The Preamble of the Constitution

The Preamble to an act sets out the main objectives which the legislation is intended to achieve. It is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. It expresses "what we had thought or dreamt for so long". 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 had struggled during the British regime. In re Berubari case, the Supreme Court has said that the Preamble to the Constitution is a key to open the mind of the makers, and shows the general purpose for which they made the several provisions in the Constitution.

Preamble how far useful in interpreting the Constitution - The Preamble is the key to open the mind of the makers. But it does not mean that the Preamble can override the express provisions of the Act. In Berubari's case the Supreme Court held that the Preamble was not a part of the Constitution and therefore it could never be regarded as a source of any substantive powers. Such powers are expressly granted in the body of Constitution. What is true about the powers is equally true about the prohibitions. It has limited application and can be resorted to where there is any ambiguity in the statute. If the terms used in the constitution are  ambiguous or capable of two meanings in interpreting them some assistance may be taken from the objectives enshrined in the Constitution and the construction which fits the Preamble may be preferred.

But in Keshvananda Bharti's case, the Supreme Court rejected the above view and held that the Preamble is the part of the Constitution. 

The Preamble serves the following purposes:

a. It indicates the source from which the Constitution comes, viz., the people of India.

b. It contains the enacting clause which brings into force the Constitution. 

c. It declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established. 

It is ordained by the people of India through their representatives assembled in a sovereign constituent Assembly. The Preamble declares in unambiguous terms that it is the people of India who have adopted, enacted and given to themselves the Constitution.

The Preamble of the Constitution declares India to be a "Sovereign Socialist Secular Democratic Republic". Sovereign power, is that which is absolute and uncontrolled. In the words of Cooley, "A State is sovereign where there resides within itself a supreme and absolute power acknowledging no superior." The word "sovereign" emphasises that India is no more dependent upon any outside authority. However, India is still a member of the Commonwealth of Nations. But as it has been said, its membership of the Commonwealth of Nations is not inconsistent with her independent sovereign status.

In a democratic state, it may have an elected or a hereditary head - It is 'republic' because the head of the State is not a hereditary monarch. In a 'republic' the political sovereignty vests in the people and the head of the State is only a person elected by the people for a fixed term. In our Constitution there is a President who is the head of the Executive and who is elected, as opposed to hereditary monarch, and holds office for a fixed term of five years. The term 'democratic' indicates that the Constitution has established a form of Government which gets it authority from the will of the people. The rulers are elected by the people and are responsible to them. The democratic set up can be of two types; (i) Direct, and (ii) Indirect. In a direct democracy the legal and political sovereignty vests in the people, as is the case in Switzerland. In the indirect system of Democracy, it is the representatives of the people who exercise the power of legal as well as political sovereignty. The electorate choose their representatives who carry on the Government. It is for this reason that this type of democracy is called representative democracy. In the Indian Constitution we have adopted indirect or representative system of democracy. All the adults above the age of 18 years have a right to vote. 

The term 'democracy' in its broadest sense embraces, in addition to political democracy, also social and economic democracy. The term 'democratic' is used in this very sense in the Preamble.

Objectives enshrined in the Preamble - The following are the objectives which the preamble secures to every citizen :-

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].

Democracy would indeed be hollow if it fails to generate this spirit of brotherhood among all sections of the people - feeling that they are all children of the same soil and the same motherland. It becomes all the more essential in a country like India composed of many races, religions, languages and of culture. Article 1 of the Declaration of Human Rights adopted by the U.N.O. embodies this noble and human principle that "all the human beings are born free and in equal dignity and rights, they are endowed with reasons and conscience and should act towards one another in a spirit of brotherhood." It is this concept of brotherhood of man which is contained in the preamble of the Constitution and is given practical shape by abolishing title (Article 18) and untouchability (Article 17) and many other social evils which swayed the  social arena of Indian Society. "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 selfish nature of man and the good of the society. The attainment of the collective good as distinguished from individual good is the main aim of rendering justice. Combining the ideals of political, social, economic democracy with that of equality and fraternity in the Preamble.

Can Preamble be amended under Article 368 - This question was raised for the first time before the SC in the historic case of Kesavananda Bharati v. State of Kerala. In that case the Attorney-General argued that by virtue of the amending power in Article 368 even the Preamble can be amended. It was said that since the Preamble was a part of the Constitution it could be amended like any other provisions of the Constitution. The petitioners, however contended that the amending power in Article 368 is limited. Preamble creates an implied limitation on the power of amendment. The Preamble contains the basic elements or the fundamental features of our constitution. Consequently, amending power cannot be used so as to destroy or damage these basic feature mentioned in the Preamble. It was urged that Preamble cannot be amended as it is not a part of the Constitution. The Supreme Court, however, held that the Preamble is a part of the Constitution and, therefore, on this point the Berubari opinion was wrong. 

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 the "basic features" in the Preamble cannot be amended. The Court said, "the edifice of our Constitution is based upon the basic elements mentioned in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same Constitution or it cannot maintain its identity. The Preamble declares that the people of India resolved to constitute their country into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. An amending power cannot be interpreted so as to confer power on the Parliament to take away any of these fundamental and basic characteristics of policy." It is submitted that this view of the court is correct. The amending power cannot change the Constitution in such a way that it ceases to be a 'Sovereign Democratic Republic'. It can only be done by wrecking Constitution. 

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 spells out clearly these concepts in the Preamble.

Socialism is implicit in the preamble and the directive principle of the Constitution. The term "economic justice" in the preamble denotes nothing but India's resolve to bring socio-economic revolution. The Directive Principles, particularly Article 39(b) and (c) of the Constitution are Charters of social and economic liberties of the people. The word 'socialism' has, however, no definite meaning. It has been invariably used in both the types of Constitutions - democratic and communistic. Generally, the term implies a system of government in which the means of production is wholly or partially controlled by the State. India's socialism is, however, a democratic socialism and not a 'communistic socialism'. 

The word 'integrity' is intended to put to an end to separatist tendencies and make people feel that every part of India is their home. This concept was already implicit in the nature of the federation envisaged by the India Constitution. The framers have used the words "India shall be a Union of States" in Article 1 of the Constitution with a view to make it clear that the states have no right to secede from the federation.

'Secularism' means a State which does not recognise any religion as a State religion. It treats all religions equally. The concept of secularism was already implicit in the Constitution, "liberty of....... belief, faith and worship".

In S.R. Bommai v. Union of India the Supreme Court has held that "secularism is the basic feature of the Constitution.

In Aruna Roy v. Union of India, the Supreme court has said that secularism has a positive meaning that is developing, understanding and respect towards different religions.