Know The Constitution [Part I]: The Preamble

If the Constitution has to be of the people, by the people and for the people, it must first capture the imagination of the masses.
The 'Know the Constitution' series is a humble attempt by the team of LiveLaw to unravel the Indian Constitution in all its majesty. The aim is to demystify the Indian Constitution one Article, one amendment, one doctrine, one schedule, one theme at a time.
With this series we hope to make one small effort towards demystifying this foundational document and put it back where it belongs- WE THE PEOPLE.
Only a constitutionally conscious citizenry can save the Constitution in the face of dwindling human rights, shrinking freedoms, and rising authoritarianism.

PART-1 THE PREAMBLE

WE THE PEOPLE,

So the Constitution of India-running into 448 articles, 12 Schedules, 105 Amendments- begins. Yet, seventy-two years since its adoption, the Constitution remains at the margins of the knowledge of the very people it was supposed to protect, enable and empower.

Members of the Constituent Assembly had hoped that it would be a socially transformative piece of document, the "cornerstone of a nation", a bulwark against executive legislative excesses and discriminatory and majoritarian tendencies. The Constitution contained not only a nation's ideals and people's rights but also the institutions necessary to achieve them. We did win our Independence on August 15, 1947 but it was- and is- the Constitution that ensured that every person, at least in theory, is free and equal and is provided with the necessary conditions of life to not just exist but also flourish. It is what ensures that we do not become a banana republic. It is what keeps all the organs of the government in check and brings closer to-if not into- the mainstream individuals and groups that would have otherwise remained at the bottom or margins of society.

Yet, as the trajectories of numerous failed democracies show, no matter how well-conceived, a Constitution can only establish institutions on paper. Adopting and enacting a Constitution is only the first step, some may even say, the easier task. The real struggle begins later. As Granville Austin has put it-constitutions do not "work"- they are only inert documents dependent upon being "worked" by institutions, leaders and common citizens.

How "successful" the Constitution has been is a topic of debate for political scientists and members of legal academia. It is no one's argument that the Constitution has delivered all that it promised. A wide gulf remains between aspiration and reality but that's beside the point. There will be little disagreement that knowledge of the Constitution has not trickled down to all sections of society-something that is crucial if the true potential of the Constitution is to be realised. Juan J. Linz & Alfred Stepan in their seminal work 'Problems of Democratic Transition and Consolidation' had argued that it is not enough for a democracy to periodically hold elections, for in order to be 'consolidated' democracy a nation must be behaviourally, attitudinally and constitutionally democratic as well. To extend that argument to a slightly different context- it is not enough to have a Constitution and have it enforced in courts of law. If the Constitution has to be of the people, by the people and for the people, it must first capture the imagination of the masses.

The 'Know the Constitution' series is a humble attempt by the team of LiveLaw to unravel the Indian Constitution in all its majesty. The aim is to demystify the Indian Constitution one Article, one amendment, one doctrine, one schedule, one theme at a time. Of course, one may question the need to do this when we have our commentaries by H.M.Seervai, DD Basu, V.N.Shukla and Granville Austin. The hope is to capture the complexity and nuance of the text of the Constitution, its interpretation and its criticism all the while eschewing legalese as far as possible. We believe there couldn't have been a better occasion to begin this series than the 26th day of November- a day that is observed as 'Constitution Day' every year to mark the adoption of the Constitution of India. It was this exact day on which, 72 years ago, the Constitution of India was adopted by the Constituent Assembly of India. With this series we hope to make one small effort towards demystifying this foundational document and put it back where it belongs- WE THE PEOPLE.

Know the Preamble

The Preamble to the Constitution, which was adopted along with the Constitution on 26th November 1949, represents the values that are incorporated in the Constitution. The fact that it was adopted by the Constituent Assembly after the Draft Constitution was approved supports this proposition that it expresses goals and philosophy of the Constitution. Apart from stating the objects which the Constitution seeks to achieve, it also indicates the source from which the Constitution derives its authority.

The words-"We the People of India....adopt, enact and give to ourselves this Constitution"- declares that the Constitution emanates from the people of India and that the Constitution rests on solely their authority. The use of this phrase is deliberate- in order to sufficiently clarify that the Constitution of India, unlike previous legislations governing the country, were not a product of the British Parliament. As Durga Das Basu writes in his commentary on the Constitution of India, the terms made it clear that "it (constitution) is ordained by the people of India through their representatives assembled in a sovereign Constituent Assembly which was competent to determine the political future of the manner in any kind."^[2]
'We the people' is not just a historical statement of fact. It is a continuing statement including all the people and imposing upon them a duty to abide by the principles sought to be achieved by the constitution.

The influence of the American Constitution is visible in our Preamble - both place the authority of constitution-making in the hands of "We the People". The Preamble embraced the aspiration of justice (social, economic, political) embedded in the Russian Constitution, and adopted the ideals of Liberty, Equality, and Fraternity from the Constitution of France 1791.

To appreciate the aims and aspirations of the Constitution we must take a closer look at the terms and expressions contained in the Preamble.

'Sovereign' signifies that the authority of the Indian State is independent and that it is not subject to the control of any other State or external. The Preamble declares in unequivocal terms that the source of all authority are the people of India itself- it is a government by the people and for the people.

Socialist- The expression was inserted into the Preamble by the Constitutional (Forty-second Amendment) Act, 1976. Though the word 'Socialism' is vague, the Supreme Court in In D.S. Nakara v. Union of India^[3] observed that "the principal aim of a socialist State is to eliminate inequality in income and status and standards of life." According to the Supreme Court, the goal of Indian Socialism is "a blend of Marxism and Gandhism leaning heavily towards Gandhian socialism." The Indian Constitution therefore does not seek to abolish private property altogether but aims at offering 'equal opportunity' to all. The Supreme Court recognised that the journey from the prevalent feudal society to a socialist welfare society though a long journey ought to be realised by every action taken by the State.

Secular - While this expression too was formally inserted into the Preamble by the 42nd Amendment, it was never doubted that the Constitution established a secular and not a theocratic state. Prof. KT Shah, a member of the Constituent Assembly had proposed to add 'Secular' to the Preamble, however some members, including B.R. Ambedkar, felt that it would be unnecessary given the Constitution embodies the values of secularism via Articles 25, 26 and 27. While 'Secularism' is a contested concept deserving an entire article to itself- in its essence it means that the State shall protect all religions equally and not uphold any one religion as the State religion. The Indian concept of secularism is also different from the Western model of secularism which enjoins a strict separation of powers between the 'Church' and 'State'. The Supreme Court in S.R. Bommai v. Union of India^[4] recognised secularism to be a part of basic structure of the Constitution, not amenable to amendment.

Democratic-The Preamble envisages a parliamentary democracy wherein there is representation of the people, responsible government and accountability of the Council of Ministers.

Republic signifies that, in contrast to a constitutional monarchy where the head of state is a dynastic position, we have an elected President as the head of our State and offices including that of the President will be open to all citizens.

Equality of Status and opportunity - Apart from procedural equality, it is also an enumeration of substantive equality, which recognizes the fact that there is equality only among equals, and to treat unequals equally is to perpetuate inequality. If due to historic injustices, a certain section of the society has been placed at a significant disadvantage, then it enjoins the State to take positive action to remedy the same. This object is secured by the body of the Constitution by making illegal discrimination by the State, by abolishing untouchability, offering equality of opportunity in matters of employment and by guaranteeing equality before the law and equal protection of the laws. In addition to civic equality, the Constitution also guarantees political equality by providing universal adult franchise.

The Preamble by itself has been subject to judicial interpretation regarding its enforceability and a more fundamental question whether it is a part of the Constitution. For some time, it was assumed that like the Preamble of any statute, the Preamble to the Indian Constitution is not part of the Constitution. What difference does it make one might wonder?

Is the Preamble a part of the Constitution

This vexed question came up for the court's consideration in In Re Berubari Union^[5] where the validity of an India-Pakistan agreement relating to Berubari Union and exchange of enclaves was under consideration. It was contended that the Preamble and the term 'sovereignty' imposes a limitation on the exercise of the right to cede parts of its own territory. The court went on to hold that while the Preamble showed the general purpose of the constitution, it was not a part of the Constitution and could not be a source of any substantive rights. The court held:

"There is no doubt that the declaration made by the people of India in exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, "a key to open the mind of the makers" which may show the general purposes for which they made the several provisions in the Constitution; but nevertheless the preamble is not a part of the Constitution, and, as Willoughby has observed about the preamble to the American Constitution, "it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted."

However, the Court also clarified that, though, by itself, the Preamble is not enforceable in a Court of law, it can nevertheless be used to aid the legal interpretation of the Constitution where the language is found to be ambiguous or are capable of two meanings. The Court also observed that one of the essential attributes of sovereignty is the power to cede parts of national territory if necessary. On this basis, the Court came to a conclusion that since the Preamble is not a part of the Constitution, it is not enforceable in a Court of law and thus could not impose any limitation on a nation's right to cede its own territory.

This view did not find currency when the Supreme Court sat down to deliberate this question in Kesavananda Bharati v State of Kerala^[6]. A Bench of 13 judges held that the Preamble is in fact part of the Constitution itself. Differing from the opinion expressed in Berubari Union, it was held that the Preamble is a part of the constitution and could be used to interpret statutes and the constitution, provided the language was ambiguous. This view was supported by the fact that unlike any other statute, whose Preamble is not passed by the legislature, the Preamble to the Indian Constitution was first introduced in the form of Objectives Resolution and adopted by the Constituent Assembly. The 13 judge bench also noted that the Preamble is amendable and subject to limitation of amending powers under Art.368 since it's a part of the Constitution. Though amendable, the basic features of the Preamble cannot be altered, given the edifice of the Constitution is based upon the basic element in the Preamble. The Preamble has been amended only once -by the 42nd Amendment Act, 1976, whereby the expressions 'Socialist', 'Secular' were added to the Preamble and the phrase 'unity of the nation' was changed to 'unity and Integrity of the Nation' in furtherance of the constitutional values and to propagate economic and social justice.

Enforceability of the Preamble

Does the Preamble serve any other purpose other than acting as a guide to the more substantive provisions of the Constitution? Can it be the source of rights for individuals and limitations for the institutions that the Constitution establishes?

The traditional point of view regarding the interpretation and application of the Preamble has been that it does not grant any power but merely provides direction and purpose to the constitution. It is intended to show the general purpose of the several provisions of the Constitution but is not a source of any substantial power or limitation. It helps in interpreting the constitution when the language of any of the provisions is ambiguous, but when the language is clear, the terms of the Preamble cannot qualify or cut down the enactment.

This line of thought has been expressed in both Berubari Union and Kesavananda Bharati. Further, in Nandini Sundar v State of Chhattisgarh^[7] the Court held that the policy of the state of encouraging locals to take to arms to fight against the Maoists was against the concept of 'Fraternity' and Art.14 and Art.21 could not tolerate it. An unorthodox approach has been adopted by certain High Courts^[8] whereby the Preamble itself has been used to override express provisions of a statute- though such instances have been few and far between.

As it stands today, the Preamble is not the source of substantive rights of citizens or limitations upon the powers of other organs of the government but it is crucial towards understanding the ideals and goals which the Constitution intends to achieve. It is construed as the bedrock of constitutional values to effectuate social, economic, political and cultural rights enumerated in Part III and Part IV. Recognising the injustices of the past which had impeded social integration, the Preamble attempts to establish a system based on democratic values, social justice and basic human rights. The Preamble to the Constitution recognises the rights to "Liberty of thought, expression, belief, faith and worship" and "Equality of status and of opportunity" as essential for free existence to every member of society.

Suggested Readings

[1] Though the Constitution begins with the Preamble, it did not come into force on 26th Nov, 1949, when the Constitution commenced. Article 394 which deals with the commencement of the Constitution reflects that, Articles 5, 6, 7, 8, 9, 60, 324, 366, 367, 379, 380, 388, 391 and 393 were the only articles that came into force on 26th Nov, 1949. The Preamble along with the 'remaining provisions' came into force on 26th Jan, 1950. K. Santhanam, a member of the Constituent Assembly had suggested that the Preamble, which is the object of the Constitution should be brought into operation at the outset. However, the other members opposed his proposal considering that a great deal of impotence is to be attached to the Preamble in a Constitutional statute and it cannot be passed in a hurried manner.

[2] Introduction to the Constitution of India, Durga Das Basu.

[3] (1983) 1 SCC 305

[4] (1994) 3 SCC 1

[5] AIR 1960 SC 845

[6] AIR 1973 SC 1461.

[7] AIR 2011 SC 2839.

[8]See, Indian National Mines Overmen v Western Coalfields Limited.

Read more, Gautam Bhatia, Bombay High Court on 'Fraternity', the Preamble and Compulsory Wage Deduction, Indian Constitutional Law and Philosophy, available at https://indconlawphil.wordpress.com/2014/12/24/the-bombay-high-court-on-fraternity-the-preamble-and-compulsory-wage-deduction/.