IS THE PREAMBLE TO THE CONSTITUTION OF INDIA A PART OF THE

CONSTITUTION

(Term paper towards the fulfilment of assessment in the subject of Constitutional Governance-I)

Submitted By: Submitted To:

Akash Anurag Mr. Anand Kr. Singh

B.B.A. LL.B (Honrs.) Faculty of CG - I.

UG Semester -I

NATIONAL LAW UNIVERSITY, JODHPUR

SUMMER SESSION

(JULY-NOVEMBER 2015)
 ACKNOWLEDGEMENT

On the completion of this project I take the opportunity of thanking people who contributed in

the completion of it, without whose aid, support and contribution this project would have never

seen the Light Of The Day.

First of all I express my heartfelt gratitude to my mentor and CG-I Teacher, Mr. Anand Kumar

Singh whose continuous guidance and support provided me with the much needed impetus and

gave me a better insight into the topic. I am grateful to the I.T. Staff for providing all necessary

facilities for carrying out this work.

I also extend my heartfelt gratitude to my friend Jigyasa Patyal for submitting the project on my

behalf in my absence. I also thank my parents for providing me with the much needed moral

support which was required during the completion of this project.

2
 RESEARCH METHODOLOGY

SUBJECT - Constitutional Governance -I

TOPIC - Is The Preamble to The Constitution Of India a Part of the Indian Constitution ?

The Research Methodology adopted by the researcher for the project is that of Doctrinal Legal

Research from both Primary and Secondary sources. A large part of the research work has been

done through Case Laws, Articles and Case Laws available in online databases. . Other sources

like various works from learned jurists has also been referred.

3
 SCOPE

This project is an attempt to understand the nature of the Preamble to The Constitution of India

and to understand whether the Preamble is a part of the Indian Constitution or not. It is an

attempt to understand the nature and importance of the Preamble to The Constitution Of India.

The Preamble is often referred to as the Heart and Soul of The Constitution therefore it is

necessary to understand the very nature of the preamble, it's importance and whether it is a part

of the Constitution of India or not ?

The project tries to analyse and determine -:

What is meant by The Preamble to the Constitution?

Status of Preamble in the Constitution of different nations of the world ?

The Purpose and Importance of the Preamble in The Constitution of India ?

Whether Preamble is a part of the Constitution of India ?

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 TABLE OF CONTENTS

Acknowledgement...........................................................................................................................2

Research Methodology....................................................................................................................3

SCOPE.............................................................................................................................................4

Introduction......................................................................................................................................6

The Preamble...................................................................................................................................7

Importance Of The Preamble To The Constitution........................................................................14

Can The preamble Be Amended Under Article 368......................................................................15

Is The Preamble A Part Of The Constitution Of India...................................................................17

Conclusion.....................................................................................................................................21

BIBLIOGRAPHY..........................................................................................................................22

5
 INTRODUCTION

The Preamble to the Constitution of India is often described as a brief documentary statement

that sets out the guiding purpose and principles of the Constitution of India. The Hopes and

Aspirations as well as the ideals before our nation are described in the preamble in clear cut

terms. It is often considered as the "Heart and Soul" of The Constitution.

The Objective Resolution proposed by Pdt. Nehru and adopted by the Constituent Assembly of

India ultimately took the form of The Preamble to The Constitution of India. The Preamble is

said to be the key to the minds of the Constitution Makers as it is useful in knowing about the

frame of mind The Fathers of our Constitution had while framing the Constitution. The

Significance of the Preamble lies in the fact that -:

It tells us about the ultimate source of authority i.e. We The People Of India.

It tells us about the form of government and form of state.

It tells us about the objectives to be achieved.

Our Constitution opens with the Preamble however the Preamble was not the first thing which

came into existence during the framing of the Constitution. In reality The Preamble was the last

piece of drafting to be adopted by the Constituent Assembly. 17th October,1949 was the day

when the motion to adopt The Preamble was moved before the Constituent Assembly. The

motion was adopted on 2nd November,1949 thus making The Preamble a part of The

Constitution.

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 THE PREAMBLE

"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, economical 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 individuals and unity and integrity of the nation.

In Our Constituent Assembly this Twenty Sixth day of November,1949, do hereby Adopt, Enact

and Give Ourselves This Constitution."1

Preamble is an introductory statement which lays down the aims and objectives of the

Constitution. While going through the preamble it's basic purpose can be easily ascertained i.e.

Declaration of (1) Source of the Constitution (2) A statement of its objectives (3) the date of its

adoption.

Preamble is widely considered as Quintessence of The Constitution, as it embodies the

fundamentals and basics of The Constitution as well as the vision and commitment of a newly

Independent nation like ours. The objectives laid down in the preamble are as follows -:

1. Description of the Indian State as Sovereign, Socialist, Secular, Democratic Republic.

2. Provision to all the citizens of India -:

1 Preamble to The Constitution of India, The Constitution of India,1950.

7
 a. Justice : Social, Economic and Political

b. Liberty of Though, Expression, Belief, Faith and Worship.

c. Equality of Status and Opportunity.

d. Fraternity assuring the dignity of individuals and unity and integrity of the nation.

WE THE PEOPLE OF INDIA

It is the resolve of the people of India to constitute India into a Sovereign, Democratic Republic.

From the Preamble To The Constitution it is quite clear that the framers attached importance to

the sovereignty of people.2 These ideas re-echo the idea of paramountcy of the will of We The

People of India over everything. It means that the absolute power vested in the people of India

under the Constitution is to be exercised by them through their duly elected representatives in the

union as well as the state legislatures.3

SOVEREIGNTY

Sovereignty is one of the very basic features of an Independent State. It truly means

independence i.e. the government of the day is not controlled by any external power. A country

cannot have its own Independent Constitution without being sovereign. India is a sovereign

country. It is free from external control . It can frame its policies without any interruption or

disruption from any other foreign power. "Sovereignty" is therefore a term of 'Art' rather than a

legal expression capable of a precise definition.

2 Motilal vs. State of Uttar Pradesh , AIR 1951.

3 Ram Nandan vs. State, AIR 1959.

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SOCIALIST

The word Socialist was not there in the Preamble of The Constitution in its original form. It was

added to the Preamble in the year 1976 through the 42nd Amendment. The word Socialism

basically pertains to Economic Planning. It aims towards ideals like removal of inequalities,

provision of basic minimum necessities to all, equal pay for equal work. In the Directive

Principles of State Policy, the ideals of Socialism have been incorporated as well as partly

implemented in The Constitution of India. The Directive Principles especially Article 39(b) and

(c) of The Constitution of India are said to be the charters of social and economic liberties of the

people. Generally the term 'Socialist' means a system of governance where maximum resources

are in the hands of the government. However our 'Socialism' is not a communist module of

socialism but it is a democratic module of socialism and so The Preamble has both the words-

Socialist and Democratic. It is thus the marriage of Democracy and Socialism which has been

embedded in The Constitution through the Preamble. 4 According to the Honourable Supreme

Court Of India the word 'Socialist' might enable the courts to learn more in favour of

nationalisation and state ownership of industry.5

Providing a decent standard of life to the working people is one of the basic aims of socialism.

This among others are on envisaged economic equality and equitable distribution of income.6

4 V.S. Deshpande - Rights and duties under the Indian Constitution,( 15th edition ,page no -94)

5 Excel Wear v. Union of India, AIR 1975.

6 D.S.Nakara v. Union Of India, AIR1983.

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SECULAR

In the context of Indian Secularism it is rightly said that 'India is neither religious, nor

irreligious nor antireligious'. It implies that India has no state religion . The State will not

support any particular religion out of public funds.

This implies that (a) every individual is free to believe in and practice any religion that he/she

belongs to and that (b) the State will not discriminate against any individual or group on the basis

of religion. The Freedom of Conscience and Right to Propagate, Practice and Profess Religion is

already guaranteed to every individual under Article 25 to Article 28 of the Constitution of India.

There is no mysticism in the Secular character of The State. Secularism is not anti- god, it treats

alike the devout, the agnostic and the atheist. It eliminates God from the matters the State and
7
ensures that no one shall be discriminated against on the ground of religion.

DEMOCRATIC REPUBLIC

The Preamble declares India as a Republic. It means that the head of the state is the President

who is indirectly elected by the elected representatives of the people of India and The President

is not a hereditary ruler as in the case of The British Monarch.

7 Ahmadabad St. Xavier V State of Gujarat, AIR 1974 SC 1389.

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Democracy is known as the Government of the people, by the people and for the people. 8 This

means that the government is elected by the people and it is responsible and accountable to the

people. The democratic principles are highlighted with the provisions of universal adult

franchise, elections and accountability and responsibility of the Government.

JUSTICE

Justice promises to give people what they are entitled to in basic terms of their rights guaranteed

under the Constitution of India. The Preamble covers all avenues of Justice namely- Social,

Economic and Political.

LIBERTY

The Preamble also mentions about liberty of thought and expression. These freedoms have been

guaranteed by The Constitution in the form of Fundamental Rights. Liberty, Equality and

Fraternity are not to be treated as separate entities but as a Trinity. They from a Union in that and

to divorce one from the other is to defeat the very purpose of democracy.9 The judiciary must act

as guardians of the liberties of the people ; protecting them against executive or despotism10.

EQUALITY
8 Abraham Lincoln, President(U.S.A), Soldiers National Cemetery Speech, Gettysburg(U.S.A)

9 S.S. Bola v. B.D.Sardana, (1997) 8 SCC 522.

10 Deepak Bajaj v. State of Maharashtra , (2008) 11 SCC 609.

11
Equality is considered to be the essence of Democracy. All kinds of inequality based on the

concept of ruler and the ruled or on the basis of cast or creed or colour were to be eliminated. All

Citizens of India should be treated equally and extended full protection of law without any

discrimination based on caste, creed, religion, sex etc. Similarly equality of opportunity implies

that regardless of the socio-economic situations into which one is born the person will have

same chances to develop his/her talents and choose means of livelihood.

FRATERNITY, DIGNITY,UNITY AND INTEGRITY

Some people have started saying that to combat terrorism, it is necessary to curtail civil liberties

and introduce draconian laws. To my mind, this is a dangerous idea, and hence it is necessary to

explain the importance of liberty and democracy11. India being a combination of multitudes it

becomes very important to have a binding force so as to keep the nation as one. There was a need

for harmonious co-existence between various religious and regional groups existing in the

country. Therefore as an introduction to the Constitution The Preamble contained the ideas of

FRATERNITY, DIGNITY,UNITY AND INTEGRITY.

11 Justice Markandey Katju's Speech, NALSA(Delhi)

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 IMPORTANCE OF THE PREAMBLE TO THE CONSTITUTION

The Preamble to the constitution propagates the core values and the philosophy on which The

Constitution is based. It is a key to the mind-frame of the fathers of the constitution behind

laying down various ideas in the constitution.

The Preamble to an act sets out the main objectives which the legislation is intended to achieve. 12

Similarly The Preamble is an introduction to the Constitution and at many time is very important

in understanding the intent of the Constitution Makers. It embodies all those ideas for which we

had struggled during the British Time. Preamble is unenforceable in a court of law but it aids in

legal interpretation wherever ambiguousness arises. If the terms used in the Constitution are

ambiguous or capable of two meanings in interpreting them some assistance may be taken from

the objectives enshrined in the Constitution and the construction which fits the Preamble may be

preferred.

12 Suba Rao. C.J. in I.C.Golaknath v. State of Punjab, AIR 1967

13
 CAN THE PREAMBLE BE AMENDED UNDER ARTICLE 368

This question was raised before The Honorable Supreme Court of India in the Keshvanand

Bharti v. State of Kerala Case. It was argued from the Respondent's(government) side that

Preamble being a part of the Constitution can be amended like any other provision of The

Constitution under Article 368. The Petitioner's Counsel however argued that the amending

power granted under Article 368 is limited. The Preamble contains the basic elements or the

fundamental features of our Constitution. Consequently, amending power cannot be used so as to

destroy or damage these basic features mentioned in the Preamble. It was argued that the

Preamble cannot be amended as it was not a part of the constitution.13

The Honorable Supreme Court however held the Preamble to the Constitution as an integral part

of the Constitution Of India thereby quashing the Judgment in The Re Berubasi Case that the

Preamble was not a part of the Constitution. The majority bench held that as The Preamble is a

part of The Constitution of India it can be amended but the 'basic structure' in The Preamble

cannot be amended. The edifice of our Constitution is based upon the basic elements mentioned

in the Preamble. If any of these elements are removed the structure will not survive and it will

not be same Constitution or it cannot maintain its identity. The Preamble declares that the people

of India resolved to constitute their country into a Sovereign Democratic Republic. No one can

suggest that these words and expressions are ambiguous in any manner. An amending power

cannot be interpreted so as to confer power on the Parliament to take away any of these

13 In Re:Berubari Union(1) (1960) 3 SCR 250

14
fundamental and basic characteristics of policy14. The amending power cannot change the

Constitution in such a way that it ceases to be a Sovereign Democratic Republic.

14 Keshavananda Bharti vs. State of Kerala (1973) 4 SCC 225

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 IS THE PREAMBLE A PART OF THE CONSTITUTION OF INDIA

The question whether Preamble Is A Part Of The Constitution or not can be answered with the

help of two major court cases related to this question. The cases are the -:

1. Re Berburi Case

2. Keshvanand Bharti Case

1. RE BERBURI CASE

Re Berburi Case was the Presidential Reference Under Article 143(1) of the Constitution of India

on the implementation of the Indo-Pak Agreement relating to Berburi Union and exchange of

enclaves which came up for consideration by a bench consisting of eight judges headed by the

then Chief Justice B.P.Singh. Justice Gajendragadkar delivered the unanimous opinion of the

Court. The Court ruled out that the Preamble to the Constitution, containing the declaration made

by the people of India in exercise of their sovereign will no doubt be 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. 15

The holdings in Berburi Case were later summed up by Justice Shelat and Grover in the

Keshvanand Bharti Case as follows-:

1. A Preamble serves as key to open the mind of the makers and shows the general purpose for

which they made several provisions in the constitution

2. The Preamble is not a part of our Constitution.

15 In Re:Berburi Union (1),(1960) 3 SCR 250.

16
3. It is not a source of the several powers conferred on government under the provisions of the

Constitution.

4. Such powers embrace those expressly granted in the body of the Constitution and such as may

be implied from those granted.

5. What is true about the powers is equally true about the prohibitions and limitations.

6. The Preamble did not indicate the assumption that the first part of preamble postulates a very

serious limitation on one of the very important attributes of sovereignty viz. ceding territory as a

result of the exercise of the sovereign power of the State of treaty-making and on the result of

ceding a part of the territory.16

Justice Wanchoo held it in the Golak Nath Case -" On a parity basis we are of the opinion that

the preamble cannot prohibit in any way or impose any implied prohibitions or limitations on the

bar to amend the Constitution contained in Article 368".

It is a matter of regret, yet record, that the constitutional history was overlooked by the eminent

judges constituting the Bench answering the presidential reference in Re Berburi Case. The

motion adopted by the Constituent Assembly stated in so many words that the Preamble stands

as a part of the Constitution. The error came to be corrected in the Keshvanand Bharti Case

where the majority specifically ruled that the Preamble was as much part of the Constitution as

any other provision therein.

KESHVANAND BHARTI CASE

16 Kesavananda Bharti v. State of Kerala, AIR 1973 .

17
This case was a landmark case in the history of the Indian Judiciary as for the first time, a bench

of 13 judges assembled and sat in its original jurisdiction hearing the writ petition. It was held in

the Keshvanand Bharti Case that -:

1. The Preamble to the Constitution of India is a part of The Constitution Of India.

2. That the Preamble is not a source of power nor a source of limitations or prohibitions.

3. The Preamble has a significant role to play in the interpretation of statutes, also in the

interpretation of provisions of the Constitution.17

The Preamble to the Constitution which our Founding Fathers have, after the Constitution was

framed, finally settled to conform to the ideals and aspirations of the people embodied in that

instrument, have in ringing tone declared the purposes and objectives which the Constitution was

intended to serve.

As per the opinion of Justice H.R. Khanna in the Keshvanand Bharti Case the Preamble to the

constitution is a part of the Constitution and it walks before the Constitution. 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.18

An argument advanced in the Keshvanand Bharti case said that 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. 19 However Justice Y.V.Chandrachud rejected the

17 Kesavananda Bharti v. State of Kerala, AIR 1973 .

18 Kesavananda Bharti v. State of Kerala, AIR 1973 .

19 Kesavananda Bharti v. State of Kerala, AIR 1973 .

18
above argument as the Preamble to The Constitution as the Preamble was put to voting and had

actually been voted upon to be a part of The Constitution Of India by the Constituent Assembly.

In the judgment Justice Dwivedi held The Preamble to be a part of The Constitution and then

also referred to it as a provision of The Constitution of India.

Moreover in S.R. Bommai case the majority of nine Judges laid down a new application of the

Preamble under the Constitution, which is as follows:

1. The Preamble indicates the basic Structure of the Constitution.

2. A Proclamation under Article 356(1) is open to judicial review on the ground of violating the

basic structure of the Constitution.

3. It follows that a proclamation under Article 356(1), which violates any of the basic features, as

summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional.

4. A further extension of this innovation is that a political party, which appeals to religion in its

election manifesto, acts in violation of the basic structure, and the President may impose

Presidents Rule on a report of the Governor that a party has issued such a manifesto.

In the same case three of the nine Judges have opined that the word secularism in the Preamble

of our Constitution.20

20 S.R.Bommai v. Union of India (1994) 3 SCC 1

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 CONCLUSION

The Preamble is indicative of the general purpose for the fulfillment of which the Constitution

was enacted. It cannot be regarded as a source of any substantive power conferred upon the

government or any of its departments. If the terms used in the Constitution are ambiguous or

capable of two meanings in interpreting them some assistance may be taken from the objectives

enshrined in the Constitution and the construction which fits the Preamble may be preferred.

Where very general language is used in an enactment, which, it is clear, must be intended to have

a limited application, the Preamble must be used to indicate to what particular instances the

enactment is intended to apply. 21 However, it can never be a source of any substantive power.

If the language of the Article is sufficiently clear, it is not to be interpreted in the light of the

Preamble in preference to the obvious meaning thereof. The objectives in the Preamble are just a

part of basic structure of the Constitution and nothing more than that. So Preamble to The

Constitution is an integral, inalienable and non abbrogatable part of the Constitution of India but

it is not an essential part of The Constitution of India .

21 Burrakur Coal Co. Ltd. v. Union Of India, AIR 1961 SC 954.

20
 BIBLIOGRAPHY

Constitutional Provisions

Preamble to The Constitution of India, The Constitution of India,1950.7

High Court Cases

Ram Nandan vs State, AIR 1959.....................................................................................................8

HISTORICAL SPEECHES

Abraham Lincoln, President(U.S.A), Soldiers National Cemetery Speech,

Gettysburg(U.S.A)................................................................................................................. 10

Supreme Court Cases

Ahmadabad St. Xavier V State of Gujarat, AIR 1974 SC 1389...................................................10

Burrakur Coal Co. Ltd. v. Union Of India, AIR 1961 SC 954......................................................20

D.S.Nakara v. Union Of India, AIR1983.........................................................................................9

Deepak Bajaj v. State of Maharashtra , (2008) 11 SCC 609..........................................................11

Excel Wear v. Union of India, AIR 1975.........................................................................................9

In Re:Berubari Union(1) (1960) 3 SCR 250..................................................................................14

Kesavananda Bharti V. state of kerala (1973) 4 SCC 225.............................................................15

Motilal vs State of Uttar Pradesh , AIR 1951..................................................................................8

21
S.R.Bommai v. Union of India (1994) 3 SCC 1............................................................................19

S.S. Bola v. B.D.Sardana, (1997) 8 SCC 522................................................................................11

Suba Rao. C.J. in I.C.Golaknath v. State of Punjab, AIR 1967.....................................................13

Speeches

Justice Markandey Katju's Speech, NALSA(Delhi)......................................................................12

Treatises

V.S. Deshpande - Rights and duties under the Indian Constitution,( 15th edition ,page no

-94)..........................................................................................................................................

22