constitutional-law

In this blog post, Nidhi Gupta, a student of National Law University, Assam writes about the amenability of the preamble in the constitution. This post looks into the enforceability of the preamble in the courts of law with respect to the ideas inscribed in the preamble. The post also highlights the various case laws that have helped decide various aspects of amenability of the preamble.  

 Introduction

The Preamble is an introductory statement, stating the aims and objectives of the constitution. Accordingly, the preamble to the Indian constitution spells out the basic philosophy contained in the body of the Indian Constitution.

The Preamble, in brief, explains the objectives of the Constitution in two ways: one, about the structure of the governance and the other, about the ideals to be achieved in independent India. It is because of this, the Preamble is considered to be the key of the Constitution. Preamble as such is widely accepted as the quintessence or soul and spirit of a constitution, as it embodies the fundamentals and the basic of the constitution as well as the vision and commitment of a newly liberated nation or people after its passing through the inevitable birth pangs of national independence from an oppressive and colonial regime.

Though preamble is the quintessence or soul and spirit of a constitution but it is not free from controversies. One of the controversies about the preamble is its amenability as to whether it possess any accountability in the Constitution of India or not.

The matter of amenability of the Preamble has a wider connotation which includes various aspects related to its accountability which are interrelated to each other. For instances whether Preamble is a part of the Constitution or not, whether or not a citizen of a nation to which he is subject to can challenge in the court of law if in case his rights have been infringed which were mentioned in the Preamble. And if not, then whether the Preamble is merely a preface or introduction piece of a page in the book of our Constitution. And also whether the Preamble is a part of the Constitution would depend on the resolution of the next question, which follows as a corollary- whether the Preamble can be amended. So, while analyzing the authority of Preamble we need to focus on these questions for establishing the responsibility of Preamble of Indian Constitution

Is the Preamble part of the Constitution or not?

Constitutions all over the world generally have a Preamble. The form, content and length of the Preamble differ from Constitution to Constitution. Irrespective of these differences, the Preamble generally sets the ideals and goals which the makers of the constitution intend to achieve through that constitution.[1] Therefore, it is also regarded as “‘a key to open the mind of the makers’ of the Constitution which may show the general purposes for which they made several provisions in the Constitution”.[2] Therefore, the preamble is a legitimate aid in the interpretation of the provisions of the Constitution. In this respect, subject to the clarification given below, the preamble of the Constitution stands on the same footing as the Preamble of an Act.[3]

Under English authorities, it is well settled that preamble is an admissible aid to the construction. It can, therefore, be used as a legitimate aid in construing the enacting parts. As adumbrated by the English authorities, a preamble cannot be used to restrict or extend the enacting part of the statute when the language, object and scope of the Act are unambiguous and not in doubt. It means that the preamble of an Act cannot control, qualify or restrict the meaning and application of its enacting part if that part is explicit and unambiguous. But, if the enacting part is ambiguous, the Preamble can be used to explain and elucidate it. In Powell v. Kempton Park Racecourse Co. Ltd.[4], Lord Halsbury LC said:

Two propositions are quite clear: one that a preamble may afford useful light as to what the statute intends to reach; and another, that if an enactment is itself clear and unambiguous, no preamble can qualify or cut down the enactment.

Our courts have followed the same proposition laid down by the English authorities in the use of preamble for interpretation of statutes. Our Supreme Court has stated in the same vein, in Tribhuban Prakash Nayyar v. Union of India that[5] “where there is no ambiguity, it is hardly necessary to have resort to preamble”. The Supreme Court has extended this principle in interpreting constitutional provisions. In Berubari Union and Exchange of Enclaves, re[6], the Supreme Court stated that “the preamble shows the general purposes behind the several provisions but, nevertheless, it is not a part of the Constitution and is never regarded as a source of any substantive power.” In re, Kerala Education Bill[7], the Supreme Court held the same view. It stated that “the value of the preamble in respect of the interpretation of the constitution is the same as that of the preamble to any other Act.

The propositions are, however, subject to the clarification that the Preamble to an Act is not part of the Act, because it is not enacted and adopted by the enacting body in the same manner as the enacting provisions. The preamble of an Act is not introduced, discussed and passed in the enacting body – the legislature- like the enacted provisions – sections- of the Act. The Preamble of our Constitution was, however, enacted and adopted by the same procedure as the rest of the Constitution. It was introduced and discussed in the Constituent Assembly and passed by it like the rest of the provisions of the Constitution. The difference was not brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves, re[8], where it is observed that “the preamble is not part of the constitution”[9]. Later when the constituent history of the preamble was brought to the notice of the court in Kesavananda Bharati v. State of Kerala[10], it held that “the preamble of the constitution was part of the constitution and the observations to the contrary in Berubari Union[11] case were not correct”. The Preamble is also part of the basic structure of the Constitution. In the case of SR Bommai v. Union of India[12] and Union Government v. LIC of India[13] also the Supreme Court reiterated that the Preamble is an integral part of the Constitution.

Amendment to the Preamble

The issue that whether the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case of Kesavananda Bharati v. State of Kerala.[14] An interesting argument advanced in this case has been noted by Y.V. Chandrachud, J. that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, we cannot amend the Constitution so as to destroy the Preamble. Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. The Preamble records like a sunbeam certain glowing thoughts and concepts of history and the argument is that by its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached. In the opinion of H.R. Khanna, J. the preamble is a part of the Constitution and walks before the Constitution”. S.D. Dwivedi, J. expressing his concurrence with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the Constitution because the heading “The Constitution of India” was placed above the Preamble. The Preamble cannot be a source of reading any inherent and implied limitations on the amending power. It is noteworthy that Justice Dwivedi has held the Preamble to be a part of the Constitution and then also referred to it as a provision of it. In view of the provisions contained in Article 368 of the Constitution, Justice Beg discarded the contention that a creature of the Constitution could not possibly possess the power to create a recreate the Constitution as Article 368 expressly provides for the expansion or diminution of the scope of the powers of amendment. The amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations was kept wide, elastic and expansible by the Constitution makers. In conclusion, Beg J. held that there was no limitation on the powers of constitutional amendment found in Article 368.

Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached. In the opinion of H.R. Khanna, J. the preamble is a part of the Constitution and walks before the Constitution”. S.D. Dwivedi, J. expressing his concurrence with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the Constitution because the heading “The Constitution of India” was placed above the Preamble. The Preamble cannot be a source of reading any inherent and implied limitations on the amending power. It is noteworthy that Justice Dwivedi has held the Preamble to be a part of the Constitution and then also referred to it as a provision of it.

In view of the provisions contained in Article 368 of the Constitution, Justice Beg discarded the contention that a creature of the Constitution could not possibly possess the power to create a recreate the Constitution as Article 368 expressly provides for the expansion or diminution of the scope of the powers of amendment. The amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national and international conditions and situations was kept wide, elastic and expansible by the Constitution makers. In conclusion, Beg J. held that there was no limitation on the powers of constitutional amendment found in Article 368.

Thus, the majority of Kesavananda Bharati case bench has held that Preamble is the part of the constitution and it can be amended but, Parliament cannot amend the basic features of the preamble. The court observed, “The edifice of our constitution is based upon the basic element in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same constitution and will not be able to maintain its identity.”

The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the words Socialist, Secular, and Integrity were added to the preamble by the 42nd amendment Act, 1976, to ensure the economic justice and elimination of inequality in income and standard of life. Secularism implies equality of all religions and religious tolerance and does not identify any state religion. The word integrity ensures one of the major aims and objectives of the preamble ensuring the fraternity and unity of the state.

Enforceability of the Preamble in the Court of law

The Preamble of our constitution is part of the Constitution but is not enforceable by courts. The Preamble is non-Justifiable. This means that courts cannot pass orders against the government of India to implement the ideas in the Preamble. The courts can take recourse to the Preamble in order to explain and clarify other provisions of the constitution. This view was given by the Supreme Court in the Berubari Union Case[15] and Kesavananda Bharati Case[16] .

Conclusion

Thus, after analyzing various aspects and the various judgments and views in relation to the Preamble, we can derive from are that in active expressive term preamble has limited scope but passively it acts more authoritatively. Which means though the Preamble does not bestow power on legislation, it may only act as director but somewhere on the other it limits the power of legislation because the Constitution and other legislations should be read and interpreted in the light of the vision expressed in the preamble and not beyond or against the vision expressed in the preamble.

This article is reviewed by Pragya and published by Rebecca


Footnotes: 

[1] ‘The preamble contains in a nutshell its ideals and its aspirations”, per Subba Rao CJ in Golak Nath v. State of Punjab, AIR 1967SC1643.

[2] Berubari Union and Exchange of Enclaves,re, AIR 1960SC 845

[3] V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, 1990, pp.3, For details see,Maxwell, The Interpretation of Statutes (12th Edn. 1969) pp. 6-9

[4] 1899 AC 143, 153 (HL)

[5] AIR 1970 SC 540; (1970)2 SCR 732

[6] AIR 1960 SC 845; (1960)3 SCR 250

[7] AIR 1958 SC 956

[8] AIR 1960 SC 845.

[9] Ibid.

[10] (1973) 4 SCC 225; AIR 1973 SC 1461

[11] AIR 1960 SC 845

[12] (1994)3 SCC 1; AIR 1994 SC 1918

[13] 1995

[14] (1973) 4 SCC 225; AIR 1973 SC 1461

 

[15] AIR 1960 SC 845; (1960)3 SCR 250

[16] (1973) 4 SCC 225; AIR 1973 SC 1461

 

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