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Role of the Preamble

The Preamble of the Constitution can be discussed as under :

  1. Role of the Preamble; and

The interpretational value of the Preamble can further be studied in three dimensions:

  • Preamble as Interpreter of the Constitution;
  • Preamble as a source of interpretation of other Statutes framed under the Constitution; and
  • International Documents/ Treaties/ Conventions/ Declarations as aid to Interpretation of the Preamble.

The Preamble to the Constitution has played a predominant role in shaping, the destiny of the country. Wherever the limbs of democracy have moved on the path laid down by the Preamble the movement has been in the right direction. Any deviation from the path has resulted in aberrations.

The arch of the Constitution of the India pregnant from its Preamble, Chapter III (Fundamental Rights) and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and to secure justice — social, economic and political — to every citizen through rule of law. Existing social inequalities need to be removed and equality in fact is accorded to all people irrespective of caste, creed, sex, religion or region subject to protective discrimination only through rule of law.”

The propositions laid down in Berubari Union and Exchange of Enclaves, Re case were:

  1. A Preamble to the Constitution serves as key to open the minds of the makers, and shows the general purpose for which they made the several provisions in the Constitution.
  2. The Preamble is not a part of our Constitution.
  3. It is not a source of the several powers conferred on the Government under the provisions of the Constitutions.
  4. Such powers embrace those expressly granted in the body of the Constitution “and such as may be implied from those granted”.
  5. What is true about the powers is equally true about the prohibition and limitations.
  6. The Preamble did not indicate the assumption that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty viz. ceding territory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory.

However, according to Justice Shelat and Justice Grover, in Kesavananda Bharti case the history of the drafting and the ultimate adoption of the Preamble shows—

  1. That it did not “walk before the Constitution” as is said about the Preamble to the United States Constitution;
  2. That it was adopted as a part of the Constitution;
  3. That the principles embodied in it were taken mainly from the Objectives Resolution;
  4. The Drafting Committee felt, it should incorporate in it “the essential features of the new State”; and
  5. That it embodied the fundamental concept of Sovereignty being in the people.

Interesting question arise: Can the Preamble itself be amended? Does the Preamble control Article 368 — the power to amend the Constitution?

The significance of the Preamble is that it contains the fundamentals of our Constitution. Could the power to amend under Article 368 be made to suffer a complete loss of identity or can the basic element on which the constitutional structure has been erected be eroded or taken away? The people of India resolved to constitute their country into a Sovereign Democratic Republic. No one can suggest that these words and expression are ambiguous in any manner. Their true import and connotation is too well known that no question of any ambiguity is involved. The question which immediately arises is whether the words ”amendment” or “amended” as employed in Article 368 can be so interpreted as to confer a power on the amending body to take away any of these three fundamental and basic characteristics of our policy. Can it be said or even suggest that the amending body can make institutions created by our Constitution undemocratic as opposed to Democracy; or abolish the office of the State who would not fit into the conception a “Republic”? The width of the power claimed on behalf of the respondents has such a large dimension that even the above part of the Preamble can be wiped out from which it would follow India-I that India can cease to be a Sovereign Democratic Republic and can have a polity denuded of sovereignty, democracy and republican character.

The Learned Judges termed the submission made before them that even the Preamble can be varied, altered or repeated, as an “extraordinary one” and held that the Preamble constitutes a landmark in India’s history and sets out as a matter of historical fact what the people of India resolved to do for molding their future destiny. It is unthinkable that the Constitution-marks ever conceived of a stage when it would be claimed that even the Preamble could be abrogated or wiped out.

Justice A.N. Ray, in his opinion posed a question which can befittingly be read as referring to the Preamble. The question is — “He that planted the ear, shall he not hear? Or, He that made the eye, shall he not see?” He agreed that the Preamble is an integral part of the constitution noting the motion passed by the Constituent Assembly—

“The Preamble stands part of the Constitution, and held that the Preamble can be repealed. As to the significance and utility of the Preamble he held that the Preamble is property resorted to where doubts or ambiguities arise upon the words of the enacting part. If the enacting words are clear and unambiguous, there is little room for interpretation, except the cases leading to an obvious expressed in the Preamble. This is the view of Story. The Preamble can never be resorted to enlarge the powers confided to the general government. The Preamble can expound the nature, extent and application of the powers actually conferred by the Constitution and not substantively create them.”

The Preamble to a Constitution refers to the frame of the Constitution at the time of the Preamble, and therefore, it can possibly have no relevance to the constituent power in the future when that Constitution itself can be changed. The position would be the same so far the Preamble is concerned — whether the constituent power is exercised by the amending body provided for by the people themselves in the Constitution or by referendum if so provided for in the Constitution.

There is nothing in the Preamble to suggest that the power to amend the fundamental right to property is cut down. The Preamble makes no reference to the right to property. On the contrary, it is clearly implied that if the operative parts of the Constitution failed to put us on the road to the objectives, the Constitution was liable to be appropriately amended. Right to property that would have conflicted with the objectives of securing to all its citizens, justice, social, economic and political, and equality of opportunity, to achieve which Directive Principles were laid down. The Preamble can neither increase nor decrease the power granted in plain and clear words in the enacting parts.

Jurists and judicial opinion hold unanimously (except for variation in choosing the words of expression) that the Preamble to the Constitution of India is not just a formal piece of draft. It is in itself a historic document and yet a part of the Constitution. It is a source of interpretation and the basis of rule of law. It has guided the destiny of this nation at least through the judiciary, a pillar of constitutional democracy, the sturdy and powerfulmost. It will continue to play its role, as thought of by the framers of the Constitution, in the times to come.

Durga Dass Basu, the eminent constitutional jurist states that the majority of the nine Judges in Bommai case have laid down a new application of the Preamble under the Constitution as follows:

  1. The Preamble indicates the basic structure of the Constitution.
  2. A Proclamation under Article 356(1) is open to judicial review on the ground of violating the basic structure of the Constitution.
  3. It follows that a Proclamation under Article 356(1) which violates any of the basic features as summarised in the Preamble of the Constitution is summarised in the Preamble of the Constitution is liable to be struck down as unconstitutional.

A discussion on the role of the Preamble cannot be complete without making a reference to Indra Sawbney V. Union of India popularly known as Mandal Commission case decided by a larger Bench of nine Judges. A rainbow of judicial thoughts reflecting the significance value and message of the Preamble can just be seen. Justice S. Ratnavel Pandian, opined—

Equality of status and of opportunity … the rubric chiseled in the luminous Preamble of our vibrating and pulsating Constitution radiates one of the avowed objectives in our sovereign, socialist and secular democratic republic.”

Several constitutional provisions dealing with equal distribution of justice in the social, political and economic spheres, spoken of in the ‘Preamble’ need prismatic interpretation to perceive not through an artless window glass but reflected with the enhanced intensity and beauty of the notable aspirations contained in Fundamental Rights illuminating the constitution has to be upheld for securing social justice, economic justice and political justice must be so in it’s the adoption to the changing social needs. No one can be permitted to invoke the Constitution either as a sword for an offence or as shield for anticipatory defence. No interpretation of the Constitution is acceptable which causes India-I irrevertible injustice and irredeemable inequalities to any section of the people or can protect those unethically claiming unquestionable dynastic monopoly over the constitutional benefits. Fostering an advanced social policy in term of the constitutional mandates cannot be performed by sitting in ivory towers, keeping an Olympian silence, unnoticed and uncaring of the storms and stresses that affect the society.

Human sentiments overtook the judicial opinion recorded by Justice Dr T.K. Thommen. He said that with the city slum-dwellers, the inhabitants of the pavements afflicted and disfigured in many cases by diseases like leprosy, caught in the vicious grip of grinding penury, and making a meagre living by begging besides the towering mansions of affluence visible to the eyes, the real India transcends all barriers of religion, caste, race etc. in their degradation, suffering and humiliation. These living monuments of backwardness, a shameful reminder of our national indifference are a cruel betrayal of what the Preamble to the Constitution proclaims.

Justice Kuldip Singh, hit at the caste system which in spite of having been put in the grave by the framers of the Constitution continues to try raising its ugly heads in various forms posing a serious threat to the secularism and consequently to the integrity of the country. He warns those who did not learn from the events of history that they are doomed to duffer again. For the people of India, it is of the utmost importance to adhere in letter and spirit to the Constitution which has moulded this country into a sovereign, socialist, secular, democratic republic and has promised in its Preamble to secure to all its citizens justice, social, economic and political, equality of status and of opportunity.

Justice P.B. Sawant recorded his conviction that so long as equality of opportunity is not ensured to all, the goal enumerated in the Preamble to the Constitution, of fraternity assuring the dignity of an individual and the unity and integrity of the nation shall remain unattainable.

Inequality ill-favours fraternity, and unity remains a dream without fraternity. So long as economic justice is not guaranteed to all, social and political justice pledged by the Preamble to be secured to all citizens will remain a myth. Securing employment — whether private or public — is a means of direct and hence a means of social leveling. Such employment ought to be secured to them who were denied the same in the past so as to do social and economic justice to the deprived as ordained by the Preamble.

In the opinion of Justice R.M. Sahai, the Preamble to the Constitution is a turning point in history. Our Constitution was “a break with the past” and was farmed with “a need for fresh look”. The Preamble of the Constitution, echoing the sentiments of a nation, harassed for centuries by foreign domination. He observed:

to secure, to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and opportunity; and to promote among them all fraternity assuring the dignity of the individual was not a mere flourish of words but was an ideal set-up for practice and observance as a matter of law through a constitutional mechanism. Communal reservations were outlawed both from governance and administration”.

Justice P.B. Sawant qualified the Preamble with the expression

the basic feature of the Constitution, which promises equal opportunity and status and dignity to every citizen. Looked at from this angle, compensatory or remedial measures for the lesser fortunate are not, Ipso facto, violative of equal opportunity as our society was founded not on abstract theory that all men are equal but on the realism of societal differences created by human methodology, the poor and rich

Justice B.P. Jeevan Reddy, spoke for M.H. Kania, C.J. and M.N. Venkatachaliah, A.M. Ahmadi, JJ. and himself. According to him, the four-fold objective of securing to its citizens justice, liberty, equality and fraternity displays statesmanship has of the highest order — the likes of which our country has not seen since — belonging to the field of law, politics and public life coming together to fashion the instrument of change — the 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 elaborated in Parts III and IV. Justice Jeevan Ready, traced the origin of certain expressions employed in the Preamble. “Liberty, equality and fraternity” was the battle-cry of the French Revolution. It is also the motto of our Constitution, with the concept of “justice — social, economic and political” — the sum total of modern political thought — superadded to it. Equality has been and is the single greatest craving of all human beings at all points of the time. It has inspired many a great thinker and philosopher. All religious and political schools of thought, if one looks to it ignoring the later crudities and distortions. Liberty of thought, expression, belief, faith and worship has equally been an abiding faith with all human beings, and at all times in this country in particular. Fraternity assuring the indian context. Right to equality, a dynamic, multifacet and evolving concept, aims at equality of status and of opportunity. “Justice — social, economic and political” is the sum total of the aspirations incorporated in Part IV.

During discussions on amendments in the Preamble, on October 17, 1949 Acharya J.B. Kripalani made a passionate speech full of sentiments. He stated inter alia that the President of the Assembly has, like a good host reserved the choicest wine for the last. The Preamble which should have come in the beginning of the Constitution was being taken up at last though to be placed India-I in the beginning of the Constitution. At the solemn hour he reminded the House that:

What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles. In fact these were not first legal and constitutional principles, instead they were really spiritual and moral principles.”

He said further, that: “Democracy is equality of man and implies fratenity and non-violence above all. Violence is anathema to Democracy”.

He further added:

If we want to use democracy as only a legal, constitutional and formal advice, we shall fail. The whole country should understand the moral, the spiritual and the mystic implicatins of the word ‘democracy’.”

It seems as if Acharya Kripalani was speaking only yesterday. The Preamble to the Constitution is not just a piece of legal drafting or a matter of mere formality. It is a code of conduct. It is a lesson in morality and ethics — to be learnt by heart and to be practised. It contains philosophy, full of spiritualism and mysticism. It has a rhythm and message of ringing bells. Do we have ears to listen, eyes to read and hearts to understand?

Created on 2021/01/19 23:41 by LawPage • Last modified on 2021/01/19 23:41 by LawPage