PREAMBLE TO THE CONSTITUTION OF INDIA
INTRODUCTION
The Preamble is a legitimate aid in the construction of the provisions of the Constitution.
The earlier view was as has been observed by Maxwell that “For the purposes of interpretation, the Preamble of the Constitution stands in the same position as the preamble of an Act.” As has been held by Lord Halsbury, LC in Powell v. Kempton Park Race Course Co. (1899) and Lord Normand in Attorney General v. H.R.H. Prince Ernest Augustus of Hanover (1957), that the preamble of Act can be referred to explain and elucidate only the ambiguous and inexplicit provisions of the Act. The Preamble of an Act is not considered to be a part of the Act.
In re Berubari Union and Exchange of Enclaves (AIR 1960 SC 845), it was observed that the preamble to the Indian Constitution was not a part of the Constitution. However, the modern view was enunciated in Keshvananda Bharti v. State of Kerala (AIR 1973 SC 1461), where the fact that the Preamble was enacted and adopted by the same procedure as the rest of the Constitution was emphasized and it was observed that “the Preamble to the Constitution was a part of the Constitution and the observations to the contrary in re Berubari Union and Exchange of Enclaves were not correct.
OBJECTIVES OF THE PREAMBLE
The ultimate aim of the makers of the Constitution was to have a welfare state and an egalitarian society projecting the aim and aspirations of the freedom movement. Significantly, as has been observed by Shiva Rao, the Preamble was adopted by the Constituent Assembly only after the draft constitution had been approved. The idea was to express in a few words the provisions of the Constitution.
1. AS REGARDS ‘SOVEREIGN’
Sovereignty is one of the essential attributes of a State in jurisprudential terms. Cooley defines a sovereign state as one where there resides within itself a supreme and absolute power acknowledging no superior. However, it is submitted that in this sense, no state today can be said to be an absolute sovereign as international obligations, treaties, etc. put restraints and erode sovereignty. However, it can to the contrary, also be argued that even international obligations are undertaken by the States with their own volition. Nevertheless in domestic area, a sovereign state has absolute sovereignty.
The federal supremacy, despite a federal structure, has been asserted in State of West Bengal v. Union of India (1962) and State of Rajasthan v. Union of India (1977)
There is no division of sovereignty in India and the States have no right to secceed from the Union. Articles 1 to 4 of the Constitution clearly depict the supremacy of the Union in matters of cession, acquisition of territories and also alteration of names and boundaries of States or the diminishing of their areas. The citizenship is also only one in India and not a dual citizenship as in the US. Thus, there is no division of sovereignty in India.
The Preamble uses the words “we the people of India”. Seervai was earlier of the view that constitution is a result of Indian Independence Act and not “we the people”. But this view was strongly opposed by Prof. Tripathi who was supported by Prof. Conrad who said: “Constitutions are self-created and not a combination of some other laws”.
Seervai, later on, changed his view and deleted the words from his book. In all the Constitutions, it is the people who give the constitution. The idea behind this is that a constitution is a creation of all the people and not a group of individuals or some older law.
The Preamble emanated from the constituent assembly which represented the Indian people though it was not an elected mass. Therefore, sovereignty lies with the people of India and not the Parliament. Nor even is the constitution sovereign: it is a mere expression of the people’s sovereignty. The binding force of the Constitution is the sovereign will of the people of India.
2. AS REGARDS ‘SOCIALIST’
This term was added in the preamble by the 42nd Amendment. Earlier, the resolve to secure to all citizens economic justice and equality of status and opportunity existed in the Preamble. Articles 39(b) and (c) of Directive Principles of State Policy are the Charters of social and economic liberties of the people. It has been held that addition of ‘socialist’ in 1976 is a mere express declaration of something that was already there.
However, it is difficult to define socialism as it has nowhere been defined in the Constitution. The 45 Amendment tried to define it to mean-free from all forms of exploitation – social, economic and political. However, the definition was not incorporated. To various men, it means various things Marxist or Leninist socialism is different from Nehruvian or Gandhian socialism.
In the case of In D.S. Nakara v. Union of India (AIR 1983 SC 130), it has been held that “the addition of socialist indicates the incorporation of the philosophy of socialism in the constitution which aims at elimination of irregularity of income and status and standards of life. The Indian socialism is a blend of Marxist and Gandhian socialism leaning heavily in favour of Gandhian socialism. It envisages a decent standard of life and economic equality and equitable distribution of income.”
In the case of Excel Wear v. Union of India (AIR 1979 SC 25), it had been held that so long as private ownership of industries is recognised and governs an overwhelming large proportion of our economic structure, the principles of socialism and social justice cannot be pushed to such an extent so as to ignore completely the interests of the private owner. However, this would lead the courts to lean more and more in favour of nationalisation and state ownership of industry.
In Delhi Science Forum v. Union of India (1996 2 SCC 405), the giving of contracts to private parties in telecom sector was challenged.
The Supreme Court held that the constitution does not lay down any economic policies. The privatisation of telecom sector cannot be held invalid only on the ground that it is contrary to the idea of socialism. Indian socialism is different from Marxist socialism.
3. AS REGARDS ‘SECULAR’
This term was added in the preamble by the 42nd Amendment. ‘Secular’ is a vague term to be defined. A.R. Blackshield tried to define it as “not exactly opposite to religion (which itself is difficult to define); it implies religious freedom and tolerance and respect for ideas of rationalism and materialism, humanism etc.”
In the Indian context, an academic definition has been attempted by Donald Eugene Smith. “The secular state is state which gives individual and corporate freedom of religion, is not constitutionally connected to a particular religion, nor does it seek either to promote or interfere with religion.” Justice Desai added to the above definition that a secular state deals with the individual as a citizen irrespective of his religion.
Justice M.H. Beg, in Z.B. Bukhari v. B.R. Mehra & Bros. (1975 Suppl. S.C.R. 281), quoted with approval the statement of Maitland that a secular state has to ensure that there is no discrimination within the state on ground of religion. The State is neutral and impartial in extending its benefits to citizens of all castes, breeds and religions. He suggested, taking clue from the concept of secularism in the ancient Hindu society and also Islamic jurisprudence, that “a happy harmony and synthesis of the best in secularism and religion was possible.” The abovementioned view was endorsed in Kesavananda Bharti v. State of Kerala also.
Secularism does not mean ‘irreligious’ or ‘anti-religious’, as has been observed by Gajendragadkar, J.: “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. Setalwad is also of the above view.
Before the 42nd Amendment, as per Article 25(2) the State was empowered to regulate or restrict any “secular activity associated with religious practice”. Here the word ‘secular’ essentially meant ‘non-religious’. The 42nd Amendment merely made explicit what was earlier implicit in the constitution. The Kesavananda Bharti v. State of Kerala Case, the Minerva Mills Case (1980), S.R. Bommai v. Union of India (AIR 1994 SC 1918), R.C. Pondyal v. Union of India (AIR 1993 SC 1804) have held that secularism is a basic feature of the Indian Constitution.
4. AS REGARDS ‘DEMOCRATIC’
Democratic, as opposed to autocracy, aristocracy or monarchy means a government by people where ‘Demos’ means ‘people’ and ‘Kratos’ means ‘government’. The people, irrespective of factors like, caste, religion, economic level, etc. are equal in the eyes of law and manage their own affairs themselves. They have an inalienable right to rule themselves. The concepts of justice, equality, liberty and fraternity are an embodiment of democratic principles in the Preamble.
In ancient village republics in India direct popular democracy was being practiced. But with the increase in size, this has been replaced by indirect popular representative democracy.
In India, the democracy is in the wider sense of political, economic and social democracy. The institutions set up under the constitution shall seek to give effect to democracy in India which is to be sustained by adult, fundamental rights and independent judiciary.
In Indira Nehru Gandhi v. Raj Narain (1975), it was held by the Supreme Court that democracy is a basic feature of the Indian Constitution and free and fair elections is also impliedly a basic feature. Supreme Court held that democracy is the people’s power and state’s power vests in the people.
5. AS REGARDS ‘REPUBLIC’
Cooley defines a republican form of government as “a government by representatives chosen by the people.”
Madison defines it as: “Republic is a govemment 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 during good behaviour.”
In a republic the executive head or the President is not a hereditary monarch but an elected representative.
Even India’s membership of the Commonwealth of Nations does not detract it from its republican character. That is an external arrangement and the queen has not been recognised as the head of the country.
6. AS REGARDS ‘JUSTICE’
‘Justice’ means a harmonisation of interests between the individuals and the society. Justice has been given precedence over other concepts of liberty, equality and fraternity in the Preamble. ‘Justice’ as incorporated in the Preamble has a wider connotation. It is not merely an administration of legal justice by courts; it is something more.
It has three facets:
a) Social Justice
b) Economic Justice
c) Political Justice
Social justice has been given precedence over economic and political justice whereas economical justice precedes political justice in the Preamble.
Social Justice In the words of Nehru: “Social justice has always exercised an appeal to sensitive persons. The basic attraction of Marxism for millions of people was not its attempt at scientific theory but its passion for social justice.”
Social justice implies an equality of treatment of the citizens irrespective of their social status. Articles 14, 15 and 38 particularly bring forth this goal. Articles 23 to 43 contain provisions for humane conditions of work, maternity relief leisure, promotion of economic interests of backward classes, minimum wages, banning of forced labour etc. which are all directed towards social justice.
Economic Justice refers to the bridging of gap between the rich and poor. Article 39 is the Charter of economic justice. In fact, all the provisions of the Directive Principles of State carry forward the goals of economic and social justice.
Political Justice implies equal participation of all in the political processes. Articles 325 and 326 provide for equal rights to all citizens over the age of 18 years to participate in elections.
7. AS REGARDS ‘LIBERTY’
As conceived in the western laissez faire concept, liberty was largely a negative concept. It meant an absence of interference in individual action by the government. But in the Indian constitution, liberty is a positive concept. The Preamble talks of “liberty of thought, expression, belief, faith and worship”. In this positive connotation, liberty would mean freedom to do what one likes. But here liberty has to be distinguished from license. Liberty has to be regulated in the larger interests of the society. The fundamental rights contain such regulatory provisions also.
8. AS REGARDS ‘EQUALITY’
The Preamble talks of equality of status and opportunity. It has got legal, social, political and economic dimensions.
The concept has been concretised in Articles 14 to 18.
9. AS REGARDS ‘FRATERNITY’
It implies a feeling of brotherhood. The goal of the constitution is to subdue the divisive forces in India by fostering a feeling of brotherhood among the Indians despite their diversities.
Ambedkar stated: “Fraternity means a sense of common brotherhood of all Indians – of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve.”
It has an international dimension too the ancient Indian ideal of ‘Vasudhaiva Kutumbkam’ i.e. ‘the entire world is one family’. Article 51 elaborates this principle.
10. AS REGARDS ‘DIGNITY OF INDIVIDUAL’
The prime objective of the concept of fraternity is to preserve and promote the dignity of the individual. The fundamental rights and directive principles of state policy are aimed at this goal. Article 17 abolishes untouchability which is an affront on individual dignity. In case of infringement of fundamental rights, one can directly approach the Supreme Court or High Court under Articles 32 or 226 respectively.
11. AS REGARDS ‘UNITY AND INTEGRITY OF NATION’
Article 51A makes it the duty of every citizen to uphold and protect the sovereignty, unity and integrity of India. Fraternity and mutual respect lies at the very foundation of the task of nation building. Unity and integrity is necessary for the nation’s social and economic development.
CONCLUSION
The Preamble represents the quintessence, the philosophy, the ideals or the soul of the entire constitution. The other parts of the constitution are a mere concretisation and elaboration of the concepts envisaged in the Preamble. However, some writers have demanded an exact definition of the words like ‘socialist’, ‘secular’, etc. which are rather vague in their connotation. It is submitted that, though vague, these concepts are so dynamic and subjective in nature that it is impossible to give a rigid and watertight definition for all men and all times.
