EDEN IAS

AMENDABILITY OF THE PREAMBLE

AMENDABILITY OF THE PREAMBLE

AMENDABILITY OF THE PREAMBLE

The issue that whether the Amendability of the preamble to the constitution of India can be amended or not was raised before the Supreme Court in the famous case of Keshavananda Bharati v. State of Kerala, 1973. The Supreme Court 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 consti- tution 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.

KEYWORDS IN AMENDABILITY OF THE PREAMBLE

The preamble begins with the words “We the people of India…” thus clearly indicating the source of all authority of the constitution. At the dawn of independence, we were 350 million (approximately). This figure constituted 1/6th of humanity. The words “We, the people of India” declares in unambiguous terms that the Constitution has been adopted, enacted and given to themselves by the people of India. It emphasizes the sovereignty of the people and the fact that all powers of government flow from the people. It is the people of India on whose authority the Constitution rests. The preamble surmises that it is the people of India who are the authors of the constitution.

Although the constitution was not directly voted upon by the people of the country as it was practically impossible for four hundred million people to take part in the voting, it is clear from the Amendability of the Preamble that the framers of the constitution has been promulgated in the name of the people, attached importance to the sovereignty of the people and the constitution. The constitution is not based on the mandate of several states which constitute the units of the Union.

In this sense also, the constitution is one, given by the people of the country to themselves. Pt. Jawahar Lal Nehru in the constituent assembly stated that the word ‘People’ indicated that the constitution was not created by the States, nor by the people of the several States but by the people of India in their aggregate capacity. By analogy, even the Constitution of U.S.A., in spite of the fact that it was actually born out of the agreement between the number of independent states, professes to be established by the people of the United States, and not by the federating states in their sovereign capacities.

The words “we the people of India” echo in the opening words in the preamble to the constitutions of the United States and of Ireland. It is emphasized that the constitution is founded on the authority of the peo- ple, in whom is vested the ultimate sovereignty. The Supreme Court in Union of India v. Madangopal re- ferred to these words in the preamble while recognizing the power of the Indian legislatures, to enact laws with retrospective operation beyond the commencement of the constitution itself. The court observed that “our constitution as appears from the preamble derives its authority from the people of India”.

‘We, the people if India’, means in other words, ‘we, the citizens of India’, whether voters or non- voters. The terms- ‘people of India’ and ‘citizens’ are synonyms terms. Both the words describe the political body which lays the basis of sovereignty and which hold the power and conduct of the government through their representatives; they are what we familiarly call the ‘sovereign people’ and every citizen is one of this people and they are a constituent member of this sovereignty.

Constitutional expert D.D. Basu has stated that though the constitution of India has been made by men who cannot be said to be fully representatives of the nation and it has been ratified by a direct vote of the people, the Constitution of India, like that of the United States professes that is has been founded on the consent and acquiescence of the people. The preamble says that the people of India enacted and adopted the constitution, after “having solemnly resolved…” It explains that the founding fathers had given serious thought to the provisions of the Constitution. They had performed a sacred duty and exercised full wisdom and political knowledge on their part. They had no AXE to grind beyond “securing a good and workable constitution”.

Sovereign in Amendability of the Preamble

According to Preamble, the constitution of India has been pursuance of the solemn resolution of the people of India to constitute India into a ‘Sovereign Democratic Republic’, and to secure well-defined objects set forth in the preamble. Sovereignty denotes supreme and ultimate power. It may be real or normal, legal or political, individual or pluralistic. In monarchial orders, sovereignty was vested in the person of monarchs. But, in the republican form of governments, which mostly prevail in the contemporary world, sovereignty is shifted to the elected representatives of the people.

According to D.D Basu, the word ‘sovereign’ is taken from Article 5 of the constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign when there resides within itself supreme and absolute power, acknowledging no superior”.

Sovereignty, in short, means the independent authority of a state. It has two aspects- external and inter- nal. External sovereignty or sovereignty in international law means the independence of a state of the will of other states, in her conduct with other states in the comity of nations. Sovereign in its relation between states and among states signifies independence. The external sovereignty of India means that it can acquire foreign territory and also cede any part of the Indian territory, subject to limitations(if any) imposed by the constitution.

On the other hand, internal sovereignty refers to the relationship between the states and the individuals within its territory. Internal sovereignty relates to internal and domestic affairs and is divided into four organs, namely, the executive, the legislature, the judiciary and the administrative.

Though India became a sovereign country on 26th January 1950, having equal status with the other members of the international community, she decided to remain in the Commonwealth of Nations. Pandit Nehru declared that India will continue – “her full membership of the Commonwealth of Nations and her acceptance of the King as the symbol of the free association of the independent nations and as such the Head of the Common- wealth”. Her membership of the Commonwealth of Nations and that of the United Nations Organization do not affect her sovereignty to any extent. It is merely a voluntary association of India and it is open to India to cut off this association at her will, and that it has no constitutional significance.

Socialist

The constitutional commitment to the goal of socioeconomic justice, as envisaged by the original preamble by the constitution of India has been fortified by the Constitution (42nd Amendment) Act, 1976. The term ‘socialist’ literally means a political-economic system which advocates the state’s ownership of the means of production, distribution, and exchange.

Concise Oxford Dictionary defines ‘socialism’ as a political and economic theory of a social organization which advocates that the means of production, distribution, and exchange should be owned or regulated by the community as a whole.” Professor M.C Jain Kagzi while noting that socialism has interspersed in the provision of the constitution remarks that preambular reference was intended ushering in a socioeconomic revolution.

The term ‘socialist’ has not been defined in the constitution. Professor M.P Jain observes that the term ‘does not, however, envisage doctrinaire socialism in the sense of insistence on state ownership as a matter of policy’. It does not mean total exclusion of private enterprise and complete state ownership of material resources of the nation. D.D. Basu regards that the Supreme Court has gone a step further toward social jus- tice. P.M Bakshi understands socialism in the context of social justice. A broad spectrum of Indian jurists and authors admit the relevance of socialism in India. Swarn Singh, the chief architect of the 42nd Amendment Act, 1976 explained that by the word ‘socialism’ nothing more was meant than what was explained at the Awadi session of Congress, which is short aimed at a ‘mixed economy’.

Mrs. Indira Gandhi, the then Prime Minister, further explained that the term ‘socialist’ was used simply to indicate that the goal of the state in India was to secure a ‘better life for the people’ or ‘equality of opportu- nity’. She said that socialism like democracy was interpretable differently in different countries. She, thus, made it clear that India had her own concept of socialism and all she wanted was a better life for the people.

That the framers wished to go socialist was never in doubt. Our first Prime Minister and a member of the Constituent Assembly Pt. Jawaharlal Nehru exclaimed: “I stand for socialism and I hope, India will stand for Socialism and that India will go towards the constitution of a socialist state, and I do believe that the whole world will go that way.”

In Excel Wear v. Union of India the Supreme Court observed that “the addition of the word socialist might enable the courts to lean more in favor of nationalization and state ownership of the industry. But, so long as private ownership of industries is recognized and governs an overwhelming large proportion of our economic structure, the principle of socialism and social justice cannot be pushed to such an extent so as to ignore completely or to a very large extent, the interest of another section of the public, namely, the private owners of the undertaking.”

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 principal aim of the socialist State, the Supreme Court held, was to eliminate inequality in income and status and standard of life.

In Air India Statutory Corporation v. United Labour Union the Supreme Court elaborated the concept of “socialism” and stated that the word socialism was expressly brought in the constitution to establish an egalitarian social order through rule of law as its basic structure.

In Samatha v. State of Andhra Pradesh the Supreme Court observed that the word Socialist used in the Preamble must be read from the goals, Article 14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate Articles sought to establish, i.e. to reduce inequalities in income and status and to provide equality of opportunities and facilities.

Secular

In Webster’s Dictionary, the word ‘secular’ has been described as a ‘view of life’, or of any particular matter based on premise that religious considerations should be ignored or purposefully excluded or as a system of social ethics based upon doctrine that ethical standards and conduct be determined exclusively without reference to religion. It is the rational approach to life and it refuses to give a plea for religion.

For the first time, by the 42nd amendment of the constitution in 1976, the term-secular’ was inserted into the Preamble but without a definition of the term. Secular is derived from the Latin word speculum, which means an indefinite period of time. Before the mid-nineteenth century, the word ‘secular’ was occasionally used with contempt.

Although the term secular was not included anywhere in the constitution, as it was originally adopted on November 26, 1949, the founding fathers of the constitution were clear in their mind as to what they meant by secularism. The word secular has no Indian origin. It traces its origin from West in the context of the Christian religion. Unlike in the West, in India secularism was never born out of the conflict between the church or the temple and the State. It was rooted in India’s own past history and culture. It is based on the desire of the founding fathers to be just and fair to all communities irrespective of their number.

The term secular inserted by the Constitution (42nd Amendment) Act, 1976, explains that the state does not recognize any religion as a state religion and that it treats all religions equally, and with equal respect, without, in any manner, interfering with their individual rights of religion, faith or worship. It does not mean that it is an irreligious or atheistic state. Nor, it means that India is an anti-religious state. It neither promotes nor practices any particular religion, nor it interferes with any religious practice. The constitu- tion ensures equal freedom to all religions

The Supreme Court in St. Xavier’s College v. State of Gujarat explained “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”. That, every person is free to mold or regulate his relations with his God in any manner. He is free to go to God or to heaven in his own ways. And, that worshipping God is left to be dictated by his own conscience.

In S.R Bommai v. Union of India a nine-judge bench of the apex court observed that the concept of “Sec- ularism” was very much embedded in our constitutional philosophy. What was implicit earlier had been made explicit by the constitution (42nd amendment) in 1976.

In Aruna Roy v. Union of India the Supreme Court has said that secularism has a positive meaning that is developing, understanding and respect towards different religions. Recently in I.R Coelho v. State of Tamil Nadu it has been held that secularism is a matter of conclusion to be drawn from various Articles confer- ring Fundamental Rights. “If the secular character is not to be found in Part III”, the Court ruled, it cannot be found anywhere else in the Constitution, because every fundamental right in Part III stands either for a principle or a matter of detail”.

In Valsamma Paul v. Cochin University the apex court emphasized that inter-caste marriages and adoption were two important social institutions through which “secularism” would find its fruitful and solid base for an egalitarian social order under the Constitution of India. “Secularism,” the court said, was a bridge be- tween religions in a multi-religious society to cross over the barriers of their diversity. In the positive sense, it was the cornerstone of an egalitarian and forward-looking society which our constitution endeavored to establish.

Democratic

The term Democracy is derived from the Greek words ‘demos’ which means ‘people’ and ‘kratos’ which means ‘authority’. It thus means government by the people. Democracy may properly be defined as that form of government in the administration of which the mass of the adult population has some direct or indirect share.

The Supreme Court in Mohan Lal v. District Magistrate, Rai Bareilly observed: “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”.

Democracy may be a direct or indirect democracy. In a direct democracy, every people exercise the power of the government. The people as a whole not only carry on the government but can even change the constitution by their direct vote. In an indirect democracy, the people elect their representatives who carry on the administration of the government directly. It is also known as representative democracy. In India, the Constitution provides for a Parliamentary Representative Democracy.

The apex court in Union of India v. Association for Democratic Reforms, observed: “A successful democracy posits an ‘aware’ citizenry”. “Democracy cannot survive”, the court said, without free and fair elections, without free and fairly informed voters.” This states that free and fair elections are the most important features of democracy. Thus democracy implies that all three powers of the government i.e. the executive, the legislature and the judiciary should be separate, yet mutually independent. Democracy is also a way of life and it must maintain human dignity, equality and rule of law.

Thus, the sovereign Constitutional state established by the framers could only be Ramrajya and people’s democracy. Only in the democratic state the sovereignty would be vested in the people and the Nation. In reaffirmation to the democratic principle, the Constitution was adopted, enacted and adopted by the Constituent Assembly in the name of, and for “We, the People of India.”

Republic

A 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 the king or a similar ruler. The word ‘republic’ is derived from res publica, meaning public property or commonwealth. According to Montesquieu, “a republican government is that in which a body, or only a part of people, is possessed of the supreme power”. The term ‘republic’ is used in distinction to the monarchy.

A republic means a form of government in which the head of the state is an elected person and not a hered- ity monarch like the king or the queen in Great Britain. Under such a system, political sovereignty is vested in the people and the head of the state is the person elected by the people for a fixed term. 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 inhabitants are the subjects and free citizens at the same time. The constitution of India envisions.

The Indian government as a ‘republican form of government’, in which, the ultimate power resides in the body of the people exercised via universal adult suffrage. The president of India who is the executive head of the state is elected by the people (though indirectly) who holds office for a term of five years. All citizens are equal in the eyes of law, there is no privileged class and all public offices are open for all the citizens without any distinction on the basis of race, caste, sex or creed.

In a republic, the state sovereignty is vested in and held by the people, and the political power is exercised popularly as an expression of the people’s sovereign command, grace or pleasure. The Constitution is ad- opted and given to themselves by the People. The Constitution of India has been adopted enacted and given “To ourselves by “We, the People”.

Justice

The preamble of the constitution of India professes to secure to all its citizens political, economic and social justice. Social justice means the abolition of all sorts of inequities which may result from the inequalities of wealth, opportunity, status, race, religion, caste, title and the like. To achieve this ideal of social justice, the constitution lays down the directives for the state in Part IV of the constitution.

In Air India Statutory Corporation v. United labor Union the Supreme Court observed that the aim of social justice was to attain a substantial degree of social, economic and political equality which was the le- gitimate expectation and constitutional goal. It was held that social justice was a dynamic device to mitigate the sufferings of the poor, weak, Dalits, tribals and deprived sections of the society and to elevate them to the level of equality, to live a life with dignity of the person.

The expression ‘economic justice’ means justice from the standpoint of economic force. In short, it means equal pay for equal work, that every person should get his just dues for his labor irrespective of his caste, sex or social status.

Political justice means the absence of any unreasonable or arbitrary distinction among men in political matters. The constitution has adopted the system of universal adult suffrage, to secure political justice.

The expression ‘justice’ is the harmonious reconcilement of individual conduct with the general welfare of society. An act or conduct of a person is said to be just if it promotes the general well-being of the community. Therefore, the attainment of the common good as distinguished from the good of individuals is the essence of justice. Justice is considered to be the primary goal of a welfare state and its very existence rests on the parameters of justice.

Liberty

The preamble of the constitution of India professes to secure the liberty of belief, thought, expression, faith, and worship which are essential to the development of the individuals and the nation. Liberty or freedom signifies the absence of external impediments of motion. It implies the absence of restraint. Liberty is the power of doing what is allowed by law.

Aristotle stated that in democracy, liberty is supposed, for it is commonly held that no man is free in any other government. Liberty is a concept of multiple strands. No universally accepted definition of liberty exists, although statesmen and judges, among others, have attempted to give an all-comprising definition of the same. Liberty in the preamble of the constitution of India does not mean mere absence of restraint of domination. It is a positive concept of the ‘right to liberty of thought, expression, belief, faith, and worship’.

Acharya J.B Kriplani observed that ‘liberty of thought, expression, belief, faith and worship’ all these freedoms can be only be guaranteed on the basis of non-violence. Democracy is closely connected with the concept of liberty. Therefore, certain minimal rights are to be enjoyed by every person in a community for free and civilized existence in civil society. In an ordered society, the liberty of no individual can be absolute or unfettered.

It must be subject to social control, in order to protect the collective interests of the aggregate of the individuals who constitute that society. For example, for prevention and investigation of crimes and the prosecution of criminals. In order, to sustain democracy, liberty is not to degenerate into license. This has been highlighted by Justice Ramaswamy in his dissenting opinion in Kartar Singh’s Case.

Liberty is the most cherished possession of a man. Liberty is the right of doing an act which the law per- mits. Constitution has recognized the existence of rights in every man. “Liberty is confined and controlled by law, whether common law or statute. It is regulated freedom. It is not abstract or absolute freedom. The safeguards of liberty lie in the good sense of the people and in the system of representative and responsible government, which has been evolved. Liberty is itself the gift of law and may be the law forfeited abridged”.

It was held in Meyer v. Nebraska, “Liberty denotes not merely freedom from bodily restraint but also the right of the individual to contract, engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.”

According to John Salmond, “the sphere of my legal liberty is that sphere of activity within which the law is contend to leave me alone”. The constitutional law of the country has fully guaranteed liberty through its mechanisms, judiciary and established rules of justiciability.

Equality

Guaranteeing of certain rights to each individual is meaningless unless all equality is banished from the so- cial structure, and each individual is assured of equal status and opportunity for the development of what is best in him. Rights carry no meaning if they cannot be enjoyed equally by all members of the community. One of the main tasks of the constitution makers was to ensure equality of status and opportunity for all and to provide the basis for ultimately establishing an egalitarian society. They proceeded to achieve these objectives by incorporating a set of fundamental principles into the Constitution.

D.D. Basu has observed that it is the same equality of status and opportunity that the constitution of India professes to offer to the citizens by the preamble. Equality of status and opportunity is secured to the peo- ple of India by abolishing all distinctions and discriminations by the state between citizen and citizen on the ground of religion, race, caste sex and by throwing open ‘public places’, by abolishing untouchability and titles, by securing equality for opportunity in the matters relating to employment or matters relating to employment or appointment to any office under the state.

It is exactly this equality of status and opportunity that our constitution professes to offer to the citizens by the preamble. The principle of equality of law means not the same law should apply to everyone, but that a law should deal alike with all in one class; that these should be equality of treatment under equal circum- stances. It means “that should not be treated unlike and unlikes should not be treated alike. Likes should be treated alike.” Equality is one of the magnificent cornerstones of Indian democracy. An equality status permeates the basic structure of the constitution.

Fraternity

Fraternity means the spirit of brotherhood, a feeling that all people are children of the same soil, the same motherland. The term was added to the preamble by a drafting committee of the constituent assembly, “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”.

The drafting committee has taken notice of the diversities of India based on race, religions, languages and cultures. The fraternity is the cementing factor of the inherent diversities. Fraternity means brotherhood, the promotion of which is absolutely essential for a country which is composed of many race and religions.

Brotherhood is a particular kind of relationship which links all human beings, irrespective of gender and generation. A democratic system will function in a healthy manner only if there is a spirit of brotherhood, oneness among the people of the land. The fraternity is not possible unless the dignity of each individual is preserved and mutually respected. The longing for forming company paves the way for fraternity. Peaceful co-existence, live and let live others, mutual understanding, feeling for inter-se cooperation, attitude of ad- justment, sacrifice, to be useful to others, enjoyment of common weal, solidarity for defence of all and other good human qualities develop fraternity- are the promotion for the concept of fraternity.

The expression ‘to promote among them all’ preceding the word ‘fraternity’ is significant in this respect. ‘Among them, all’ promotes, more particularly the word ‘all’-not only among underprivileged classes but also among the entire people of India. ‘Do hereby adopt, enact’ etc. has been borrowed from the last line the preamble of the Irish constitution. In the words of the Supreme Court- fraternity means a sense of common brotherhood of all Indians. In a country like ours with so many disruptive forces of regionalism, communal- ism, and linguist, it is necessary to emphasize and re-emphasize that the unity and integrity of India can be preserved only by a spirit of brotherhood. India has one citizenship and every citizen should feel that he is Indian first irrespective of other bases.

The dignity of the Individual

Dignity of the individuals is to be maintained for the promotion of fraternity. Therefore, the preamble of the constitution of India assures the dignity of each and every individual. This dignity is assured by securing to each individual equal fundamental rights and at the same time, by laying down a number of directives for the state to direct its policies towards, interalia, securing to all citizens, men and women equally, the right to an adequate means of livelihood, just and humane conditions of work, a decent standard of life.

The constitution of India seeks to achieve ‘dignity of individual’ by guaranteeing equal fundamental rights to each individual, so that he can enforce minimal rights, if invaded by anybody in the court of law. The dignity of individual in a nation is the dignity of the nation itself. The preamble of constitution of India recognizes and ensures enforcement of Fundamental Right necessary for existence, the full development of personality, dignified lives such as equality and freedom of the Indians. It is to be noted that our Supreme Court has read the preamble with article 21 to come to the conclusion that the right to dignity is a funda- mental right.