As per the definition in Black’s Law Dictionary, the ‘Preamble’ is— “A clause at the beginning of a constitution or statute explanatory of the reasons for its enactment and the objects sought to be accomplished”.
According to Chambers Twentieth Century Dictionary—
“A preamble means preface, introduction, especially that of an act of Parliament, giving its reasons and purpose – a prelude”.
In the ordinary sense, the Preamble denotes a preface or introduction of a Constitution and ordinary statutes as well. Every enactment made by law-making authorities contains a ‘Preamble’ and the Constitution of a Country being the Supreme Law of the Nation is not an exception to this. The ‘Preamble’ of an enactment contains the declarations made by the Parliament before enacting the same. Likewise, the ‘Preamble’ of the Constitution of a Country replicates the sprits, aims, and aspirations of the framers behind adopting the same and outlines the objectives, directions, and purposes of the whole Constitution.
The ‘Preamble’ of a Constitution is the assemblage of fundamental ideas of the people of the Nation that they intended to achieve. Along with this function, the Preamble to a Constitution plays the most vital role during the interpretation to get rid of ambiguities that may arise out of any provision in due course of time and fixing the connotations of words that may permeate more meanings. The function of the Preamble sometimes may be to limit the scope of certain expressions, facts, and definitions that are very useful while interpreting any provision or part of the Constitution to derive a suitable solution to dispel ambiguities since any interpretation cannot vitiate the basic objectives or intentions of the framers of the Constitution and the Preamble to any enactment represents the basic intentions of the legislature behind passing the same.
Almost the every Constitution of the Countries all over the world contains a ‘Preamble’ whether its variation in lengths, objectives, and contents. Unlike the Constitution of other countries, India has an elaborate ‘Preamble’ and it clarifies who has made the Constitution, what is the ultimate sanction behind it, what are the sources of it, what is the nature of the polity which is sought to be established by the Constitution. It often takes a significant place to examine the Constitutional validity of the laws made by the legislature.
The ‘Preamble’ of the Indian Constitution was the product of the ‘Objective Resolution’ of Jawaharlal Nehru in December 1946 and the Constituent Assembly adopted it in January 1947 after the Draft Constitution had been approved. This feature of the Constitution is borrowed from the Constitution of the United States. It projects the salient features of the Indian Constitution. In this regard, the name of Sir Benegal Narsing Rau being the Constitutional Advisor deserves special mention because of his key role in formulating the initial draft of the Constitution in the Assembly and he initially drafted the ‘Preamble’ in his memorandum of May 1947 and it was later reproduced in the draft of October 1947 though it was later reformulated by the Assembly in the context of deliberations. It is noteworthy that the framers of the Constitution in Constituent Assembly while formulating the ‘Preamble’ contended that the scope of ‘Preamble’ should be restricted only to defining essential features of the Constitution and its socio-political objectives. More importantly, the ‘Preamble’ should conform to the provisions and basic philosophies of the Constitution. The cardinal objectives before the Constituent Assembly were to constitute India as a “Sovereign Democratic Republic” and to secure “Justice, Liberty, Equality and Fraternity” of its citizens for the attainment of a Welfare State and an egalitarian society. The Assembly by its deliberations adopted the expression ‘Sovereign Democratic Republic’ instead of ‘The Sovereign Independent Republic’ as mentioned in the ‘Objective Resolution’ because the expression ‘Independent’ is inherent in the expression ‘Sovereignty’. The Preamble was last amended by the 42nd Constitutional Amendment Act, 1976. The expressions ‘Socialist’ and ‘Secular’ as mentioned in the present ‘Preamble’ were not present in the original draft Constitution and these expressions were added by this Amendment Act. On the other hand, the expression ‘Fraternity’ was also incorporated by the Assembly though it was not present in the ‘Objective Resolution’ since it was contended that “The committee felt that the need for fraternal concord and goodwill in India was never greater than now and that this particular aim of the new Constitution should be emphasized by special mention in the Preamble.” By 42nd Constitutional Amendment Act, 1976, “unity and integrity of the Nation” was added under the expression of ‘Fraternity’. It is worthwhile to note that after the ‘Transfer of Power’ in 1947, the Constituent Assembly became a ‘Sovereign’ body which was perspicuous in the expression “Give To Ourselves This Constitution” and it was implied by the said expression that the ‘Preamble’ was originated by the “People of India”, hence the ‘Sovereignty of the Nation’ lies on them.
“The assertion of some of the makers of the Constitution proceeded from the people can only be taken as a rhetorical flourish, probably to lay its foundation as the more solid basis of popular will and to give it an unquestionable supremacy. A Preamble represents at the most, only an intention, which an Act seeks to effect and it is a recital of present intention.”
In that case, Shelat and Grover JJ. stated that—
“The Preamble indicates the source from which the Constitution comes.”
In a nutshell, the Preamble reflects the ideals and aspirations of the people of India. The Preamble is not a platitude but the mode of its realization is worked out in detail in the Constitution.
Whether the Preamble is a part of the Constitution or not:
Even though it is clear from the above discussion what the Preamble of the Indian Constitution aims to spell out, one question arose whether it forms a part of the Constitution or it is a mere introductory portion containing some declarations or, goals that the people aspired to attain. The Supreme Court answered this question in different cases. The most leading Supreme Court cases are as follows—
1. Re Berubari Union: As per the Presidential Reference made under Article 143(1) of the Constitution, the Supreme Court was dealing with a matter regarding the power of the Government to transfer the Berubari union to Pakistan under Article 3 of the Constitution following the Nehru-Noon Agreement, 1958. The Supreme Court exercising its Advisory Jurisdiction asked to bring an amendment in Article 3 as per the power conferred to the Parliament under Article 368 of the Constitution by which the Parliament would be made empowered to transfer the proposed territory to Pakistan. In this case, the Supreme Court unanimously ruled that nevertheless, ‘Preamble’ is not part of the Constitution but, it is a ‘key to open the mind of the makers’ that sets general purposes behind the enacting it by the sovereign will of people and it takes a significant place in the interpretation of any provision or part contained in the Constitution.
3. Kesavananda Bharati vs. State of Kerala: In this case, 13 judges largest-ever Constitution bench of the Supreme Court propounded the ‘Basic Structure Doctrine’ and overruled the rulings made in Golaknath and Re Berubari Union cases and held that the ‘Preamble’ is a part of the Constitution and it also plays a significant role in interpreting any provision or part laid down in the Constitution. Thus it was found that the Parliament can amend any part of the Constitution including the Preamble, but the Basic Structures cannot be amended.
Contents of the Preamble of the Indian Constitution:
The perusal of the ‘Preamble’ of the Indian Constitution as follows—
“WE THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a [SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC] and to secure to its all 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 ‘Preamble’ of the Constitution is the compendium of the basic expressions as mentioned above. The contents of the ‘Preamble’ are discussed below—
1. We the People of India:
The Preamble to our Constitution begins with this expression- “WE THE PEOPLE OF INDIA’ and these opening words answer the question of who have brought out the Constitution. Even though there is no specific Article in the enacting portion of the Constitution containing a provision declaring that all the powers are emanated by the people of the Nation, this expression reverberates that the ‘Ultimate Sovereignty’ of the Nation is vested upon the people, hence the ‘People of India’ are ‘Sovereign’. Though our Constitution has been made by men who cannot be said to be fully representative of the nation and it has not been ratified by a direct vote of the people, our Constitution, like that of the United States professes that it is founded on the consent and acquiescence of the people. Thus it can be said that— “The source of the Constitution are the people themselves from whom the Constitution derives its ultimate sanction. Their assertion affirms the republican and democratic character of the Indian Polity and sovereignty of the people. The people of India thus constitute the sovereign political body who hold the ultimate power and who conduct the government of the country through their elected representatives”.
Though historically, it owed its origin in an agreement of Indian leaders with the British Government, followed by one legislation made by the British Parliament, i.e., the Indian Independence Act, 1947 from the legal standpoint, it was obvious that once the Constituent Assembly began to function, it could exercise all the powers of a Sovereign Legislature – Constituent as well as Legislative including to repeal the Indian Independence Act, 1947 itself and amend any part of the Constitution as the power conferred by Article 368 of it. Thus, it became a ‘Sovereign’ body because unlike the Government of India Act, 1935, it was not imposed by any external authority. Further, in the landmark case- The Union Of India vs. Madan Gopal Kabra, the Supreme Court explicitly stated that “Our Constitution, as appears from the Preamble, derives its authority from the people of India… it was open to the people to confer on the legislatures established by the Constitution, which they framed through their representatives, power to make laws having operation in relation to periods prior to the commencement of the Constitution.”
In the Kesavananda Bharati vs. State of Kerala case, eminent jurist H.M Seervai once raised the question of whether the correctness of the declaration- “WE THE PEOPLE OF INDIA” can be inquired into by the Court or not. It was contended that “our Constitution was framed by Constituent Assembly which was elected on a very narrow franchise and the Constitution was not submitted to the people for ratification.”
Different views were set forth by Hedge J. and Mathew J. and the Court observed that whether the authority of the Constitution is elicited from the Indian Independence Act, 1947 which resulted in the partition of British India into 2 dominions- India and Pakistan that was accepted by the leaders of undivided India and which as a consequence altered the composition of the Constituent Assembly of India by certain exclusions and inclusions or whether the authority is originated from the people as recited in the Preamble, is a matter of purely academic relevance. The Court further conceded that the expression “we the people” highlights the promise made by the aggregate population of India that all the powers under the Indian Constitution are derived from the people and that sovereignty rests not even in the Parliament, and even the constituent body set up under Article 368 cannot amend the basic structure of the Constitution set up by the people. “The people, in the final analysis, are the ultimate sovereign”.
Hence, the Basic Structure of the Constitution cannot be amended or repealed in the exercise of the amending power conferred by Article 368. Perhaps a new Constitution could be set up by the people through a revolution. Therefore, the said expression is inherent in the term ‘Sovereignty’ that is one of the Basic Structures of the Constitution. Since challenging any of the ‘Basic Structures’ would indeed intend to challenge the validity of the Constitution itself, challenging the said expression would also intend to do the same.
Undoubtedly the validity of the Constitution cannot be challenged in the Supreme Court or any other Constitutional Courts within the territory of India and it cannot be declared invalid because all the Constitutional Courts owe their existence to the Constitution and declaring the Constitution would mean that the Courts are constituted illegally. Thus the Constitutional Courts have a lack of jurisdiction to decide that matter.
It is also worthwhile to note that by the authority derived from the people, the Constitution “blotted out in one magnificent sweep all vestiges of arbitrary and despotic power in the territories of India” as pointed out by the Apex Court in the case- Virendra Singh And Others vs. The State Of Uttar Pradesh . But it can be insisted that once a Constitution is enacted and submitted to the people for ratification of the same, it becomes not only binding to the institutions that are constituted by the Constitution but also to the people of the Nation itself although it is ratified and enacted by the people ostensibly in their name.
The term ‘Sovereign’ in the Indian Constitution is borrowed from Article 5 of the Irish Constitution.
“Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere”— Salmond.
As per Coolie, “A state is sovereign when there resides within itself supreme and absolute power, acknowledging no superior”.
According to Black, “Sovereignty is— 1. Supreme dominion, authority or rule, 2. The supreme political authority of an independent State, 3. The State itself”.
Sovereignty is supremacy in respect of power which includes political, civil, and military power, dominion, or rank; supreme dominion authority or rule. The term ‘Sovereign’ denotes that the absolute, supreme or, uncontrollable power of a political superior by which the State is governed and that power is not subject to any other political superior. It is the independent and ultimate authority of the State and it is vested in a person, body or, state. It also means that the person or body of persons in whom the ultimate authority of law rests. This term is often used in England to designate the King or Queen of the United Kingdom in the legislations of parliament in the phrases- “Our Sovereign Lord the King” or “our Sovereign Lady the Queen” because it is implied in this term as the monarch is the possessor of the sovereignty of the dominion.
Sovereignty has two different pre-eminent Constitutional aspects- its location and its nature. Where in a country like India, the sovereignty is located in the people, the laws made by the parliament are subject to judicial review. But, in a country like England where the sovereignty by its nature is vested in the parliament, the Courts are powerless to scrutinize the laws made by it because the parliament is itself represented by the people, thus the laws made by it can be treated as the ‘verdict of people’. The sovereignty of a country can be both Unitary and Federal because there are distributions of legislative and executive powers between the Union and State, but these powers are subject to the Constitutional provisions or boundaries conflicts of which to be decided by the Courts in the exercise of the powers of judicial review. In the landmark case- Union of India vs. Sukumar Sengupta, the Supreme Court examined that—“Sovereignty is a quality of right. It depends on the facts and the circumstances of each case. In the present and modern context sovereignty has and must have a more restrictive meaning than it had in the earlier centuries when on the emergency of individual national States, no limits on the power of States were acknowledged. The complexities of modern developed societies need amicable and peaceful settlement of boundary disputes which are in the interests of the international community. The older and absolute ideas of sovereignty and independence have thus necessarily to be modified in the dawn of the 21st century”.
In another notable case- Synthetics and Chemicals Ltd vs. State of UP , it was decided that— “It is the exercise of sovereign power which gives the State sufficient authority to enact any law subject to the limitations of the Constitution to discharge its functions. The sovereign power is plenary and inherent in every sovereign State to do all things which promote the health, peace, morals, education, and good order of the people. This power of sovereignty is, however, subject to Constitutional limitations.”
In the case- Mohd. Ajmal Amir Kasab vs. State of Maharashtra, a question was brought in before the Supreme Court what the expression ‘Government of India’ as mentioned in Section 121 of the Indian Penal Code imports in true sense. In the narrowest aspect, the expression is restricted only to the executive limbs of the Government which controls the executive functions of the country. The Court held that this expression signifies the Indian State which is the juristic embodiment of the sovereignty of the country and the legitimacy of it is derived from the common will of people. Thus, the notion of sovereignty embodied in the expression ‘Government of India’ imports 2 following aspects— firstly, the sovereignty which is consistent with the Principles of Public Internation Law, secondly, the sovereignty which is located in the territorial unit and its powers lie on the people of the country though it is exercised by a representative government. It was further observed that “sovereignty vests with the people of the country and the lawfully elected government is simply the representative and a manifestation of the sovereign, that is, the people”.
Sovereignty can be 2 types— Internal Sovereignty and External Sovereignty. ‘Internal Sovereignty’ refers to the relations between the Union and States and the individuals within the territory of the country. It stands for the powers of the State to make and enforce the laws i.e., to compel everybody to obey the laws and punish for disobeying the laws. Under this sovereignty, the State has unbridled sovereign power within the restrictions available in the Constitution. It is also a well-established aspect that by virtue of this sovereignty, the State can invoke the doctrine of ‘Parens Patriae’ i.e., ‘Parent of the Nation’. It was also held that the judicial powers flow from the national sovereignty. On the other hand, ‘External Sovereignty’, well recognized as Sovereignty in International laws or relations refers to ‘independence of a State of the will of another State’. Independence of a State concerning a portion of the globe is considered to be the right to exercise its functions. India also became independent from the rule of the United Kingdom by the Indian Independence Act, 1947 made by the British Parliament and thus derived its Sovereignty.
Even though on 27th April 1949 at the Prime Ministers Conference, London, the first Prime Minister of Independent India Pandit Jawaharlal Nehru declared that India would continue to be a member of Commonwealth Nations and it would accept the Monarch as the symbol of the free association of the Independent Nations. It was held that the continuation of the membership in Common Wealth Nations does not affect the Sovereignty of the Nation. In another aspect, the ‘External Sovereignty’ also includes acquiring a foreign territory and cede any part of the territory in favour of another foreign State which can be done by treaty-making power of the State. In a landmark case- Ram Kishore Sen And Others vs. Union Of India And Others, well known as Berubari II case following the partition of India by Radcliff line, a village called ‘Chilahati’ which was allotted to Pakistan (then East Pakistan, now Bangladesh) was not inadvertently delivered to Pakistan and the village was being administered by West Bengal Government under Entry 13 of Schedule 1 of the Indian Constitution. The transfer of the territory to Pakistan by the Indian Government was challenged in Calcutta High Court and the High Court held that said transfer was done in discharge of Sovereign function and could not be held illegal. The Supreme Court, in this case, upheld the decision of the Calcutta High Court and ruled that the said transfer of the territory was valid because the proposed village Constitutionally did not become the territory of India, hence there was no question about the Constitutional validity of the proposed transfer of that area to Pakistan.
“Socialism is a populist economic and political system based on public ownership (also known as collective or common ownership) of the means of production. Those means include the machinery, tools, and factories used to produce goods that aim to directly satisfy human needs. In a purely socialist system, all legal production and distribution decisions are made by the government, and individuals rely on the state for everything from food to healthcare. The government determines the output and pricing levels of these goods and services.”
‘The Communist Manifesto’ written by Karl Marx and Friedrich Engels in 1848 expounded the term ‘Scientific Socialism’ though its origin lies in ‘French Revolution, 1789’ and it is the opposite of Capitalism. As per the word- ‘Socialist’ envisaged in the Preamble of the Indian Constitution, it declares India as a ‘Socialist Country’. This term was introduced in the preamble by the 42nd Constitutional Amendment Act, 1976 though it is not defined in the Constitution. By introducing this word, the socialist pattern of the society was set as the goal of the nation. Swarn Singh, the chief architect of the 42nd Constitutional Amendment Act, 1976 stated that— “‘Socialism’ nothing more was meant than what was explained at the Awadi session of Congress, which is short aimed at a ‘mixed economy’”. Socialism brings within its sweep the establishment of an egalitarian social order. Eminent author M.C Jain Kagzi noted that—
“ Socialism bears interspersion in the provisions of the Constitution. The preambulary reference to socialism was intended to ushering in a socio-economic revolution. It is meant to end poverty, socio-economic exploitation and inequalities. It is intended to do programming of social justice and social welfarism by elimination of inequality in income and status and standards of life. It is intended to provide a decent standard of life of the working people and to provide them social security from the cradle to grave. It is inclined to promote the objective of lessening exploitation and improving equitable distribution of income”.
The ultimate goal of a Socialist State should be to secure equality of the citizens before the law, equal opportunity for education and employment extirpating all obstacles of status, caste, class, religion, gender, colour, and all other social evils with promoting meaningful social change for all without any exception. In the case- D.S Nakara vs. Union of India, the Supreme Court emphasized that— “The basic framework of socialism is to provide a decent standard of life to the working people and especially provide security from cradle to grave.” One of the most important aspects of socialism is to accord justice that includes social, economic, and political to everyone from the highest level of social order to the lowest level of social order without discriminating on any grounds. Socialism should be implemented in the true spirit of the Constitution. The term ‘socialist’ has been elaborated by many Indian jurists in a broad aspect. Eminent India economist Dr. VKRV Rao pointed out that—
“Equitable distribution of income and maximisation of production is the object of socialism under the Constitution to solve problem of unemployment, low income and mass poverty and to bring about a significant improvement in the national standard of living. To bring about socialism, deliberate and purposive action on the part of the State, in regard to the production as well as distribution and the necessary savings, investment, use of human skill and use of science and technology should be brought about. Changes in property relation, taxation, public expenditure, education and the social service are necessary to make a socialist State under the Constitution a reality”
The Supreme Court in Excel Wear vs. Union of India ascertained that— “The addition of the word “socialist” in the Preamble might enable the court to lean more and more in favour of nationalization and State ownership of industry. However, as long as the private ownership of industries was recognized and it governed an overwhelmingly large proportion of our economic structure, the principles of socialism and social justice are not to be pushed to such an extent as to ignore completely or to a very large extent, the interest of another section of the public – the private owners of the undertakings”.
It was also well settled that while interpreting any beneficial legislation that is brought in to effectuate the objectives of Directive Principles of State Policy, the socialistic approach must be taken into consideration and Courts should rise to the occasion to meet and redress the expectations of people.
It is noteworthy that the Directive Principles of State Policy contained in Part IV of the Constitution are framed to achieve the goals of democratic socialism. It can be emphatically construed that the Fundamental Rights and Directive Principles of State Policy are the two wheels to give effect the objectives of a ‘Socialistic State’ as enshrined in the Preamble and set up a ‘vibrant throbbing welfare society’.
Articles 14, 15, 16, 17, 23, 38, 39, 43, 46, and other cognate Articles of the Indian Constitution clearly proves that these were designed exclusively to eradicate the social inequalities, exploitations, and other social evils in order to accomplish the goals of a ‘Socialist State’. In the famous Minerva Mills vs. Union of India case, the Supreme Court enunciated that— “‘Socialism’ in the Indian Constitution means to crystallize a social State securing to its people socio-economic justice by interplay of Fundamental Rights and the Directive Principles”.
In another case that deserves special mention- Air India Statutory Corporation vs. United Labour Union the Supreme Court expounded the concept of ‘Socialism’ and ruled that “the word socialism was expressly brought in the constitution to establish an egalitarian social order through rule of law as its basic structure”.
As per Webster’s New World Dictionary, the Secularism is—
“The belief that religious and ecclesiastical affairs should not enter into the function of the State”
Pandit Jawaharlal Nehru once addresses that— “the word “secular” meant more than the free play of all religion…and conveys the idea of social and political equality. Thus a caste-ridden society is not properly secular. Communalism means the dominance of one religious community and is thus a negation of nationalism”.
In layman’s point of view, ‘Secularism’ means that the State should not have its own religion and no one cannot proclaim to make a ‘theoretic state’ or promote the ideologies of any particular religious community. ‘Unity in Diversity’ is the peculiar nature of India. The State should remain neutral in religion and it will not interfere in the religious matters of the people. In India, all the religious groups must remain amicably and State cannot impose any restriction in professing the religious affairs of any religious group because the framers of the Constitution intended to nourish communal harmony among the different religious groups especially to safeguard ‘National Integrity and Fraternity’ by expressly granting them fundamental rights of ‘Freedom of conscience and free profession, practice, and propagation of religion’ under Article 25 of the Indian Constitution. On the other hand, it was also emphasized by the framers that the State cannot even discriminate on the grounds of religion under any circumstances. It is noteworthy, the word ‘Secular’ was not expressly declared in the Preamble. It was included by the 42nd Constitutional Amendment Act, 1976. But by the nature of Indian Constitution, as envisaged in different parts of it, especially the careful perusal of Articles 25-30 contained in Part III of the Constitution, it can be emphatically ascertained that the ‘Secularism’ is an inherent nature of the Indian Constitution though it was necessary to explicitly spell out high ideals of socialism, secularism, and integrity of the Nation in the Preamble because the authors of the 42nd Constitutional Amendment Act, 1976 apprehended that the emphasis of the secularism would be denigrated by ‘vested interests’ because— “these institutions have been subjected to considerable stresses and strains and vested interests have been trying to promote their selfish ends to the great detriment of public good.”
On the other hand, the authors of the Constitutional Amendment Act contended that— “the possible imputation underlying the Objects and Reasons was that the majority community (i.e. the Hindus) were oppressing the religious minority (i.e. the Muslims) trampling over the guarantee of equality of all religions in Article 25”
Thus, it was also one of the major objectives of the Government to bring in the Constitutional Amendment that the interests of the religious minorities must be protected, and in absence of the sufficient safeguards, not only the existence of the religious minorities would become vulnerable, the profound spirits of the Constitution would be vitiated. It is the essence of a democratic system. In the landmark case- SR Bommai vs. Union of India, the Supreme Court professed that— “Secularism is part of fundamental law and an inalienable segment of the basic structure of the Constitution. It means religious tolerance and equal treatment to all religions.”
The term ‘Secularism’ is not defined in the Constitution presumably because it is an elastic term and cannot be defined precisely. The proper meaning of it can be perceived in a broad amplitude of interpretations. It was noticed by Madras High Court that— “A secular State means non –religious and not irreligious State.”
It is relevant that the philosophy behind the term ‘Secularism’ must not be misunderstood as an anti-God phenomenon. It doesn’t necessarily mean an anti-religious doctrine and does not refer to an atheist State despite its emphasis on the aloofness of the politics from religions. It should be accepted as a political ideology that is not influenced by any religion as the basis of State action. In the case- Sindhi Education Society vs. Chief Secretary, Govt. of NCT, of Delhi, the Supreme Court affirmed that— “Secularism and brotherhood is a golden thread that runs through the entire Constitutional Scheme formulated by the Framers of the Constitution”.
‘Secularism’ is not only reflected in Articles 25-30 enshrined in Part III of the Constitution but also enumerated in the Fundamental Duties contained in Part IV-A of it under Article 51-A.
In Ms. Aruna Roy vs. Unions of India, the Supreme Court found out that— “The complete neutrality towards religion and apathy for all kinds of religious teachings in institutions of the State have not helped in removing mutual misunderstanding and intolerance inter se between section of people of different religions, faiths and beliefs. “Secularism” therefore, is susceptible to a positive meaning that is developing understanding and respect towards different religions. The essence of “secularism” is non-discrimination of people by the State on the basis of religious differences”.
It was also held that teaching Sanskrit doesn’t affect the ‘Secular’ character of the Constitution. Theocratic society is not the solitary antonym of secular society. Even if a man is a devout Hindu or devout Muslim, it cannot be contended that he ceases to be secular. In Ahmedabad St. Xavier’s College Society vs. State of Gujarat, the Supreme Court noticed that every person is at liberty to mold their perceptions about God and pursue their religious affairs in their own manner and by their own conscience. Nobody can be forced to pursue his/her religious practices as per the will of the State or other. The Supreme Court bench consisting of 9 judges explained that—
“There is no mysticism in the secular character of the State. Secularism is neither anti-God nor pro-God, it treats alike the devout, the agnostic and the atheist. It eliminates God from the matters of the state and ensures that no one shall be discriminated against on the grounds of religion”.
In another notable case- Mrs. Valsamma Paul vs. Cochin University And Others, it was emphasized by the Supreme Court that inter-caste marriages and adoptions are two important social institutions through which socialism achieves its fruitful outcome and find its strong base to make an egalitarian social order because inter-caste marriages work as a bridge between peoples of different religions by removing the hindrances of diversity and establishing communal harmony in the society.
The term ‘Democracy’ is the most comprehensive term used in Political Science and even day-to-day politics. It can be perceived by its manifold aspects and forms. This word was derived from the Greek words ‘demos’ which means ‘people’ and ‘kratos’ which means ‘rule’or ‘authority’. Thus it literally means ‘people’s rule’, where the authority to choose the Government is vested in the people. The Governing bodies and legislators act as the representatives of the people because the Government is elected by the ‘Popular Will’ ie., ‘by the common will of the majority population of the Country’. Eminent Italian political scientist Giovanni Sartori elaborated that ‘Democracy’ implies a system of multi-party government where the majority rules and respects the rights and interests of the minority. It refers to a state of affairs in which everyone has been vested equal rights to participate in the administration of the government. Noted jurist DD Basu stated that—
“Democracy is a term that describes a process by which citizens compete for the power to turn their preferences into law”. It is also a well-known concept that— “As a form of Government, Democracy means a Government in which the mass of adult population has a direct or indirect share”.
As we know, ‘Political Democracy’ may be of two types- Direct and Indirect or Representative Democracy. In Direct democracy, the entire populace exercises political power. The legal and political sovereignty lies in them and they can run the government and also change the Constitution by their direct vote. In Indirect or Representative Democracy, the great mass of the country doesn’t govern itself directly. They elect their representatives as per their choice by casting votes and the representatives run the government as per the wish of the people. India as per the declaration envisaged in the Preamble of the Constitution aims to form an ‘Indirect or Representative form of Democracy’.
Though the term ‘Democracy’ has various aspects too like political, social as well as economic conditions, in the Indian Constitution this term has been applied as an attribute of ‘Republic’, hence it only stands for ‘Political Democracy’. But it doesn’t merely refer to ‘Government’, broadly speaking, it also refers to a ‘Democratic State’ where social, economic, and legal equality prevails. Although the Preamble does not expressly spell out the type of democracy by the expression- “Democratic Republic”, it can be ascertained by the enacting provisions that our Constitution has set up a ‘Parliamentary form of Democracy’ which is borrowed from Britain. As the Parliamentary democracy is concerned, it envisages two main features, firstly the representation of the people in the responsible government and secondly, the accountability of the Council of Ministers to the Legislature. Though the term ‘Democracy’ mostly represents political democracy, social and economic was inherent in it and it was clear from the concluding speech of Dr. B.R Ambedkar in the Constituent Assembly—
“What we must do is not to be content with mere political democracy. We must make out political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it a social democracy. What does social democracy mean? It means a way of life which recognizes liberty, equality and fraternity as the principles of life. These principles – liberty, equality and fraternity are not to be treated as separate items in a trinity”.
In R.C. Poudyal vs. Union of India, an observation made by the Supreme Court was that— “So far the Indian Constitution is concerned; “democratic republic” refers to the political participation of the people in running the administration of the Government. It conveys the state of affairs in which each citizen is assured of the right of equal participation in the polity.”
While defining the term ‘Democratic’, it was further held that— “It stands for the actual, active and effective exercise of power by the people in this regard”.
The main characteristics of ‘Democracy’ are that people are free to elect their rulers as per their will and they must be governed by their own elected government according to their wish. There must be a friendly relation between the ruler and governed and tyranny or despotism has no place in a democratic setup. The rulers must always endeavor to meet the expectations of people and redress their grievances. The duty of the ruler should be to maintain the ‘Rule of Law’ in the country and various rights guaranteed by the Constitution must be protected under any circumstances. The State must ensure the protection of people from the arbitrary and unjustified uses of the law. In the Supreme Court case- People’s Union for Civil Liberties vs. Union of India, it was emphasized that— “The elected representatives act or are supposed to act as a live-link between the people and the government. The peoples’ representatives fill the role of lawmakers and custodians of Government. People look to them for ventilation and redressal of their grievance”.
In another Supreme Court case- Mohan Lal vs. District Magistrate, Rai Bareilly, it was construed that— “Democracy is a concept, a political philosophy, an ideal practiced by many nations culturally advanced and politically mature by resorting to governance by representatives of the people elected directly or indirectly”. The basic principle of democracy in a society governed by the Rule of Law is not only to respect the will of the majority but also to prevent the dictatorship of the majority”.
The ever known maxim must be kept in mind that “the government is for the people, of the people and by the people”.
In a democracy, the people are supreme and laws secure equal justice for all and public opinion welcomes and honors talent in every kind of achievement on the grounds of excellence done. On the other hand, another most important aspect of democracy is to secure the rights of freedom of expression ie., to set forth one’s opinion freely as enshrined under Article 19(1) of the Indian Constitution, otherwise, democracy cannot run properly as it was stressed by the Supreme Court in the case- S. Rangarajan vs. P. Jagjivan Ram  that—
“The democracy can neither work nor prosper unless people go out to share their views. The truth is that public discussion on issues relating to administration has positive value. In a democracy, it is not necessary that everyone should sing the same song. Freedom of expression is the rule and it is generally taken for granted”.
These are some cardinal features of a ‘Democratic Political System’—
(a) Universal adult suffrage: Universal adult franchise enunciates the right of the entire populace to cast their votes without any discrimination on the grounds of race, religion, caste, status, etc and it falls under the ‘Basic Structures’ of the Indian Constitution as held by the Supreme Court in the case- People’s Union for Civil Liberties vs. Union of India. Former President Dr. Sarvepalli Radhakrishnan once said that— “Adult suffrage is the most powerful instrument devised by man for breaking down social and economic injustice and destroying the walls that imprison man’s minds”.
(b) Multi-party system: The electorate votes must be cast for the representation in the Union as well as State Legislature through party organizations.
(c) Free and fair election: Democracy encompasses the rule of the free and fair election as the most crucial criteria of it. The Apex Court, in the case- Union of India vs. Association for Democratic Reforms said that— “A successful democracy posits an ‘aware’ citizenry’. Democracy cannot survive without free and fair elections, without free and fairly informed voters.”
The term ‘Republic’ is derived from the Latin word- ‘Res Publica’ which means ‘public affairs’, though it was the translation of the Greek word ‘Politeia’. In the Indian context, this term is borrowed from the French Constitution. As per the definition in New English Dictionary, Oxford—
“Republic means a state in which the supreme power rests in the people and their elected representatives or officers, as opposed to one governed by King or a similar ruler”.
Thus, in a Republican form of government, the head of the country is not a hereditary monarch, but an elected functionary as opposed to Britain. This term sometimes seems to be closer to the term ‘Democratic’ as envisaged in the Preamble of the Indian Constitution, but the terms are distinct. The Republican form of Government is mostly different from other forms of government because unlike Monarchy or Oligarchy, here the sovereignty lies on the people, it lies neither on the monarch nor on the nobles. From a layman’s point of view, it is the opposite of monarchy. Cooley stated that—
“By the Republican form of government is understood a government by representatives chosen by the people; and it contrasts on one side with a democracy in which the people or community as an organized whole wield sovereign powers of government, and, on the other, with rule of one man as King, Emperor, Czar or Sultan or with that of one class of men, as an aristocracy”.
The term ‘Republic’ signifies that a form of government where the ultimate power resides in the body of people, not in any hereditary monarch ie., King or Queen, and the people rule themselves by electing their representatives through universal adult franchise. As discussed above, the expression ‘We The People Of India’ encompasses it conspicuously. There can be no privileged class and no public posts can be hereditary in India. All the public posts including the President of India, though he is indirectly elected are open to every citizen of India who is elected by popular will. Noted Swiss jurist and politician Johann Caspar Bluntschli emphasized that—
“In a wider sense, the word ‘Republic’ denotes a Government where no one holds the public power as a proprietary right, but all power is exercised for the common good, – where the inhabitants are subjects and free citizens at the same time”.
In the case- Kesavananda Bharati vs. State of Kerala, it was again held that the Republican form of government as characterized in the Preamble is a basic structure of the Constitution. Though it is worthwhile to note that while incorporating this term, the members of the drafting committee in the Constituent Assembly were not unanimous because India already accepted to continue as a member of the Commonwealth Nations and also accepted the monarch as the symbol of the free association of the independent Nations, even some Governments of Independent Nation recognized India as such. Despite long controversies, the Constitution of India was enacted and India continued its membership of Commonwealth Nations even after adopting a ‘Republican Constitution’.
It is a prominent expression that— “Justice should not only be done but seen to have been done”. In a democratic system, the term ‘justice’ can be comprehended in a broad spectrum and it always deserves the highest place. Triumph of justice should be the motto of the State. In the Indian context, the ideals of social, economic, and political justice as envisioned in the Preamble are borrowed from the Constitution of the Soviet Union.
It is as old as political theory. The term ‘Justice’ is derived from the Latin word- ‘jus’ which means ‘to bind’, ‘to contract’. It is an integral part of ethics, law, and philosophy, etc. It is quite difficult to determine the exact definition of ‘justice’. Many jurists and political philosophers have given their own interpretations. Ordinarily, the term indicates just conduct, fairness, or exercise of authority in the maintenance of rights. It is mostly nearer to ‘righteousness’. ‘Just’ also means reasonableness. Father of the political philosophy Plato denominated ‘justice’ as ‘Supreme Virtue’. Justice means what is demanded by or conforms to the public good. It is not the product of man’s intellect but the product of spirit. It can be said the objective reality of law. The law which conforms to the public good or wellbeing definitely conforms to justice. It is near to the meaning of ‘Rule of Law’ as it is the precondition to the idea of justice.
Justice is never temporal, but it is eternal. Without justice, the very notion of the republic becomes worthless because the constitutional machinery of the State can never function properly without securing all kinds of justice for the populace and it will result in anarchy. It is considered to be the vehicle to attain the goals of the welfare state. In the landmark case- Kesavananda Bharati vs. State of Kerala, the Supreme Court noticed that—
“Justice, briefly speaking, is the harmonious reconcilement of individual conduct with the general welfare of society. Every man acts according to his self-interest, but his act or conduct is said to be “just” only if it promotes the general well-being of the community”.
It is also noteworthy that the essence of justice is not to attain the good of individuals, the majority population or, any particular section of the society, but to attain the common good without depriving any section of people on the grounds of caste, class, race, sex, religion, status, etc. of the illumination of justice. Injustice is never enviable. Thus, justice aims to promote the general wellbeing of the community as well as individual excellence.
As the term ‘justice’ envisioned in the Preamble of the Indian Constitution, it denotes ‘legal justice’. It ordinarily indicates the mechanism of administration of justice and the Judiciary ie., the Courts are duty-bound to dispense complete justice by punishing the wrongdoer and redressing the aggrieved, and also wipe out the evils of society. The decisions of the Courts must be just, fair, and impartial upholding the ‘Principles of Natural Justice’. But, justice is not confined to the Courts, the executive and other organs of the State must act in just and fair manners. The Constitution of India embodies political, economic, and social justice along with legal justice. Political justice implies the equal right and opportunity of everyone to participate in the polity and elect their representatives to carry on the government. Economic justice implies getting equal pay for equal work, minimum wages, and just dues for their labor abolishing all forms of begar and forced labor. Social justice emphasizes the abolition of all social inequalities and to achieve these goals, Part IV of the Constitution has been incorporated laying down the directive principles for the State.
In the realm of political philosophy, this term has an enormous amplification that is derived from the Latin word- ‘liber’ which means ‘free’. According to Oxford Dictionary, liberty is the “right or power to do as one pleases or to do something”. In the Indian context, it is borrowed from the ‘French Constitution’. Many political philosophers defined liberty in their own way. Spencer said that—
“Every man is free to do that which he wills, provided he does not infringe the equal freedom of any other man”.
Montesquieu said that—
“Liberty consists in the power of doing what we thought to will”.
“In ordinary language ‘personal liberty’ means liberty relating to or concerning the body of the individual and ‘personal liberty’ in this sense is the antithesis of ‘physical restraint or coercion’.”
Concisely, it is the right of every individual of doing an act which the law permits. Liberty is regarded as the most cherished possession of a man in a civilized society and it is one of the precious gifts of law. Broadly speaking, it is not created or guaranteed to the individuals, but inherited by birth. Though the term ‘liberty’ seems to be similar to ‘freedom’, those are distinct from each other. ‘Freedom’ often means unrestricted liberty that is considered to be a negative concept of liberty. Restricted liberty is the modern and positive concept that denotes ‘liberty’ accompanied by reasonable limitations because it is said that someone’s liberty is valid to that extent until it infringes the liberty of another.
The Preamble of the Indian Constitution professes liberty of thought, expression, belief, faith, and worship. These liberties as embodied by the Preamble are enshrined in Articles 19(1), 21, 22, 25, 26, 27, and 28 of the Constitution of India. It is noteworthy that the rights of freedom, as well as liberty guaranteed by Articles 19(1) and 21, are not absolute or unfettered because those are subject to certain restrictions. The restrictions become clear in the careful perusal of clauses 2-6 under Article 19 while the right to life and personal liberty under Article 21 is also subject to the procedure established by law.
“Though one of the main functions of the democratic Government is to safeguard liberty of the individual, unless its exercise is subject to social control, it becomes anti-social or undermines the security of the State. The Indian democracy wedded to rule of law aims not only to protect the fundamental rights of its citizens but also to establish an egalitarian social order…Thus, the essence of civil liberty is to keep alive the freedom of the individual subject to the limitation of social control which could be adjusted according to the needs of the dynamic social evolution”.
Therefore, the right to liberty must be exercised within its restrictions and it must be subordinated to the liberty of the greatest number ie., common happiness or welfare of the society at large. It must concord with the established social order, peace, stability, and harmony otherwise it will result in anarchy or lawlessness that will tamper with the overall welfare of the human society. Ramaswami J also noted in the above case that—
“Liberty cannot stand alone but must be paired with a companion virtue, liberty and morality; liberty and law; liberty and justice; liberty and common good; liberty and responsibility which are concomitants for orderly progress and social stability……”.
Personal liberty’ guaranteed under Article 21 can also be termed ‘Civil liberty’ and it conveys the meaning of freedom of every individual from physical restraint by incarceration or otherwise. It was held in the case- Kharak Singh vs. State of UP that ‘personal liberty’ dealt with in Article 21 includes all the varieties of rights to freedom other than those are contained in Article 19(1) and most importantly the right to privacy is inherent in it. In 2017, the Supreme Court reaffirmed by its verdict of the famous case- Justice K.S.Puttaswamy(Retd) vs. Union Of India that “Right to Privacy is an integral part of Article 21 of the Indian Constitution”. This case was a watershed in the history of the right to privacy in India. Another notable case without which, the discussion of liberty remains incomplete is– Maneka Gandhi vs. Union of India because in this case, the Supreme Court ruled that right to travel abroad is also a part of personal liberty under Article 21.
In every country where the ‘Rule of Law’ is designated at the supreme position, the ‘Equality’ in all aspects is inherently present everywhere being the cornerstone of ‘Rule of Law’ and this fundamental ideal of the State cannot be denied to anyone on any ground because, in absence of it, all rights and duties conferred by the Constitution of the State become worthless. It is borrowed from the French Constitution.
As the Preamble of the Indian Constitution is concerned, ‘Equality’ professes equality of status and opportunity. Although equality before the law is not expressly spelled out in the ‘Preamble’, it implied in every Article because, without its presence, equality of status and opportunity as contemplated in the Preamble would have remained ineffective as the Constitution is the supreme law of the land. Lord Denning once said that—
“Be you ever so high, the Law is Above You”.
The true meanings of equality before the law and supremacy of the law can be comprehended by this expression. Article 14 takes a pivotal role in this regard because it guarantees ‘Equality before the law and equal protection of the law’. Along with this, Articles 15- 18 also guarantee certain equalities of status and opportunity. Article 15 speaks about the prohibition of discrimination on the grounds of race, sex, religion, caste, place of birth. Article 16 speaks about equal opportunity in the matters of public employment. Article 17 abolishes the evil practice of untouchability and Article 18 abolishes the conferment of titles except for the military and academic titles by the State. These articles laid down in Part III along with the other cognate Articles work as the steering forces to maintain equality in all aspects.
Again it can be noted that like other ‘Fundamental Rights’ contained in Part III of the Constitution, provisions to perpetuate the ideals of equality are not absolute as those are subject to the doctrine of ‘Intelligible Differentia’ ie., “like should be treated alike, unlike should not be treated alike”. In this regard, the famous Supreme Court’s ruling of D.S Nakara vs. Union of India deserves special mention because it was expounded that— “The term intelligible differentia distinguishes, reasonably, between persons or things that are grouped together from those that are left out of the group”. Yet, the discriminations must not be unjust or arbitrary. In the case- Raghunathrao Ganpatrao Etc. vs. Union Of India, it was held that equality also constitutes the basic structure of the Constitution.
The term ‘fraternity’ was derived from the French word ‘fraternite’ which means ‘brotherhood’. Fraternity ordinarily means the spirit of a common brotherhood. In the Preamble of Indian Constitution, the term has been used in the same sense and the ideals of the ‘fraternity’ are also borrowed from the French Constitution. As we know, ‘Unity in Diversity’ is the magnificent character of India because India is a land where the people of various religions, regional groups, language groups, groups having diverse cultures, norms, values reside together. It is very essential to germinate the spirit of a common brotherhood. The drafting committee in the Constituent Assembly added this term to the Preamble—
“As the committee felt the need for fraternal concord and the goodwill in India was never greater than by then in this particular aim of the new Constitution should be emphasized by special mention in the preamble”.
Thus the framers of the Constitution by this term wanted to inseminate the feelings of togetherness and common brotherhood among the citizens and avert all the evil forces of communalism, separatism, regionalism, linguism, and the other disruptive forces. Despite having diversities in various aspects, everyone must remember that they are the children of the soil of Mother India. Every citizen should have spirits of common belongingness, mutual cooperation, and understanding, peaceful coexistence, pride for the history, common heritage, literature, etc., enjoyment of common good, solidarity in any unwanted event or natural disasters, sacrifice, love, affection for the motherland, respect for each other, friendly attitude towards everyone and basic human values. Everyone should thrive for promoting peace, prosperity, security, stability, harmony, integrity, unity and, the wellbeing of the Nation as a whole forgetting the barriers of antagonism, religion, caste, creed, race, language, regions, and other disruptive forces.
The ‘Fraternity’ cherished by the framers of the Constitution will be achieved not only by abolishing untouchability amongst the different sects of the same community but also by abolishing all communal or sectional or even local anti-social feelings which stand in the way of the unity of India. On the other hand, the State must assure the dignity of the individuals because without assuring the same, it is impossible to achieve the ultimate goals of fraternity. The essence of the fraternity can only be perceived when every individual’s minimal rights will be protected. In order to assure the dignity of the individual, the Indian Constitution provides certain safeguards to protect and enforce the ‘Fundamental Rights’ of the individuals contained in Part III and also enumerates the ‘Directive Principles of State Policy’ contained in Part IV with securing justice, liberty and, equality as stated in the Preamble in all aspects for the full development of personality and the overall betterment of every individual. In the case- L.I.C. Of India & Anr vs. Consumer Education & Research, the Supreme Court after reading Article 21 with the Preamble arrived at the conclusion that dignity of the individuals as contemplated in the Preamble is a part of the fundamental rights.
Significance of the Preamble of the Indian Constitution in a nutshell:
As the significance of the Preamble are concerned, those can be realized from the above discussion and those are as follows—
- As a projector of the Desired Established State because it comprises the aims and aspirations of the people of India who solemnly resolved to Constitute India.
- As Interpreter of Legislations made by the Parliament, because it manifests the intentions and spirits of the framers of the Constitution and some basic structures of it that can play a pivotal role while interpreting the Constitutionality of any legislation.
- As an Authority to the Indian Constitution because it spells out the source from which the sovereignty of the Nation is derived.
The efforts and exertions to achieve some precious things without having their well-furnished goals are like the ships without rudders. Similarly, if the people and framers of the Constitution of a country have no specific goal that they aspire to accomplish by enacting the Constitution of the Independent Nation, they will surely lose their directions in the middle sea. Thus the Preamble to any Constitution of any country is the part and parcel of it because it works like a rudder. The Preamble permeates those goals that work like torchbearers by demonstrating accurate directions so that the ultimate goals have not deviated at any point in time while working out the Constitution. Unlike, the Preamble of the Constitution of other countries, the Preamble of the Indian Constitution is elaborate and unique in nature. It enunciates that the Constitution is endorsed and enacted by the people of India and they have given it to themselves on 26th November 1949 though it was commenced on 26th January 1950.
The declarations spelled out in the Preamble are the commitments of the people of India, hence it can never be held to be untrue. It has considerable legal significance as it embodies an enacting clause. It also possesses a significant interpretational value as discussed above. It plays a pivotal role in driving off the obscurities arising out of any portion of the Constitution. Therefore, it can never be considered to be a mere introductory part of the Constitution, but it is the guiding light for the Constitution. The ideas and expressions embodied in it constitute the fundamental frameworks of the Indian Constitution that cannot be done away with at any point in time. It is the epitome of the subtle spirits embraced in every Article and every Schedule throughout the Constitution.
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