UNIT I

PREAMBLE

MEANING OF PREAMBLE

Derived from a Latin term “PREAMBLUS” which means “to go before”.

The preamble means that which goes before or that which precedes preliminary statement of a
document or a statute.
It is a:
• preface
• Prologue or
• Introduction
It has been conventional to have a preamble of the constitution and the Indian constitution
follows this convention.
The idea of preamble is taken from the American Constitution.

Preamble means a preliminary or introductory statement, especially attached to a statute or

constitution setting forth its purpose. Preamble is an expressionary statement in a document that
explains the document's purpose and underlying philosophy. When applied to the opening
paragraphs of a statute, it may recite historical facts pertinent to the subject of the statute. The
preamble to the Constitution of India is a brief introductory statement that sets out the guiding
purpose and principles of the document.

PREAMBLE OF INDIA

● 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

PURPOSE OF PREAMBLE
It is the summary of constitution, essence/reflection of constitution. It presents the intention of its
framers, the history behind its creation, and the core values and principles of the nation.
The significance of the Preamble was highlighted by the members of the constituent assembly
and learned men. Thakur Das Bhargava referred to the Preamble as the “Soul of the
Constitution” and KM Munshi called it the “Political horoscope of Indian Constitution”. It was
addressed as the “Identity card” of the Constitution by N.A. Palkhivala and considered a “Key
note of constitution of India” by Sir Ernest Barker.
The judiciary also at various chances has highlighted the importance of the preamble. In
Golaknath v. State of Punjab (AIR 1967 SC 1643), Subba Rao, CJ observed that “the Preamble
contains in a nutshell the ideals and aspirations” of the Constitution. And in In re Berubari Union
and Exchange of Enclaves (AIR 1960 SC 845), it has been observed that the Preamble is the key
to open the minds of the Constitution makers.
In Sajjan Singh vs. state of Rajasthan 1965, the Supreme Court held that Preamble is the sum and
substance of the features of the constitution. Also said Preamble represents the quintessence, the
philosophy, the ideal, the soul of the entire constitution.

The purpose behind the introduction of the preamble was:

● to introduce the subject matter of the enactment
● to indicate in brief its object and purpose
● preamble of the Indian Constitution tells us three major things:
1. Source of the authority of the constitution
2. Nature of the polity that is being established
3. It defines the objectives which the polity is intended to achieve and the goals
which the nation is intended to reach

SOURCE OF THE AUTHORITY OF THE CONSTITUTION

It is “we the people of India” who have adopted, enacted and given to ourselves “this
constitution” This declares that the Constitution derives its authority from the people of India.

Is the declaration factually inaccurate?

The objection to the declaration can only be formal as in practice we see the power of the people
in the constituent assembly. In, Kehar Singh v. Union of India (1989) 1 SCC 204, this question
was resolved as the court held that this question is a conclusive assumption and a legal fiction
which cannot be tested or questioned in any court
Granville Austin stated that :
• in the constituent assembly itself, the question of the source of authority was resolved, as the
decisions were taken not by roller majority but by consensus
• Preamble correctly invokes the authority of the people of India for its force and authority
 ● LEGAL AUTHORITY TO FRAME THE CONSTITUTION

The Indian independence Act 1947

British government read the writing on the wall
Independence was not a gift
constituent assembly had the authority to repeal the Act of 1947 itself and it did repeal the same

NATURE OF POLITY
● On 26th November 1949 people of India resolved to constitute India into a sovereign
Democratic Republic
● By the Constitution (42nd amendment) Act 1976 the words socialist and secular were
also added all the five words represent value loaded political concepts their meaning is
not yet very exact or devoid of controversy

SOVEREIGN

Sovereignty means the independent authority of the State, not being subject to the control of any
other State or external [Link] word sovereign refers to a state which is free to conduct its
own affairs both internally and externally. India became a sovereign on the date of 26th January
1950 before this India was a Dominion that means it had external influence of England Now
India has its own independent authority and it is not a dominion of any other external power.

SOVEREIGN IN THE TRADITIONAL SENSE

A sovereign in the traditional sense means one who has the supreme power in a state and is not
subordinate to any other internal or external authority.

WHO IS SOVEREIGN IN INDIA?

Divisibility and Limitability are the hallmarks of the polity created by our Constitution. A
constitutional system has been devised where political power has been dispersed between
different organs of the state and at different levels of the government. The totality of political
power has been distributed between two layers of government and thus there is a vertical
division of power.

DIVISION OF POWER BETWEEN THE STATE AND UNION

But in India, despite a division of powers between the Centre and States, there is no-division of
sovereignty. The Union can override the States in national interest during emergencies, and even
during normal times, it can invade the State’s sphere by legislating on State subjects on some
occasions. 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 succeed 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.

DIVISION OF POWER BETWEEN THE ORGANS OF THE STATE

The division of power between the organs of the government: The Legislature , executive and
judiciary. Each of the organs have their own functions to perform and cannot encroach upon the
authority of each other. These organs also maintain a system of checks and balances for each
other. Therefore, no single department can be said to be supreme in India.

INTERNATIONAL RESTRAINTS ON SOVEREIGNTY

In today’s world, 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 (mostly) are undertaken by the States with their
own volition (either customary or conventional). Nevertheless in the domestic area, a sovereign
state has absolute sovereignty.
Therefore, India joining the Commonwealth of Nations is not India losing its sovereignty rather
it is an extra constitutional arrangement. India joining the United Nations is also not a violation
of sovereignty because the decisions of the UN are not binding on India.
Membership of the Commonwealth of Nations also does not detract from sovereignty as it was
agreed upon by the commonwealth nations.

WHETHER SOVEREIGNTY LIES IN THE POWER TO AMEND THE CONSTITUTION?

There are three distinct procedures prescribed in absence of one common amending procedure
and hence we cannot identify one single supreme authority in India based upon the amending
powers of the organs. Another feature of amendments is that the amending body cannot destroy
basic features of the constitution through the amendments, whether it even be the Supreme Court
of india.

CAN THE CONSTITUTION BE REGARDED AS SOVEREIGN?

The constitution is not the sovereign as it is a mere expression of the people’s sovereignty. The
source of authority of the Constitution is derived from the citizens of the country as stated
through the use of “WE, the people of India”.The binding force of the Constitution is the
sovereign will of the people of India.

ARE THE PEOPLE OF INDIA THE REAL SOVEREIGN OF THE COUNTRY ?

In all the Constitutions, it is the people who give the constitution, e.g. U.S. Constitution was
made by the representatives of the colonies and its ratification was done by the colonies. Yet, it
starts with “we the people of the U.S.”
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. This is exactly defined by the word outocthony i.e. self born e.g.
Manu was considered to be self-born. An aura has to be created around the Constitution so as to
make it sacrosanct else it would lead to anarchy. At the same time, provisions for adjustments to
changing times and society have also to be made.

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.
In Synthetics and Chemicals Ltd. v. State of U.P. [(1990) 1 SCC 109], it has been held that
sovereignty is the exercise of sovereign power which gives the state sufficient authority to enact
any law subject to the limitations of the constitution to discharge its functions. The sovereign
power is plenary and inherent in every sovereign state to do all things which promote the health,
peace, morals, education and good order of the people.
In this sense, the Indian Constitution as a sovereign state has the power to legislate on all
branches subject to the limitations as to the division of powers between the Centre and the States
and also subject to the fundamental rights guaranteed under the Constitution. Though, the
binding force of the Constitution is the sovereign will of the people of India, which once again
establishes the sovereign power of the people of India.

It was also held that the Indian state, within the centre and the states, has sovereign power. But it
is the People of India that are politically sovereign in the sense that in the ultimate analysis it is
their wishes that must prevail and those who wield the legal powers cannot afford for long to
ignore them. They at regular intervals are to elect members of Parliament and members of
Legislative Assemblies and even though they do not have any legal powers, through the election
of those with legal powers to make laws and enact legislations, they hold the power.

NO SOVEREIGN IN INDIA IN THE TRADITIONAL SENSE

A sovereign in the traditional sense means one who has the supreme power in a state and is not
subordinate to any other internal or external authority but as seen no one has the supreme power
in the country. In the context of the preamble, sovereign only means that “India is no more or
dependency of any other external authority or government”. It can merely be considered as a
synonym for independence.

SOCIALIST

The term relates to the political economy of a country and has certain connotations about how
the economic resources and means of production of our country are owned, controlled or
operated in the country.
The basis behind the incorporation of the word in the preamble is to ensure that propertied
classes who are few should not use their economic resources for the exploitation of the many.
The term means the achievement of socialist ends through democratic means (democratic
socialism). Democratic socialism aims to remove poverty, ignorance, disease and equality of
opportunity.

SOCIALISM IN INDIAN CONSTITUTION

The term was added in the Indian Preamble by 42 nd Amendment in 1976. Earlier also, the
resolve to secure to all citizens economic justice and equality of status and opportunity was there
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 the addition of ‘socialist’ in
1976 is a mere express declaration of something that was already there.

Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian
socialism as held in D.S. Nakara [Link] of India (AIR 1983 SC 130). India has a unique idea of
socialism, we don’t purely follow communist or Marxist socialism, in which the state has full
control over the resources and distributes them equally. In India we follow the Ghandhian
socialism, here the state doesn’t directly distribute the resources but gives equal opportunity to
all individuals to earn the resources. It holds faith in a mixed economy where both private and
public sectors co-exist side by side. It means that we will have social and economic equality:
● Social equality means everyone is equal despite their caste, colour, creed, sex, religion or
language, which are guaranteed by the fundamental political liberties granted by the
Constitution
● Economic equality means that the government will endeavour to make the distribution of
wealth more equal and provide a decent standard of living for all.

JUDICIAL PRONOUNCEMENTS ON THE ADDITION OF “SOCIALIST” IN THE

CONSTITUTION
In Excel wear v. Union of India (1979), the Supreme Court found that with the addition of the
word socialist, a portal was opened that would lead the courts to lean the judgments in favour of
nationalisation and state ownership of the industry. But it was also held that the principle of
socialism and Social Justice cannot ignore the interest of the rights of a different section of
society that is the private owners.
In D.S. Nakara [Link] 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. Indian socialism is a
blend of Marxist and Gandhian socialism leaning heavily in favour of Gandhian socialism. It
envisages a decent standard of life, economic equality, equitable distribution of income and
social security to the working people.”
In Minerva Mills Limited v. Union of India (1980), The constitutional bench had considered the
meaning of the word “socialism” to crystallise a socialist state securing to its people social
economic justice by interplay of fundamental rights and directive principle.
In Air India statutory corporation v. United labour Union (1996), The Supreme Court observed
that the word socialist is added in the constitution to establish an egalitarian social order through
rule of law.

SECULAR

‘Secular’ is a vague term to be defined. Dictionary defines it as ‘irreligious’ or ‘not concerned

with religion’. 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.”
The term has a western meaning, it means divorce or no relation between the state and religion
(panthnirpeksha) but in India secularism is used in a sense which means that all the religions in
India get equal respect, protection and support from the state (sarva dharma sambhav).

INDIAN PERSPECTIVE OF SECULARISM

The word "secular" recognises the concept of secularism as manifested in the guarantee of
freedom of religion as a fundamental right in the Constitution. Thus secularism was as much part
of the Constitution even before the word "secular" was inserted in the Preamble

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 grounds of religion. The State is neutral and impartial in
extending its benefits to citizens of all castes, breeds and religions. He suggested, taking cues
from the concept of secularism in ancient Hindu society and also Islamic jurisprudence, that “a
happy harmony and synthesis of the best in secularism and religion was possible.” The above
view was endorsed in Keshvananda Bharti Case also.

Secularism in India does not envisage a strict wall of separation between the State and religion
and takes up a more positive meaning. The idea of ‘Sarva Dharma Sambhava’ i.e. equality of all
religions instead of ‘Dharma Nirpeksha’ i.e. State neutrality in matters of religion can be seen as
a better idea. In Indian context, equality of religions is the only meaning that can be attributed to
the term secularism owing to the peculiarity of the Indian situation. 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.

Unlike the West, the Indian secularism is not a result of a conflict between the church and the
State. It has its origin in its own past history and culture, the freedom movement, a desire of the
founding fathers to be just and fair to all communities irrespective of their numbers. Very often
in our common parlance, the term secularism therefore is used merely as an opposite of
communalism.

Before the 42nd Amendment in 1976, 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.

In the present sense, a definition of secularism would have two aspects –

1. Negative aspect – State not to interfere in any religion i.e. there shall be freedom of religion
and no discrimination on ground of religion.
2. Positive respect – State to take necessary steps for ensuring equality of religions. Thus,
helping minority religions would not be unconstitutional e.g. if protection is guaranteed to
churches and mosques, it would not be unconstitutional. (Provided it is within the broad
constitutional
limitations).

Teaching of Sanskrit in schools, reservation of seats for Sangha in the Legislative Assembly of
Sikkim, and acquisition of places of worship including mosques, is not against secularism.
Governments and political parties which lack religious tolerance, deny equal treatment to all
religious groups and which fail to protect their life, property and places of worship run counter to
secularism. Similarly, seeking votes at an election on the ground of religion is against secularism
while inter-religion or water-caste marriages promote secularism

JUDICIAL PRONOUNCEMENTS ON SECULARISM

The Keshvananda Bharti Case (1973); 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)
held that secularism is a basic feature of the Indian Constitution.

In St. Xavier’s College v. State of Gujarat (1974), it was held that even though the constitution
makers did not speak of a secular state, there could be no doubt that they wanted to establish
such a state. The Preamble itself even in its original unamended form contained the concept of
liberty, inter alia, that of belief, faith and worship i.e. it stood for a solemn commitment to
religious freedom for all. This was reinforced by the principles of equality of status and
opportunity and of fraternity among all the people of [Link] court said that secularism is
neither anti god nor pro god. Secularism means elimination of God from the matters of the state
and state has nothing to do with the religion of the people.

Though freedom of religion is a guaranteed right, it has been held in Dr. Farooqi v. Union of
India (1994) that there is no right to worship at a particular spot. State can acquire a religious
monument. In this regard, it is submitted that several other factors have to be seen viz. the
sanctity of the place, the needs of the local people, public order etc. Thus, the State could acquire
the Babri Masjid, it can demolish a temple made on a road, but it cannot acquire Jama Masjid or
the Tirupati temple (a bit of public policy also plays a role in such cases)

In Aruna Roy v. Union of India (2002), the Supreme Court has said that secularism has a
positive meaning and it means to develop understanding and respect towards different religions.

DEMOCRATIC
Democratic, as opposed to autocracy, aristocracy or monarchy means a government by people
(Demos – people; Kratos – government). The term implies that the Constitution of India has an
established form of Constitution which gets its authority from the will of the people expressed in
an election. The people of India elect their governments (through free, fair and periodic elections
at all levels Union, State and local) by a system of universal adult franchise; popularly known as
‘One man one vote’.
This is based on the legal status of “Damus Cratus” which means rule of people i.e. where the
Government gets its authority from the will of the people. The rulers are elected by the people
and are responsible to them.
There is a famous definition of democracy as given by Abrahim Lincoln that “democracy is by
the people, of the people and for the people.”

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 practised. But with the
increase in size, this has been replaced by indirect popular representative democracy.
– In Swiss cantons – direct democracy.
– In France, Ireland, Japan and Switzerland – system of referendum – direct democracy.

In India, 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 suffrage, fundamental rights and independent
judiciary.
● Article 326 (adult suffrage) and Articles 75(3) and 164(2) – Executive responsible to
legislature are the edifice of the Indian Parliamentary democracy.
● People’s participation is a must in a democratic government and this has been guaranteed
by the institution of Panchayati Raj and local self Government and the recent trends of
decentralisation of power and transparency at all levels of Government.
JUDICIAL PRONOUNCEMENTS ON DEMOCRACY
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.
In R.C. Pondyal v. Union of India (AIR 1993 SC 1804): Supreme Court held that democracy is
the people’s power and state’s power vests in the people.

REPUBLIC
Cooley defines a republican form of government as “a government by representatives chosen by
the people.” Madison defines it as: “Republic is a government 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 [Link]
India, the President of India is the elected head of the state.

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.

OBJECTIVES AND GOALS

The Constitution is the supreme law and it helps to maintain integrity in the society and to
promote unity among the citizens to build a great nation. The main objective of the Indian
Constitution is to promote harmony throughout the nation.
➔ The preamble makes the promise that polity created by the constitution will secure to all
its citizens:
● Justice
● Liberty and
● Equality
Special attention has been drawn to the sequence of these values in the Preamble which
establishes primacy of justice over freedom and equality and this is what the Constitution does
by making special provisions for the weaker and excluded sections of the society, women,
children and minorities.
➔ It also promises that the Constitution will promote among them fraternity which will
assure the:
● dignity of the individual and the
● unity and integrity of the nation
The concept of Liberty, Equality, and Fraternity in our Preamble was adopted from the French
Motto of the French Revolution.

JUSTICE
‘Justice’ means a harmonisation of interests between the individuals and the society. It is the
pinnacle achievement of the State. It is necessary to maintain order in society that is promised
through various provisions of Fundamental Rights and Directive Principles of State Policy
provided by the Constitution of India. ‘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:
i) Social Justice
ii) Economic Justice
iii) Political Justice

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
Economic Justice means no discrimination can be caused by people on the basis of their wealth,
income, and economic status. It is indicative of bridging the gap between the rich and poor.
Article 39 (Directive Principles of State Policy) is the Charter of economic justice, which states
that “Every person must be paid equally for an equal position and all people must get
opportunities to earn for their living”. In fact, all the provisions of the Directive Principles of
State Policy (Articles 36 to 51) carry forward the goals of economic and social justice.

POLITICAL JUSTICE
Political Justice means all the people have an equal, free and fair right without any
discrimination to participate in political opportunities and processes. Articles 325 and 326
provide for equal rights to all citizens (adults) to participate in elections.

Without economic justice, political justice is meaningless and without social justice, economic
justice is meaningless. Pointing towards the peculiar situation in India, Ambedkar ironically said:
“In politics, we will be recognising the principle of one man one vote and one vote one value. In
our social and economic life, we shall, by reason of our social and economical structure, continue
to deny the principle of one man one value.”

JUDICIAL PRONOUNCEMENTS ON JUSTICE

In KK Bhaskaran vs. State of Tamil Nadu 2011, the Supreme Court held that the constitution
should be interpreted in such a manner, so as to secure the goal of social, economic and political
justice.
In Nandini Sundar vs. State of Chhattisgarh 2011, the Supreme Court said that the promise to
provide social, economic and political justice given in the Preamble cannot be forgotten or
neglected.

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 term ‘Liberty’ means freedom for the people to
choose their way of life, have political views and behaviour in society. The Preamble talks of
“liberty of thought, expression, belief, faith and worship.” These have been concretised as
fundamental rights. Later on, in Part III (Articles 14, 15, 16, 17, 18, 19, 21 etc.).
In this positive connotation, liberty would mean freedom to do what one likes. But here liberty
has to be distinguished from licence, which means that Liberty does not mean freedom to do
anything; a person can do anything but in the limit set by the law. Liberty has to be regulated in
the larger interests of the society. The fundamental rights contain such regulatory provisions
also.
Montesquieu stated that Liberty means freedom to do anything which the law allows.
● It is the absence of restraint.
● It gives the opportunity of development to all individuals.
● Liberty is not absolute but always qualified.

EQUALITY
The term ‘Equality’ means no section of society has any special privileges and all the people
have given equal opportunities for everything without any discrimination. Everyone is equal
before the [Link] Preamble talks of equality of status and opportunity. It has got legal, social,
political and economical dimensions. The concept has been concretised in Articles 14 to 18.
➔ Article 14 of the constitution guarantees:
● equality before the law and
● equal protection of the laws
➔ Article 16 guarantees equality of opportunity in state services
➔ Article 17 abolition of untouchability

FRATERNITY AND DIGNITY OF THE INDIVIDUAL

FRATERNITY
The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment with the
country and all the people. Fraternity helps to promote dignity and unity in the nation. 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.
Provisions in the Constitution :
i) Equality of treatment and other fundamental rights.
ii) Common citizenship
iii) Directive Principles of State Policy
iv) Part IV A – Fundamental duties – duty to foster fraternity.
The concept of fraternity goes beyond the concept of secularism (separation of religion from
politics etc.). Ambedkar said: “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 to the ancient Indian ideal of ‘Vasudhaiva Kutumbakam’ i.e.
the entire world is one family. Article 51 of Directive Principles of State Policy elaborates this
principle.
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. Dignity of the individual is also assured by the rules which
protect the rights of prisoners and under trials through article 21

UNITY AND INTEGRITY OF THE 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.
The promotion of unity and integrity of the nation can be found in the :
● provision for common citizenship guarantee against discrimination on the religion and
state considerations
● wise accommodation of the interests of religious, linguistic and cultural minorities
● scope for devolution of powers to local bodies and regional councils

PREAMBLE : PART OF THE CONSTITUTION?

The constitutional provisions have a constitutive effect, but the preamble does not create any
governmental institution nor does it confer any power on the institutions created by other
provisions of the constitution. It does not impose any limitations on them either. Though, 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:
“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 in English cases as well, 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), 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.

INDIAN STATUS
In re Berubari Union and Exchange of Enclaves (AIR 1960 SC 845), (Gajendragadkar, J.) the
preamble was used as a presidential reference under Article 143(1) of the Constitution which was
on the implementation of the Indo-Pakistan Agreement related to the Berubari Union and in
exchanging the enclaves which were decided for consideration by the bench consisting of eight
judges. In the case, it was observed that the preamble to the Indian Constitution was a key to
open the mind of the makers which may show the general purposes for which they made the
several provisions in the constitution and not a part of the Constitution. Therefore it is not
enforceable in a court of law.
However, the modern view was enunciated by a bench of 13 judges 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 emphasised and it was observed that
“the Preamble to the Constitution was a part of the Constitution and the observations to the
contrary in Berubari Union were not correct.” The Preamble is not the supreme power or source
of any restriction or prohibition but it plays an important role in the interpretation of statutes and
provisions of the Constitution. So, it can be concluded that preamble is part of the introductory
part of the Constitution.
In the case of Union Government Vs LIC of India 1995 also, the Supreme Court has once again
held that Preamble is the integral part of the Constitution but is not directly enforceable in a court
of justice in India.
In S R Bommai vs. Union of India 1918, the Supreme Court held that Preamble is the integral
part of the constitution

PREAMBLE : ALSO AMENDABLE

After the judgement of the Kesavanand Bharati case, it was accepted that the preamble is part of
the Constitution. As a part of the Constitution, the preamble can be amended under Article 368
of the Constitution, but the basic structure of the preamble cannot be amended. This was the
view of the majority of the court in this case. It accepted some substantive limitations on the
amending power of parliament but with reference to preamble, Ray, Palekar, Matthew and
Dwivedi JJ, were of the view that preamble was also amendable. Shelat and Grover JJ, took a
contrary view.
THE CONSTITUTION (42ND AMENDMENT) ACT, 1976
In the present, the preamble has only been amended once through the 42nd Amendment Act,
1976. The term ‘Socialist’, ‘Secular’, and ‘Integrity’ were added to the preamble with
retrospective effect, through the 42nd Amendment Act, 1976.
● ‘Socialist’ and ‘Secular’ were added between ‘Sovereign’ and ‘Democratic’.
● ‘Unity of the Nation’ was changed to ‘Unity and Integrity of the Nation’.

THE CONCLUSION
The preamble, though a part of the constitution, is not an operative part of the constitution
because it neither confers powers nor does it impose any limitations on the powers of
governmental institutions created by the constitution.

PREAMBLE AS AN INTERPRETIVE AID

➔ It has no relevance unless there was some ambiguity to be resolved; the provisions of the
constitution are to be read and interpreted not in isolation but in their context and total
setting; and that the constitution has to be read as a whole including its preamble.
➔ 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: “For the purposes of
interpretation, the Preamble of the Constitution stands in the same position as the
preamble of an Act.”
➔ The Preamble is not the supreme power or source of any restriction or prohibition but it
plays an important role in the interpretation of statutes and provisions of the Constitution.
This view was held in Kesavanand Bharati case, wherein the apex court strongly relied
on the Preamble to the Constitution of India in reaching a conclusion.
➔ The court has started relying heavily on the preamble and on the Directive Principles of
State Policy in interpreting the various provisions of the constitution.
➔ Indeed, it would be truer to say that the court has started translating the ideas contained in
the preamble and in the Directives into operative constitutional doctrines.

UNIT I QUESTIONS- PYQs

I. “Our Constitution may be said to be an expansion and explanation of the Preamble”. In

the backdrop of the aforesaid statement, comment on the significance of the Preamble of
the Constitution of India.
II. ‘The Indian federalism was designed on the basis of the working of the federalism in
USA, Canada and Australia. Yet it deviates from those federalism in many respects and
establishes its own distinctive features. There is a difference of opinion among scholars
about the nature of the Indian Constitution —whether it is federal or not’.

OR
 Discuss at-least five characteristics of Federal system and also mention the modification
of the strict application of the federal principle under Constitution of India in the milieu
of above statement.

SHORT QUESTIONS

I. Significance of Preamble of the Constitution of India

II. Legal significance of the Preamble
III. Whether the Preamble of the Constitution of India is a part of the Constitution?

ANSWERS

SIGNIFICANCE OF THE PREAMBLE

To include:

● Purpose of the preamble

● Goals and objective
● Part of the constitution?
● As an interpretative aid
● Judicial pronouncements on its significance

Basic structure of the answer:

● The Constitution’s Preamble defines the document’s fundamental ideas and philosophy,
and the policy aims and objectives that the Constitution’s founding authors strived for.
● It incorporates all of the beliefs and aspirations for which the country struggled
throughout the British Regime. It communicates ‘for a long time what we had been
contemplating or dreaming about’.
● The Constitution’s objective is to bring justice, liberty, equality, and fraternity to its
citizens. It declares the enormous rights and liberties that Indian citizens have as citizens
of this country. It establishes the fundamental rights that the Indian people wished to
protect for all citizens and the foundational type of governance and politics.
● It is a type of statute primer, and it helps figure out the policy and legislative purposes. It
assists the Supreme Court in deciding whether a specific law or piece of legislation is in
accordance with the Constitution.
 ● The enacting clause, which puts the Constitution into effect, is also found in the
Preamble.
● In several decisions, the Supreme Court of India has stressed the relevance and value of
the Preamble.

FEDERALISM

Traditionally classified, constitutions can be either unitary or federal, depending on the powers
and responsibilities attributed to the centre and the States. The constitution distributes the powers
between the centre and the states and these powers often come into conflict with each other.
These can be resolved either by deciding in favour of the centre or the states, making the
constitution either unitary or federal respectively. The nature of the constitution can be decided
by looking into the various powers and responsibilities attributed to the states by the constitution
and interpreting the constitution accordingly.

AS TO INDIAN CONSTITUTION

There is a difference of opinion among jurists as to the nature of the Indian constitution.

The framers of the constitution classified it as federal. K.C. Wheare says that it is “almost quasi-
federal… a unitary state with subsidiary federal features rather than a federal state with
subsidiary unitary features.” Jennings has characterised it as “a federation with a strong
centralising tendency”.

Significantly, no court has till date clearly pronounced that it is a federal constitution. The report
on the centre-state relations and the Sarkaria Commission reports have also nowhere mentioned
that it is a federal constitution. The Supreme Court in the Kesavananda Bharati case merely
mentioned that ‘federal character’ is one of the basic features of the Indian Constitution. In S. R.
Bommai case, the minority judgement led by Ramaswamy J. endorsed that the Indian
Constitution is based on federal principles.

THE WEST BENGAL v. UNION OF INDIA CASE (1962)

In this case it was argued that since the Indian Constitution is a Federal Constitution therefore all
the provisions of the Constitution should run subservient to that principle. On that basis it was
argued that even if there is a provision in the constitution (List I, VIIth Schedule) that the centre
can acquire property in the states, this power should be read subject to the concept of Federalism
which envisages that the centre and the states are coordinate and independent in their respective
spheres and are equal in status. It was held that Indian Federalism is not true to any traditional
pattern of Federalism; India is Federal in its own light. There can be no subjection of an express
power to any un-explicit doctrines. The powers of legislation are plenary.

HISTORICAL PERSPECTIVE

The evolution of the concept of federalism in India should be viewed in its historical perspective
in order to have a proper understanding of the Indian concept of federalism. The British Crown
assumed power under statute 21 and 22 of Victoria (1858) Charter 100. A highly centralized and
unitary set up was arranged as follows:

● British Crown
● Secretary of State
● Governor General [Centralized (full control)]
● Governor (provincial)

There was some devolution of powers by the 1919 Act. But this was only for the purpose of
decentralisation of government power; the government still remained unitary.

The 1935 Act aimed at uniting the provinces and Indian States into a federation but the Indian
States did not join and the aim got defeated.

The 1947, Indian Independence Act carved out a separate dominion for India and the control of
British Parliament was deleted. The Government of the dominion was made a sovereign. The
constitution also envisaged a decentralization of authority for, one, the territory of India was too
large to be governed by one central government alone, and two, the political trends of
decentralization could not be reversed. For a greater degree of economic unity, subjects having
impact on matters of common interest were transferred to the union list. Thus, the powers of the
union got enlarged e.g., National Highway (E.23), inter-state trade and commerce. (E.42) etc.,
“The result was a constitution, that was not true to any traditional pattern of federalism. The legal
theory on which the constitution was based was the withdrawal of all the powers of sovereignty
into the people of this country and the distribution of these powers – save those withheld from
both the union and the states by reason of the provisions of Part III – between the union and the
states.

FEATURES OF FEDERALISM

Federalism is one of the methods of limiting the government. The conditions to be fulfilled by
the constitution to be federal have been enlisted by the Supreme Court in the “State of West
Bengal v. Union of India”) case (1962):

1. DUAL GOVERNMENT: A contract or agreement between independent and sovereign units

to surrender partially their authority in the common interest and vesting it in a union and
retaining the residue of the authority in the constituent units. Ordinarily each constituent unit has
its separate constitution by which it is governed in all matters except those surrendered to the
union and the constitution of the union primarily operates upon the administration of the units.
(Absent in India)
2. SUPREME CONSTITUTION: Supremacy of the constitution which cannot be altered except
by the component units.

In India, Constitution is the supreme of the land. All three organs of the Indian democracy i.e.
the executive, legislature and the judiciary, all have to abide by and follow the Constitutional
principles.

Here, judiciary is regarded as the guardian of Indian Constitution and therefore the power of
judicial review holds a very significant place as far as the power of judiciary as the guardian of
Constitution is concerned.

In USA’s Constitution also, since it establishes a federalism, the Constitution is supreme like
India. In England, there is supremacy of the Parliament. In England, the Parliament is sovereign.
Supremacy of Constitution is also one of the basic structures in the Indian Constitution which
cannot be disturbed in the name of a Constitutional amendment.

Power of judicial review as provided under Article 13 is a reflection of the independence of the
judiciary. Here, it simply means that if the Parliament passes any law which actually contravenes
the basic principles laid down in the Constitution, then the judiciary is empowered to review the
Constitutionality of a particular enactment and the judiciary may struck down the said law as null
and void. Art. 32 and Art. 226 are also a different aspect of the independence of judiciary.

3. DIVISION OF POWERS: Distribution of powers between union and the regional units each in
its sphere co-ordinate and independent of the other. The basis of such distribution of powers is
that matters of national importance in which a uniform policy is desirable in the interest of the
units, authority is entrusted to the union and matters of local concern remain with the State.
(There is no doubt a distribution of powers in India but the distribution of powers is not the index
of political sovereign .The powers of the states in that sense is fettered by several restrictions)

4. INDEPENDENT JUDICIARY: Supreme authority of courts to interpret the constitution and

to invalidate action – violative of the constitution. A federal constitution, by its very nature,
consists of checks and balances and must contain provisions for resolving conflicts between the
executive and legislative authority of the union and the regional units.

Various provisions to ensure the independence of judiciary are-

● Appointment of judges by the Head of the executive or through an independent

Commission.
● Difficult procedure for their removal(impeachment)
● No variation in conditions of their services to their disadvantage after their appointment.
● Prohibition of any discussion as to the conduct of any judge.
● Security of tenure.

5. RIGID CONSTITUTION: Wheare adds a fifth criterion to this i.e. Rigidity of the constitution
and says that the Indian Constitution is not rigid in the sense that it can be easily amended. The
term rigidity does not mean that the constitution is alien to any form of changes. It should remain
in its original and static form as and when time demands and the constitution's provisions should
be changed to conform with the time. The division of powers established by the Constitution and
its supremacy can be maintained only if the method of its amendment is rigid. Thus the
Constitution is rigid to the extent that those provisions concerned with the federal structure can
be amended only by the Joint action of the central and state governments. Such provisions
required a special majority of the Parliament and also the approval of half of the state legislature
under Art. 368.

6. BICAMERAL LEGISLATION: Another feature that is considered an important feature of

federalism is bicameral legislation. A federal state has two kinds of governments having different
interests and rights. There is, therefore, a need for the protection of these rights and interests.
This can be done only when there is a bicameral legislature. The two houses represent the two
interests. Normally the Lower House represents the interests of the nation and the upper house
represents the interests of the provinces. Normally representation in the Lower House is based on
population and for the upper house the principle of parity is followed, that is whether a state is
small or large it will have an equal number of seats. This method is followed in the USA and in
Pakistan.

SOME PROVISIONS THAT ALLEGEDLY MODIFY THE CONCEPT OF FEDERALISM IN

INDIA

1. Appointment of the Governor of a State – Art.155 and Art.156 provide that the Governor,
who is the Constitutional head of a State, is to be appointed by the President and stays only until
the pleasure of the President. Further, that the Governor can send the laws made by the state for
assent from the President, who can veto the law. It should be noted that Governor is only a
ceremonial held and he works on the advice of council of ministers. In past 50 yrs, there has been
only one case (Re Kerala Education Bill), where amendments to a state law were asked by the
centre and that too after the opinion of the Supreme Court. Thus, it does not tarnish the federal
character and states are quite free from outside control.

2. Power of the Parliament to make laws on subjects in the State list - Under Art. 249, centre
is empowered to make laws on subjects in the State list. On the face of it, it looks a direct assault
on the power of the states. However, this power is not unlimited. It is exercised only on the
matters of national importance and that too if the Rajya Sabha agrees with 2/3rd majority. It
should be noted that Rajya Sabha is nothing but the representative of the States. So an approval
by Rajya Sabha means that States themselves are giving the power to the centre to make law on
that subject.

3. Power to form new states and to change existing boundaries - Under Art. 3, centre can
change the boundaries of existing states and can carve out new states. This should be seen in the
perspective of the historical situation at the time of independence. At that time there were no
independent states. There were only provinces that were formed by the British based on
administrative convenience. At that time States were artificially created and a provision to alter
the boundaries and to create new states was kept so that appropriate changes could be made as
per requirement. It should be noted that British India did not have states similar to the States in
the USA.

4. Emergency Provisions - Centre has the power to take complete control of the State in the
following 3 situations:
(a) An act of foreign aggression or internal armed rebellion (Art. 352)

(b) Failure of constitutional machinery in a state (Art. 356)

(c) Financial Emergency (Art. 360)

In all the above cases, an elected State government can lose control of the State and a central rule
can be established.

In the first case, it is very clear that such a provision is not only justified but necessary to protect
the existence of a state. A state cannot be left alone to defend itself from outside aggression.

In the third case also, it is justified because a financial emergency could cause severe stress
among the population, plunge the country into chaos and jeopardise the existence of the whole
country. Such provisions exist even in USA.

The second provision is most controversial. It gives the Centre the power to take over the control
of a State. However, such an action can be taken only upon the advice of the governor and such
an advice is not beyond the purview of the Supreme Court. Thus, it can be safely said that Indian
Constitution is primarily federal in nature even though it has unique features that enable it to
assume unitary features upon the time of need.

It is also argued by H.M. Seervai that the Indian constitution is a federal constitution. His
arguments are:

1. ON EMERGENCY PROVISIONS

The emergency powers under Article 352 recognize de jure what happens de facto in United
States, Canada and Australia. The emergency powers do not dilute federalism but their abuse has
done.

Emergency on grounds of internal disturbance (now ‘armed rebellion’) is lso recognized in

United States in the Deb’s case wherein it was held that internal violence could be crushed with
full force by the central government.

The war power belongs to the central government in all federal states. Thus Article 355 imposing
a duty on the Union to protect a state against external aggression or internal disorder does not
detract from the federal principles.

Article 356 (read with Article 355) was based on Article 4, Section 4 of the United States
Constitution and is not inconsistent with the federal principle. It is the last resort. United States –
doctrine of political question. India – 44th amendment – courts invalidate mala fide imposition
of President’s rule– a better law.

2. RESIDUARY POWER OF THE CENTRE

Allocation of residuary powers to centre is not relevant as the United States and Australia
constitution give it to the states but they are necessarily federal.
It is of essence in a federal principle that both state and central laws must operate on the same
person. In case of a conflict the central law should prevail in the Indian constitution – Article
254.

The power of the Parliament to alter the state boundaries is not the parliament but the states by
extra constitutional agitation have made them alter their boundaries.

The view that states have been given unimportant matter only is incorrect. The states have been
given exclusive taxing power and their revenue is substantial. Apart from this they also get the
whole or a part of the revenue collected by the centre.

Federal laws must be implemented in states by appropriated machinery. In the U.S., a defiance of
federal laws can be and has been put down by the use of the armed forces of the United States
and the National Militia of the States. Indian constitution has a provision of the centre giving
directions to the states. It depends on the matters of practical expediency and does not deter from

Wheare has nowhere defined the term ‘quasi-federal’ which is a rather vague term to be applied
to Indian federalism. The essence of federalism is the distribution of powers between the centre
and the states, and this is what the Indian constitution does. The nature of federalism is more of
historical growth based on a nation’s necessity. The U.S. Constitution is federal in the sense of
its own needs, the Indian constitution is federal depending upon the society, polity etc. of India.
Our constitution differs from the U.S. federation because our framers of the constitution defined
the Indian Federal structure based not on the rigid theory but on practical considerations. There
have been centralizing tendencies in all federations in the world in light of the world wars.
Scientific developments, social welfare concept and the Indian Constitution having taken note of
this dynamism has made proper room for it. Jennings has rightly said: “The Indian constitution is
mainly federal with unique safeguards for enforcing national unity and growth.”