha, “Preamble Of The Constitution Of India: A Insight.....Constitutions” , D&D Publications Pvt. Ltd., New Delhi, 2007, pp45
12
Secular The word „secular‟, like the word „religious‟, is amongst the richest of all words in its range of meaning. It is full of subtle shades which involve internal contradictions, and of these contradictions the conventional dictionary meaning can scarcely give a correct view.” This, with great respect, is hardly the correct way to approach the subject and unfortunately this view has coloured much of the later discussion that took place in India. „Oh,water,whatisyourcolour?‟ „The colour of whatever you mix me in!‟28 The meaning of secularism, it is believed, has emerged with sufficient clarity from the survey of historical development made earlier herein. The next question is whether India, as unfolded by the Constitution, is a secular State. What did the Constitution-makers intend it to be? The Constitution, till the 42nd Amendment in 1976, did not contain the word „secular‟ except incidentally in Article 25(2)(b). Prof. K.T. Shah was the only member who made a valiant effort to get a provision regarding the secular character of India included in the Constitution. The following amendment, moved as Amendment No.366, was defeated on 3rd December 1948. The word secular was not present originally in the preamble. It was added thereto by the 42nd amendment. Before this, it was only implicit in the constitution of India that India is a secular country and after the amendment it became explicit. The concept of secularism is difficult to define and has not thus been defined in the constitution. The object of insertion was to spell out expressly the high ideas of secularism and the compulsive need to maintain integrity of the nation which are subjected to considerable stresses and strains since past years. More expressly there is no official religion in India. There is no state recognised church or religio. Several fundamental rights guarantee freedom of worship and religion as well as out law discrimination on the ground of religion. So ,it is against the theocratic state. The state is enjoined to treat all religions and religious sects equally.
28
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Some other judges delivering separate but concurring judgments went further. K. Ramaswamy, J., for example, opined: Secularism is, therefore, part of the fundamental law and basic structure of the Indian Political System to secure to all its people socio-economic needs essential for man's excellence with material and moral prosperity and political justice. After examining the relevant Articles, Jeeven Reddy, J. (for himself and on behalf of S.C. Agarwal, J., said: Secularism is thus more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions. Supreme court , secularism is declared to be one of the basic features oof the constitution, which is beyond the amending power of parliament.29 The concept of secularism has been held to be “one of the facet of the right to equality woven as the central golden thread in the fabric depicting the pattern of the scheme in our constitution ” S. R. Bommai v. Union of India30 “Supreme Court while adjudicating that a State Government cannot follow particular religion discussed at length the concept of Secularism. The Court held that Secularism is one of the basic features of the Constitution. Secularism is a positive concept of equal treatment of all religions. This attitude is described by some as one of neutrality towards religion or as one of benevolent neutrality. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith or belief of a person is immaterial. To the state, all are equal and are entitled to be treated equally. In matters of State, religion has no place. And if the Constitution requires the State to be secular in thought and action, the same requirement attaches to political parties as well. The Constitution does not recognize, it does not permit, mixing religion and State power. Both must be kept apart.” Ziyauddin Burhammuddin Bukhari v. Brijmohan Ramdas Mehra and brothers justice MH Beg observed that 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. He has also noted that it is neutral or impartial in extending its benefits to citizens of all castes and creeds.
29
Kesavananda Bharati v. State of Kerala. AIR 1973 SC 1461 AIR 1994 SC 1918
30
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Democratic India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as 'One man one vote'. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education.
Republic As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.
Justice social, economic and political The expression “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 the general well-being of the community. Therefore, the attainment of the common good as distinguished from the good of individuals is the essence of justice. The preamble of India professes to secure all its citizen social, economic, and political justice. The concept of justice is already preganat with various diverse notions of rights-morality, welfare, happiness, liberty, and equality. It has become heavily loaded terminology. The expression „justice‟ is the harmonious reconcilement of individual conduct with general welfare of society.31 The Constitution of India professes to secure to the citizens: Social Justice,Economic Justice,Political Justice: Social Justice means the abolition of all sorts of inequalities which may result the inequalities of wealth, opportunity, status, race, religion, caste, title and the like. To achieve this ideal of 31
Baruah, Dr. Aparajitha, “Preamble Of The Constitution Of India: A Insight.....Constitutions” , D&D
Publications Pvt. Ltd., New Delhi, 2007, p63
15
social justice, the Constitution lays down the Directives Principles of State Policy in Part IV of the Constitution. In the case of Air India Statutory Corporation v.United Labor 32
Union the Supreme Court observed that the aim of social justice was to attain substantial
degree of social, economic and political equality which was the legitimate expectation and constitutional goal. It was held that social justice was a dynamic device to mitigate the sufferings of the poor, weak, dalits, tribals and deprived sections of the society and to elevate them to the level of equality, to live a life with dignity of person. The Court ruled that the
Preamble and Article 38 of the Constitution envisioned social justice as the arch to ensure life to be meaningful and liveable with human dignity. The expression „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 dues for his labour, irrespective of his caste, creed, sex or social status.33
Political Justice means the absence of any unreasonable or arbitrary distinction among men in political matters. The Constitution has adopted the system of universal adult suffrage, to secure political justice which can be seen reflected in Articles 15 & 16 of the Constitution of India which talks about prohibition of discrimination and equal opportunity to hold public offices respectively. In order that 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, at the same time, makes special provisions for the promotion of the interests of the socially and educationally backward classes of citizens and other weaker sections of the people. 34
32
AIR 1997 SC 645.
33
Art 39(d)COI Baruah, Dr. Aparajitha, “Preamble Of The Constitution Of India: A Insight.....Constitutions” , D&D
34
Publications Pvt. Ltd., New Delhi, 2007 , p53
16
Liberty of thought, expression, belief, faith and worship Liberty has been derived from the Latin word „liber‟ which means free. The idea of Liberty came to the forefront with the French Revolution in 1789 and the leaders defined liberty as “the power to do as anything that does not injure another is liberty.” 35 The term „liberty‟ in the preamble of constitution of India, is used both in a negative as well as positive 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 the national life like „liberty of thought, expression, belief, faith and worship.
36
The Constitution of India professes to secure the liberty of thought,expression, belief, faith and worship, which are regarded essential to the development of the individual in the Nation. The same principal is reflected in Articles 25 – 28 of the Constitution which talk about the Right to Freedom of Religion and Article 19 (1) (a) which talks about the liberty inthe field of expression.
Equality Equality of status and of opportunity is secured to the people of India by abolishingall distinctions or discriminations by the State, between citizen and citizen, on the ground of religion, race, caste, sex or place of birth and by throwing open „public places‟ to all the citizens. One of the main tasks before the constitution makers was to ensure equality of status and opportunity for all, and to provide a basis for ultimately establishing an egalitarian society. They proceed to achieve these objectives by incorporating a set of fundamental principles into the constitution. The idea of equality was transmitted to the people of India
35
Myneni, SR., Political Science for Law Students, 2 nd Ed., Allahabad Law Agency, Allahabad, 2006, 168
36
Baruah, Dr. Aparajitha, “Preamble of the constitution of india: A insight.....constitutions” , D&D
Publications Pvt. Ltd., New Delhi, 2007, p 56
17
through the ages, and then embodied in the objectives resolution. 37 This has been provided for in the Articles 14 and 15 of the Constitution of India and the same talk about equality before law and prohibition of discrimination. The Constitution also abolishes untouchability and titles by the Articles 17 and 18 respectivly. This helps in securing equality of opportunity in the matters relating to employment or appointment to any office under the State under Article 16 of the Constitution of India.
Fraternity assuring the dignity of the individual and the unity and integrity of the Nation Fraternity means a feeling of brotherhood, brotherliness, a feeling that all people are children of the same soil, the same motherland. The term was also inspired by the French Revolution and was added to the Preamble by the Drafting Committee of the Constituent Assembly because,“the Committee felt that the need for fraternal concord and goodwill in
greater than now India was never and that this particular aim of the new constitution should be emphasized by special mention in the Preamble.”38 There is no express provision in the Constitution which reflects „fraternity as anobject. However, there are provisions in the Constitution, such as common citizenship, the right of the citizen of India to move freely, to reside and settle in any part of the territory of India, etc., which generate their spirit of brotherhood. The dignity of the individual is to be maintained for the promotion of fraternity. Therefore, the Preamble assures the dignity of each and every individual. This dignity is assured by securing to each individual equal fundamental rights and at the same time laying down a number of Directives for the State which direct the State policies towards betterment of citizens. The Unity and Integrity 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 State overriding 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.
37
ibid p60 Ibid p62
38
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Preamble: a part of constitution or not The vexed question whether part of constitution or not has been dealt with in these two cases on the subject: In Re Berubari Union(I)39, On the answer to the primary question- 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. Berubari case was the Presidential Reference “Under Art. 143(1) of the Constitution of India on the implementation of the Indo-Pak agreement relating to Berubari union and exchange of enclaves” which come up for consideration by a bench consisting of eight judges he aded by B.P.Sinha, C.J. Justice Gajendragadkar delivered the unanimous opinion of the court. Quoting story, the eminent Constitution al jurist, the court held 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 minds of framers of the Constitution ” 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 . Berubari case was relied on in Golaknath case40, Wanchoo, J. said- “On a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the bar to amend the Constitution contained in Article 368”. Bachawat, J. observed- “Moreover the Preamble cannot control the unambiguous language of the Articles of the Constitution ”. It is a matter of regret, yet the eminent Judges constituting the bench answering the presidential reference in Berubari Case overlooked a matter of record, that constitutional history. The motion adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution . The error came to be corrected in Kesavananda
39
(1960)3 SCR 250 Baruah, Dr. Aparajitha, “Preamble of the constitution of india: A insight.....constitutions” , D&D
40
Publications Pvt. Ltd., New Delhi, 2007,p 65
19
Bharti case where the majority specifically ruled that the Preamble was as much a part of the constitution as any other provision therein. It would be interesting to note what some out of the thirteen Judges constituting the bench which decided Kesavananda Bharti case had to say about the preamble.41 Kesavanada Bharati Case has created a history. For the first time, a bench of 13 Judges assembled and sat in its original jurisdiction hearing the writ petition. 13 Judges placed on record 11 separate opinions. It is not an easy task to find out the ratio of the holding of the court in the case. To the extent necessary for the purpose of the preamble, majority leaned in favour : i).preamble to the constitution of India is a part of constitution ii).preamble is not a source of power nor a source of limitations or prohibitions iii).preamble has a significant role to play in the interpretation of statutes, also interpretation of provisions of constitution. However, the preamble cannot be used as an aid t interpretation when the language is plain and unambiguous, a literal rule of interpretation can be applied.
Mandal Commission case
42
A discussion on Preamble cannot be complete without making a reference of Mandal Commission case , which was decided by a larger bench of nine Judges. A rainbow of judicial thoughts reflecting the significance, value and message of the Preamble. B.P. Jeevan, J. held that the four folding objective of securing to its citizens justice, liberty, equality and fraternity displays statesmanship of the highest order – Constitution of India.. The framers of the Constitution did not rest content with evolving the framework of the state; they also pointed out the goal as spelled out in the Preamble and the methodology for reaching that goal is elaborated in parts of the Constitution of India. In the opinion of R.M. Sahai, J. the preamble to the constitution is a turning point in history. The Preamble of the constitution has the sentiments and it is the key to the minds of the framers of the Constitution .
41
Lahoti, Justice R.C. “ Preamble : The Spirit And Backbone Of Constitution Of India” , Ebc, Lucknow, 2004, p36. 42
Indra Sawhney v. Union of India AIR 1993 SC 477
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Conclusion Now ,it can no longer a hypothesis that preamble of constitution of India is a bulwark to it, rather it really a bulwark, a alert boundary consciously being guarded by the judiciary in every possible way. Preamble of constitution of India from its each content is truely striving towards the fulfilment of goals laid down in the constitution. Constituent assembly have prepared the preamble very vigilantly and the same can be witnessed from the wording of the preamble. Like every word to the preamble have its distinct role to play in the complete meaning of preamble and applicable to various constitutional provisions. As whenever any need arises or ambiguity appears, preamble proves it‟s importance there. Also, supreme court while interpret ting the constitutional provisions or examining the validity of a legislation and affirmative policy of government, it used to see these through lens of preamble and correctly reaches to a conclusion regarding particular law or policy. Therefore, preamble to the constitution of India is in true sense a bulwark to constitution. Supreme court in the case of Berubari Union and Exchange of Enclaves 43, goes on to opined that the preamble is a key to open the mind of the Constitution makers. It is a guide to interpretation of the provisions of the Constitution. As wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. So, Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. Even though, in a majority of decisions, the Supreme Court of India has ruled that neither it nor any of its content is legally enforceable. The Preamble plays pivotal role when there is ambiguity in provisions of any Article or interpretation becomes confusing. After completing this paper, it becomes clear that preamble is there to rescue constitutional overreach even if it is in disguise. And number of times, it proves its need and so court has rightly made it a part of constitution.
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AIR 1960 SC 845
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BIBLIOGRAPHY
Following will be some of the sources: PRIMARY SOURCES:
Constitution of India, 1950 Constitutional assembly debates Cases referred
SECONDARY SOURCES:
Lahoti, Justice R.C. “ Preamble : the spirit and backbone of constitution of India” , EBC, LUCKNOW, 2004
Baruah, Dr. Aparajitha, “Preamble of the constitution of india: A insight.....constitutions” , D&D PUBLICATIONS PVT. LTD., NEW DELHI, 2007
Jain, Prof. M.P , “ Indian constitutional law”, 6th edition, lexis nexis, Nagpur, 2012
Singh, Mahendra P. , “Constitution of India - V.N. Shukla's Constitution of India”
Myneni, SR., Political Science for Law Students, 2 nd Ed., Allahabad Law Agency, Allahabad, 2006 .
Aiyar, P. Ramanath,. The law lexicon, wadhwa and company, 2006,
Webography
www.manupatra.com
http://www.ssrn.com/
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