It is a very valid question that arise in mind in today’s scenario. When a State Government orders recitation or Preamble that it is incumbent Duty and responsibility of the Government to teach the correct status and history of our PREAMBLE.
The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that “the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. “Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly.
Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. “If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.” (see Tbibhuban Parkash Nayyar v. The Union of India) [1970] 2 S.C.R. 732- 737.As Sir Alladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent Assembly Debates Vol. 10, p.417). Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought or dreamt for so long.
The original 1947 Preamble of Indian Constitution is as under
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 Behram Khurshed Pasikaka v.The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J.observed:
We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have 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. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy.
In Sajjan Singh v. State of Rajasthan [1965] 1 S.C.R. 933; 968 Mudholkar, J. after assuming that the Preamble is not a part of the Constitution, observed: While considering this question it would be of relevance to bear in mind that the preamble is not of the common run such as is to be found in an Act of a legislature. It has the stamp of deep deliberation and is marked by precision. Would this not suggest that the framers of the Constitution attached special significance to it?
Quick and Garran in their “Annotated Constitution of the Australian Commonwealth (1901 p. 283) “adopted the following sentence from Lord Thring’s “Practical Legislation, p. 36”:A preamble may be used for other reasons to limit the scope of certain expressions or to explain facts or introduce definitions.
Thornton on “Legislative Drafting”-p. 137-opines that “construction of the preamble may have effect either to extend or to restrict general language used in the body of an enactment.
In Attorney-General v. Prince Ernest Augustus of Hanover [1957] A.C. 436, 460 the House of Lords considered the effect of the preamble on the interpretation of Princes Sophia Naturalization Act; 1705. It was held that “as a matter of construction of the Act, there was nothing in the Act or its preamble, interpreted in the light of the earlier relevant statutes…capable of controlling and limiting the plain and ordinary meaning of the material words of the enacting provisions and that the class of lineal descendants “born or hereafter to be born” meant the class of such descendants in all degrees without any limit as to time.” The House of Lords further held that “looking at the Act from the point of view of 1705 there was no such manifest absurdity in this construction as would entitle the court to reject it.
In 1976 vide 42nd Amendment Act was passed and with several amendments to the Constitution even Preamble was also amended. Words Secular and Socialist were inserted.
The Question arises are words Secular and Socialist validly remain in our PREAMBLE ? can Preamble be amended.
Why there is confusion over Secularism and Socialism in our country?
Let us study the history
Original PREAMBLE came into effect along with Constitution of India on 26th January,1950.
In 1976 the above bold words Socialist and Secular was inserted by 42nd Amendment Act of 1976. Meaning thereby it was inserted in 1976 but have a retrospective effect.
The said 42nd Amendment was not accepted by many Council of States and therefore words Socialist and Secular remained undefined. Moreover, in Minerva Mills matter 42nd Amendment was partially declared ultra vires.
See also Bhola Prasad v. The King-Emperor, (FC)(FB) : Law Finder Doc Id # 990040 1941(46) Cal. W.N. 32
In 1973 famous case of Kesvanand Bharti came up which is still a landmark Judgment of 13 Judges Bench
The larger bench was accordingly constituted. It was then felt that it would be necessary to decide whether I.C. Golak Nath v. State of Punjab [1967] 2 S.C.R. 762 was rightly decided or not.
However, the question whether Golak Nath’s [1967] 2 S.C.R. 762 case was rightly decided or not does not matter because the real issue is different and of much greater importance, the issue being : what is the extent of the amending power conferred by Article 368 of the Constitution, apart from Article 13(2), on Parliament ? said the Supreme Court
It was held that :
The decision of the leading majority in the Golak Nath case that the then Article 368 of the Constitution merely prescribed the procedure for amendment of the Constitution and that the power of amendment had to be traced to Entry 97 of List I, Schedule VII read with Articles 245, 246 and 248 is not correct. 2243. The decision of the leading majority and of Hidayatullah J. that there is no distinction between an ordinary law and a law amending the Constitution is incorrect. Article 13(2) took in only ordinary laws, not amendments to the Constitution effected under Article 368.
The decision of the leading majority and of Hidayatullah J. that Parliament had no power to amend the Constitution so as to abrogate or take away Fundamental Rights is incorrect.
The power of amendment of the Constitution conferred by the then Article 368 was wide and unfettered. It reached every part and provision of the Constitution. 2246. Preamble is a part of the Constitution and is not outside the reach of the amending power under Article 368.
There are no inherent limitations on the amending power in the sense that the Amending Body lacks the power to make amendments so as to damage or destroy the essential features or the fundamental principles of the Constitution. 2248. The 24th Amendment only declares the true legal position as it obtained before that Amendment and is valid.
Note:
Hence its final that Preamble can be amended, subject to pith and substance that basic structure of the constitution cannot be changed. 42nd Amendment was carried out during Emergency and parliament was susoended.
In Minerva Mills Ltd. & Ors vs Union Of India & Ors 1980 AIR 1789, 1981 SCR (1) 206
Opining that sections 4 and 55 of the Constitution (Forty Second Amendment) Act are void and beyond the amending power of the Parliament, the Court by majority (Per Chandrachud. C.J., on behalf of himself, A.Gupta.N.L. Untwalia & P.S. Kailasam, JJ.)
HELD: (1)The newly introduced clause of Article 368 transgresses the limitations on the amending power of Parliament and is hence unconstitutional. It demolishes the very pillars on which the preamble rests by empowering the Parliament to exercise its constituent power without any “limitation whatever”. No constituent power can conceivably go higher than the sky-high power conferred by clause (5), for it even empowers the Parliament to ” repeal the provisions of this Constitution”, that is to say, to abrogate the democracy and substitute for it a totally antithetical form of Government. That can most effectively be achieved, without calling a democracy by any other name, by a total denial of social, economic and political justice to the people, by emasculating liberty of thought, expression, belief, faith and worship and by abjuring commitment to the magnificent ideal of a society of equals. The power to destroy is not a power to amend.
If the Parliament has manifested a clear intention to exercise an unlimited power, it is impermissible to read down the amplitude of that power so as to make it limited.The principle of reading down cannot be invoked or applied in opposition to the clear intention of the legislature. In the history of the constitutional law, no constitutional amendment has ever been read down to mean the exact opposite of what it says and intends.
Yet reference can be seen relating to Preamble.
Sikri C.J. , held that the fundamental importance of the freedom of the individual has to be preserved for all times to come and that it could not be amended out of existence. According to the learned Chief Justice, fundamental rights conferred by Part III of the Constitution cannot be abrogated, though a reasonable abridgment of those rights could be effected in public interest. There is a limitation on the power of amendment by necessary implication which was apparent from a reading of the preamble and therefore, according to the learned Chief Justice, the expression “amendment of this Constitution” in Article 368 means any addition or change in any of the provisions of the Constitution within the broad contours of the preamble, made in order to carry out the basic objectives of the Constitution accordingly, every provision of the Constitution was open to amendment provided the basic foundation or structure of the Constitution was not damaged or destroyed.
Jaganmohan Reddy, J., held that the word ‘amendment’ was used in the sense of permitting a change, in contradistinction to destruction, which the repeal or abrogation brings about. Therefore, the width of the power of amendment could not be enlarged by amending the amending power itself. The learned Judge held that the essential elements of the basic structure of the Constitution are reflected in its preamble and that some of the important features of the Constitution are justice, freedom of expression and equality of status and opportunity. The word ‘amendment’ could not possibly embrace the right to abrogate the pivotal features and the fundamental freedoms and therefore, that part of the basic structure could not be damaged or destroyed. According to the learned Judge, the provisions of Article 31C, as they stood then, conferring power on Parliament and the State Legislatures to enact laws for giving effect to the principles specified in clauses (b) and (c) of Article 39, altogether abrogated the right given by Article 14 and were for that given by Article 14 and were for that reason unconstitutional. In conclusion, the learned Judge held that though the power of amendment was wide, it did not comprehend the power to totally abrogate or emasculate or damage any of the fundamental rights or the essential elements of the basic structure of the Constitution or to destroy the identity of the Constitution. Subject to these limitations, Parliament had the right to amend any and every provision of the Constitution.
Khanna, J. Broadly agreed with the aforesaid views of the six learned Judges and held that the word ‘amendment’ postulated that the Constitution must survive without loss of its identity, which meant that the basic structure or framework of the Constitution must survive any amendment of the Constitution. According to the learned Judge, although it was permissible to the Parliament, in exercise of its amending power, to effect changes so as to meet the requirements of changing conditions, it was not permissible to touch the foundation or to alter the basic institutional pattern. Therefore, the words “amendment of the Constitution”, in spite of the width of their sweep and in spite of their amplitude, could not have the effect of empowering the Parliament to destroy or abrogate the basic structure or framework of the Constitution.
The summary of the various judgments in Kesavananda Bharati case was signed by nine out of the thirteen Judges. Paragraph 2 of the summary reads to say that according to the majority. “Article 368 does not enable Parliament to alter the basic structure or framework of the Constitution”. Whether or not summary is a legitimate part of the judgment, or is per incuriam for the scholarly reasons cited by authors, it is undeniable that it correctly reflects the majority view.
It was observed in para 20 that Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one.
The very 42nd Amendment which introduced clauses (4) and (5) in Article 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy; they afford strength and succor to its foundations. By the aforesaid amendments, what was originally described as a ‘Sovereign Democratic Republic’ became a “Sovereign Socialist Secular Democratic Republic” and the resolution to promote the ‘unity of the Nation’ was elevated into a promise to promote the “unity and integrity of the Nation”. These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage.
In Smt. Indira Nehru Gandhi v. Raj Narain, (1976) 2 SCR 347 Khanna, J. struck down clause 4 of Article 329 of the Constitution which abolished the forum for adjudicating upon a dispute relating to the validity of an election, on the ground that the particular Article which was introduced by a constitutional amendment violated the principle of free and fair elections which is an essential postulate of democracy and which, in its turn, is a part of the basic structure of the Constitution. Mathew, J. also struck down the Article on the ground that it damaged the essential feature of democracy. One of us, Chandrachud, J. Reached the same conclusion by holding that the provisions of the Article were an outright negation of the right of equality conferred by Article 14, a right which, more than any other is a basic postulate of the Constitution. Thus, whereas amendments made to the preamble by the 42nd Amendment itself afford an illustration of the scope of the amending power, the case last referred to afford an illustration of the limitations on the amending power.
Since, for the reasons above mentioned, Clause (5) of Article 368 transgresses the limitations on the amending power, it must be held to be unconstitutional
Good Governance India Foundation vs Union of India
On 8 January 2008, a petition, filed by Sanjiv Agarwal of the NGO Good Governance India Foundation, challenged the validity of Section 2 of the 42nd Amendment, which inserted the word “socialist” in the Preamble to the Constitution. In its first hearing of the case, Chief Justice K. G. Balakrishnan, who headed the three-judge bench, observed, “Why do you take socialism in a narrow sense defined by communists? In broader sense, it means welfare measures for the citizens. It is a facet of democracy. It hasn’t got any definite meaning. It gets different meanings in different times.” Justice Kapadia stated that no political party had, so far, challenged the amendment and everyone had subscribed to it. The court would consider it only when any political party challenged the EC. The petition was withdrawn on 12 July 2010 after the Supreme Court declared the issue to be “highly academic”.
Conclusion:
Preamble is part of Constitution and can be amended but it cannot change the basic structure and frame work of Constitution.
H.M.Seervai in his epic book on Constitutional law of India has on page 282 has submitted that, “the Four objectives set out in preamble are themselves ambiguous and they cannot throw light on provisions of the Constitution because they stand in need of interpretation themselves. The fact that the Supreme Court judgments which have referred to the Preamble have not pointed out that the objectives of the Preamble are ambiguous, does not have the effect of making ambiguous objectives clear and distinct.
Viscount Simonds put the matter at page 463, thus:
On the one hand, the proposition can be accepted that “it is a settled rule that the preamble can not be made use of to control the enactments themselves where they are expressed in clear and unambiguous terms”. I quote the words of Chitty L.J., which were cordially approved by Lord Daveyin Powell v. Kempton Park Racecourse Co. Ltd. (1889) A.C. 14
My View:
If we see series of Judgments it appears that from Minerva Mills till Good Governance matter Court have refrained to comment on or explain words Secular or Socialist. Not defining terms have created confusions since 1976 which gave more importance to this two objectives rather than Fundamental Rights.When there is Fundamental Right to Religion whether word Secular should remain in Preamble? Socialistic also termed as promotion of nationalisation and less of competition. This needs a debate.
Hope in due process of time its clarified.
Shruti Desai 30 January,2020
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