TABLE OF CONTENTS

1. Introduction
2. Key words in Preamble
3. Status of Preamble 
4. Amendability of Preamble 
5. Preamble as an Aid to the Interpretation of the Constitution

Introduction

The term ‘preamble’ refers to the introduction or preface to the Constitution. It contains the summary or essence of the Constitution. The ideals behind the Preamble were laid down by Jawaharlal Nehru’s Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947.

The Preamble to a written Constitution states the objects, which the Constitution seeks to establish. It also promotes and aids the legal interpretation of the Constitution, where the language is found to be ambiguous. Therefore, for a proper appreciation of the aims and aspirations embodied in our Constitution, we need to turn to the various expressions contained in the Preamble.

The Preamble to the Constitution of India states:

The Preamble to our Constitution serves, two purposes:

a) It indicates the source from which the Constitution derives its authority;

b) It also states the objects, which the Constitution seeks to establish and promote.

Key Words in the Preamble

1. SOVEREIGN 

The term Sovereignty refers to the independent authority of a State. It means that the State has the power to legislate on any subject; and that it is not subject to the control of any external power.

Consequently, the term Sovereign in the Preamble of India implies that India is neither a dependency nor a dominion of any other nation, but an independent state. There is no authority above it, and it is free to conduct its own affairs, both internal and external.

India’s declaration to continue her full membership of the Commonwealth of Nations in 1949 does not affect India’s sovereignty in any manner. This declaration is extra-legal and there is no mention of it in the Constitution. It is a voluntary declaration and indicates a free association and no obligation. This association was an honorable association between independent states.

It accepts the crown of England only as a symbolic head of the Commonwealth, and having no claim to the allegiance of citizens of India. As Pandit Jawaharlal Nehru explained:

“It is an agreement by free will, to be terminated by free will"

Sovereignty and Globalization

India has always been a supporter of international institutions. It is a founding member of the United Nations. It has also actively participated in evolution of international law. Does thiscompromise sovereignty of our nation?

It has to be realized that sovereignty is a legal fiction. In practice, it is often compromised. However, the view that globalization dilutes sovereignty needs to be revisited. Globalization is not a dilution of sovereignty, but a modification of the manner in which sovereignty is exercised. Globalization requires a more responsible use of sovereignty. The Government of India continues to ensure its strategic autonomy in international sphere and is vigilant in protecting the interests of the people of India. The recent debate in WTO with regards to the food subsidy is a case in point.

2. SOCIALIST 

The Constitution had a socialist content in the form of certain Directive Principles of State Policy (esp. Arts. 39(b) and 39(c)), even before the term was added by the 42nd Amendment Act in 1976. However, the ‘socialism’ envisaged by the Indian Constitution is not the usual scheme of State socialism, which involves ‘nationalisation’ of all means of production, and the abolition of private property. Instead, Indian Socialism is ‘democratic Socialism’, influenced by Fabianism. It is a peaceful gradual transformation of the society in participation with the state and not against the state.

Though the word ‘Socialism’ may seem to be vague, our Supreme Court has observed that its principal aim is to eliminate inequality of income and status and standards of life, and to provide a decent standard of life to the working people. The Indian Constitution, therefore, does not seek to abolish private property altogether but seeks to put it under restraints so that it may be used in the interests of the nation, which includes the upliftment of the poor. Instead of a total nationalization of all property and industry, it envisages a ‘mixed economy’, where both private and public sector grow side by side.

However, some have argued that the Indian state is deviating from its path of Socialism.

The following have been cited as reasons behind this line of argument:

• Adoption of neo-liberal economic policy: The new economic policy (1991) of liberalization, privatization and globalization has diluted the socialist credentials of the Indian state.

• From 1991 onwards, the trend has been away from socialism to privatization. Investment in many public enterprises has been divested in favour of private persons. Many industries and services, which were reserved for the government sector have been thrown open for
private enterprise.

• Growth, which happened after the reforms of 1990s exacerbated inter-state and intra-state disparities. Further, this growth has been without any meaningful job creation. (Jobless growth)

• The Indian state has failed to end mass poverty

However, it should be noted that these developments have been in keeping with the worldwide trend after the collapse of socialism in the USSR and East European countries. Also, the constitutional obligation to pay compensation to the private owner for State acquisition has been taken away by repealing Art. 31 by the Constitution (44th Amendment) Act, 1978. Further, the limitations of the neo-liberal economic model are being realized and the ideal of inclusive growth has been brought back into the fold of policy making.

3. SECULAR

The Constitution guaranteed secular polity through various constitutional provisions, even before the term was added in 1976. The unity and fraternity of the people of India, professing numerous faiths, has been sought to be achieved by enshrining the ideal of a ‘secular state’. A secular state, in the context of India, means that the State protects all religions equally and does not uphold any religion as the State religion. The term “secular” was added by the 42nd Amendment Act, 1976.

This is one of the glowing achievements of Indian democracy given that her neighbors such as  Pakistan, Bangladesh, Sri Lanka, uphold particular religions as State religions.

The reasons for the necessity of secularism in India are as follows:

• India is a heterogeneous society.

• The idea of India as a secular state has been challenged by states like Pakistan.

• We may be subjected to international propaganda (terrorism and related problems).

Constitutional Provisions Regarding Secularism

• The Indian state has no religion.

• All citizens are equal in the eyes of the law. Articles 14, 15 and 27 establish the secular nature of the state. Article 15 is a specific instruction that the state shall not discriminate among the citizens only on the grounds of religion, race, caste, sex or place of birth. Affirmative action is allowed, but not on the grounds of religion only.

• Fundamental Rights mentioned in Arts. 25–28 guarantee to all individuals, the freedom to profess, practice and propagate their religion, and assure strict impartiality on the part of the state and its institutions towards all religions.

• Religion is subordinate to the state rather than the state being subordinate to the religion. It also implies that the state can interfere in religious affairs for the purpose of social reforms.

• A special feature of Indian secularism emerging from historical context is that special protection is granted to the minorities with respect to the conservation of their culture and traditions.

4. DEMOCRATIC 

The ‘democratic republic’, which the Preamble envisages is democratic not only from a political standpoint but also from a social standpoint. Thus, it envisages not only a democratic form of government but also a democratic society, infused with the spirit of ‘justice, equality and fraternity’.

The form of government envisaged by our Constitution is a representative democracy. The people of India are to exercise sovereignty through the Parliament at the Centre and Legislature in each State, which are elected on the basis of universal adult franchise. The real Executive, namely the Council of Ministers, shall be responsible to the Parliament. Though there shall be an elected President at the head of the Union and a Governor nominated by the President at the head of each state, neither of them can exercise any political function without the advice of Council of Ministers. The Council of Ministers is collectively responsible to the people’s representatives in the respective Legislatures (excepting the functions which the Governor is authorized by the Constitution itself to discharge in his discretion or on his individual responsibility).

In essence, Parliamentary democracy envisages the following:

• Representation of People

• Responsible Government

• Accountability of the Council of Ministers to the Legislature

5. REPUBLIC

A democratic polity can be classified into two categories – monarchy and republic. In a monarchy, the head of the state (usually king or queen) enjoys a hereditary position (example: Britain, Japan). In a republic, the head of the state is always elected directly or indirectly for a fixed period (example: US, India)

The Preamble declares that source of all authority under the Constitution is the people of India  and there is no subordination to any external authority. While, Pakistan remained a British  Dominion until 1956, India ceased to be a dominion and declared herself a ‘Republic’ since enacting the Constitution in 1949.

We have an elected President as the Head of State and all offices including that of the President  are open to all citizens.

6. LIBERTY 

The term liberty means an absence of restraints on the activities of individuals and at the same time, providing opportunities for the development of individual personalities. The Constitution secures to all citizens liberty of thought, expression, belief, faith and worship through Fundamental Rights, which are enforceable in Court of Law. However, reasonable restrictions are placed on liberty by the Constitution itself.

The ideals of liberty, equality and fraternity are taken from the French Revolution.

7. EQUALITY

The term ‘equality’ means absence of special privileges to any section of the society and the provision of adequate opportunities for all individuals without any discrimination.

The Preamble secures to all citizens equality of status and opportunity.

This provision embraces three dimensions of equality – civic, political and economic.

The following Fundamental Rights ensure civic equality:

• Equality before Law (Art. 14)

• Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Art. 15)

• Abolition of Untouchability (Art. 17)

• Abolition of titles (Art. 18)

There are two provisions in the Constitution, which seek to achieve political equality:

• No person is to be declared ineligible for inclusion in electoral rolls on the grounds of religion, race, caste or sex (Art. 325).

• Elections to the Lok Sabha and the state assemblies are to be conducted on the basis of adult suffrage (Art. 326).

The following provisions seek to achieve economic equality

• The Directive Principles (Art. 39) secure to men and women equal right to an adequate means of livelihood and equal pay for equal work.

• Equality of Opportunity in matters of public employment (Article 16)

8. FRATERNITY

Fraternity means a sense of brotherhood. The Constitution promotes this feeling of fraternity by the system of single citizenship. Also, the Fundamental Duties (Art. 51A) say that it shall be the duty of every citizen to promote harmony and the spirit of common brotherhood amongst all people of India transcending religious, linguistic, regional and sectoral diversities.

According the Preamble, fraternity assures two things – the dignity of the individual and the integrity of the nation. The word ‘integrity’ was added by the 42nd Amendment Act, 1976.

According to K.M Munshi, the phrase ‘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

The phrase ‘unity and integrity of the nation’ embraces both psychological and territorial  dimensions of national integration. Art. 1 of the Constitution describes India as a ‘Union of States’ to make it clear that the States have no right to secede from the Union, implying the indestructible nature of the Indian Union. It aims at overcoming hindrances to national integration like communalism, regionalism, casteism, secessionism etc.

Trinity – Liberty Equality and Fraternity

According to Dr. BR Ambedkar, these principles of liberty, equality and fraternity are not to be treated as separate items in a trinity. They form a union of trinity in the sense that to divorce one from the other is to defeat the very purpose of democracy. Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor can liberty and equality be divorced from fraternity.

Without equality, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative. Without fraternity, liberty would produce the supremacy of the few over the many. Equality without liberty would kill individual initiative.
Without fraternity, liberty and equality could not become a natural course of things. It would require a constable to enforce them.

Together these principles would help us ensure our vision of social democracy which is very important for political democracy as well. Political democracy cannot last unless there lies at the base of it social democracy.

9. JUSTICE

Justice, as a concept involves fair, moral, and impartial treatment of all persons. In its most general sense, it means according individuals what they actually deserve or merit, or are in some sense, entitled to.

The term ‘justice’ as imbibed in the Preamble embraces three distinct forms –social, economic and political. These are secured through various provisions of Fundamental Rights and Directive Principles.

Social justice denotes equal treatment of all citizens without any distinction based on caste, color, race, religion, sex and so on. It means absence of privileges to any section of the society and at the same time making provisions for the improvement of backward sections (SCs, STs and OBCs) and women.

Economic justice denotes non-discrimination between people on the basis of economic factors. It involves the elimination of glaring inequalities in wealth, income and property.

Political justice implies that all citizens should have equal political rights, equal access to all political offices and equal voice in the government.

The ideal of justice – social, economic and political has been taken from the Russian Revolution.

Status of the Preamble

Traditional View

• The traditional view is that it is not a necessary part of the Constitution, but an ornamental part. This means that if we drop it from the statute, it will not impact the provisions of the law or enactment

Modern View

• The modern view is that the Preamble is a part of the Constitution and it is subject to amendment by the Parliament.

Status of The Preamble in India

Berubari Union Case, 1960

• The Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. Further, where the terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble.

• Despite this recognition of the significance of the Preamble, the Supreme Court held that the Preamble is not a part of the Constitution. It is also not the source to prohibit the power, which is given explicitly in the Constitution. Further, the Preamble is not enforceable in a Court of Law.

Kesavananda Bharaticase, 1973

• In the Kesavananda Bharati case (1973), the Supreme Court rejected the earlier opinion (in the Berubari Case) and held that the Preamble is a part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.

Explanation provided by the Supreme Court:

• The Preamble may not be an essential part of ordinary statute, but it is an essential part of Constitutional Law.

• Supreme Court admitted that a few facts regarding the Preamble were not noticed in the Berubari Case.

These facts established Preamble as a part of the Constitution.

o It has been adopted by the Constituent Assembly in the same manner as other parts.

o The motion by which the Preamble was adopted said: “The question is that Preamble stands part of the Constitution”.

o The Preamble was enacted after rest of the Constitution was already enacted. The Preamble was inserted in the end to ensure that there is no inconsistency between the Preamble and other provisions of the Constitution. This was unlike USA where the Preamble was enacted first.

S R Bommai Case, 1994

• The Supreme Court again held that the Preamble is an integral part of the Constitution.
  

Amendability of the Preamble

• The question regarding the amendability of the Preamble was raised in the Kesavananda Bharati Case (1973). The argument of the petitioner was that the Preamble is not a provision of the Constitution, hence it cannot be amended. Supreme Court’s view: Preamble is an essential and integral part of the Constitution. Hence, it can be amended; otherwise the harmony of the Constitution may get disturbed. It held that the Preamble could be amended, subject to the condition that no amendment is done to the ‘basic features’ of the Constitution. Consequently the Preamble was amended by the 42nd Amendment Act, 1976. It added three new words: Socialist, Secular and Integrity to the Preamble.
  

Preamble as an Aid to the Interpretation of the Constitution

Berubari Case

• Preamble has limited significance in the interpretation of the Constitution
• The Preamble cannot be invoked when the provisions of the Constitution are explicit. (A. K  Gopalan case, 1950). In the Gopalan case, the SC clarified that the Preamble will not be invoked to explain or interpret explicit provisions. In this case, the SC held that the term ‘law’ used in Article 21 (life & liberty) denotes a ‘law made by the State’ and not ‘natural law’.
• It however acknowledged that the Preamble may be used if there is an ambiguity in the provisions of the Constitution. According to the SC, Preamble is the key to unlock the minds of the Constituent Assembly.
  

Kesavananda Bharati Case

• Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
• SC clarified that Preamble can be used in the interpretation of the relationship between Fundamental Rights and Directive Principles.
• SC utilized the above approach in examining the validity of 25th Amendment Act, 1971, which added Article 31C.
  

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