Role of the preamble in the interpretation of the Indian Constitution

7 July 2016

Constitution is a legal document having a special legal sanctity, which sets out the framework and the principal functions of the organs of the government of a state, and declares the principles governing the operation of those organs. No reading of any constitution can be complete without reading it from the beginning to the end. While the end may expand, or alter, the point of commencement can never change. It is the Preamble wherefrom the constitution commences. Hence, the significance of the Preamble. The Preamble is the basic structure of the Constitution.

It says that the people are the ultimate authority and the Constitution emerges from them. The Preamble emphasizes the unity of Nation and it also defines the objectives of the Indian Republic. It is no exaggeration to say that the Preamble to the constitution of India is its spirit and backbone. It is the soul of the Constitution and is a precious part of the Constitution. Ever since the day it was adopted by the Constituent Assembly it has enabled the Constitution to stand erect- neither bending nor breaking. This work deals with the role of the Preamble and its interpretational value.

Role of the preamble in the interpretation of the Indian Constitution Essay Example

The research also handles the varied aspects of the Preamble in a precise and structured manner. A separate chapter deals with the words and phrases used in the Preamble. An authoritative interpretation of the keywords which occur in the Preamble is given, supported by views by citing court cases wherever required. STATEMENT OF PROBLEM The Constitution is the documentation of the founding faiths of a nation and the fundamental directions for their fulfillment. It is that body of doctrines and practices which form basis for organizing a state. Generally, constitutions all over the world have a preamble.

A preamble describes the philosophy of the constitution and is the preface to it. Preamble states the ideals, goals and objectives of the constitution. No reading of any Constitution can be complete without reading Preamble from the beginning to the end. It is the Preamble wherefrom the Constitution commences. Each and every word of the Preamble of the Constitution of India has been cautiously chosen for the very reason that. However, One cannot overlook the fact that the enforceability of the preamble in a court of law has been called into question in the past.

Therefore, this project attempts to study the role and significance of the Preamble in the interpretation of the Indian Constitution. REVIEW OF LITERATURE The review of literature provides scientific theories and cites various literatures that was done elsewhere in relation to Preamble and its role in the interpretation of the Indian Constitution and which will in turn help to provide foundation for analysis and discussion. The research is based on articles, books, Constitution of India and old judgements by the Supreme Court of India.

The preamble to the constitution is the lodestar and guides those who find themselves in grey dealing with its provision. 1 Our Constitution is not just a mere set of fundamental laws that form the basis of governance of our country but it embodies and reflects certain basic values, philosophy and objectives that were held very dear to our founding fathers. These values do find expression in various articles and provisions of our Constitution and mostly, the Preamble to our Constitution embodies the fundamental values and the philosophy on which the Constitution is based.

2 The Preamble of our Constitution shows that the people of India had resolved to constitute India into a Sovereign Socialist Secular Democratic Republic and promised to secure to all its citizens Justice, Liberty and Equality and to promote among them all Fraternity assuring the dignity of the individual and the unity and integrity of the Nation. The basic philosophy of our Constitution is summed up in the Preamble. Preamble made it clear that Constitution emanated from the people of India and not from any external authority or any less authority than the people of India. 3

1 In S. R. Bommai v. Union of India4, it was stated that the expression “provisions of the Constitution” in Article 356 (1) would include the Preamble. 2 In Berubari Union and Exchange of Enclaves5, AIR 1960 SC 845, the Supreme Court considered the preamble a key to open the mind of the Constitution makers. It was contended that the Preamble constituted an implied limitation on the power to amend the Constitution under Art. 368 and that since the Preamble set up a sovereign Republic, no part of territory could be ceded to a foreign power, even by amending the Constitution.

This contention was negatived by the unanimous 7-Judge Bench holding that- a The Preamble could not be used as an implied limitation upon the power of the sovereign Legislature to cede any part of its territory to a foreign State [ para. 29] b The only purpose of a Preamble was to show the general purposes for which the authors of the Constitution made the (i. e. , the enacting) several provisions in the Constitution. But it could not be regarded as an independent source of any substantive power or prohibition, which could only be drawn from the express provisions in the body of the Constitution or by implication therefrom [para.

28]. It is in this connection, that it was observed that the Preamble was ‘not a part of the Constitution’ [para. 28] c The only use that could be made of the Preamble in the interpreting the Constitution was that where “the terms used in the articles of the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the Constitution” [para. 29] 3 In Golak Nath’s case6, which followed the Berubari opinion1 ,it was held that the Preamble could not impose any implied prohibition or limitation on the power to amend the Constitution contained in Art.

368. 4 In Kesavananda Bharati’s case7, the observation in the Berubari case that the Preamble was not a part of the Constitution was negative. It was now held that the Preamble was adopted as a part of the Constitution . The words “this Constitution” in Art. 368, therefore, includes the Preamble. It was also held by majority that the power of amendment of the Constitution contained in Article 368 does not permit altering the basic structure of the Constitution and that the democratic set up was part of the basic structure of the Constitution.

The objectives specified in the Preamble contain the basic structure of our constitution and this was upheld in this particular case. Each judge laid out separately, what he thought were the basic or essential features of the Constitution. Jaganmohan Reddy, J. stated that elements of the basic features were to be found in the Preamble of the Constitution and the provisions into which they translated such as: • sovereign democratic republic • parliamentary democracy • three organs of the State

He said that the Constitution would not be itself without the fundamental freedoms and the directive principles. 8 OBJECTIVES 1. To study and understand the interpretational value of the preamble i. e. role of preamble in interpretation of the constitution. 2. To study whether the Preamble indicates the source of authority of the constitution and the objects which the constitution seeks to establish and promote. HYPOTHESIS The preamble states the ideals, goals and objectives of the constitution and thus plays a vital role in the interpretation of the Indian constitution.

RESEARCH QUESTIONS 1. Is the Preamble a part of the Indian Constitution? 2. What role does the Preamble play? 3. Does the preamble reflect the essential features and basic objectives of the Indian Constitution? 4. What is the extent of the interpretational value of the preamble? RESEARCH METHODOLOGY The researcher adopted doctrinal approach for the current thesis in order to gain deeper insights into as whether the preamble holds significance in the interpretation of the Indian Constitution. The research approach adopted was qualitative one.

A qualitative method enables the researcher to understand and interpret the qualitative nature of the data that stands in the centre. The method of research includes case laws, previous studies, articles, various books and judgements available on the topic. CHAPTER II THE CONSTITUTION OF INDIA The constitution is the supreme law of the land ordained and established by the people. All legislation must conform to the principles it lays down. In political theory, the constitution of a country is the result of an expression of the general will of the people as a whole. The constitution is a living and organic thing.

Its outlook and expression as perceived and expressed by the interpreters of the Constitution must be dynamic and keep pace with the changing times. 9 Our Constitution is not just a mere set of fundamental laws that form the basis of governance of our country but it embodies and reflects certain basic values, philosophy and objectives that were held very dear to our founding fathers. These values do find expression in various articles and provisions of our Constitution and mostly, the Preamble to our Constitution embodies the fundamental values and the philosophy on which the Constitution

is based. 10 CHAPTER III PROLOGUE TO THE PREAMBLE: THE OBJECTIVES RESOLUTION EVERY Constitution has a Philosophy of its own. For the philosophy underlying our Constitution the historic Objectives Resolution of Pandit Nehru must be looked into. The Constituent Assembly first met on 9th December 1946 and soon after that on 13th December the Objective Resolution declaring and defining the aims and purposes of the of the Constituent Assembly was moved. In the words of Pandit Nehru, the aforesaid Resolution was “something more than a resolution.

It is a declaration, a firm resolve, a pledge, an undertaking and for all of us a dedication”. 11 Objectives Resolution of Pandit Nehru inspired the shaping of the Constitution through all its subsequent stages. 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. It has been praised by Ernest Barker in the following words “It seemed to me, when I read it, to state in a brief and pithy form the argument of much of the book ….

I am the more moved to quote it because I am proud that the people of India should begin their independent life by subscribing to the principles of a political tradition which we in the West call Western, but which is now something more than Western. ”12 CHAPTER IV PREAMBLE Preamble is a statement of objects, which are expected by the Constitution makers to be realized through the implementation of the Constitution. The Preamble was amended in 1976 through the 42nd Amendment which inserted three “Secularism, Socialism and Integrity” in Preamble.

As these concepts were already implied in the Constitution, the addition was not considered to be the amendment of the basic features. Words and Phrases in the Preamble The words We the People of India emphasize the ultimate sovereignty of the people and that the Constitution itself is founded on the authority of the people “who hold the power and conduct the Government through their representatives”. The Preamble indicates the source from which the Constitution comes (Per SHELAT and GROVER JJ).

The Preamble as expressed, is the sovereign will of people of India. 13 The source of the Constitution are the people themselves from whom the Constitution derives its ultimate sanction. Their assertion affirms the republican and democratic character of the Indian Polity and sovereignty of the people. The people of India thus constitute the sovereign political body who hold the ultimate power and who conduct the government of the country through their elected representatives. 14

The preamble was significant in numerous ways. It stated: (a) The nature of polity the Indians were to adopt, and (b) The objectives towards which the constitution was to strive The polity is described as: (i) Sovereign Sovereign means “A person, body, or state in which independent and supreme authority is vested A chief ruler with supreme power; a king or other ruler with limited power, supreme civil, military, and political power; the person or body of persons in whom the ultimate authority of law rests.

”15 In short, it means the independent authority of a State. By declaring India as a sovereign entity, Preamble emphasizes complete political freedom. It implies that India is internally powerful and externally free. She is free to determine for herself without any external interference. There is none within her to challenge her authority. (ii) Socialist The word socialist was added to the Preamble by the 42nd amendment act of 1976. It stands to end all forms of exploitation in all spheres of our existence.

The Constitution directs the state to ensure a planned and coordinated social advance in all fields while preventing concentration of wealth and power in few hands. In 1983, The Constitution Bench in Nakara’s case explained the meaning of ‘socialist ‘ in the Preamble, with reference to the foregoing Statement of Objects and reasons appended to the Constitution (42nd Amendment) Act, 1976, in these words – “The principal aim of a socialist State is to eliminate in equality in income and status and standards of life.

The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave. This amongst others on economic side envisaged economic equality and equitable distribution of income. ——– a socialist State provides for the education ——– After the education is completed, socialism aims at equality in pursuit of excellence in the chosen avocation ——–the less equipped person shall be assured a decent minimum standard of life and exploitation in any form shall be eschewed.

There will be equitable distribution of national cake and the worst off shall be treated in such a manner has to push them up the ladder——– In the fall of life the State shall ensure to the citizen a reasonable decent standard of life, medical aid, freedom from want, freedom from fear and the enjoyable leisure, relieving the boredom and the humility of dependence in old age. ”16 (iii) Secular Secularism means that the state should have no religion of its own. It implies that citizens have complete freedom to follow any religion, and there is no official religion.

India, being a home to almost all major religions in the world, found secularism to be a convenient formula. The Government treats all religious beliefs and practices with equal respect and honour. It allows all its citizens to profess, preach and practice any religion of their liking. The Supreme Court in S. R Bommai v. Union of India held that secularism was an integral part of the basic structure of the Constitution. Secularism thus is a value in the sense that it supports to our plural society. It aims at promoting cohesion among different communities living in India.

(iv) Democratic The word ‘democratic’ though not used in the Objectives Resolution, was used in the Preamble so as to assert people’s sovereignty. The term implies: (a) universal adult franchise, (b) free and fair elections, (c) periodic elections, (d) accountability, (e) elections at all levels of governance, and (f) equal participation of all in the polity The word democratic indicates the democratic spirit involved even in the Constitution. India is a democracy. It has adopted parliamentary democracy to ensure a responsible and stable government.

As a form of government it derives its authority from the will of the people. The people elect the rulers of the country and the latter remain accountable to the people. (v) Republic A democratic republic is an entity in which the head of state is elected. As opposed to a monarchy, the Indian Constitution prefers to remain a republic. The office of the head of the state is elective. This idea strengthens and substantiates democracy that every citizen of India after attaining a particular age is equally eligible to become the head of the state if he is elected as such.

Political equality is its chief message. Any sort of hereditary rule is thus regarded as a disvalue in India. The objectives as stated in the preamble are: (i) Justice Justice is called a total value. The fathers of the Indian Constitution stressed that the positive constructive aspect of political freedom has to be instrumental in the creation of a new social order, based on the doctrine of socio-economic justice. The message of socio-economic justice mentioned in the preamble to our Constitution has been translated into several articles enshrined in part-III and part- IV of the Constitution.

Our constitution abolishes untouchability; prohibits exploitation of the women, children and the weak and advocates for reservation to raise the standard of the people oppressed over ages. Whenever our government undertakes any developmental project it always adds a human face to it. Therefore, this ideal of a just and egalitarian society remains as one of the foremost objectives. (ii) Liberty It was well understood by the fathers of the Indian Constitution that the ideal of democracy was unattainable without the presence of certain minimal rights which are essential for a free and civilized existence.

Therefore, the Preamble mentions these essential individual rights such as freedom of thought, expression, belief, faith and worship which are assured to every member of the community against all the authorities of States by Part-III of the Constitution. (iii) Equality Every citizen of India is entitled to equality before law and equal protection of law. As a human being everybody has a dignified self. Equality rights include the right to be treated equally with others in the matter of justice, taxation, and in public offices and employment.

It also means that all laws shall be applicable equally. 17 It is therefore held as an important value. Articles 14 to 18 give effect to this principle (iv) Fraternity: Fraternity stands for the spirit of common brotherhood. In the absence of that, a plural society like India stands divided. Therefore, to give meaning to all the ideals like justice, liberty and equality our Constitution gives ample stress on fraternity. This has been a foremost objective to achieve in a country composed of so many races, religions, languages and cultures.

Article-51A(e) therefore, declares it as a duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities. Dignity of the individual: Fraternity and dignity of the individuals have a close link. Fraternity is only achievable when the dignity of the individual will be secured and promoted. Our Constitution therefore directs the state through the Directives enshrined in the Part-IV of our Constitution to ensure the development of the quality of life to all sections of people.

Our Constitution acknowledges that all citizens, men and women equally, have the right to an adequate means of livelihood (Art. -39 a) and just and humane conditions of work (Art. -42). Unity and integrity of the Nation: To maintain the independence of the country intact and enduring, unity and integrity of the nation is very essential. Therefore, the stress has been given on the ideal of fraternity which would foster unity amongst the inhabitants. Without a spirit of brotherhood amongst the people the ideals of unity and integration of people and nation seem unattainable. CHAPTER V

PREAMBLE:- A PART OF THE CONSTITUTION OR NOT? The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject: 1. Berubari case 2. Kesavananda Bharti case Berubari case was the Presidential Reference “Under Art. 143(1) of the Constitution of India on the implementation of the Indo-Pak agreement relating to Berubari union and exchange of enclaves” which come up for consideration by a bench consisting of eight judges headed by B. P. Sinha, C. J. Justice Gajendragadkar delivered the unanimous opinion of the court.

Quoting story, the eminent Constitutional jurist, the court held that the Preamble to the Constitution containing the declaration made by the people of India in exercise of their sovereign will, no doubt is “a key to open the minds of framers of the Constitution” which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution. The holdings in Berubari Case18 has been succinctly summed up later by Shelat and Grover, JJ. In Kesavananda Bharti case as under: 1.

A Preamble to the Constitution serves as a key to open the minds of the framers, and shows the general purpose for which they made the several provisions in the Constitution; 2. The Preamble is not a part of our Constitution; 3. It is not a source of the several powers conferred on government under the provisions of the Constitution; 4. Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted; 5. What is true about the powers is equally true about the prohibitions and limitations; 6.

The Preamble did not indicate the assumptions that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty. Berubari case was relied on in Golaknath case19, Wanchoo, J. said- “On a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitationson the bar to amend the Constitution contained in Article 368”. Bachawat, J. observed- “Moreover the Preamble cannot control the unambiguous language of the Articles of the Constitution”.

It is a matter of regret, yet the eminent Judges constituting the bench answering the presidential reference in Berubari Case overlooked a matter of record, that constitutional history. The motion adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution. The error came to be corrected in Kesavananda Bharti20 case where the majority specifically ruled that the Preamble was as much a part of the constitution as any other provision therein. Kesavanada Bharati Case created a history when a bench of 13 Judges had assembled and sat in its original jurisdiction and heard the writ petition.

It was held in this case: a. that the Preamble to the Constitution of India is a part of Constitution b. that the Preamble is not a source of power nor a source of limitations. c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution. It was now held that the Preamble was adopted as a part of the Constitution. The words “this Constitution” in Art. 368, therefore, includes the Preamble and it is not beyond the pale of the amending power, not does anything in the Preamble restrict the amending power conferred by Art. 368. CHAPTER VI

ROLE OF THE PREAMBLE The importance and utility of the preamble has been pointed out in several decisions of the Supreme Court. Though, by itself, it is not enforceable in a court of law, the preamble to a written constitution states the objects which the constitution seeks to establish and promote and also aids the legal interpretation of the constitution where the language is found to be ambiguous. For a proper appreciation of the aims and aspirations embodied in our constitution, therefore, we must turn to the various expressions contained in the preamble. The Preamble to our Constitution serves two purposes:

(a) It indicates the source from which the constitution derives its authority; (b) It also states the objects which the constitution seeks to establish and promote. The purpose of this preamble is to clarify who has made the Constitution, what is its source, what is the ultimate sanction behind it; what is the nature of quality which is sought to be established by the Constitution and what are its goals and objectives. The preamble to the Constitution is not a mere flourish of words, but was an ideal setup for practices and observance as a matter of law through Constitutional mechanism. 21 It was declared in I.

C. Golaknath case that “it (preamble) contains in a nutshell, its ideals and its aspirations. The preamble is not a platitude but the mode of its realisation worked out in detail in the Constitution”22. The Preamble does not make any grant of power, but it gives a direction and purpose to the Constitution which is reflected in Parts III and IV. A comparison of the Preamble, with the broad features of this Constitution it would appear that the Preamble is an epitome of these features or put it differently these features on an amplification or concretisation of the concepts set out in the Preamble.

The Preamble has the stamp of deep deliberation and is marked by precision. It would suggest that framers of the Constitution attached special significance to Preamble. The true function of the Preamble is to suspend the nature and extent and application of the powers actually conferred by the Constitution and not substantially to create them: (as per Shelet and Grover J. J. in Keshavanand Bharti v. State of Kerela) Other learned judges who expressed their opinion on Preamble state that: “From the Preamble, it is quite clear that the two primary objectives that were before the constituent assembly 1.

To constitute india into a sovereign democratic republic and 2. To secure to its citizens the right mentioned therein. CHAPTER VII PREAMBLE – SOURCE OF BASIC STRUCTURE The objectives specified in the preamble contain the basic structure of our Constitution, which cannot be amended in exercise of the power under Art 368 of the Constitution. In Bommai’s case23 the majority of nine Judges laid down a new application of the Preamble under the Constitution, which is as follows: 1. The Preamble indicates the basic Structure of the Constitution 2.

A Proclamation under Article 356(1) is open to judicial review on the ground of violating the basic structure of the Constitution. 3. It follows that a proclamation under Article 356(1), which violates any of the basic features, as summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional. 4. A further extension of this innovation is that a political party, which appeals to religion in its election manifesto, acts in violation of the basic structure, and the President may impose President’s Rule on a report of the Governor that a party has issued such a manifesto.

Keshavananda Bharati’s judgement helped in establishing the theory of “basic structure”. Para. 599 of the judgement reads as follows — “The basic structure of the Constitution is not a vague concept and the apprehensions expressed on behalf of the respondents that neither the citizen nor the Parliament would be able to understand it are unfounded. If the historical background, the Preamble, the entire scheme of the Constitution, the relevant provisions thereof including Article 368 are kept in mind there can be no difficulty in discerning that the following can be regarded as the

basic elements of the Constitutional structure. (These cannot be catalogued but can only be illustrated). 1. The supremacy of the Constitution. 2. Republican and Democratic form of Government and sovereignty of the country. 3. Secular and federal character of the Constitution. 4. Demarcation of power between the legislature, the executive and the judiciary. 5. The dignity of the individual (secured by the various freedoms and basic rights in Part III and the mandate to build a welfare State contained in Part IV. 6. The unity and the integrity of the nation. ” Para. 1164 of the judgement reads as follows—

“The Preamble to the Constitution which our founding fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended to subserve. How far the Preamble can be resorted to for interpreting the Constitution has been the subject of debate—– After referring to Story that the Preamble is “a key to open the mind of the makers” and a passage from Willoughby that it has never been regarded as source of any substantive power, etc.

, the learned Chief Justice concluded thus : What is true about the powers is equally true about the prohibitions and limitations—– At the highest it may perhaps be arguable that if the terms used in any of the articles in the Constitution are ambiguous or are capable of two meanings, in interpreting them some assistance may be sought in the objectives enshrined in the preamble—– It may be pointed out that the passage from Story and Willoughby cited therein have not been fully extracted. For a proper appreciation of the views of these authors it is necessary to examine the relevant passages in, full.

Story says, “It is an admitted maxim… that the preamble of a statute is a key to open the mind of the makers as to the mischiefs, which are to be remedied, and the objects, which are to be accomplished by the provisions of the statute—–the will and intention of the legislature is to be regarded and followed. It is properly resorted to, where doubts or ambiguities arise upon the words of the enacting part for if they are clear and unambiguous, there seems little room for interpretation, except in cases leading to an obvious absurdity, or to a direct overthrow of

the intention expressed in the preamble. There does not seem any reason why, in a fundamental law or Constitution of government, an equal attention should not be given to the intention of the framers, as stated in the preamble —– The preamble can never be resorted to, to enlarge the powers confided to the general government, or any of its departments. It cannot confer any power per se —– Its true office is to expound the nature, and extent, and application of the powers actually conferred by the Constitution, and not substantively to create them.

—–We have the strongest assurances, that this preamble was not adopted as a mere formulary but as a solemn promulgation of a fundamental fact, vital to the character and operations of the government”. (Story, Constitution of the United States, Vol. I, pp. 443-446). ” CHAPTER VIII INTERPRETATIONAL VALUE OF THE PREAMBLE Preamble of the Constitution is framed with the great care and deliberation so that it reflects the high purpose and noble objective of the constitution makers.

The recognition of the Preamble as a part of the Constitution has enhanced its value as an aid to interpretation of the constitution. Since it embodies the philosophy underlying the Constitution and it cannot be brushed aside as a surplusage, the Supreme Court has made frequent use of the Preamble in interpreting the substantive provisions of the Constitution I. A most clear case is where the language of an enacting provision of the constitution is ambiguous or capable of two meanings, the court should adopt that meaning which is consistent with the preamble or advances its purpose.

II. An analogous case is where there is no provision in the constitution on the matter before the court, i. e. , on a matter on which the Constitution is silent. III. In the early case of Gopalan, it was observed that in interpreting the Fundamental Rights enumerated in part III of the Constitution, the high purpose and spirit of the preamble, namely, that it assured to the citizen the dignity of the individual and other cherished human values as a means to the full evolution and expression of his personality, should be borne in mind.

IIIA. Major judgement in Keshavnanda Bharati’s case has strongly relied on the preamble in reaching the conclusion that power of amendment conferred by article 368 of the constitution was limited and did not enable Parliament to order basic structure or framework of the constitution. CONCLUSION Our Constitution is not just a mere set of fundamental laws that form the b

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