A Preamble in general sense is an 'introduction' or a 'preface' to something, which in our case is Indian Constitution. Eminent Jurist and Constitutional expert N A Palkhivala referred Preamble as the 'Identity card of the Constitution'.
To begin with, American constitution was the first to include/adopt a preamble. Many countries including India later followed this practice. Preamble of Indian Constitution was in fact based on the Objective Resolution adopted by the Constituent assembly on January 22nd, 1947.
Following is the text of the Preamble of Indian Constitution as is on January 26th, 1950:
26 years later, under the rule of Prime Minister Smt. Indira Gandhi the 42nd Constitutional Amendment Act was passed and made following changes in the Preamble of Constitution.
In 1960, in Berubari vs Union of India, Supreme court, the apex court of Indian Judiciary and the highest authority to interpret the Constitution as a part of its judgment, has ruled that Preamble is not an Integral part of the Constitution hence cannot be amended. It also ruled that 'it is key to open the mind of the makers' which shows general purposes for which they made provisions in the constitution.
To begin with, American constitution was the first to include/adopt a preamble. Many countries including India later followed this practice. Preamble of Indian Constitution was in fact based on the Objective Resolution adopted by the Constituent assembly on January 22nd, 1947.
Following is the text of the Preamble of Indian Constitution as is on January 26th, 1950:
| “ | WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN 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 of the Nation;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
| ” |
26 years later, under the rule of Prime Minister Smt. Indira Gandhi the 42nd Constitutional Amendment Act was passed and made following changes in the Preamble of Constitution.
| “ | 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.
| ” |
Amendability of the Preamble
In 1960, in Berubari vs Union of India, Supreme court, the apex court of Indian Judiciary and the highest authority to interpret the Constitution as a part of its judgment, has ruled that Preamble is not an Integral part of the Constitution hence cannot be amended. It also ruled that 'it is key to open the mind of the makers' which shows general purposes for which they made provisions in the constitution.
However, in 1973, in Kesavananda Bharti vs Union of India, supreme court held that its opinion tendered as a part of Berubari case was wrong and stated that Preamble is a part of constitution. Hence it can be amended as per Article 368 but without altering its basic structure. Further, in 1995 in LIC OF INDIA case the supreme court again held that Preamble is an integral part of the constitution.
Further, Preamble of Constitution is non-enforceable and non-justiciable. It is neither source of power nor prohibiting on it.
The Preamble simply reveals the source, nature, objectives and the date of adoption of the constitution.
1. Sovereign:
Primarily the word sovereign here means that India is neither a colony nor a dominion anymore. But it is a supremely independent state. The people are the popular sovereign and they enjoy this sovereignty with highest authority both internally and externally.
Internally, as the people are free to elect the government which makes laws for the country. Also people are free to remove the government if they loose confidence in the existing government. Further, people of India are free to participate and elect at 3-tiers of the government.
Externally, as no foreign power can dictate terms or control India. Only people of this country, holding sovereign authority, can dictate the Government of India.
Note: India has been a member of UNO since 1945. India has declared her continuation of full membership of Commonwealth of Nations in 1949, accepting British crown as the head of the commonwealth . This extra-constitutional declaration does not affect the sovereignty of India as it is an alliance or association of nations for mutual benefits. As Nehru clarifies on the similar doubts in the assembly:
2. Socialist:
This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was implicitly present and followed in the Directive Principles of State Policy(DPSP). However this constitutional amendment act made it explicit by including it in the Preamble.
India follows its own brand of 'Democratic socialism' which aims to end poverty, ignorance, disease and inequality of opportunity(as told by a Judge of Supreme Court). While the popular 'Communistic Socialism' involves nationalization of all means of production and distribution, abolition of private property. Indian socialism is a mix of Marxism and Gandhism with high inclination towards Gandhism. Hence, it is popularly called 'Gadhian Socialism' However on this issue, Indira Gandhi has clarified saying:
3. Secular:
This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was very much part of the constitution implicitly as mentioned in Articles 25 to 28 (Guarantees fundamental right to religion). However this constitutional amendment act made it explicit by including it in the Preamble.
Indian Constitution promises a positive secularism i.e., irrespective of which religion you belong to, you will get same treatment and support from the state. Simply put, constitution considers religion as an individual's private affair and hence do not impose or restricts individual's right to religion. Indian State do not support or have any foundation based on religion. P B Gajendragadkar, Former Chief Justice of Supreme Court defined secularism in Indian context as:
On the basis of attitude of states towards religion, three types of states can be conceived of:
Atheistic state: Anti-religious and hence condemns all religions. Eg: Albania, North Korea were once Atheistic.
Theocratic state: Pro-religion. Hence declares one religion as the state religion. Eg: Pakistan.
Secular State: Neutral in religious affairs. Does not uphold any religion. Eg: USA, INDIA.
4. Democratic:
This feature of the Preamble is based on the doctrine of popular sovereignty. That is possession of supreme power by the people. Democracy literally means 'people's rule'.
There are two forms of democracy - direct and indirect. Direct form of Democracy can be seen in the cantonments of Switzerland. In direct democracy, Referendum, Initiative, recall and plebiscite are used as mechanisms.
Referendum - A proposed legislation is put before electorate for their direct voting.
Initiative - Any member of the electorate can propose a bill to legislation for enactment.
Recall - Voters can remove a representative/officer before the end of his term if he fails to discharge his duties.
Plebiscite - Method of obtaining the opinion of people on matters of Public importance. Usually used to solve territorial disputes. Eg: Scotland went for a plebiscite to get out of UK.
India however follows Indirect democracy. Indirect democracy can take either Presidential or Parliamentary form. U.S.A follows Presidential form of democracy. Parliamentary system is followed in India, an idea borrowed from the British or the Westminster model.
In Parliamentary system of democracy, the executive is responsible for the legislature for all the policies and actions. Universal adult franchise, Periodic election, Rule of law (by A.V. Dicey) and Impartial, Integrated and Independent judiciary are the key features of democracy of Indian polity.
Ambedkar paid greater attention to social linkage among people than separation of powers and constitutional safeguards for democracy. The concept of power contained in his thinking has a direct relationship between social power and political power. He was conscious of the social and economic inequalities which corrode the national consciousness of the Indian people. Ambedkar said, “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”.
5. Republic: Re-public :- Representation of Public.
Any democratic polity can be classified into two categories - Monarchy or Republic. Democratic Monarchy means, the supreme head of the state is the King and 'head of the state' is a hereditary position like in Britain. However, in a Democratic Republic, head of the state is 'President' and he/she is elected directly(like in USA) or indirectly like in India. President of India is elected indirectly for a period of 5 years.
A republic also means vesting political sovereignty in the people and not in an individual King. It also means that there is no privileged class and hence all offices being open to all citizens without discrimination.
6. Justice:
The idea of justice in the Indian Constitution is embraced in three forms: Social, Economic and Political. This ideal of Justice has been borrowed from the Russian Revolution(1917-23). It has been enforced in the constitution through Fundamental rights and Directive Principles of State Policies.
Social Justice promises Indian citizens the immunity from discrimination on the basis of caste, creed, religion, sex, color, race and so on. It means that there will no special privileges extended to particular section of society and improvement in the conditions of backward classes.
Economic Justice promises that no individual or group will be discriminated on the basis of economic factors. It involves reduction and elimination of glaring inequalities in wealth, income and property. Social Justice with Economic Justice is called 'Distributive Justice'.
Political Justice: It means that there is no privileged class and all political offices including that of President and Prime Minister shall be open to all citizens without discrimination.
7. Liberty:
The idea of Liberty in the Constitution is defined as the absence of restraints from performing activities and further providing opportunities for development on individuals in the society. These are enforced in Constitution through Fundamental rights. This ideal of Liberty has been borrowed from the French Revolution(1787-99).
Ideal of Liberty promises liberty or freedom of thought, expression, belief, faith and worship. This does not give 'license' to do whatever one likes. Liberty is to be enjoyed with certain limitations. It is to be noted that liberty that is conceived by Preamble and Fundamental rights is not absolute but qualified.
8. Equality:
The ideal of Equality means that there is no privileged class and hence all citizens are treated without discrimination. Also, there must be a provision for adequate opportunities for all individuals. The ideal of equality is enforced in constitution through Fundamental rights and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99).
Ideal of Equality promises equality of status and opportunity. Article 14-18 of Constitution guarantees right to equality. Further,
Article 39 states(DPSP): Equal pay for equal work, for men and women after securing livelihood.
Article 325 states: 'No person shall be declared ineligible for electoral rolls on the basis of caste, creed, religion, race, color or sex.
Article 326 states: Elections to the Lok Sabha and state assemblies to be on the basis of adult suffrage.
9. Fraternity:
The ideal of Fraternity simply means the sense of brotherhood(brotherhood+sisterhood) among the citizens of India. The ideal of equality is enforced in constitution through Fundamental rights, Fundamental Duties and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99).
Dicey thought that there were 3 facets to the rule of law:
"[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts".
"[E]quality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts".
"[W]hereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals."
'Preamble is the horoscope of the Constitution' - K M Munshi, Constituent Assembly member
'Preamble is the soul of our Constitution' - Pandit Thakur Das Bhargava, Constituent Assembly member.
Analysis of the Preamble
The Preamble simply reveals the source, nature, objectives and the date of adoption of the constitution.
WE, THE PEOPLE OF INDIA - Indicates that people are the source of power, meaning that the constitution derives its authority from the people. People are the popular sovereign and constitution is the embodiment of the sovereignty of the people of this country.
SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC, REPUBLIC: It indicates the nature of Constitution.
JUSTICE, LIBERTY, EQUALITY AND FRATERNITY: Indicates the objectives of the constitution.
26th DAY OF NOVEMBER : Indicates the date of adoption and enactment of Constitution.
JUSTICE, LIBERTY, EQUALITY AND FRATERNITY: Indicates the objectives of the constitution.
26th DAY OF NOVEMBER : Indicates the date of adoption and enactment of Constitution.
Terminology
1. Sovereign:
Primarily the word sovereign here means that India is neither a colony nor a dominion anymore. But it is a supremely independent state. The people are the popular sovereign and they enjoy this sovereignty with highest authority both internally and externally.
Internally, as the people are free to elect the government which makes laws for the country. Also people are free to remove the government if they loose confidence in the existing government. Further, people of India are free to participate and elect at 3-tiers of the government.
Externally, as no foreign power can dictate terms or control India. Only people of this country, holding sovereign authority, can dictate the Government of India.
Note: India has been a member of UNO since 1945. India has declared her continuation of full membership of Commonwealth of Nations in 1949, accepting British crown as the head of the commonwealth . This extra-constitutional declaration does not affect the sovereignty of India as it is an alliance or association of nations for mutual benefits. As Nehru clarifies on the similar doubts in the assembly:
'It is an agreement by free will, to be terminated by free will.'
2. Socialist:
This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was implicitly present and followed in the Directive Principles of State Policy(DPSP). However this constitutional amendment act made it explicit by including it in the Preamble.
India follows its own brand of 'Democratic socialism' which aims to end poverty, ignorance, disease and inequality of opportunity(as told by a Judge of Supreme Court). While the popular 'Communistic Socialism' involves nationalization of all means of production and distribution, abolition of private property. Indian socialism is a mix of Marxism and Gandhism with high inclination towards Gandhism. Hence, it is popularly called 'Gadhian Socialism' However on this issue, Indira Gandhi has clarified saying:
'We always said that we have our own brand of socialism. We will nationalize the sectors where we feel the necessity. Just nationalization is not our type of socialism'.The LPG economic policy - Liberalization, Privatization, Globalization of 1991 has highly diluted socialistic credential of Indian Sovereign.
3. Secular:
This term was added as a part of 42nd Constitutional Amendment Act of 1976. This feature was very much part of the constitution implicitly as mentioned in Articles 25 to 28 (Guarantees fundamental right to religion). However this constitutional amendment act made it explicit by including it in the Preamble.
Indian Constitution promises a positive secularism i.e., irrespective of which religion you belong to, you will get same treatment and support from the state. Simply put, constitution considers religion as an individual's private affair and hence do not impose or restricts individual's right to religion. Indian State do not support or have any foundation based on religion. P B Gajendragadkar, Former Chief Justice of Supreme Court defined secularism in Indian context as:
'The state does not owe loyalty to any particular religion as such; it is not irreligious or anti-religious. It gives equal freedom to all religions.'
On the basis of attitude of states towards religion, three types of states can be conceived of:
Atheistic state: Anti-religious and hence condemns all religions. Eg: Albania, North Korea were once Atheistic.
Theocratic state: Pro-religion. Hence declares one religion as the state religion. Eg: Pakistan.
Secular State: Neutral in religious affairs. Does not uphold any religion. Eg: USA, INDIA.
4. Democratic:
This feature of the Preamble is based on the doctrine of popular sovereignty. That is possession of supreme power by the people. Democracy literally means 'people's rule'.
There are two forms of democracy - direct and indirect. Direct form of Democracy can be seen in the cantonments of Switzerland. In direct democracy, Referendum, Initiative, recall and plebiscite are used as mechanisms.
Referendum - A proposed legislation is put before electorate for their direct voting.
Initiative - Any member of the electorate can propose a bill to legislation for enactment.
Recall - Voters can remove a representative/officer before the end of his term if he fails to discharge his duties.
Plebiscite - Method of obtaining the opinion of people on matters of Public importance. Usually used to solve territorial disputes. Eg: Scotland went for a plebiscite to get out of UK.
India however follows Indirect democracy. Indirect democracy can take either Presidential or Parliamentary form. U.S.A follows Presidential form of democracy. Parliamentary system is followed in India, an idea borrowed from the British or the Westminster model.
In Parliamentary system of democracy, the executive is responsible for the legislature for all the policies and actions. Universal adult franchise, Periodic election, Rule of law (by A.V. Dicey) and Impartial, Integrated and Independent judiciary are the key features of democracy of Indian polity.
Ambedkar paid greater attention to social linkage among people than separation of powers and constitutional safeguards for democracy. The concept of power contained in his thinking has a direct relationship between social power and political power. He was conscious of the social and economic inequalities which corrode the national consciousness of the Indian people. Ambedkar said, “We must make our political democracy a social democracy as well. Political democracy cannot last unless there lies at the base of it, social democracy”.
5. Republic: Re-public :- Representation of Public.
Any democratic polity can be classified into two categories - Monarchy or Republic. Democratic Monarchy means, the supreme head of the state is the King and 'head of the state' is a hereditary position like in Britain. However, in a Democratic Republic, head of the state is 'President' and he/she is elected directly(like in USA) or indirectly like in India. President of India is elected indirectly for a period of 5 years.
A republic also means vesting political sovereignty in the people and not in an individual King. It also means that there is no privileged class and hence all offices being open to all citizens without discrimination.
6. Justice:
The idea of justice in the Indian Constitution is embraced in three forms: Social, Economic and Political. This ideal of Justice has been borrowed from the Russian Revolution(1917-23). It has been enforced in the constitution through Fundamental rights and Directive Principles of State Policies.
Social Justice promises Indian citizens the immunity from discrimination on the basis of caste, creed, religion, sex, color, race and so on. It means that there will no special privileges extended to particular section of society and improvement in the conditions of backward classes.
Economic Justice promises that no individual or group will be discriminated on the basis of economic factors. It involves reduction and elimination of glaring inequalities in wealth, income and property. Social Justice with Economic Justice is called 'Distributive Justice'.
Political Justice: It means that there is no privileged class and all political offices including that of President and Prime Minister shall be open to all citizens without discrimination.
7. Liberty:
The idea of Liberty in the Constitution is defined as the absence of restraints from performing activities and further providing opportunities for development on individuals in the society. These are enforced in Constitution through Fundamental rights. This ideal of Liberty has been borrowed from the French Revolution(1787-99).
Ideal of Liberty promises liberty or freedom of thought, expression, belief, faith and worship. This does not give 'license' to do whatever one likes. Liberty is to be enjoyed with certain limitations. It is to be noted that liberty that is conceived by Preamble and Fundamental rights is not absolute but qualified.
8. Equality:
The ideal of Equality means that there is no privileged class and hence all citizens are treated without discrimination. Also, there must be a provision for adequate opportunities for all individuals. The ideal of equality is enforced in constitution through Fundamental rights and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99).
Ideal of Equality promises equality of status and opportunity. Article 14-18 of Constitution guarantees right to equality. Further,
Article 39 states(DPSP): Equal pay for equal work, for men and women after securing livelihood.
Article 325 states: 'No person shall be declared ineligible for electoral rolls on the basis of caste, creed, religion, race, color or sex.
Article 326 states: Elections to the Lok Sabha and state assemblies to be on the basis of adult suffrage.
9. Fraternity:
The ideal of Fraternity simply means the sense of brotherhood(brotherhood+sisterhood) among the citizens of India. The ideal of equality is enforced in constitution through Fundamental rights, Fundamental Duties and Directive Principles of State Policies(DPSP). This ideal of Liberty has been borrowed from the French Revolution(1787-99).
The ideal of Fraternity promises:
Dignity of individual: This means the constitution besides ensuring material betterment also promises to recognize the personality of individual as sacred. and,
Unity and Integrity of the country: It embraces both psychological and territorial integrity of the nation. It promotes sense of brotherhood and aims at overcoming communalism, regionalism, casteism, linguism etc.,
Additional info
Dicey thought that there were 3 facets to the rule of law:
"[N]o man is punishable or can be lawfully made to suffer in body or goods except for a distinct breach of law established in the ordinary legal manner before the ordinary Courts".
"[E]quality before the law, or the equal subjection of all classes to the ordinary law of the land administered by the ordinary Law Courts".
"[W]hereas under many foreign constitutions the rights of individuals flow, or appear to flow, from the articles of the constitution, in England the law of the constitution is the result, not the source of the rights of individuals."
'Preamble is the horoscope of the Constitution' - K M Munshi, Constituent Assembly member
'Preamble is the soul of our Constitution' - Pandit Thakur Das Bhargava, Constituent Assembly member.
No comments:
Post a Comment