PREAMBLE : A SOURCE TO THE MOST IMPORTANT DOCUMENT OF THE COUNTRY “CONSTITUTION OF INDIA’, 1950

By | March 9, 2017

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THE PREAMBLE: SOURCE OF THE CONSTITUTION

Every Constitution either written or unwritten all over the world has a preamble associated with it. It generally sets the ideals and goals which the makers of the Constitution intend to achieve through that Constitution.[1] Therefore, it is also regarded as a “key to open the mind of the makers of the constitution which may show the general purposes for which they made the constitution.[2] For that reason the preamble is also a legitimate aid in the interpretation of the provisions of the Constitution. Generally, for the purpose of interpretation, the preamble of the Constitution stands on the equal footing as the preamble of an Act.[3] The preamble indicates the source from which the constitution comes viz. the people of India. It is ordained by the people of India through their representatives assembled in a sovereign constituent assembly. The preamble declares clearly that it is the people of India who have adopted, enacted and given to themselves the constitution. The preamble embodies the great purposes, objectives and the policy underlying its provisions apart from the basic character of the state which was to come into existence i.e. a sovereign democratic republic. The preamble to the Indian constitution reads:

“We, the people of India, having solemnly resolved to constitute India into a sovereign, socialist, secular, democratic republic and to secure to all its citizens:

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:

In our constituent assembly, this twenty-sixth day of November 1949, do hereby adopt, enact and give to ourselves this constitution.” (the words ‘socialist’ and ‘secular’ have been added to the preamble by the 42nd amendment act, 1976. also, ‘unity of the nation’ was amended to read ‘unity and integrity of the nation’).

The objectives of the preamble are: justice, liberty, equality and fraternity. The ultimate goal is that of “securing the dignity of the individual and unity and integrity of the nation.” The preamble sets out the aims and aspirations of people, and these have been translated into various provisions of constitution. The people will continue to be governed under the constitution so long as it is acceptable to them and its provisions promote their aims and aspirations. Following the course of Indian history and pattern of Indian politics, it may be said that, unlike the western society, it is the elite of Indian society rather than people themselves who have set the tone for reformation of society.[4] The constitution though not ratified by people, came into force in 1949.

Besides the fact that the preamble provides it is the people of India who have enacted and given to themselves the constitution, the successful working of the constitution and its continued acceptance by people over the years, leads to no other conclusion that the binding force of constitution is the sovereign will of people of India. In Powell v. Kempton Park Race Course,[5] Lord Halsbury LC said: “ Two propositions are quite clear: one that a preamble may afford useful light as to what the Statute intends to reach; and another, that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.”

If at any stage of history, the people find that constitution is not serving the needs of society, they may set in motion a machinery which provides for a system suited to aims and aspirations of people. it may, therefore, be rightly observed that the ‘sovereignty’ lies with the people of India – preamble declares that source of authority under the constitution is the people of India (sovereignty, is not located in parliament, as it is bound by constitution…. which in a sense may appear to be sovereign as it is supreme law. however, it is the people who have given … constitution). Thus, the source of the constitution are the people themselves from whom the constitution receives its ultimate sanction. The constitution has not been imposed on them by any external authority, but is the work of the Indians themselves.

UTILITY OF PREAMBLE

The preamble represents the quintessence, the philosophy, the ideals, the soul or spirit of the entire constitution of India. It had the stamp of “deep deliberation”, was “marked by precision”: it was “an epitome” of the broad features of the constitution which were an amplification or concretization of the concepts set out in the preamble[6]. The preamble does not grant any power but it gives a direction and purpose to the constitution. The utility of the preamble is as follows:

  1. It contains the enacting clause which brings the constitution into force.
  2. It indicates the source of constitution.
  3. It declares the basic type of government and polity which is sought to be established in the country.
  4. A statement of objectives of the constitution – which the legislation is intended to achieve (example implementation of directive principles). It epitomizes principles on which the government is to function.
  5. It serves as a challenge to the people to adhere to the ideals enshrined in it (justice, liberty, equality, fraternity, etc.).
  6. It is a sort of introduction to the statute and many a times very helpful to understand the policy and legislative intent. It is a ‘key-note’ i.e. key to the minds of the framers of the constitution.
  7. Several decisions of the Supreme Court pointed out the importance and utility of it. By itself, it is not enforceable in a court of law, yet it states objects and aids legal interpretation of the constitution, where language is ambiguous….. Construction which fits the preamble may be preferred (however, the preamble cannot override the express provisions of an act).

Amendment of preamble

In Berubaris’ case[7], the Supreme Court held that preamble is not a part of constitution and thus not a source of any substantive powers and doesn’t import any limitations. However, in Keshavananda Bharti’s case[8] the court held that preamble is part of constitution and it is of extreme importance; and constitution should be read and interpreted in the light of grand and noble vision expressed in preamble. In fact the preamble was relied on in imposing implied limitations on amendment under the art. 368. held that since preamble is part of constitution, it can be amended, but ‘basic features in it can’t be amended. As edifice of our constitution is based upon these features and if they removed, it will not be the ‘same’ constitution. Amending power can’t change the constitution in such a way that it ceases to be a ‘sovereign democratic republic. It may be noted that in exercise of the amending power under art. 368, the constitution (42nd) amendment act, 1976 amended the preamble inserting the terms ‘socialist’, ‘secular’ and ‘integrity’.

                                                                                                       By – Monika Sharma

[1] “The Preamble contains in a nutshell its ideals and aspirations,” per Subba Rao, C.J. in I.C. Golak Nath v. State of Punjab, AIR 1967 SC 1643, 1655: (1967) 2 SCR 762

[2] Berubari v. Union and Exchange of Enclaves, Re, AIR 1960 SC 845, 856: (1960) 3 SCR 250

[3] Maxwell: The Interpretation of Statutes, 6-9 (12th Edn, 1969)

[4] Radhika Seth, “ Constitutional Law and its Perspectives” pp.6-8

[5] 1899 AC 143 at 153

[6] Madhlokar, j. in Sajjan Singh v. State of Rajasthan 1965 AIR 845: (1965) SCR (1) 933

[7] Berubari Union & Exchange of Enclaves, Re, AIR 1960 SC 845, 856

[8] Keshvanand Bharti v. State of kerala, (1973) 4 SCC 225