INTRODUCTION
Preamble is derived from the Latin word preambulus, meaning to go before or an introduction[1]. As its word of origin suggests, preamble is n preliminary or an introductory statement to any act or legislation, in this case to the constitution of India. It is indicative of the philosophy, purpose, uses, principles, objectives, ideas and aspirations for the preceding law. Preamble is considered as a blue-print of the forward act.
While our constitution was being drafted, Pt. Jawahar Lal Nehru presented a draft of expectations of the constitution in front of the constituent assembly, mentioning the rights and liberties and ideas and expressions behind the constitution. This draft was known as ‘objective resolution’ and was presented on 13th December, 1946[2]. This objective resolution was adopted as preamble on 22nd January, 1947[3]. Since the adoption of constitution, preamble has only been amended once through the 42nd amendment from which three new words were added in the preamble, namely, socialist, secular and integrity[4].
At present people and academicians, rightly so, have the idea that constitution is interpreted through the principles of ‘basic structure’, derived in the case of Kesavananda Bharati V. State of Kerela[5], and although Preamble is not included in the inexhaustive list of articles and principles that cannot be altered or destroyed through amendments by the parliament of India[6], but I am of the understanding that through the very nature of the preamble and from the constitutional assembly debates, the preamble is in itself a brief list of principles on which the constitution is formulated. Therefore, even before the basic structure doctrine, there actually existed a soul to the constitution, which was intrinsic enough to be a part of the constitution, namely the Preamble. And the basic structure doctrine can be seen a furtherance of the preamble made in consonance to it, but made more descriptive and inexhaustive as a precautionary measure.
The Preamble can be divided into three parts, the first part is declaratory[7], pointing out the source of the constitution, the second part is revolutionary wherein people are resolving to the nature of the document, and the third and final part lays down the ideals and objectives of the constitution of India. I will be discussing all the three parts superlatively with their importance in interpreting the constitution.
SOURCE OF THE PREAMBLE AND ITS IMPORTANCE IN INTERPRETING THE CONSTITUTION OF INDIA
As discussed earlier, the whole of constitution is based on detailed interpretations of the preamble. The first and most powerful word of the preamble, ‘We the people of India’, establishes the source and power of the constitution[8], meaning thereby that no external force or power has made the constitution rather the people of India have made the constitution. Moreover, this identifies the supremacy of power in the hands of the general public in a modern limited democratic form of government. This is in itself an overriding principle, it can be plainly interpreted from the understanding of this statement that the document is in fact a power limiting document. When the ultimate power lies in the hands of the people of India, then the further document is nothing but a description of limited powers of the state relative to its people.
NATURE AND OBJECTIVE OF THE PREAMBLE
The words sovereign, socialist, secular, democratic, republic, define the nature of the constitution whereas the words justice, equity, liberty and fraternity establish the objective of the Indian constitution[9], which must be actively used as criteria in assessing any activities by the state, including the legislative activity aiming to realize the principle of a state as envisioned in constitution of India[10]. The preamble also mentions the date of adoption of the Indian constitution, as 26th November 1949.
Sovereign, in the preamble, means that India is an independent country and no external power should interfere in the internal matters of the country. The word socialist was added through the 42nd amendment. Socialism is usually associated with the communist ideology where the means of production and the resources of the country will be completely or partially controlled by the government, but the socialism in the preamble is derived from Mahatma Gandhi’s and Jawahar Lal Nehru’s philosophy which has the primary objective of establishing a welfare state[11], i.e. to eliminate poverty, ignorance, inequality, discrimination from the society. Provisions of fundamental rights and directive principles of state policies are in furtherance with the idea of India as a welfare state. The Directive Principles of State Policies have been seen as an ultimate duty of the state, contained in the Part IV of the Indian constitution their primary aim is to create social and economic conditions under which the citizens can lead a good life. They aim to establish “social and economic democracy through a welfare state”[12].
Article 38 of the Constitution clearly mentions the idea, “The state shall strive to promote the welfare of the people by securing and protecting as effectively as it may, a social order in which justice – social economic and political – shall pervade all institutions of national life”[13].
Secular, which was also included in the preamble through the 42nd amendment, means that the state would not have a religion of its own. In many countries, the word secular has been interpreted as being anti-religion, such as in countries like France, where it is not allowed to practice religion publicly. India has used secularism with a positive connotation, meaning thereby that although the state won’t have any religion of its own but the people of India can freely practice, propagate and profess any religion of their choice. The corresponding law to this would be Article 25 of Constitution of India, Article 25(1) says,” all persons are equally entitled to the freedom of conscience and the right to profess, practice and propagate religion freely”[14]. Major debates pertaining to the issue of whether right to propagation is included in Art 25 or not and the extend of propagation has been questioned in the past. In the case of Rev. Stainislaus vs. State of Madhya Pradesh[15], SC upheld the validity of two regional anti-conversion laws[16], thus taking a stand that forceable religious conversions are in no way under the scope of right to propagate a religion. The SC reached this conclusion while referring back to the Constituent Assembly debates, we could thus interpret any provision and its extent by understanding its motivation and objective behind it, and this objective is mentioned in the preamble to the constitution.
‘Demo’ in democracy means people and ‘cracy’ means rule, thus democracy in simple terms can be understood as the rule of the people. The government will be formed by the will of the people. In India, we have indirect or representative form of democracy, with every citizen having a right to vote after attaining 18 years of age. The philosophical idea of democracy is an intrinsic part of our nation and one of the core building block on which our nation is based. Often times than the other, bills and acts, such as the Anti-defection law brought forth by the 52nd amendment to the constitution, are challenged in the courts. The courts use the principle of democracy which has been envisioned and established by the constitution to determine whether it is violative of democracy or not.
Republic denotes that the real head of the state is the prime minister and the nominal head is the president, both being the elected heads of the country. Therefore, Republic denotes that the head of the state will be elected and not nominated by heredity.
INTERPRETATION OF PREAMBLE
- Directive Principles of State Policy- As discussed previously, DPSPs are the direct result of the objectives and ideals of the preamble. They impose a duty on the state to achieve certain goals and to be providing an equitable quality of life by manifesting to the social, educational and economical needs of the people of India.
This has been retreated in the case of Chandra Bhavan v. State of Mysore[17]. The SC stroke a balance between rights and duties, and fundamental rights and directive principles of state policy[18]. The court provided that directives and rights both are complimentary to each other and are in no way contrary. The court decided this case by retreating the ideas of building a welfare society with social, economic and political justice[19]. This case is a prime example of how Preamble can be used and has been used for interpreting the constitution and thus securing true balance in it.
Fundamental Rights- The Supreme Court in the case of Kesavananda Bharati vs State of Kerala[20] said that fundamental rights along with any other part of the constitution, even the preamble, can also be amended by the parliament of India through the procedure established in Art 368, but the essence of the constitution should not be destroyed or amended. In this landmark case, it was also declared that since preamble has been adopted and enacted through the same procedure as all the other parts of the constitution, therefore preamble is part of the constitution of India and can also be amended by the parliament by the same procedure established by law[21]. One of the most important deductions that was made in this case was that the preamble is not a source of any substantive power nor is it a limitation to any power of state but the objectives laid down in the preamble plays a signifying role in the interpretation of provisions of the constitution[22].
CONCLUSION
The Preamble does not grant any substantive power nor does it put any restriction to ant power of the state, but it gives objective and purpose to the Constitution. It outlines the objective of the whole Constitution[23]. The Preamble contains the fundamentals of constitution, and no reading of the constitution can be complete without the reading of the preamble. The preamble is a way to look into the minds of the framers of the constitution. Even with an elaborative constitution like ours, every provision can’t be written down. In these dynamic times, laws will need to be just as flexible and mutable, but even then, it is important to preserve the constitution by preserving its soul. This can only be done with a thorough understanding of the ideals and objectives of the constitution laid down in its preamble.
[1] Definition of PREAMBLE (2020). Available at: https://www.merriam-webster.com/dictionary/preamble (Accessed: 29 October 2020).
[2] Constitution of India (2020). Available at: https://www.constitutionofindia.net/constitution_assembly_debates/volume/1/1946-12-13 (Accessed: 29 October 2020).
[3] Explained: How the Preamble was adopted (2019). Available at: https://indianexpress.com/article/explained/indian-constitution-preamble-citizenship-amendment-act-caa-protests-br-ambedkar-6190828/#:~:text=The%20Preamble%20is%20based%20on,adopted%20on%20January%2022%2C%201947. (Accessed: 29 October 2020).
[4] THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976| Legislative Department | Ministry of Law and Justice | GoI (2020). Available at: http://legislative.gov.in/constitution-forty-second-amendment-act-1976 (Accessed: 29 October 2020).
[6] The Hindu: Opinion / News Analysis: The basic features (2020). Available at: https://web.archive.org/web/20120725005100/http://hindu.com/2004/09/26/stories/2004092600491600.htm (Accessed: 29 October 2020).
[7] Joshi, K. (2019) Preamble under the Indian Constitution, iPleaders. Available at: https://blog.ipleaders.in/importance-preamble-indian-constitution/ (Accessed: 29 October 2020).
[8] India, l. (2020) Role of Preamble Interpretation with Indian Constitution, Legalservicesindia.com. Available at: http://www.legalservicesindia.com/article/1390/Role-of-Preamble-Interpretation-with-Indian-Constitution.html (Accessed: 30 October 2020).
[9] Preamble To The Indian Constitution (2020). Available at: http://www.legalserviceindia.com/legal/article-750-preamble-to-the-indian-constitution.html (Accessed: 31 October 2020).
[10] (2020) Core.ac.uk. Available at: https://core.ac.uk/download/pdf/190974883.pdf (Accessed: 30 October 2020).
[11] Tripathi, S. (2015) Why secularism and socialism are integral to the Indian Constitution, mint. Available at: https://www.livemint.com/Opinion/XKcwMBM2WpKX7TM20yPBBP/Why-secularism-and-socialism-are-integral-to-the-Indian-cons.html (Accessed: 30 October 2020).
[12] Social Democratic Party of India (2020). Available at: https://sdpi.in/issues/pro-people-policy/ (Accessed: 31 October 2020).
[13] Profile – Know India: National Portal of India (2020). Available at: https://knowindia.gov.in/profile/directive-principles-state-policy.php (Accessed: 30 October 2020).
[14] The Constitution of India, 1950, Art. 25(1).
[15] 1977 AIR 908
[16] Propagation without proselytisation: what the law says (2020). Available at: https://www.thehindu.com/sunday-anchor/propagation-without-proselytisation-what-the-law-says/article6711440.ece (Accessed: 31 October 2020).
[17] 1970 AIR 2042
[18] DUTIES, J. (2013) JUDICIAL PRONOUNCEMENTS ON FUNDAMENTAL DUTIES, Civilsmaterials.blogspot.com. Available at: http://civilsmaterials.blogspot.com/2013/03/judicial-pronouncements-on-fundamental.html (Accessed: 31 October 2020).
[19] Chandra Bhavan Boarding And … vs The State Of Mysore And Anr on 29 September, 1969 (2020). Available at: https://indiankanoon.org/doc/1801637/ (Accessed: 31 October 2020).
[20] AIR 1973 SC 1461
[21] The case that saved Indian democracy (2020). Available at: https://www.thehindu.com/opinion/op-ed/the-case-that-saved-indian-democracy/article12209702.ece (Accessed: 31 October 2020).
[22] Kesavananda Bharati v. State of Kerala and The Basic Structure Doctrine | India Corporate Law (2017). Available at: https://corporate.cyrilamarchandblogs.com/2017/09/kesavananda-bharati-v-state-kerala-basic-structure-doctrine/ (Accessed: 31 October 2020).
[23] (2020) Mcrhrdi.gov.in. Available at: http://www.mcrhrdi.gov.in/87fc/images11/4.pdf (Accessed: 31 October 2020).
BY- Prachi Shreyskar
2nd year, SLS, Noida