THE CONSTITUTION OF INDIA

PREAMBLE

Constitutions all over the world generally have a preamble. The form, content and
length of the preamble differ from constitution to constitution. Irrespective of these
differences, the Preamble generally sets the ideals and goals which the makers of the
constitution intended to achieve through that constitution. In the case of In re
Berubari Union, SC 1960, the Supreme Court held that preamble is a key to open the
mind of the makers of the constitution which may show the general purposes for
which they made several provisions in the constitution.

Ques. What is the difference between preamble of the constitution and preamble
of an Act?
Ans. The preamble of an Act is not enacted by the legislature. Therefore, it cannot be
used for interpreting an Act except for removing any ambiguity in the enacted
provisions of that Act. The preamble of the constitution of India, unlike the preamble
of an Act or the preamble of any other constitution was enacted and adopted by the
constituent assembly by the same procedure as the rest of the constitution.

The Constituent Assembly first met on 9th December 1946 and soon after that on 13th
December the Objective Resolution (drafted by Pt. Nehru) declaring and defining the
aims and purposes of the Constituent Assembly was moved. The basic aspirations
contained in the Resolution have found expression in the Preamble, so beautifully yet
concisely worded. The Preamble embodies the lofty principles in a charming lucid
manner.

The American Constitution was the first to begin with a Preamble. Many countries,
including India, followed this practice. The term ‘preamble’ refers to the introduction
or preface to the Constitution. The preamble to a Constitution is expected to embody
the fundamental values and the philosophy on which the Constitution is based and
the aims and objectives which the founding fathers enjoined the polity to strive to
achieve. The preamble contains in a nutshell the ideals and aspirations of the people.
It states the objects which the Constitution seeks to establish and promote and also
aids the legal interpretation of the Constitution. N. A. Palkhivala, an eminent jurist

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and constitutional expert, called the preamble as the identity card of the constitution.
It reveals four components:
1. It indicates the source of authority of the Constitution.
2. It defines the objects which the Constitution seeks to establish and promote.
3. It declares nature of Indian States.
4. Date of adoption of the constitution.

Utility of Preamble

Preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of
the entire Constitution of India. It has the stamp of “deep deliberation”, was “marked
by precision”: it was “an epitome” of the broad features of the Constitution which
were an amplification or concretization of the concepts set out in the Preamble.
(Madhlokar, J. in Sajjan Singh v. State of Rajasthan, AIR 1955 SC 845)

The preamble does not grant any power but it gives a direction and purpose to the
Constitution. The utility of the Preamble is as follows:
• It contains the enacting clause which brings the Constitution into force.
• It indicates the source of Constitution.
• It declares the basic type of Government and polity which is sought to be
established in the country
• A statement of objectives of the Constitution – which the legislation is intended to
achieve (e.g. implementation of Directive Principles). It epitomizes principles on
which the Government is to function.
• It serves as a challenge to the people to adhere to the ideals enshrined in it (Justice,
Liberty, Equality, Fraternity, etc.)
• It is a sort of introduction to the statute and many a times very helpful to
understand the policy and legislative intent. It is a ‘key-note’ i.e., key to the minds
of the framers of the Constitution.
• Several decisions of the Supreme Court pointed out the importance and utility of
it. By itself, it is not enforceable in a Court of law, yet it states objects and aids legal
interpretation of the Constitution, where language is ambiguous…. Construction
which fits the preamble may be preferred. (However, the preamble cannot override
the express provisions of an Act.)

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The preamble read as under:

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.

The words used in the Preamble of our Constitution are some of the noblest. They
embody the highest values that human ingenuity and experience have been able to
devise thus far.

The words ‘We the People’ indicate that India is a republican polity which means it
shall have no hereditary ruler and the people shall elect their government. The
legislatures will be elected bodies and the President of the Republic will also be
elected. It also tells us that the people have enacted this Constitution unlike the Act of
1935 or earlier Acts which were passed by the British.

Sovereign

‘Sovereignty’ is considered to be one of the essential attributes of a State and connotes

absolute and supreme power not subject to control by any internal or external
authority. The word ‘sovereign’ 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.

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In the case of Keshvananda Bharti v. State of Kerala, (1973) 4 SCC 225, Justice Mathew
said that the Republic of India was ‘’sovereign’’ because it could make or unmake any
decision with respect to itself without any interference from outside.

Though in 1949, India declared the continuation of her full membership of the
Commonwealth of Nations and accepted the British Crown as the head of the
Commonwealth, this extra-constitutional declaration does not affect India’s
sovereignty in any manner. Pt. Nehru said that being the member of commonwealth
does not destroy the sovereignty of India as it is an agreement by free will, to be
terminated by free will. Further, India’s membership of the United Nations
Organisation (UNO) also in no way constitutes a limitation on her sovereignty.

The Constitution of India does not contain any specific provision in regard to the
vesting of sovereign powers. The only place from where the residence of sovereignty
and the source of the Constitution itself can be ascertained is the Preamble. Unlike the
United States and Australia, where sovereignty is divided between the Union or the
Commonwealth and the States, each being sovereign in the sphere assigned to it by
the Constitution, in India, despite the division of powers between the Union and
States, there is no division of sovereignty.

Being a sovereign state, India can either acquire a foreign territory or cede a part of its
territory in favour of a foreign state.

Socialist

The word ‘socialist’ was not in the Preamble as enacted by the Constituent Assembly
but was inserted by the 42nd Amendment Act. Even before the term was added by the
42nd Amendment in 1976, the Constitution had a socialist content in the form of certain
Directive Principles of State Policy. The addition of ‘’socialist’’ indicates the
incorporation of the philosophy of ‘’socialism’’ in the Constitution, which aims at
elimination of inequality in income and status and standards of life, and may enable
the courts to lean more and more in favour of nationalisation and state ownership of
industry and private property. And the right to equal pay for equal work. But the
preamble did not contain the word ‘socialism’ because the Constitution does not

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commit the Country to any particular form of economic structure. The word
‘socialism’ was purposely avoided though many of the tenets of socialism were
included as the Directive Principles of State Policy.

Notably, the Indian brand of socialism is a ‘democratic socialism’ and not a

‘communistic socialism’, which involves the nationalisation of all means of production
and distribution and the abolition of private property. Democratic socialism, on the
other hand, holds faith in a ‘mixed economy’ where both private and public sectors
co-exist side by side. As the Supreme Court in G.B. Pant University of Agriculture
and Technology v. State of Uttar Pradesh, SC 2000, says ‘democratic socialism aims
to end poverty, ignorance, disease and inequality of opportunity.’

The new economic policy (1991) of liberalisation, privatisation and globalisation has,
however, diluted the socialist credentials of the Indian State.

Secular

‘Secular’ is another word which was inserted in 1976 by the 42nd Amendment Act. 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 before the word ‘’secular’’ was inserted in the
Preamble. The Constitution did not set up a State religion. It guaranteed equality of
treatment of all persons under Article 14. A secular state deals with the individual as
a citizen irrespective of his religion, is not connected to a particular religion nor it seeks
to promote or interfere with religion.

Before 42nd Amendment Act, the only mention of the word 'secular’ in the
Constitution was in Article 25(2) wherein state had been empowered to regulate or
restrict any 'secular activity' associated with religious practice.

Delivering his judgment in Ziyauddin Burhanuddin Bukhari v. Brijmohan Ramdass

Mehra and Bros, 1975 SCR 453, Justice M.H. Beg said: ‘the secular state, rising above
all differences of religion, attempts to secure the good of all its citizens irrespective of

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their religious beliefs and practices. It is neutral or impartial in extending its benefits
to citizens of all castes and creeds.’

In the Keshavananda Bharti case, ‘secularism’ was held to be a part of basic structure.
In the case of S.R. Bommai v. Union of India, AIR 1994 SC 1918, the Supreme Court
dwelt at length on the basic feature of secularism in the Constitution and justified the
proclamations under Article 356 imposing President's rule in the BJP ruled States in
the aftermath of Babri Masjid demolition on the ground of threat to 'secularism' which
it held to be a basic feature of the Constitution and one that was there even before the
word 'secular' was inserted in the Preamble by the 42nd Amendment Act.

In the case of Ismail Faruqui v. Union of India, AIR 1995 SC 605, (Ayodhya case) the
Supreme Court explained ‘secularism’ as: “it is clear from the constitutional scheme
that it guarantees equality in the matter of religion to all individuals and groups
irrespective of their faith emphasizing that there is no religion of the State itself.”

Justice Gajendragadkar defined 'secularism’ of the Indian Constitution to mean

equality of rights to all citizens as citizens with their religion being entirely irrelevant
in the matter. “The state” he said, 'does not owe loyalty to any particular religion as
such, it is not irreligious or anti particular religion as such, it gives equal freedom to
all religions.’ M.C. Setalvad also believed that under a secular state all citizens are to
be treated alike and not discriminated against on account of their religion.

Thus, there is no official religion in India. Several fundamental rights guarantee

freedom of worship and religion as well as outlaw discrimination on the ground of
religion and, thus, by implication prohibit the establishment of a theocratic state. The
state does not identify itself with, or favour, any particular religion. The state is
enjoined to treat all religions and religious sects equally. No one is disabled to hold
any office on the ground of religion. The essential basis of the Indian Constitution is
that all citizens are equal, and that the religion of a citizen is irrelevant in the matter
of his enjoyment of fundamental rights. The Constitution ensures equal freedom for
all religions and provides that the religion of a citizen has nothing to do in socio-
economic matters.

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Democratic

Literally, the Greek word 'demos' meant 'the people' and 'kratos' meant 'government'
or 'rule'. Democracy therefore, meant government by the people as against monarchy
or dictatorship which were autocratic rule of one person, oligarchy or aristocracy
being rule by the few. Its basic postulates are that the sovereign power resides in the
people, that irrespective of religion, caste, creed, colour or sex and irrespective of the
level of economic, educational or professional background, all are equal in the eyes of
law and that each individual is capable of governing oneself and of managing one’s
own affairs the way one deems fit. In a democracy the people are supposed to be their
own masters. They have an inalienable right to rule themselves, or to be ruled in the
way they lfreeike and by the people they choose.

The Indian Constitution provides for representative Parliamentary Democracy under

which the executive is responsible to the legislature for all its policies and actions.
Universal Adult Franchise, Periodic elections, rule of law, Independence of Judiciary,
and absence of discrimination on certain grounds are the manifestation of the
democratic character of the Indian Polity.

The term 'democratic' is used in the Preamble in the broader sense embracing not only
political democracy but also social and economic democracy. The founding fathers
tried to provide for the fullest representation by enfranchising all the vast adult
population of the country without any literacy, property, income tax, or sex criteria.

Democracy is a method of government by discussion and persuasion. The core of

democracy is choice. There may be a number of ideas or lines of action proposed by
different individuals or groups. These groups come together with a view to find some
conclusion agreeable to all or most of the groups. It entertains plurality of ideas and
arrives at an agreed line of action by comparing them, ironing out the difference and
forming a composition. So, democracy is a process of selecting objectives for the State.

Abraham Lincoln in his famous speech at Gettysburg described democracy as

'government of the people, by the people, for the people'. This is a beautiful and
concise description of representative democracy. Democracy is slightly more than

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that. Apart from political it is social also. It envisages not only a democratic form of
government but a society in which there is free exchange of ideas and each individual
enjoys the same status in society.

For our founding fathers, however, democracy did not mean merely political
democracy or the people’s right to periodically vote to elect their representatives.
Without social and economic democracy, political democracy had no meaning in a
poor country like India. For Dr. Ambedkar, social and economic democracy was the
real aim and ultimate goal. He said that parliamentary democracy was meaningless
unless it was geared to achieving the real goal of economic democracy.

Republic

The concept of republic is that of a State in which the people are supreme, there is no
privileged class and all public offices are open to every citizen without any
discrimination. There is no hereditary ruler and the head of the State is elected by the
people for a fixed term. In the words of Justice Hidayatullah, ‘’A Republic is a state in
which the supreme power rests in the final analysis with the people and not with a
single individual like a king or the like.’’

Therefore, the term ‘republic’ in our Preamble indicates that India has an elected head
called the President. He is elected indirectly for a fixed term of five years. Democratic
Republic may, therefore, broadly mean a State with an elected head and a government
by the representatives of the people. With the commencement of the Constitution on
26th January 1950, India ceased to be a dominion and no more owed any allegiance to
the Crown.

Even though after independence, India decided to remain a member of the

Commonwealth of the Nations, it did not in any way compromise her position or
imply any diminution of her status as a sovereign nation or as a Republic. The
Commonwealth specifically recognised India’s status as a sovereign independent
republic.

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According to Madison in The Federalist: ‘’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.’’

It is in the widest sense that the Preamble speaks of India being a Republic.

Justice

The Preamble promises justice to all citizens. Justice means harmonization of interests
between the individuals, between groups and between the individuals and groups on
the one hand and interests of the community on the other. The term ‘justice’ in the
Preamble has three distinct forms, namely, social, economic and political, secured
through various provisions of Fundamental Rights and Directive Principles.

Social justice implies that all citizens are treated equally irrespective of their status in
society as a result of the accident of birth, race, caste, religion, sex, title etc. it means
absence of privileges being extended to any particular section of the society, and
improvement in the conditions of backward classes and women. Article 38 enjoins the
State to strive to promote the welfare of the people ‘’by securing and protecting as
effectively as it may a social order in which justice social, economic and political shall
inform all the institutions of the national life.’’

Economic justice denotes the non-discrimination between people on the basis of

economic factors. It involves the elimination of glaring inequalities in wealth, income
and property. A combination of social justice and economic justice denotes what is
known as ‘distributive justice’. Economic justice would require that the rich and the
poor are treated alike and that efforts are made to bridge the gap between them.

Political justice means equal share to all citizens in the rights to participation in the
political process without any distinction of race, caste, creed, religion or place of birth.
Article 16 guarantees equality of opportunity in matters of public employment and
Articles 325 and 326 provide for equal rights to all adults to participate in elections.
Political justice implies that all citizens should have equal political rights, equal access

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to all political offices and equal voice in the government. Founding fathers like Nehru
and Ambedkar were quite clear in their minds that political justice was meaningless
without economic justice. In our society ridden with religious, caste and creed
discriminations, even economic justice was not enough unless it was coupled with
social justice.

Liberty

The term ‘liberty’ means the absence of restraints on the activities of individuals, and
at the same time, providing opportunities for the development of individual
personalities. The Preamble secures to all citizens of India liberty of thought,
expression, belief, faith and worship, through their Fundamental Rights, enforceable
in court of law, in case of violation.

Liberty as elaborated in the Preamble is very essential for successful functioning of the
Indian democratic system. However, liberty does not mean ‘license’ to do what one
likes, and is to be enjoyed within the limitations mentioned in the Constitution itself.
In brief, the liberty conceived by the Preamble or Fundamental Rights is not absolute
but qualified.

Equality

‘Equality’ does not mean that all men and women are equal in all circumstances. There
are bound to be physical, mental and economic differences. The concept embodied in
our Preamble is only that of equality of status and opportunity. This has legal, social,
political and economic aspects. The term ‘equality’ means the absence of special
privileges to any section of the society, and the provision of adequate opportunities
for all individuals without any discrimination.

All citizens are equal before law and enjoy equal protection of laws of the land. There
can be no discrimination between one person and another on grounds of religion, race,
caste, sex or place of birth in the matter of access to public places and public
employment. All citizens are equally entitled to enjoy the political rights to vote and
participate in the process of governance without any distinction. In the economic field,

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equality means that for the same ability and same labour, the salary would also be the
same. Also, one man or one class would not exploit other men or classes. The concept
of equality of status and opportunity has been given concrete substance and shape in
Articles 14 to 18.

Fraternity

Fraternity means a sense of brotherhood. The Constitution promotes this feeling of

fraternity by the system of single citizenship. Also, the Fundamental Duties, say that
it shall be the duty of every citizen of India to promote harmony and the spirit of
common brotherhood amongst all the people of India transcending religious,
linguistic, regional or sectional diversities.

The Fundamental Rights guaranteed to all citizens without any discrimination and
the Directive Principles directed at achieving social and economic equality are also
designed to promote fraternity. Dr. Ambedkar remarked in the Constituent Assembly:
‘’what does fraternity mean? Fraternity means a sense of common brotherhood of all
Indians - of Indians being one people. It is the principle which give unity and
solidarity to social life.”

The Preamble declares that fraternity has to assure two things - the dignity of the
individual and the unity and integrity of the nation. Fraternity was expected to
preserve and promote the dignity of the individual. In the minds of the founding
fathers, dignity of the individual was of supreme importance. The objective was to
improve the quality of life for the individual by guaranteeing the fundamental rights
of freedom, equality etc. and by issuing guidelines to the State in the form of Directive
Principles to so orient its policies as to provide to all citizens, inter alia adequate means
of livelihood, just and humane conditions of work and a decent standard of life.

Unity and Integrity of the Nation

In order to safeguard the dignity of the individual, we need to build the nation and
protect its unity and integrity. It was only through a spirit of common brotherhood
and fraternity that we could hope to build national unity in a highly pluralistic and

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heterogenous society. Also, without unity and integrity of the nation, we could not
succeed in our efforts economic development and could not hope to preserve either
democracy or the independence of the country and the honour of the countrymen.
Article 51A, therefore, appropriately makes it the duty of every citizen to uphold and
protect the sovereignty, unity and integrity of India and promote harmony and
brotherhood. At least in matters which involve threat to the unity and integrity of the
nation, it is expected of every citizen to forget all differences and rise above all
considerations of self-interest. The word ‘integrity’ has been added to the preamble
by the 42nd Constitutional Amendment Act, 1976.

Preamble as a Part of the Constitution

Preamble is generally not regarded as a part of the Constitution though considered as

a key to the meaning of a statue. In case of In re Berubari Union, AIR 1960 SC 845, the
Supreme Court declined to treat the Preamble as part of the Constitution. 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 specifically opined that Preamble is not a part of the
Constitution.

But the court reversed its judgment in the case of Keshavanand Bharati v. State of
Kerala, AIR 1973 SC 1641, stating that the Preamble formed part of the Constitution
because it was separately passed after the enacting provisions had been passed. The
recognition of the Preamble as part of the Constitution has enhanced its value as an
aid to interpretation of the Constitution. But the following proposition would be
applicable:
a. Preamble is not a source of power. Power must be founded on a specific provision.
b. Preamble cannot be regarded as a source of prohibition or limitation upon the
powers of a legislature.

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c. Where the terms of an article are ambiguous or capable of two meanings, in arriving
at the true meaning some assistance may be sought in the objectives enshrined in
the Preamble.

Like any other part of the Constitution, the Preamble was also enacted by the
Constituent Assembly, but, after the rest of the Constitution was already enacted. The
reason for inserting the Preamble at the end was to ensure that it was in conformity
with the Constitution as adopted by the Constituent Assembly. While forwarding the
Preamble for votes, the President of the Constituent Assembly said, ‘’the question is
that Preamble stands part of the Constitution.’’ The motion then adopted. Hence
current opinion held by the Supreme Court that the Preamble is a part of the
Constitution, is in consonance with the opinion of the founding fathers of the
Constitution.

Amendment of the Preamble

The question that whether the preamble can be amended under Article 368 was raised
in the case of Kesavananda Bharti v. State of Kerala, SC 1973. The Supreme Court
held that preamble is the part of the constitution. Preamble can be amended, subject
to the doctrine of basic structure. In other words, the basic elements contained in the
preamble cannot be altered by an amendment under Art. 368.

The preamble has been amended only once in the year 1976 by 42nd amendment and
three words, namely, Socialist, Secular and integrity were inserted.

Thus, an analysis of the various concepts and terms in the Preamble shows that the
noble words of our Preamble represent the quintessence, the philosophy, the ideals or
the soul of the entire Constitution of India. It contains the grand and noble vision of
the Constituent Assembly and reflects the dreams and aspirations of the founding
fathers of the Constitution. According to K.M. Munshi, a member of the Drafting
Committee of the Constituent Assembly, ‘’the Preamble is the horoscope of our
sovereign democratic republic.’’

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M. Hidayatullah, a former Chief Justice of India, observed, ‘preamble resembles the
Declaration of Independence of the United States of America, but is more than a
declaration. It is the soul of our Constitution, which lays down the pattern of our
political society. It contains a solemn resolve, which nothing but a revolution can
alter.’

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