Is preamble a part of the constitution?
The Preamble sets out the main objectives which the legislation is intended to achieve. It serves as an introduction to the Constitution. It is a statement of the purposes which the Indian Constitution was enacted. The Constitution- makers gave to the Preamble “the place of pride.” It embodies in a solemn form all the ideals and aspirations for which the country has struggled during the British period.
Preamble how far useful in interpreting the Constitution
The Preamble is the key to the Constitution. In Berubari’s case, the Supreme Court held that the Preamble is not a part of the Constitution and therefore it could never be regarded as a source of substantive powers.
In the case of Keshvananda Bharati v. the State of Kerala, the Supreme Court rejected the above view and held that the Preamble is the part of the Constitution. Though in an ordinary statute not much importance has to be attached to the Preamble, all importance has to be attached to the Preamble in Constitutional statute.
The Purpose of Preamble:
1)It indicates the source from which the Constitution comes into existence-namely, the people of India.
2)It contains the clauses which bring into force the Constitution.
3)Its main aim and objective are to secure justice, liberty, equality, and fraternity for all the citizens.
The Preamble of the Constitution declares India to be a “Sovereign Socialist Secular Democratic Republic”. Sovereign power is that which is absolute and supreme. The word ‘sovereign’ emphasizes that one is not above law and supreme and has all the power. A-State is sovereign which itself means that it has supreme power. The word ‘socialist’ however, has, no definite meaning. It has been invariably used in both the types of Constitutions- democratic and communal. India’s socialism is, however, democratic socialism and not a ‘communistic socialism’. The Preamble has both the words, socialism, and Democracy included in the Constitution of India.
The word ‘secular’, means a State which does not recognize any religion as a State religion. It treats all religions equally. The word ‘democratic’, indicates that the Constitution has established a form of government that gets its authority from the will of the people. The democratic setup can be of two types i) Direct and ii) Indirect. In a direct democracy the legal and political sovereignty vests in the people, as in the case of Switzerland. In the indirect system of democracy, it is the representatives of the people who exercise the power over all the States. This type of democracy is called representative democracy. India has adopted an Indirect system of democracy. The word ‘republic’, is because the Head of the State is not a hereditary monarch. In our Constitution, there is the President who is the head of the Executive and who is elected, as opposed to the hereditary monarch, and holds office for a fixed term of five years.
In Randhir Singh v. U.O.I, the Supreme Court relying on the Preamble and Art 14 and 16, held that Art 39(a) envisages a constitutional right of “equal pay for equal work” for both men and women.
In S.R. Bommai v. U.O.I, the Supreme Court has held that “secularism is the basic feature of the Constitution”.
Objectives enshrined in the Preamble:
The following are the objectives which are given to the citizens:
Justice- social, economic, and political;
Liberty- of thought, expression, belief, faith, and worship;
Equality– of Status and opportunity,
Fraternity– Assuring the dignity, unity, and integrity of the Nation;
“Liberty, equality and fraternity” which the Constitution seeks to secure for the people of India are to serve the primary objective of ensuring social, economic, and political justice. Justice is the harmonious blending of the selfish nature of man and the good of society. The attainment of collective good has been the main aim of justice.
Can Preamble be amended under Article 368?
In the historic case of, Kesavananda Bharati v. the State of Kerala, the Advocate for petitioners argued that by virtue of the amending power in Article 368 even the Preamble can be amended. The petitioners, however, came to the conclusion that the amending power in Article 368 is limited. Preamble creates a limitation on the power of amendment. The Preamble contains the basic elements of our Constitution. It was urged that Preamble cannot be amended. The Supreme Court, however, held that Preamble is a part of the Constitution. The Preamble is a very important part of the Constitution and it cannot be changed.
On the question of whether the Preamble can be amended by the majority held that the Preamble is part of the Constitution it can be amended but subject to the condition that “basic features” cannot be amended. The amending power cannot change the Constitution in such a way that it ceases to be ‘Sovereign Democratic Republic’.
42nd Amendment and the Preamble:
The amendment has inserted three new words in the Preamble are Secularism, Socialism, and Integrity. These concepts were already in the Constitution. The amendment merely spells out clearly
these concepts in the Preamble. The word ‘socialism’, has no meaning. It has been used in both the types of Constitutions- democratic and communistic. The Preamble has both the words, socialism, and democracy in the Preamble. The combination of these words has been criticized by many writers. Their thinking is in the drastic change of thinking and the idea of a welfare state which came into being. The word ‘integrity’, is intended to put an end to the tendencies and make people feel that every part of the State is their home. Freedom cannot be allowed to destroy the integrity of the people. The word ‘secularism’ is that all religions should be treated equally. Secularism has a positive meaning and it can be changed, developed, and respected towards different religions, caste, and creed of people.
Author: Shreya Potdar,
S.N.D.T LAW COLLEGE