CHAPTER 3 – PREAMBLE OF THE CONSTITUTION (FREE)

 

PREAMBLE OF THE CONSTITUTION

 

 

Preamble refers to the introduction or preface to the Constitution. It contains the summary or essence of the Constitution. The Preamble to the Indian Constitution was drafted by Pandit Jawaharlal Nehru which was adopted by the Constituent Assembly. It was amended by 42nd amendment act (1976) to add three new words – Socialist, Secular, and Integrity. The text of the Preamble to Indian Constitution reads as below:

We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR,DEMOCRATIC, REPUBLIC and to secure to all of 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 26th day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Though, the Preamble is not enforceable in the courts of law, it aids in the legal interpretation of the aims and objectives of the Constitution, especially in deciding matters where the current language is found to be ambiguous (unclear).

 

 

KEYWORDS IN THE PREAMBLE TO THE INDIAN CONSTITUTION

 

SOVEREIGN

The word sovereign means supreme. Being a sovereign nation implies that India is a fully independent state and as such is not subject to the authority of any other state or external power. As a sovereign state, India is free both internally and externally to take her own decisions and implement these for her people and territories. Although India is a member of Commonwealth, United Nations and many other organisations, it is free to act in its own discretion.

However, India has judicial sovereignty and not Parliamentary sovereignty. This is because the Constitution of India gives to the Judiciary the supreme powers of judicial review and of interpreting the Constitution.

 

SOCIALIST

It was at the 1931 Karachi session of the Indian National Congress that the socialist pattern of development was set as the goal for India.

The word socialist implies social and economic equality. Social equality means the absence of discrimination on the grounds only of caste, colour, creed, sex, religion, or language. Under social equality, everyone has equal status and opportunities. The government can however make certain reservations on such basis to bring the disadvantaged sections at par with progressive sections of the society. Economic equality means that the government will endeavour to make the distribution of wealth more equal and provide a decent standard of living for all. Progressive taxation, fair and transparent allocation of resources, anti monopoly laws etc are some of the steps in this direction.

India is a socialist state in a sense that the state is obliged to work for the welfare of the society. However, our brand of socialism is Democratic Socialism, and not Communistic or State Socialism which involves nationalization of all means of production & distribution, and abolition of private property. It holds faith in mixed economy where both public and private sector coexist harmoniously. Certain important sectors are nationalised in the greater interest of the nation (e.g. defence), while other are left to operate democratically under regulated market. The Indian Constitution does not seek to abolish private property altogether, but seeks to put it under restraints so as to ensure equitable distribution of wealth. It seeks to reduce crony capitalism (nexus between a business class and the political class), empower ordinary people in workplaces and the economy, and restructure gender and cultural relationships to be more equitable. Its seeks to remove poverty and inequality, by providing decent standard of life to everyone. 

 

SECULAR

It means that the state protects all the religions equally and does not uphold any religion as the state religion. As such people from different religion have different laws applicable on them, in matters related to faith and religion. This has led to acceptance of certain social practices such as child marriage, polygamy, instant divorce, unequal inheritance rights etc. Hence critics argue that Indian form of secularism violates the principle of equality before law since in such cases related to faith, law is applicable differently to people from different religions. For e.g. polygamy and instant divorce were acceptable norms under Muslim Sharia Law (Instant Divorce or Triple Talaq has been now made an offence with a recent amendment to the law) while they constituted criminal offence under Hindu Law. Any attempt to enforce Uniform Civil Code is seen as an attempt by the majority religion to impose restrictions on the religious freedom of the minorities. On the other hand, the term pseudo-secularism is used pejoratively to describe policies considered to involve minority appeasement. Secularism in India in this sense is different from concept of Secularism in the west where every religion is equal before the law and as such subject to same set of laws. 

 

DEMOCRATIC

Democracy is of two types:

  1. Direct – People exercise their supreme power directly through,
    1. Referendum or Plebiscite – The entire electorate is invited to vote on a particular proposal. While a referendum is binding on the government, a plebiscite is advisory or opinion oriented in nature.
    2. Initiative – A petition signed by a certain minimum number of registered voters can force a government to either enact a law or hold a public vote in parliament.
    3. Recall – A procedure that allows citizens to remove and replace a public official before the end of a term of office.
  2. Indirect – People exercise their supreme power indirectly through their elected representatives via Parliamentary or Presidential form of governments.

The term Democratic in Preamble to Indian Constitution refers to not just political democracy but also social and economic democracy.

The Indian Constitution provides for representative parliamentary democracy. Some of the important features of Indian Political Democracy are:

  1. Universal Adult Franchise
  2. Periodic Elections
  3. Rule of Law
  4. Absence of Discrimination

Social democracy is the idea that the state needs to provide security and equality of opportunity for its people and should actively reorder society in a way that is conducive to such developments, but that such changes should be brought about gradually, legitimated by a democratically-elected majority. 

Economic democracy is the idea that the decisions regarding development as well as allocation of public resources must be taken collectively by all the stakeholders in the society viz the government, the corporates, the workers and the people. 

 

REPUBLIC

The term Republic in our Preamble indicates that India is a state in which supreme power is held by the people and their elected representatives, and which has an elected or nominated president rather than a monarch. It also indicates absence of any privileged class.

 

JUSTICE

The term ‘Justice’ embraces three distinct forms – Social, Economic and Political, secured through various provisions of Fundamental Rights, Directive Principles and Judiciary.

Social JusticeIt refers to equal treatment of all citizens without any social distinction based on caste, race, religion, sex and so on. It is to be mentioned in this regard that reservations made on the basis of caste, race, religion, or sex for the upliftment of socially disadvantaged sections of the society, are allowed in our constitution, as they intend to increase social equality in the society.

Economic JusticeIt refers to providing equality of opportunity to everyone to participate in the economy irrespective of their economic background through participative justice, and elimination of glaring inequalities in wealth, income and property through distributive justice. Right to Education (RTE), Right to Job (MGNREGA), Reservation in government jobs for Economically Weaker Sections (EWS), and Progressive Taxation are some of the steps taken by the government to ensure Economic Justice.

Political JusticeIt refers to equal, free and fair opportunities to all people for participation in the political process without any discrimination.

The concept of social, economic and political justice has been taken from Russian Revolution.

 

LIBERTY EQUALITY AND FRATERNITY

The term ‘liberty’ means absence of restraints on the activities of the individuals, subject to certain reasonable restraints as may be needed in the national interest. The Constitution secures to all the Citizens of India liberty of thought, expression, belief, profession, and free movement through Fundamental Rights which are enforceable through courts of law in case of violation. It is to be noted that this liberty guaranteed by the Preamble is not absolute and is subject to reasonable restraints by the state in the national interest. For e.g although we have freedom of speech and expression guaranteed by our fundamental rights, we are not allowed to make any provocative speeches that are sedative or can disturb peace.

The term ‘equality’ means that everyone is equal before the law and there shall be no special privileges to any section of the society. The Preamble implies three types of equalities:

SOCIAL EQUALITY – The constitution prohibits any form of social discrimination on the basis of caste, race, religion or sex. However, the discrimination made by the state in the form of various reservations to uplift certain disadvantaged sections of the society, would not constitute breach of social equality, since such a discrimination is aimed at eliminating prevailing social inequality.

ECONOMIC EQUALITY – The Constitution, through Directive Principles of State Policy, seeks to establish an economic order where everyone gets the opportunity to participate and get remunerated according to his/her capabilities and contributions. Also it advocates an equitable and fair distribution of wealth and resources.

POLITICAL EQUALITY – The constitution provides for universal adult franchise i.e. every citizen of India who has attained 18 years of age shall be eligible to vote. Also, the Constitution does not enlist any such eligibility criteria, for holding political position, which discriminates on the basis of caste, race, religion or sex.

The term ‘fraternity’ refers to a feeling of brotherhood and a sense of belongingness to one’s country. It refers to a feeling that we all are children of the same soil and are connected with each other. It seeks to emphasise that brotherhood and mutual respect are above social norms and regulations. 

The concept of liberty, equality and fraternity has been taken from French Revolution.

 

 

IS PREAMBLE PART OF THE CONSTITUTION?

 

In the Berubari Union Case (1960), the Supreme Court opined that the Preamble is not a part of the Constitution. However, it maintained that where the current language is found to be ambiguous, the Preamble shall play an important role in the interpretation of statutes and provisions of the Constitution. 

It was the Kesavananda Bharati Case (1973) which held for the first time that the Preamble is part of the Constitution. It held that although the Preamble is not a source of any power or prohibition upon the powers of the Legislature but it plays an important role in the interpretation of statutes and provisions of the Constitution. It also held that the Preamble can be amended under article 368, provided that no amendment is done to the ‘basic features’ of the Constitution enshrined in the Preamble. However, what constitutes the ‘basic features’ stays as a subjective term to be interpreted by the Supreme Court itself.