Is Preamble a part of Constitution? Can the Preamble be amended under Article 368?
Blog Author- Ms. Upasana Borah, B.B.A LL.B.(Hons), N.E.F. Law College, Assam
The Constitution of India begins with a Preamble . Preamble in the Constitution is a part of the Constitution but it is not enforceable by courts. The Preamble is non-Justifiable that means courts cannot pass any orders against the Government of India to implement the ideas in the Preamble. The Preamble to the Indian Constitution is based on the “Objectives Resolution”, drafted and moved by Pandit Jawaharlal Nehru on 13th December,1946 and adopted by the constituent assembly on 26th November,1949 and came into force on 26th January,1950 celebrate as the Republic day in India The three new words which has been added by 42nd Constitutional Amendment Act on 22/01/1976 are – Socialist, Secular and Integrity. The American Constitution was the first to begin with a Preamble. Liberty, Equality, Republic and Fraternity was adopted from French Revolution 1789-1799. Also the term Justice, Social, Economic and Political was been adopted by Russian Revolution 1917. The Preamble can be preferred to as the preface with highlights the entire Constitution. Sovereign- It means free to follow internal and external policies. It states that India is neither Dependent nor a Dominion of any other Nation. There is no authority above it. The term “WE THE PEOPLE” in the Preamble states Popular Soverignty. Thus, Soverignty lies ultimately with the people of India. Secular-It means no particular religion is preferred to be followed. The state has no official religion. It also means the state shall not discriminate any citizen in any way on the basis of religion.
- Securalism is a part of basic structure of the Constitution. The word „Secular‟ was not originally present in the Preamble. It was added thereto by the 42nd Constitutional Amendment Act in 1976. . The Supreme Court in this case held that Secularism was an integral part of basic structure of the Constitution. Socialist-It means no concentration of power and money. It was added after 42nd Constitutional Amendment Act,1976. The Constitution had a Socialist content in form of certain Directive Principle of State Policy.
- Democratic-The word “DEMOCRATIC” is deived from the Greek work “DEMOS” which means “PEOPLE” and “KRATOS” means “Authority”. The famous principle of Abrahim Lincoln(18091865) who laid down Government of the people, By the people and For the people. The people of India elect their Governments at all levels i.e “ONE MAN ONE VOTE” . There are lot of efforts to take democracy to the roots through Panchayats and Municipalities (73rd Constitutional Amendment Act, 1993 insertion of ARTICLE 243 to PART IX and 74th Constitutional Amendment Act,1992 had introduced a new Part IXA which deals with Municipalities in ARTICLE 234P to 243ZG. This is also known as Nagarpalika Act). The Supreme Court held that „Democracy‟ as a basic feature of the Constitution.
- Republic-The word “REPUBLIC” is derived from “RES PUBLICA which means “Public Property” in our Preamble it indicates that India has an elected head called as THE PRESIDENT. It means vesting of Political Soverignty in the people.
THE PREAMBLE REVEALS FOUR BASIC INGREDIENTS:
- Source of authority of the Constitution : The Preamble states that the Constitution itself derives its authority from the People of India.
- Objectives of the Constitution : The Constitution of India signifies Justice, Liberty, Equality and Fraternity as the objectives.
- Nature of the Indian State : It declares India as a Soverign, Republic, Democratic, Secular and Socialist polity.
- Date of adoption of the Constitution : The Constitution of India was adopted on 26th November 1949 and came into effect on 26th January 1950.
MEANING AND CONCEPT :
The term “Preamble” means the introductory part to the statue of the Constitution. The Constitution opens with a Preamble.Initially The Preamble was drafted by Sh. B.N Rau in his memorandum of 30/05/1947. The Preamble contains the fundamentals of of the Constitution. In the famous case of “A.K GOPALAN VS STATE OF MADRAS‟ it was contended that the preamble to our constitution which seeks to give India a “Democratic‟ Constitution should be the guiding start in its interpretation and hence any law made under ARTICLE 21 should be held void if it offends the principles of Natural Justice for otherwise the „Fundamental‟ Right to life and personal liberty would have no protection. Thus, the source of the Constitution are the people themselves from whom the Constitution derives its ultimate law or rule. The Preamble lays emphasis on the principle of Equality which is a basic feature or structure of the Constitution. The Preamble contains highest values and ideas for which India stands. Earlier Preamble was not regarded as a part of the Constitution . It was considered as key to the open Constitution. The eminent Jurist N.A Palkhivala stated that “Preamble as the “identity-card” of the Constitution.
OBJECTIVES ENSHRINED IN THE PREAMBLE:
- Justice : The term “JUSTICE” in the Preamble embraces three distinct forms- Social, Economic and Political, secured through various provisions of Fundamental Rights and Directive Principles. Justic promises to give people what they actually entitled to in the terms of basic rights.
- Equality : The term “EQUALITY” means absence of special previleges to any section of the society, and the provision of adequate opportunities for all individuals without any discrimination. It is incorporated in Article 14 of our Indian Constitution. All the citizens of India should be treaty equally and extended equal protection of law without any discrimination based on Caste, Sex, Creed, Birth and Religion. Similarly Equality of opportunities implies that regardless of socio-economic situations into which one is born. Equality is a basic feature of the Constitution.
- Fraternity, Dignity, Unity and Integrity : Fraternity means sense of Brotherhood. It assures the dignity of an individual. The expression “UNITY AND INTEGRITY OF THE NATION” has been substituted by 42nd Constitutional Amendment Act, 1976 to the Preamble of the Constitution .The Fundamental duties (Article 51A) states that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transceding religious, linguistic, religional or sectional diversities. In the Background of India the framers of the Constitution were very much concerned about the Unity and Integrity of our Independent Country. Pandit Jawaharlal Nehru expressed Fraternity in his words as “ The only possible, real object we, in common with other nations, can have is the object of cooperating in building up some kind of word structure, call it in one word, call it what you like”.
- Liberty : Liberty is an essential attribute of a free society that help in fullest development of individuals. Liberty consists of the social, political and economic freedoms. It usually means freedom to do something.
Article 368 has been amended by the 24th and 42nd Amendments in 1971 and 1976 respectively.
The Preamble has been amended only once so far, 1976 by the 42nd Constitutional Amendment Act where it had added three words in the Preamble of Indian Constitution. Socialist, Secular and Integrity. The Supreme Court in the famous case Keshavananda Bharati vs State of Kerela(1973) held that preamble is the integral part of Indian Constitution so it can only be amended to the subject of the condition so that it won’t destroy the Basic Feature of our Indian Constitution. Article 368 deals with the Powers of the Parliament to amend the Constitution and procedure therefor. 368(1) It states Procedure through which Parliament can amend by way of addition, variation or repeal of any provision of the Constitution in accordance with the procedure laid down in this Article. Article 368 mentions two important things:
- Procedure for amendment and
- Methods of amendments.
PURPOSE OF THE PREAMBLE
The purpose of the Preamble serves two purpose:
- 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 Debated topic as Whether Preamble is a part of Constitution or not. It was decided in five Constitutional Landmark Judgements.
- I.C Golakhnath And Ors v. State Of Punjab
Court Verdict : Fundamental Rights cannot be diluted or abridged.
The family of Golaknath held over 500 acres of farmland in Jalandhar, Punjab. In that phase of 1953 Punjab Security and Land Tenures Act, the State Government held that the Golaknath family could keep only 30 acres each. A few acres would go to the tenants and rest was declared “Surplus”. This was challenged by Golaknath family in the Court.
This was challenged by Golaknath’s family in Supreme Court. Here the family filed a petition under Article 32 challenging the 1953 Punjab Act on the ground that it denied them their Constitutional rights to acquire and hold property and practice any profession (ARTICLE 19(f) and ARTICLE 19(g)) and ARTICLE 14 Equality before Law and Equal protection of Law. They also sought to challenged 17th Constitutional Amendment Act which had placed Punjab Act in 9th Schedule declared Ultra Vires. The Court ruled that Parliament could not violate any of the Fundamental rights in the Constitution. The conflict between parliamentary power and judicial protection of Fundamental rights took the final shape in this case. The opinion in Golaknath was rendered by a thin majority of six to five which held that amendmend under ARTICLE 368 of the Constitution was an ordinary law within the meaning of ARTICLE 13(2) of the Constitution. Therefore amendments either under ARTICLE 368 or under other articles are only made by Parliament following the legislative process and are „law‟ for that purpose in ARTICLE 13(2). The majority judgement in Golaknath case held that the power to amend the constitution was not in ARTICLE 368. It merely provide the procedure to amend the Constitution. According to ARTICLE 13(2) the parliament cannot make any law that abridges the Fundamental Rights‟s contained in PART III of the Indian Constitution . Parliament passes the 24th Constitutional Amendment Act,1971 to refrain the Supreme Court Judgement. Chief Justice Subba Rao held that “ The Preamble to an Act sets out the main objectives which the legislation is intended to achieve”. However, in Keshavananda Bharati Case,1973 the Golaknath Case was overuled.
- Keshavananda Bharati v. State Of Kerela
Verdict : Parliament can ament any part of the Constitution but could not destroy it’s Basic Feature.
In The Supreme Court of India had outlined the basic structure Doctrine of the Constitution. The Supreme Court rejected the earlier option of Golaknath Case and held that Preamble is a part of the Constitution. The majority 13 Judges Constitutional bench 7:6 , 68 days hearing while upholding the amending power under the 24th Constitutional Amendment Act by relying on the principles of implied limitations of amending power . It was decide that the amending power of the parliament is distinct from legislative power and this powers wide enough to reach each and every part of the constitution and the parliament has no power to alter the „basic structure‟ of the Constitution. „BASIC STRUCTURE‟ was interpreted to include the Supremacy of the Constitution, The Rule of Law,
Independence of the Judiciary, Doctrine of Separation of Powers, Federalism, Secularism, Sovereign Democratic, The Parliamentry system of Government, The Principle of Free and Fair Elections , Rule of Law and Welfare State. The judgement of this case has to be considered as the greatest contribution of Supreme Court to Constitutional Jurisprudence. The doctrine of basic structure which is not mentioned in the Constitution has implied the concept on the power of parliament to amend the Constitution. Justice Sikri observed that: a) Preamble is the source of the Constitution viz the people of India.
- b) It declares Fundamental Rights and Freedom which the people of India intended to secure.
- c) Preamble is a part of Indian Constitution but it is neither a source of any power nor a limitation there on. Later on some more features are added by Supreme Court –
d ) Power to review by Courts.
- e) Dignity of Individual and Right to Livelihood.
- f) Right to Freedom of Religion.
However, it held that Preamble is a intergral part of the Indian Constitution . The Preamble was relied on in imposing implied limitations on amendment under ARTICLE 368. Preamble can be amended but the „basic feature‟ of the Preamble cannot be amended. Amending power cannot change the Constitution. All the thirteen Judges held that 24th, 25th and 29th Amendment Acts were valid.
- Minerva Mills v. Union Of India
Court Vedict : A law under Article 31c would be protected only if it is made to implement Directive Principles of State Policy in Article 39(b). Minerva Mills was a textile Industry in the State of Karnataka engaged with massive production of silk clothes. On 20st August 1970 the Central Government appointed a committee under Section 15 of Industries (Development and Regulation) Act, 1951. On 19th October, 1971 The Central Government empowered National Textile Corporation Limited to take over the management of Minerva Mills under Section 18A of the 1951 of this Act. This was challenged by 42nd Constitutional Validity Amendment Act, 1976. Here it was arise the amending power of the Constitution either it is limited or there is inherent limitation. The Judgement was divided in 4:1 Judges. Therefore the Supreme Court held that the scope of ARTICLE 368 is just to amend the Constitution not to alter the basic structure of the Constitution and also held Sections 4 and 55 of the 42nd Constitutional Amendment Act, 1976 is Unconstitutional. The Supreme Court also laid down strict terms between Directive Principles of State Policy and Fundamental Rights.
- Re:Beru Bari Union v. Union Of India
Court Vedict : The Supreme Court stated that executive has no power to enter into an agreement related to give up of a Territory without any Constitutional amendments.
Beru Bari is a small group of village in Jalpaiguri district of West Bengal which falls under two stations Bodo and Jalpaiguri. In 1952, Pakistan tried to exploit the Boda station. At that time Prime Minister Jawaharlal Nehru decided to have an agreement with Pakistan regarding Berubari splitting into two parts. President Rajendra Prasad decide to bring the matter to the Supreme Court of India. In this case Beru Bari was questioned wether the premises of the Preamble was a part of Constion or not ? This case was filed challenging the division of BERU BARI UNION contained in Article 3 of the Indian Constitution i.e Parliament can form new states, Alteration of areas, Boundaries or change the name of states. But the Central Government gave a territory to Beru Bari Union (WEST BENGAL) to the Pakistan. In reply The Supreme Court made a decision that, Centre cannot give a territory to any Country without amending the Indian Constitution. In 1960, A EIGHT Judges Bench held that “Preamble is not a Part of Indian Constitution”. This famous case was overruled in Keshavananda Bharati case which held that” Preamble is a integral part of Indian Constitution” .
- Union Of Government v. Lic Of India
In this case, Supreme Court of India has once held that Preamble is an integral part of the Constitution.
- S.R Bommai v. India
On 11th March, 1994 a Nine Judge Constitutional Bench held that Preamble indicates the Basic structure of the Constitution. The verdict was concluded that the power of President to dismiss a state government is not limited. This case put an end to the arbitrary dismisaal of State Government by the hostile of Central Government.
Can The Preamble be amended under Article 368?
This question was arised for the first time in The Hon‟ble Supreme Court in the very historic case, Keshavananda Bharati vs State of Kerela. Before this case, The Hon‟ble Supreme Court heldthat Preamble is not the part of Constition hence it cannot be amended but later on Beru Bari case was overruled by Keshavananda Bharati case. So far, Preamble was amended only once on 18th December 1976 during the Emergency in India that was 42nd Constitutional Amendment Act, 1976 which inserted the following words- “Secularism, Socialism and Intergrity” in the Preamble. Any part of the Constitution may be amended but the Basic Structure of the Constitution cannot be amended. The Preamble is used to interpret the provisions of the Constitution in case of matters related to disputes. The Preamble itself provides short summary of the Constitution. On the question majority held that since The Preamble is a part of Indian Constitution thus, it can be amended under Article 368 but the amendment is subject to certain conditions which cannot alter the Basic Structure of the Constitution. .
ROLE OF PREAMBLE IN THE JUDICIAL INTERPRETATION OF CONSTITUTION :
Though the Preamble to The Constitution of India reflects the Basic Structure and the spirit of the Constitution.It represents the entire Constitution in its introductory part. The Preamble proclaims the solemn resolution of the people residing in India. Preamble is the legislation in a nutshell. The salient features of the the Constitution has evolved directly or indirectly in from these objectives enshrined in the Preamble. It also serves as the Protector of the Constitution. The Preamble is so important that it holds the strength of Unity among all. Preamble can be seen to have both contextual and a constructive role in statutory interpretation. Constitution is a living organ so its interpretation is permissible.
Conclusion: To conclude, it won‟t be wrong to say Preamble serves as the spirit behind The Constitution of India. The Preamble assures social, economic, and political justice , liberty of though and expression, belief anf faith, eliminate inequality among all and to provide dignity of every individual. Thus, the Basic Structure of the Constitution should not be alter because it promotes Unity , Equality and Freedom. We regard THE CONSTITUTION OF INDIA as the Supreme Law of our Country. Our Constitution is the World’s longest written Constitution which contains 448 ARTICLES, 25 PARTS and 12 SCHEDULES. So far, there are 103rd Constitutional Amendments and 124th Constitutional Amendment Bill . Thus, the Preamble is regarded as the backbone of our Constitution.