Is preamble a part of the constitution ?
Preamble means an introduction or a mirror of the Indian Constitution. Let’s imagine a beautifully written book without an introduction preface or an index, obviously it will create a mess or ambiguity in the mind of the reader. That’s how to preamble of the Indian constitution act as a tool on which the philosophy of the constitution depends. The concept of preamble is taken from the United States of America. The objective resolution which was introduced in the constituent assembly on 13th of December 1947 and was passed after some amendment on 22nd of January 1948 by the constituent assembly whose members are were elected by the by the members of provisional assembly, later the objective resolution gave rise to the preamble of the Indian constitution.
Before we start to answer our question whether preamble is a part of Indian constitution or not. Let’s see what the preamble tells us about India as a:-
• Sovereign-The most important feature of an independent state is there sovereignty that means absolute independence that is government which is free from any other external control. India is a sovereign country, for a country to have its own constitution sovereignty is the most important feature.
• Socialist-This is a concept which means the aims to end poverty, ignorance, disease and inequality of opportunity.
• Secular-This means the state does not have its own religion or the state is not biased towards any one religion. Every individual is free to have believe, practice and propagate his religion subject to public order, morality and health.
• Democratic-The concept of democracy flows from the last line of the preamble “…hereby adopt, enact and give to ourselves this constitution”. This means that the government is elected by the people, it is responsible and accountable to the people. For maintaining the purity of election and health democracy, voters are required to be well educated and well informed about the contesting candidate.(AIR 2002 SC 2112(2121)).
• Republic-It means the head of the state is the President who is indirectly elected and he is not a hereditary ruler.
The objective intended to be secured by the constitution are expressed by the words:-
• Justice, social , economic and political;
• Liberty of thought, expression, belief, faith and worship;
• Equality of status and of opportunity ;
• Fraternity assuring the dignity of an individual and the[unity and integrity of the nation],
Besides all this it also provide that we the people of India are the authors of the Indian constitution and it also mentions the date (26th of November 1949) on which the constitution was adopted.
Though the preamble is not a source of any substantive power conferred upon the government and it is also not enforceable in the court of law but it is of great significance “when words of an act are clear in themselves, their meaning cannot be cut down or enlarged or otherwise affected by reference to the preamble. But when the meaning of any provision is not clear or its doubtful or is ambiguous, the preamble may be referred to for the purpose of ascertaining the aim and object will remove the ambiguity of a provision”(AIR 1958 SUPREME COURT 956(974)).
The question whether preamble should be considered as a part of Indian constitution or not is majorly dealt in two cases the Berubari case and the Keshavanand Bharti case.
In the berubari case the Thana named berubari in jalapaigudi district of west Bengal which was disputed between India and Pakistan which lead to the pact Between Pandit Jawaharlal Nehru and Feroz Shah Noon(the then PM of Pakistan) by which the area of berubari was divided equally between India and Pakistan.
Under the advisory jurisdiction conferred upon the SUPREME COURT by Article143 the president seeks advice that for a land border agreement any legislative action either though a law of parliament under Article 3 of the constitution or by bringing in the amendment under Article 368 which is required.
The bench consisting of 8 judges with chief justice BP Singh and the unanimous opinion delivered by Justice Gajendragadkar held that “The cession of any part of the territory of India cannot be effective by parliamentary by law under Article3 and though the power do exist, it can only be implemented by means of amendment to the constitution by parliament under Article368”.
In this case they also accepts that preamble serves as a key to open the minds of the makers and can be helpful in understanding the constitution but they does not accept it as a part of the constitution.
History was created in the case of kesavananda bharati v. state of Kerala when 13 judge bench of the Supreme Court sat on its original jurisdiction. The question involved in this case was the validity of 24th, 25th and 29th constitutional amendments and the extent of power of the parliament to amendment the constitution.
The case was turned out to be a milestone in the Indian judiciary where by a majority of 7:6 the Supreme Court gave power to the parliament to amend each and every part of the Indian constitution until it destroys the basic structure. The doctrine of basic structure was first proposed by Justice R Mudholkar in his decent note in Sajjan Singh vs State of Rajasthan in 1964. Although this doctrine was given shape by Justice HR Khanna in kesavananda bharati v. state of Kerala. The doctrine of basic structure that was evolved in this case was also accepted by Malaysia, Singapore and Bangladesh.
Besides all this SUPREME COURT accepted preamble as a part of Indian constitution and it is also amendable by virtue of Article368. Even though it was amendment once in 1976 by 42nd amendment act (Mini Constitution) the words socialist and secular were added in the preamble. In the case of S. R. Bommai and Others v Union of India and Others (AIR 1994 SC 1918(2045)).It was held that “The preamble of the Constitution is an integral part of the Constitution. Democratic form of Government, federal structure, unity and integrity of the nation, secularism, socialism, social justice and judicial review are basic features of the Constitution”.
Author: Devanshu Jain,
SLS NAGPUR 1st YEAR