Interpretation or meaning of Preamble: According to Oxford English dictionary, meaning of Preamble as defined is ‘a preliminary or preparatory statement or an introduction.’
According to the interpreters of law, Preamble contains main object and purpose of any detail statute, enactment or a provision. Preamble thus is key to open the minds or the intention of the legislature.
Consequently, Constitution of India which is the Grundnorm and Preamble is its nutshell. Cardinal principle thus is Constitution through which the rest of the legislations should follow, otherwise any subsequent statute not in conformity with the Constitution of India shall be ultra vires or unconstitutional.
Secondly, preamble of the constitution is the very basis on which our ideals of the truly Independent India is founded and thus can be regarded as part of the “basic structure” of the constitution, subject to the following arguments as enumerated.
When preamble is itself is not an enacting provision, if India was to be declared a ‘Secular’ and ‘Socialist’ state then other options could have been provided to further due provisions in the constitution in the form of amendments to reinforce the original ideas, but what was the need to change the preamble?
In any case, when India became independent it converted from police state of the British Raj and wedded to the concept of a welfare state, so re-writing “socialist” word in preamble is not considered necessary from the legalities and welfare of the masses point of view.
Secondly, India was already a secular state and enactments are very vociferous with clarity in no uncertain terms, as expressed and implied particularly in Articles 25 to 30 about the secular nature of the State and hence incorporating “Secular” word separately in the preamble, which is not an enacting provision, was not a necessary condition for Governance then.
Secular norms of the society was well laid down in our constitution and there were no provisions in our constitution in the contrary or in conflict with secularism therefore, adding the word “Secular” in the preamble of the constitution which is not a enacting provision, I repeat, was not going to serve any additional meaningful purpose except for displeasing the God and the real intention of the legislators of the 42nd amendment needs to be well understood.
This apprehension becomes profound more because of the fact that the terms Socialist and Secular are not defined elsewhere in the Indian constitution.
Insertion of the word “Socialist” was proposed during the constituent assembly debates during pre-constitution period in forties but the founder fathers including the luminaries like Dr. BR Amvedkar opined that our constitution should not tie down the future generation about what the kind of society they wish to live in, there can be a better model than socialism in future, who knows! (#2)
Thus the amendment of inserting socialism was dropped at that time. Instead of Government of the day offering doles, freebies to meet the requirements of socialism, there can be an alternative in the form of a self-reliant society, where opportunities are equal and any form of disparity is strictly dealt with. Emphasis is better laid on the equal distribution of wealth in the society in the form of enactments and more importantly in the mobilization of implementation machinery for the purpose.
On the contrary the political parties are being asked to commit themselves to the socialistic cause to get permission from the Election Commission of India to participate in the process of election. Swatantra Party Maharastra was denied of registration by the Election commission in 1994 for not confirming written allegiance to Socialism.
This insertion of Socialist and Secular word in preamble was contested several times in Supreme Court. Some of the leading opinions were, “It is contrary to the Constitution and to its democratic foundations that political parties be called upon to swear allegiance only to a particular mindset or ideology,” said senior advocate Fali S Nariman, appearing for the petitioner, Kolkata-based NGO: Good Governance India Foundation.
Mr Nariman said, “Introducing the word ‘socialist’ in the Preamble breaches the basic structure and it is wholly inconsistent.” “The attempt to deliberately tunnel the collective view in one ideological direction is also a grave breach of the liberty provisions of the Constitution,” Mr Nariman said, seeking direction to strike down Sec 29A of the Representation of People Act. (#4)
In D.S Nakara v. Union of India, the court observed 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.” The principle aim of socialist State, the Supreme Court held, was to eliminate inequality in income and status and standard of life.
Under the ambit of the above case laws therefore ‘Adoption of mixed economy & globalisation’ which are buzz words today become ipso facto violative of constitutional provisions on socialism. However, we must note that socialism and welfare state mechanism are not necessarily the same thing and the same subject matter and cannot be treated as Pari materia.
Now one question still remain whether legislators had possessed right to alter or amend the basic structure in 1976 as done in 42nd amendment in accordance with Article 368 of the constitution. Consider the following provisions of Article 368, empowering parliament to amend Constitution.
Quote
Article 368 in The Constitution Of India 1949
368. Power of Parliament to amend the Constitution and procedure therefor
(1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article
(2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House present and voting, it shall be presented to the President who shall give his assent to the Bill and thereupon the Constitution shall stand amended in accordance with the terms of the Bill: Provided that if such amendment seeks to make any change in
(a) Article 54, Article 55, Article 73, Article 162 or Article 241, or
(b) Chapter IV of Part V, Chapter V of Part VI, or Chapter I of Part XI, or
(c) any of the Lists in the Seventh Schedule, or
(d) the representation of States in Parliament, or
(e) the provisions of this article, the amendment shall also require to be ratified by the Legislature of not less than one half of the States by resolution to that effect passed by those Legislatures before the Bill making provision for such amendment is presented to the President for assent
(3) Nothing in Article 13 shall apply to any amendment made under this article
(4) No amendment of this Constitution (including the provisions of Part III) made or purporting to have been made under this article whether before or after the commencement of Section 55 of the Constitution (Forty second Amendment) Act, 1976 shall be called in question in any court on any ground
(5) For the removal of doubts, it is hereby declared that there shall be no limitation whatever on the constituent power of Parliament to amend by way of addition, variation or repeal the provisions of this Constitution under this article PART XXI TEMPORARY, TRANSITIONAL AND SPECIAL PROVISIONS
Unquote
Prior to 42nd amendment of 1976, in the year 1973, His Holiness Kesavananda Bharati Sripadagalvaru and Others versus State of Kerala (case citation 1973 4 SCC 225) is a landmark decision of the Supreme Court of India that outlined the ‘Basic Structure doctrine’ of the Constitution. Here in a well split ruling thirteen Judge bench decided the following in ratio of 7:6 after sitting reportedly for more than fifty times.
In this Judgment Supreme Court of India had emphasized that the Preamble to the Constitution emphasizes the principle of equality as basic to the Constitution of India. This is the basic features of the Constitution which no legislature in India can transgress. Even an Amendment of the Constitution offending a basic structure of the Constitution is ultra vires. (#1)
In this the majority propounded the novel doctrine of “basic features‟ as an implied limitation upon the amending power conferred by Article 368, not from the Preamble - but from an interpretation of the word “amendment‟ in Article 368 itself.
In formulating the basic features, the court referred to the objective specified in the Preamble, as other provisions, but it was nowhere stated that the Preamble as such constituted any substantive source of power or limitation apart from its other enacting provisions.
Kesavananda Bharati judgment created a history in Judicial review of the policy if the Government. For the first time, a constitutional bench of Judges assembled and sat in its original jurisdiction hearing the writ petition. Thirteen Judges placed on record eleven separate opinions. It was held in this case as:
a) Preamble to the Constitution of India is a part of Constitution.
b) Preamble is neither a source of power nor a source of limitation.
c) Preamble has a significant role to play in the interpretation of statues, also in the
Interpretation of the other provisions of the Indian Constitution.
d) The basic elements or structure in the preamble cannot be amended under Article 368.
The 42nd Amendment as enacted in 1976, is considered to be the immediate and most direct fall out of this above Judgment. Apart from it, the judgment has actually cleared the deck for complete legislative authority to amend any part of the Constitution except when the amendments are not in consonance with the basic structure of the Constitution.
Thus it may be construed that the legislators of that time had undertaken a colourable legislation by transgressing its authority in the first place to amend the basic structure of the constitution.
Circumstances of 42nd amendment: This particular amendment as reported widely in press and other media as black day for the Indian democracy were passed by the parliament with majority of the opposition leaders under preventive detention under maintenance of internal security Act of 1971 popularly known as MISA Act.
Consequently leaders lost their right to vote in the respective legislation during passing of the constitutional amendment. As the passage of the bill was determined by two thirds majority by those present and voting norm.
On 25 June 1975, the President of India, Fakhruddin Ali Ahmed, accepted Prime Minister Indira Gandhi's recommendation to declare a state of “national emergency”. She argued that the political and civil disorder constituted a threat to national security. A state of emergency enabled the central government to issue executive decrees without requiring the consent of Parliament.
Elections were postponed and public gatherings, rallies and strikes were banned. Indira's government imposed "President's rule" in the states of Tamil Nadu and Gujarat, dismissing the governments controlled by opposition political parties.
The central government also imposed censorship on radio, television and newspapers. Across the country, police forces arrested thousands of opposition political activists, as well as leaders such as Jayaprakash Narayan, Jivatram Kripalani, Morarji Desai, Satyendra Narayan Sinha, Raj Narain, Vijay Raje Scindhia, Charan Singh, Atal Bihari Vajpayee, Lal Krishna Advani and others.
Opposition political organisations such as the Rashtriya Swayamsevak Sangh (RSS) and the Communist Party of India (Marxist) were banned and their leaders arrested.
The Forty-second Amendment of the Constitution of India, brought about the most widespread changes to the Constitution in its history, and is sometimes called a "mini-Constitution". Here under the aforesaid circumstances the two words of Socialist and Secular was introduced in the line of SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC. (#3)
Almost all parts of the Constitution, including the Preamble and amending clause, were changed by the 42nd Amendment, and some new articles and sections were inserted.
Position of the preamble prior to 42nd Amendment:
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 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.
Conclusion: The Constitution of India is the supreme law of the land, which is fundamental to the governance of India. The Constitution of India was enacted on 26th November, 1949 and was adopted on 26th January, 1950. The makers of the Indian Constitution took lot of pain and obtained inspiration from Constitutions all over the world and incorporated their attributes into the Indian Constitution.
However, a Constitution should be a dynamic document. It should be able to adapt itself to the changing needs of the society. Sometimes under the impact of new powerful social and economic forces, the pattern of government will require major changes. Keeping this factor in mind the founders of the Indian Constitution incorporated Article 368 in the Constitution which dealt with the procedure of amendment. During the last 70 years of the Constitution, more than 120 amendments have taken place, GST being the 122nd.
Amendments were to serve the needs of the evolving society, welfare of the masses and general elevation of the socio economic order in the country.
However, 70 years down the line look at what we all have done to our country! There is huge disparity in the society in the form of rural urban divide, a slum cluster and a sky scrapper both exist side by side in our leading cities of Mumbai, Delhi, Bangalore, Kolkata, etc.
In the name of secularism our politicians try to divide our country at the first available opportunity. India still is largely divided on religious lines.
Subsequent Governments which assumed power during the post emergency period also did not endeavour to modify the past errors but it can only be attributed to nothing but political compulsions or lack of majority or public support to bring about reversal.
Most important is to see net results and what’s our achievement after independence in terms of attaining social goal, secular goal???
Insertion of the two words of Secular and Socialist for the last forty years in the preamble has hardly served any visible purpose, and it has been only a delusionary attempt meant for the huge illiterate mass of the country.
So it can thus be construed that the law making in this country is purely motivated by political compulsions and do not necessarily grab the imagination of the ordinary masses of the country.
Spiritual mystic Sadhguru Jaggi Vasudev once Tweeted, “Compulsion may be towards something edible, a particular activity... Anything compulsive means you are enslaved.” So our political compulsions are making ourselves the slaves of vote bank.
So it finally transpires that, if one need to fight for its own basic rights then it may be an good idea to form a formidable group and thereby gain political power to garner support and attain political objectives. We need to break this tradition that forming groups is the only solution to the problems facing our society, but NO, instead we may try to globalize our society, encourage flow of ideas and culture all across the nation and make it a coherent one where vote bank politics can be crushed and pursuer of the vote bank policy shall be a utter failure.
#JaiHind
#1. http://www.legalservicesindia.com/article/article/role-of-preamble-interpretation-with-indian-constitution-1390-1.html
#2. http://swarajyamag.com/commentary/the-2-s-words-ambedkar-did-not-want-in-the-constitution
#3. http://www.lawctopus.com/academike/preamble-constitution-india/
#4. http://www.sabhlokcity.com/2015/04/record-of-actions-pils-against-socialism-in-indias-preamble-rop-act/
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