Preamble of Indian Constitution: Philosophy & Case Laws

Indian brand of socialism is a unique brand of socialism where it does not mean complete state control of resources. Indian brand of Socialism also does not mean nationalization alone, Nationalization of resources or abolishment of private entity. Indian brand of socialism is not like Marxist or communist socialism. It is in a way democratic and hinting towards Gandhian socialism, inclined towards the vision of Nehru. Although the Indian brand of socialism also aims to abolish class and status inequality, with the existence of private entities.

Post liberalization , privatization, and globalization reform, this has been clearly manifested in a more categorized way in our policy, where both simultaneously work together to bridge social inequalities and social distinction.

The Supreme Court of India in the landmark case of DS NAKARA vs. Union of India (1983) has outlined the fact of socialism as eliminating equality of status, ensuring standard of life, ensuring decent standard of living and promoting the interest of the people. Socialism establishes a welfare state where the downtrodden are uplifted and the inequalities faced by them are eliminated through the intervention of both entities, that is, the private as well as the public sector.

Secular

The expression "secular" was added in the preamble by the 42^nd Constitution Amendment Act, 1976. Although the word "secular" was added later, the roots of secular values can be traced from different articles, especially fundamental rights from Articles 25 to 28. The secular world is based upon the value of secularism. The expression "secular" beyond preamble is also mentioned in Article 25 of the Constitution.

In the Constitution the concept of secularism, its process philosophy is not defined. However traced, even in the Constitutional Assembly debate, secularism was largely debated and three schools of thought dominated the debate:

• Gandhian school of thought
• Ambedkar school of thought
• Nehruvian school of thought

In the Gandhian school of thought, premised upon Gandhian philosophy of sarvadharma sambhava, Nehru advocated for dharma nirpheshak, that is, separation of all religions from the state affairs. Ambedkar pointed out the philosophy that Parliament must not impose any religion upon citizens through law.

As a result of the culmination of these three schools of thought, three understandings were derived, keeping in mind the nature of religions diversity existing in our society.

• States shall permit the practice of all religions.
• States shall not be associating itself with any religion.
• States shall honour the faith of all religions.

As a result Indian secularism was premised on the values that are unlike what is present in the West. The Western secularism is considered to be negative secularism whereas Indian secularism is considered to be positive and inclusive, which can be differentiated in the following ways:

Therefore we can conclude that the Indian Constitution is unique of its own type. For this reason Indian secularism is properly called PANTH NIRPHESHAK rather than DHARM NIRPHESHAK. Considered in one line if the Constitution has to define secularism, it means states should not have any religion.

Democractic

Democratic in the Preamble means a type of government where decision-making in choosing the government is exercised by the people. It is that form of a democracy where political power is vested in the people and it is directly exercised by them or indirectly through a system of representation held out often frequent general elections. In India we only have direct democracy at the grass root level, that is yet to be in a limited manner but otherwise at the national and state level we follow the concept of indirect democracy.

Indirect democracy, it is a system of government where the people themselves take the decision about the cause, rules, legislation, and its implementation. It is exercised through various tools and methods like referendum, plebiscite, initiative, etc.

Methods of Direct Democracy

Referendum

In referendum is a direct vote in which the entire electorate votes on a particular issue, proposal, or a law. It is a way for citizens to directly participate in the decision-making process.

Plebiscite

It is similar to a referendum only, however, it is generally used as a tool to determine whether the population of a specific territory wants to remain intact with the parent state or not.

Initiative

Initiative is the process by which citizens can propose a new law/new amendment to existing laws directly through the electorate through a petition process if enough signatures are gathered. The proposed measure is placed on the popular vote. It allows bypassing the legislative process and taking their own laws and amending their existing law.

Recall

It is a process when an elected representative calls back before completing his term/tenure because he may not be proper in implementing an aspiration of people.

Indirect Democracy

In indirect democracy the representative is chosen for a limited period of time. Hence the decision-making is not with the voters but with the representatives. After five years in general the voters tend to re-evaluate the performance of the representatives and choose the new or the same.

Republic

The democratic polity can be classified into two categories:

• Monarchy
  • In a monarchy the head of the state, usually a king or queen, enjoys a hereditary position that is possible through succession e.g. Britain.
• Republic
  • In a republic on the other hand, the head of the state is always elected directly for a fixed period of time.

Therefore the term republic in our preamble indicates that India has a head of state that is called the president, which is elected. The term Republic has two conditions

• Vesting the political sovereignty in the people not in a single entity like a king or queen.
• It also means the absence of a privileged class. Hence it means that all public offices are open to every citizen without any discrimination to any individual.

Therefore India is called a republic because of the presence of an elected head of state.

Justice

Justice in the Preamble embraces three types of justice:

• Social justice
  • It means it aims to eliminate discrimination among the socially underprivileged class and the socially privileged class.
• Economic justice
  • Promotes equitable distribution of health and opportunities to all individuals, removing economic disparity.
• Political justice
  • On the other hand aims to emphasize equal and fair participation of all human beings in a political process without any discrimination

Liberty

Liberty in the ideal sense means the absence of restraints upon the activities of individuals. However it is a very narrow definition of liberty. The broadened confinement of liberty is ensuring individuals to develop their personality by providing opportunities without hindrance to own their aspirations. The Preamble secures that all citizens of India have liberty of thought, liberty of expression, belief, faith, and worship through the fundamental rights and enforceable in the court of law in case of violation. Liberty, as elaborated in the Preamble, is the most fundamental part which ensures the successful functioning of the democratic system. It does not mean a license to do one like do and it has to be enjoyed within the limitation of the Constitution. Therefore we can say sometimes liberty in the Preamble is not absolute but qualified.

Equality

The term equality means the absence of privilege to any section of society and providing equal opportunity and educated opportunity to all individuals without discrimination. The Preamble ensures and secures to all citizens of India equality of status and opportunity under three dimensions:

• Civil
• Political
• Economic

Civil and political equality is ensured in Fundamental Rights and other provisions of the Constitution, for example in 5 different articles:

• Article 14
  • Talks about equality of law and equal protection of law.
• Article 15
  • Ensure that there shall not be any discrimination on the passage of race, religion, sex, place of birth.
• Article 16
  • Ensure, equality of opportunity in public employment
• Article 17
  • Abolish untouchability.
• Article 18
  • Abolish any privileged titles

Political equality can also be achieved through Article 325, which says that no one person is to be declared elected ineligible in electoral polls on the basis of religion, race, caste, and sex. Articles 326 mandate to provide universal adult franchises.

Whereas economic equality is achieved through Article 39 that mandates men and women must be provided equal rights and equal pay for equal work.

Fraternity

Fraternity means Brotherhood. The Constitution promotes this feeling through the concept of single citizenship in India. Also through Fundamental Duties, as it says that it shall be the duty of all citizens to promote harmony and the spirit of common brotherhood among all the people of India, and to compassing linguistic diversity, religious diversity, and regional diversity. The Constitution of India also ensures sectional diversity through this.

The Preamble declared two things:

1. Dignity of an individual under fraternity
2. Unity and integrity of the nation under fraternity

The expression "integrity" also is added by the 42^nd Constitution Amendment Act 1976. According to K. M. Munsi, as he has very rightly pointed out, the dignity of an individual signifies that the constitution not only ensures material betterment of an individual but at the same time ensures, in a democratic setup, recognition of the personality of an individual as scared.

Unity and Integrity

Declaration of Unity and Integrity of Nation embraces traditional integrity, which means India is united and disintegration of India is not possible. Article 1 of the Constitution clearly establishes this affirmation, where the nature of the Indian Union is indestructible.

Debates of Preamble/ Whether Preamble is part of constitution or not

The controversy related to the Berubari Union emerged when it was found that, on the basis of the Red Thief Committee recommendation, the partition of India was done. The area in the Jalpaiguri district of West Bengal, i.e. Berubari Thana No. 12, was depicted in the map given to Pakistan.

Berubai Union Case

Berubai was the area which was under the control of India. Therefore the two nations decided to resolve the dispute amicably. As a result the Nehru-Noon Pact was signed between Indian Prime Minister Jawaharlal Nehru and Pakistani Prime Minister Firoz Khan Noon. The matter was to be materialized. However it created a apprehension among the Indian opposition leader upon the way the pact was signed. They said that

• It goes against the preamble value, compromising unity.
• It violates the aspiration of the Constitution and Constituent Assembly.
• It breaks the unity and violates Article 1.

As the matter and apprehension continued to rise, the presidential reference under Article 143 was made. The government, through the president, took the view of the Supreme Court with regard to the pertaining issue. The President asked whether

• A sovereign government of India, which has been elected by people, has the right to or not to cede territory to a foreign nation with regard to international arrangements and facts.
• Does it compromise the unity as mentioned in the preamble/ violates preamble.
• If this can be done whether it is done through simple majority or special majority under Article 368.

Supreme Court said when a reference was made with regard to the preamble being part of the Constitution or not, the Supreme Court said that a sovereign government has full right to cede a territory. It does not violate the preamble as it is not an integral part of the Constitution. The Supreme Court, on answering, said that ceding a territory requires a special majority under Article 368 and managing border dispute, it can be done through executive action.

Kesavananda Bharati vs State of Kerala, 1973

However in the Kesavananda Bharati vs State of Kerala 1973. In this case when the reference was made about preamble, the Supreme Court category, we said preamble is a part of the Constitution. However it is neither the source of legislation nor is it justiciable in character. The Supreme Court said that the Premier does not by itself confer any power or enforce any right or duties like the other provision of the Constitution. The court said it cannot be a source of subsistence power or limitation. Instead it provides a guide and philosophy to interpret the Constitution. Therefore we can say that while it is a part of the constitution, it does not have legal effect independently of other parts. It sets the stage and context for the Constitution but does not directly bear legal consequence of its own. The Supreme Court, again in the LIC India case 1995, said that the preamble is not part of the Indian Constitution.

Present Status of Preamble

• Preamble is a part of the Constitution but neither is it justifiable nor is it a source of legislation.
• It does not have legal effect independently of other parts.
• For ceding a territory a special majority amendment is required.
• For resolving border disputes this can be done through executive action.

Facts About Preamble

• Preamble is based upon the objective resolution of Pandit Jawaharlal Nehru and inspired by the USA.
• Preamble is also mentioned in the Montagu-Chelmsford Reforms 1919.
• The language of Preamble has been adapted from Australia.
• NK Palikwal said is I-Card.
• KMNC said Political Horoscope.
• Thakur Das Bhargav said Soul of Constitution.
• Earnest Barker said Keynote.
• Liberty, Equality, Fraternity, adapted from France

Criticism of Preamble

• Vagueness and Over-Broad Ideas
  • Terms like Justice, Liberty, Equality, fraternity are very broad, making them open to varied interpretations.
• Preamble was amended
  • Critics argue that making an amendment in the preamble and changing the sentiments and treaty of the preamble made the Constituent Assembly, as a part of Objective Resolution, a disgraceful act and politically motivated and done during the emergency (as we know already, the 42^nd Constitutional Amendment, F1976, added three words: Socialism, Secular, Integrity) an amendment was done when most of the opposition leaders were inside the jail compromising the ideals.
• Preamble is absolute
  • As it is not the source of power and not enforceable in court, therefore it becomes an ornamental preface. Unlike same constitution it does not grant power or impose direct limitation.
• Western influence
  • The language and ideas reflect inspiration from foreign constitutions and do not reciprocate Indian socio-cultural tradition.
• Unexplained "We the people"
  • Some argue that, given India's diversity and kind of adult franchisee, we have a constituent assembly that was not only directly elected, making it preachy to some thoughtful leaders who dominated their thought into the constituent assembly.
• Excessive Moralism
  • As Preamble is seen as the more realistic and aspirational setting of Ethiopian goals that may not be realistically possible because there are multiple challenges in governance that, in general, are seen.