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Published : January 15, 2011 | Author : Bhagwati Dan Charan
Category : Constitutional Law | Total Views : 14763 | Rating :

  
Bhagwati Dan Charan
Bhagwati Dan Charan,student IX SEMESTER,ILNU,Ahmedabad.
 

Critical Anaysis On The Judicial Pronouncement Of The Preamble Of Indian Constitution

Preamble:-
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 HERE BY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

A preamble is a preliminary statement of the reasons which have made the passing of statute desirable and its position is located immediately after the title and date of issuing the presidential assent. A preamble is also used to introduce a particular section or group of sections.

Almost every modern constitution inaugurates with a preamble, which it begins with and which embodies the objectives or basic purposes which it has been adopted.

Apart from the enactment of the preamble of the constitution, the preamble of a statute sets out the main objectives which the legislation is intended to achieve. it is a sort of value- ladden introduction to the statute and many a time, it is very helpful in understanding the policy and legislature. It expresses “what we had thought or dreamt for so long. The real value of constitution and law would, therefore, depends on the extent to which the stated objectives of the preamble have been achieved.

The preamble is of considerable legal significance in so far as embodies an enacting clause. It cannot be resorted as the basic in construing the various provisions of the constitution, which are couched in plain language. The preamble contains some expressions like justice, liberty, equality, and fraternity portion of the constitution consists of merely temporary provisions designed to bridge over the transition from the old constitution to new.

In another words, preamble as such is widely accepted as the quintessence or soul and spirit of a constitution, as it embodies the fundamentals and the basic of the constitution as well as the vision and commitment of a newly liberated nation or people after its passing through the inevitable birth pangs of national independence from an oppressive and colonial regime.

The Importance of the Preamble
The wording of the Preamble highlights some of the fundamental values and guiding principles on which the Constitution of India is based. The Preamble serves as a guiding light for the Constitution and judges interpret the Constitution in its light. 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. This is when the spirit of the Preamble becomes the guiding factor. The Preamble is stem, root and source of the constitution
The preamble serves the following points:-
1.      It indicates the sources from where the constitution has com viz. the people of India.
2.      It contains the enacting clause which brings into force the constitution.
3.      It declares the freedoms which the people of India intended to secure it all citizens and the basic type of government and polity which was to be established.

Explanation of some of the important words in the Preamble
Sovereign:-
The word sovereign means supreme or independent. India is internally and externally sovereign - externally free from the control of any foreign power and internally, it has a free government which is directly elected by the people and makes laws that govern the people.

Socialist:-
The word socialist was added to the Preamble by the 42nd amendment act of 1976, during the Emergency. It implies social and economic equality. Social equality in this context means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. Economic equality in this context means that the government will endeavor to make the distribution of wealth more equal and provide a decent standard of living for all. This is in effect emphasizing a commitment towards the formation of a welfare state.
India has adopted a mixed economy and the government has framed many laws to achieve the aim.

Secular:-
The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during the Emergency. It implies equality of all religions and [religious tolerance]. India therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favor or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law. No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and festivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution.

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.

Preamble:-A Part of The Constitution Or Not
The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject:
1. Berubari case [1]
2. Kesavananda Bharti case [2]

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 headed by B.P.Sinha, C.J. Justice Gajendragadkar delivered the unanimous opinion of the court. Quoting story, the eminent Constitutional 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.

The holdings in Berubari Case has beensuccinctly summeduplater byShelaandGrover, JJ.In Kesavananda Bharti case as under:
1. A Preamble to the Constitution serves as a key to open the minds of the framers, 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 government under the provisions of the Constitution;
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 prohibitions and limitations;
6. The Preamble did not indicate the assumptions that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty.

Berubari case was relied on in Golaknath case [3], 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 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.

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 same case. It was held in this case:
a. that the Preamble to the Constitution of India is a part of Constitution
b. that the Preamble is not a source of power nor a source of limitations
c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.
Moreover in Bommai case the majority of nine Judges laid down a new application of the Preamble under the Constitution, which is 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 summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional.
4. A further extension of this innovation is that a political party, which appeals to religion in its election manifesto, acts in violation of the basic structure, and the President may impose President’s Rule on a report of the Governor that a party has issued such a manifesto.

In the same case three of the nine Judges have opined that the word “secularism” in the Preamble of our Constitution.

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.

Conclusion:-
In conclusion I would like to just say that this is very true that preamble is the basic part of any document and it is but obvious to our constitution because it is the supreme law of our country, but Is it true that our constitution is so complete and perfect. As we all knows that we have more than 108 amendments in our constitution. So before making any basic structure we have to first finalise the structure and the provisions of our constitution. And another thing is that if it is the part of our constitution or the basic structure of it then why we need these many cases or judicial reviews to finalise its existence. According to me the preamble is the topic which gives its status from the very beginning when any document, act or provision enacted. It gives the overview of that particular act so we can easily take the idea of what the act is all about. In constitution we can say that this plays a very big role to understand the provisions of the constitution. So if something plays a great role to understand the provision of any act then how that thing cannot be the part of it, and what is the other thing which talks about the preamble as the part of our constitution .this is the only answer to that according to me. And the other question is about the amendment of the preamble, so in reference to which according to me with the time period or due to circumstances we always have a need to amend our constitution so that if we are amending the constitution then, how can the basic structure be the same?  

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

Books referred:-
1.   The constitutional law of India.  By J.N.Pandey.
2.   The preamble of the constitution “the spirit and the backbone of the constitution of India”. By R.C.Lahoti.
3.   The preamble of the constitution “An insight and comparison with other constitution”. By Aparajita Baruah.

Authors contact info - articles The  author can be reached at: BhagwatiDanCharan@legalserviceindia.com




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Article Comments

Posted by bharathi bhaskaran on June 17, 2011
has bn very useful. thank u so much

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