– Chandra Shekher Mishra
The preamble is an important aspect of the Indian constitution. In today’s socio-political context, a thorough discussion of the same has become paramount important. This Preamble series gives an insight into the lesser told section of the constitution. Read on to find out more..
Though the preamble is regarded as a part of the Constitution of India (from now on- the Constitution), it is not so considered in an operative sense because it neither defines nor limits the power of the governmental institutions or any of its departments created by the Constitution.
In the Berubari Union (I) re case, the contention rivaling the alienation of certain parts of the Indian territory to Pakistan (under the effect of an agreement related to the Berubari Union) was that the Parliament was unauthorized to alienate any part of the Indian territory to any foreign nation– neither through a common law nor through a constitutional amendment. The contention above was rolled out based on the preamble, which protected, it was argued, the sacred and inviolable nature of the Indian territory. Gajendragadkar J was in no mood to accede to the argument that the preamble could not be seen as a limitation on one of the essential attributes of sovereignty– the power to acquire alienate territories. Thus, the Indian polity could not be deprived of the said attribute unless there is a provision to the contrary. Gajendragadkar J observed that the preamble, despite being a key to unraveling the mind of the makers of the Constitution, which may show the general purpose for which they made the several provisions of the Constitution, was not a part of the Constitution. At the highest, interpreting the ambiguous provisions may only be considered. The above was inspired by Willoughby’s observation regarding the preamble of the American Constitution that it does not confer any substantive power on the government of the United States.
During the Constituent Assembly debates, Alladi Krishnaswamy highlighted the prime importance of the preamble by suggesting that ‘it expresses what they have thought or dreamt for so long. ‘Though in an ordinary statute,’ he said, ‘we do not attach any importance to the preamble; all importance has to be attached to the preamble in a constitutional statute.‘ (Constituent Assembly Debates Vol. 10, p. 417).
Why was the status of the preamble- as a key to the mind of the founding fathers and as an outline of the objectives of the Constitution– not enough to hold it as a part of the Constitution remains unfathomable to the author. The assumption that the preamble of the Constitution was similar to that of the US was also mistaken. In this context, an observation of Hidayatullah J from the Sajjan Singh case becomes very imperative:
Our preamble is more akin in nature to the American Declaration of Independence (July 4, 1776) than to the preamble to the Constitution of the United States. It 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.
Sajjan Singh [1965] 1 S.C.R. 933
Regarding the grant of power, it is necessary to understand that not every particular in a written constitution would be present in the expressed form. Many of the particulars are present in implied form therein. Mudholkar J, in the same case, described the preamble as the epitome of the broad features of the Constitution. He further observed that the general characteristics were nothing but concretization (or amplification, or realization) of the concepts (or grand and noble visions or directions) set out by the preamble, thus suggesting that the status of the preamble is not part of the Constitution may have to be reconsidered.
Finally, in Kesavananda Bharti v. State of Kerala, 1973, the suggestion above was translated into reality, and the preamble was recognized as a part of the Constitution. The abovementioned recognition was that the Constituent Assembly expressly voted the preamble to be a part of the constitutional statute, like other provisions of the Constitution, after a lengthy debate. The Constitution was further framed in the preamble, which was, in turn, settled in the light of the Constitution. Sikri J observed, beautifully in his own words, what was already prophesied by the court on numerous instances:
I need hardly observe that I am not interpreting an ordinary statute, but a constitution which apart from setting up government machinery, has a noble and grand vision. The vision was put in words in the Preamble and carried out in part by conferring fundamental rights on the people. The vision was directed to be further carried out by the application of directive principles.
Paragraph 15, Justice S.M. Sikri
Mathews, Palekar, Dwivedi, and Ray JJ opined that the preamble was amendable, while Shelat and Grover JJ took the opposite view. The preamble was later amended, for the first time, by the 42nd Amendment Act, 1976, which verbally added the terms’ socialist’, ‘secular,’ and ‘integrity’ with retrospective effect. With the recognition as a part of the Constitution, it also fell within the sweep of amenability of the Constitution. Despite being a part of the Constitution, constitutional law scholars do not consider it an operative part. It neither grants any power nor limits the powers of the institutions created by the Constitution.
More articles on the Preamble series are coming soon…