What is Preamble in Constitution? Scope, Contents And Legal Status
What is Preamble in Constitution? Scope, Contents And Legal Status

What is Preamble in Constitution? Scope, Contents And Legal Status

 

Introduction

The Constitution of India and the Constitution of many countries of the world have a very vital part which is known as the Preamble. Also, some enactments of “extraordinary” character also have a preamble.

Enactments of extraordinary character simply refer to laws made in answer to some age long challenge(s) faced by the country. While the Constitution is the principal enactment which defines the legal framework and the validity of other enactments in a country. An example is the Constitution of India.

The Preamble as mentioned above is a part of a Constitution which has triggered a lot of constitutional and judicial controversies.

These debates and controversies are simply rooted in the political cum legal issue of “whether the Preamble is an integral and an operative (enforceable) part of a constitution?

The reason behind this study will be of no good if the issue is resolved in favour of any school of thought without first and foremost starting an overview discussion on the concept of preamble. This discussion will not be limited to one jurisdiction but to other common law jurisdiction of the world.

What is Preamble?

The Preamble is the “user manual” of a Constitution. It is the introduction to law or statute, and in this case, the Constitution. It is of the same character with the preface of a book.

In this regard, a preamble is intended to state the subject, aims, and objective of the constitution which it is the preface of. Some had also viewed the preamble as a way of life which is aimed at guiding the use and interpretation of the constitution.

Nature and Scope of a Preamble

By the resolution of the Constituent Assembly of India on the 26th day of November 1949, the preamble was adopted. The day it gained the force of law which is on the 26th day of January 1950, is the day set down as the Republic day of India.

The court in the case Golak Nath v. State of Punjab Coram, Subba Rao .J. had observed that preamble to Acts are a part of such objectives which the enactment is set to achieve.

The nature of the preamble of the Indian Constitution is to serve as a recital which highlights various relevant facts of the Constitution in order to give a clearer understanding of the Constitution when it is being interpreted.

A preamble may be also operating to ascertain the extent or limitations of certain expressions and the reason for the said expression used in the Constitution.

The reliance and resort to the preamble for the interpretation of the Constitution in the event of ambiguity is a legitimate exercise of power by the court of any other body with the power to grant an interpretation of the provision of the Constitution of India.

Summarily, the preamble of the Indian Constitution indicates the source where the Constitution comes from and consequently derives its authority. It also posits the objects which the constitution shall serve and promote.

The Contents of the Preamble

The contents of the preamble of various countries may vary. Unlike the preamble of countries like Canada, the provisions of the preamble to the Indian Constitution is quite elaborate and this section of study shall subsequently examine the same.

By way of discussion, we shall highlight the following as the essential content of the preamble to the Indian Constitution:

  1. We the people of India
  2. Sovereign
  3. Socialist
  4. Secular
  5. Democratic
  6. Republic
  7. Justice
  8. Liberty
  9. Equality
  10. Fraternity
  11. Dignity of Persons

We the People of India

Here, the preamble clearly provides for the persons whom the constitution is meant for, the makers and the most important persons who the wordings of the constitution applies to.

Again, the powers created and vested in some offices clearly emanates from. This is vested in the people who shall be held accountable. It is also exercised in trust for the overriding benefit of the Indian citizens.

The Supreme Court in of India had in the celebrated case of Union of India v. Madangopal that the part of the preamble hold and recognize the legislative competence of the Indian Legislature to make laws.

Therefore, the commencement predates the constitution itself and the law will recognize and uphold it. The Supreme Court further observed that the constitutional powers of the legislature to make such retrospective laws seemingly by virtue of the preamble emanates from the people of India

Sovereign

Sovereignty is the enormous and unfettered power of a State or Country. The good people of India, in the preamble voluntarily resolved to be the Sovereign Democratic Republic. Sovereignty may be external and internal in nature.

While external sovereignty is the authority of a State (in this case, India as a country) to pilot its affairs without recourse to any other country for validation. Internal sovereignty, on the other hand, is the relationship of the State and its agents with the citizens which cannot be challenged by anyone except with a lawful excuse.

Adopting the spirit of law as reposed in Article 5 of the Constitution of Ireland, it is summarized that the concept of sovereignty as highlighted in the preamble to the Indian constitution is the ultimate power which is vested in a state to determine its legal, political, social, religious and economic fate without recourse/validation from any other source.

Socialist

Socialism advocates the communal ownership and control of means of production, distribution, and exchange.

By the Constitution (42nd Amendment) Act 1976 of India, the Socialist approach to the socio-economic life of India was reaffirmed.

While the country may be operating a mixed economy, in reality, the status of the Socialist approach in the socio-economic life in India has faced the judicial interpretations and obviously came out purer and stronger. The case of Excel Wear v. Union of India is instructive on this.

The court had, in that case, relied on the preamble to lean more in favour of socialism while recognizing the right to private ownership and the means of production which in fact is prevalent in India.

See also the decisions of the court in D. S. Nakara v. Union of India and Samatha v. State of Andhra Pradesh, where the Court also sought reliance on Articles 14, 15, 16, 17, 21, 23, 38, 39, 46 of the Constitution in determining the extent of the socialism doctrine contained in the constitution.

Secular

The Preamble also embodies the basis of the doctrine of secularism in India. The doctrine of secularism is the liberty of the State as well as the citizens to run their affairs without recourse to a state adopted religious dictates for validation.

The Supreme Court in the following cases St. Xavier’s College v. the State of Gujarat, S. R. Bommai v. Union of India, Aruna Roy v. Union of India, I. R. Coelho v. State of Tamil Nadu insisted that the doctrine of secularism is not intended to divest or rob the citizens of their right to maintain a relationship with God and it is not intended to render the country as an anti-religious state.

Democratic

The political am]nd legal doctrine of democracy also enjoys validation in the Preamble to the Indian constitution.

As held by the Supreme court in the case of Mohan Lal v. District Magistrate, Rai Bareilly, observed that the import of the doctrine of democracy is simply a society governed by the rule of law which shall also remove the reliance on democracy to occasion dictatorship by majority.

Republic

Flowing from the basis of the doctrine of democracy, the Preamble also accommodated the solemn resolution of the people of India to be a republic. This, in essence means that, the actual sovereignty as mentioned and briefly discussed above is imbibed in the masses.

Justice/ Equality

The aim of justice and equality as enshrined in the Preamble to the Constitution of India is to ensure the attainment of a possible degree of social, economic and political equality among the masses in the pursuit of their legitimate goals.

Liberty/ Dignity of Persons

The doctrine of liberty states that the masses are free from any form of restriction in their public and private life provided they live within the dictates of the law which is validly enacted.

Fraternity

In consideration of the diverse races, religion and other realities of the Indian citizens, the draftsman of the constitution had impressively emphasized the basis of unity notwithstanding the diversity in India by providing the Fraternity clause in the preamble.

The Legal Status of a Preamble

A careful look at the various definitions and existing works of literature on this subject matter, one may conclude that the preamble is not a part of the constitution neither does it enjoy the force of law.

The courts are not left out in this controversy, the Court had in various cases held that a preamble is to merely operate as a legislative spare tyre which can only be resorted to solely for clarification.

See the cases of State of Rajasthan v. Basant Nahata, Kesavananda Bharat’s case and Union Government v. LIC of India, where the courts keep ruling in this favour. It overruled that the Preamble to the constitution as well as any law which may contain a preamble is an integral part of that constitution or that enactment which embodies the preamble.

Conclusion

This study affords a great insight into the meaning and the very nature of a preamble to an average reader. This subject matter did not restrict the discussion on the preamble to only as it is contained in the constitution but also reflects that, it may also be contained in an enactment which has a rich history.

The very nature of a preamble and its usual embodiments were highlighted and discussed in this study as well as exposing the judicial approach to same. What really calls for determination in this conclusion is the legal status of a preamble.

Against the observed controversy surrounding the status of a preamble, it worthy of submission that surely, a preamble is beyond a preface and a legislative spare tyre which is only resorted to in the event of ambiguity. In fact, a preamble to the constitution is the constitution itself for the reasons stated hereunder.

The preamble dictates the entire content of a constitution. While it may be argued that the contents of a preamble are not justiciable, it is further submitted that all that part of the constitution which is deemed to be justiciable enjoys the force of law.

Therefore, there are the offshoots of the preamble. This means that the said preamble is justiciable through its offshoots.

Again, will the court fall back to a non-legislative piece to determine or resolve the ambiguity occasioned in a constitution? The answer is clearly No. If the preamble of a constitution is not a legislative piece which enjoys the force of law, the court cannot rely on it to properly resolve an ambiguity faced while determining the constitution.

Finally, the said preamble is also enacted together with what is usually deemed an operative part of a constitution.

 

 

 

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