Submitted by Aadesh Agarkar
The Preamble indicates the source from which the Constitution comes, viz, The People of India. Also, it contains the enacting clause which brings into force the Constitution. Almost in every Constitution, there is Preamble which provides the objective, purpose, nature, scope of the Constitution. The Preamble is a short introduction of Indian Constitution. The Preamble is used to interpret the provision of Constitution in case of dispute.
Preamble - USEFUL IN INTERPRETING THE Constitution
IN BARUBARI CASE
the Supreme court held that the Preamble was not a part of the Constitution and, therefore, it could never be used as source of substantive law. It has limited application and can be resorted to where there is any ambiguity in the statute. If the term used in Constitution which has two meaning while interpreting then some assistance may be taken from the objectives enshrined in the Constitution.
But in KESHAVANAND BHARATI'S case
The Supreme court rejected the above view in BARUBARI CASE and held that the Preamble is a part of the Constitution. Though in any ordinary statute is not much importance is attached to Preamble but all importance must be attached to the Preamble of Constitution. Sikri C.J said it seems to me that the Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of grand and noble vision expressed in Preamble. The Preamble was relied on in imposing implied limitation on the amending power of parliament under article 368 of the Constitution and the "basic elements" of Preamble cannot be amended under Article 368.
In RANDHIR SINGH V UNION OF INDIA
The Supreme court relied on Preamble and on article 14 and 16 and held that Article 39 envisage the Constitutional rights of "equal pay for equal work" for both men and women
PURPOSE OF Preamble
1)It indicates the source from which the Constitution comes,viz.,The people of India.
2)It contains the enacting clause which brings into force the Constitution.
3)It declares the great rights and freedom which the people of India intend to secure to all citizens and the basic type of government and polity which was to be established.
The people of India have submitted themselves to the unambiguous term declared by Preamble and who have adopted it. Therefore, it declares that the source of authority under the Constitution is the People of India and there is no subordination to an external authority. The Preamble of the Constitution declares India to be a "sovereign, socialist, secular, democratic, republic". The sovereign power which is absolute and uncontrolled. The word sovereign emphasis that India is no more dependent upon any outside authority.
Characteristics of Preamble
Republic- The term republic is opposite to monarchy. A republic means the political sovereignty vest in the people and the head of the state is only a person elected by the people for fixed term of 5 years . Thus in India President is the head of the state and is elected by the people.
Democratic- The term democratic indicates that the Constitution has established a form of Government which gets its authority from the will of the people. The democratic setup
can be of two types-
1)Direct- In direct democracy the legal and political sovereignty vests in the people, eg. Switzerland
2)Indirect- In indirect democracy, it is the representative of the people who exercise the power of legal as well as political sovereignty.
Secular- The term secular inserted by the Constitution (42nd amendment) explains that the state does not recognize any religion as a state religion and that it treats all religion equally. The concept of secularism was already implicit in the provisions contained in the article 25 to 30 of the Constitution.
Socialist- The term socialist was inserted in the Preamble by the Constitution 42nd Amendment Act, 1976. Socialist means a political system which advocates State ownership of the means of production, distribution and exchange. Indian socialism is a democratic socialism and not a communist socialism.
Sovereign- Sovereignty means independent authority of the state. It means that state has the power to legislate on any subject; and it is not subject to any control of any other state or external power.
WE THE PEOPLE OF INDIA-
Source from which the validity of and sanction of Constitution is derived from the people of India.
Justice- The Constitution of India professes to secure to the citizen social, political, economical justice. It speaks about the general well-being of the community. Therefore the attainment of the common good as distinguished from the good of the individual is the essence of justice.
Liberty- The Constitution of India professes to secure the liberty of thought, expression, belief, faith and worship which is regarded essential to the development of the individual and the nation,
Equality- One of the main tasks of the Constitution makers was to ensure equality of status and opportunity for all and to provide a basis for ultimately establishing an egalitarian society. They proceeded to achieve these objectives by incorporating a set of fundamental principles into the Constitution.
Fraternity- Fraternity means the spirit of brotherhood, a feeling that all people are children of the same soil, the same motherland.The drafting committee has taken notice of the diversities of India based on race, religions, languages and cultures. The fraternity is the cementing factor of the inherent diversities.
Preamble- AMENDMENT UNDER ARTICLE 368?
The question was raised before the Supreme court in the historic case of KESHAVANAND BHARATI V STATE OF KERALA. In that case, the Attorney General argued in virtue of the amending power in article 368 even the Preamble can be amended. The Preamble contain the basic feature of the Constitution. The petitioner argued that the amending power of art 368 is limited. The Supreme court held that the Preamble is a part of the Constitution and therefore on this point the BERUBARI OPINION was overruled. On the question whether the Preamble can be amended the majority held that since the Preamble is the part of the Constitution it can be amended but subject to this condition that "basic feature" in the Preamble cannot be amended. If any of these elements is removed the structure will not survive and it will not be the same Constitution or it cannot maintain its identity.
42nd AMENDMENT AND THE Preamble
The amendment has inserted three new words in the Preamble i.e secularism, socialism and integrity. These concepts were already implicit in the Constitution. The amendment merely spelled out clearly these concepts. Indian socialism is, however, a democratic socialism and not a communist socialism therefore for this purpose the Preamble has combined both socialism and democracy in the Preamble
In EXCEL WEAR V. UNION OF INDIA
The court held that the addition of the word "socialist" might enable the court to learn more in favour of nationalization and state ownership of industry. But so long as private ownership of industries is recognized and governed as overwhelming large proportion of our economic structure, the principles of socialism and social justice cannot be pushed to such an extent so as to ignore completely, or to a very large extent, the interest of another section of the public, namely-the private owner of the undertaking .
In D.S NAKARA V. UNION OF INDIA
The Supreme court has held that the basic framework of socialism is to provide a decent standard of living for working people and especially provide security from cradle to grave. This envisaged economic equality and equitable distribution of income.
Submitted by Aadesh Agarkar