Lesson 18: Constitutionalism and Preamble

Section 1: The Concept of Constitutionalism and Constitutional Government

Core Concept & Simple Definition

A Constitution is the document containing laws and rules which determine and describe the form of government, the relationship between the citizens and the government, and the relation between different organs and levels of government.

Clear Explanation in Basic Words

The Constitution of a country provides the basis for the governance of that country. It contains the basic or fundamental law of the land and establishes the rule of law. In short, a Constitution contains the laws and principles according to which a State is governed. When a government is controlled, ruled, or limited by a Constitution, it is known as a Constitutional Government.

Constitutionalism means belief in a constitutional government or belief in constitutional principles. It establishes a system of governance that is controlled or ruled by a written Constitution. The historical development of our entire modern judicial system can be directly traced to the growth of Constitutionalism. Two central architects guided this foundation: Dr. Rajendra Prasad, who served as the President of the Constituent Assembly, and Dr. B.R. Ambedkar, who chaired the Drafting Committee of the Constitution.

Two Primary Dimensions of Constitutional Operation

• Structural Governance: Regulating the relationship, jurisdiction, and balance between different organs of government (legislature, executive, judiciary) and different levels of government (Union and States).
• Civic Relationship: Defining the relationship between the government and the citizens, securing rights and limiting state interference.

Why the Concept Matters

Significance: Constitutionalism prevents arbitrary state power. It guarantees that government authority is not absolute or tyrannical, but is strictly circumscribed and controlled by fundamental laws and established constitutional principles.

Section 2: The Preamble: Text, Core Ingredients, and Basic Structure

Core Concept & Simple Definition

The Preamble to the Constitution is the opening statement containing the ideals, objectives, and basic principles of the Constitution, functioning as the key to opening the minds of its makers.

Complete Text of the Preamble

Four Essential Ingredients of the Preamble

1. Source of Authority of the Constitution: The Preamble states in unambiguous terms that the Constitution derives its ultimate authority from the people of India.
2. Nature of the State: It solemnly declares India to be a Sovereign, Socialist, Secular, Democratic, and Republic polity.
3. Objectives of the Constitution: It specifies four great objectives to be achieved for all citizens: Justice, Liberty, Equality, and Fraternity.
4. Date of Adoption of the Constitution: It formally stipulates November 26, 1949 as the historical date of adoption and enactment.

The Basic Structure Doctrine & 42nd Amendment

The Preamble explains the constitutional objectives in two ways: one about the structure of governance, and the other about the ideals to be achieved by India. The objectives specified in the Preamble embody the basic structure of the Constitution, which cannot be amended or abrogated in exercise of constituent power under Article 368. Landmark judgments addressing this doctrine include:

• Kesavananda Bharati v. State of Kerala (1973)
• Indira Gandhi v. Raj Narain (1975)
• Minerva Mills Ltd. v. Union of India (1980)
• Re: Berubari Union (1) (1960)

The Preamble was amended once by the Constitution (42nd Amendment) Act of 1976, which introduced the words "Socialist", "Secular", and "unity and integrity of the nation".

Section 3: Constitutional Status: Is the Preamble a Part of the Constitution?

Core Concept & Drafting Sequence

Although the Constitution opens with the Preamble, it was not the first piece of drafting to come into existence. It was the last piece of drafting adopted by the Constituent Assembly at the end of the first reading of the Constitution, specifically to ensure that it was in full conformity with the Constitution as accepted.

The Error in the Berubari Case (1960)

In Re: Berubari Union and Exchange of Enclaves (a Presidential Reference under Article 143(1) heard by an eight-judge bench headed by Chief Justice B.P. Sinha, with the unanimous opinion delivered by Justice Gajendragadkar), the Supreme Court ruled that while the Preamble serves as "a key to open the mind of the makers", it is not a part of the Constitution. It was held not to be a source of substantive power, nor a source of prohibitions or limitations. This ruling was subsequently relied upon in Golak Nath by Justice Wanchoo and Justice Bachawat.

The Historic Rectification in Kesavananda Bharati (1973)

In Kesavananda Bharati v. State of Kerala, a historic 13-judge bench placed 11 separate opinions on record and corrected the historical error of the Berubari case. The majority explicitly ruled that:

1. The Preamble is as much a part of the Constitution as any other provision. The Constituent Assembly record proved beyond doubt that it was moved, put to vote, and voted upon to form part of the Constitution.
2. It is not a source of power, nor a source of limitations or prohibitions. It can expound the nature and application of powers actually granted, but cannot substantively create or withdraw powers.
3. It has a significant interpretational role. It aids in resolving ambiguities and obscurities when constitutional or statutory language admits of more than one meaning, though it cannot override plain and unambiguous wording.

Notable Judicial Observations in Kesavananda Bharati

• Chief Justice S.M. Sikri: Observed that our Constitution combines over 550 million diverse people under its wings into one nation. The Preamble embodies a noble and grand vision carried out by Parts III and IV. Amendment under Article 368 means changes within the broad contours of the Preamble and Constitution without abrogating fundamental rights.
• Justice Y.V. Chandrachud: Rejected the contention that the Preamble is not a provision. It is a part of the Constitution and within the reach of Article 368, though true historical facts cannot be altered.
• Justice H.R. Khanna: Rejected the claim that the Preamble "walks before the Constitution" (as is said of the US Constitution). He affirmed that inalienable natural rights of liberty, equality, and democracy enthroned in the Preamble cannot be destroyed by amendment.
• Justice Shelat & Justice Grover: Noted that the Preamble embodied the fundamental concept of popular sovereignty derived from the Objectives Resolution. When amendments to insert "In the name of God" were proposed, they were rejected as inconsistent with guaranteed freedom of faith.
• Justice A.N. Ray: Quoted the scripture: "He that planted the ear, shall he not hear? Or, He that made the eye, shall he not see?", agreeing that the Preamble is an integral part.
• Justice D.G. Palekar: Termed the argument that Fundamental Rights are merely an elaboration of the Preamble as "an overstatement and a half-truth".

Section 4: Judicial Philosophy and the Multi-Dimensional Role of the Preamble

Core Concept & The Constitutional Arch

The Preamble has played a predominant role in shaping the destiny of India. As recorded in the textbook, the arch of the Constitution pregnant from its Preamble, Chapter III (Fundamental Rights), and Chapter IV (Directive Principles) is to establish an egalitarian social order guaranteeing fundamental freedoms and securing social, economic, and political justice through the rule of law.

The Bommai Case Application

As analyzed by constitutional jurist Durga Dass Basu, the nine-judge bench in S.R. Bommai v. Union of India established three fundamental principles:

1. The Preamble indicates the basic structure of the Constitution.
2. A Presidential Proclamation under Article 356(1) (imposing President's Rule) is open to judicial review on the ground of violating the basic structure.
3. Any Proclamation under Article 356(1) that violates any of the basic features summarized in the Preamble is liable to be struck down as unconstitutional.

Insights from the Mandal Commission Case (Indra Sawhney v. Union of India)

In Indra Sawhney, a nine-judge bench reflected the deep philosophical value of the Preamble:

• Justice S. Ratnavel Pandian: Stated that "Equality of status and of opportunity" chiseled in the luminous Preamble radiates the avowed objectives of our republic. He warned that judges cannot sit in ivory towers keeping an Olympian silence; the Constitution cannot be invoked as a sword for an offense or a shield for anticipatory defense.
• Justice Dr. T.K. Thommen: Remarked that city pavement dwellers afflicted by leprosy and caught in grinding penury living beside towering mansions of affluence represent living monuments of backwardness—a cruel betrayal of what the Preamble proclaims.
• Justice Kuldip Singh: Declared that the caste system was put in the grave by the founding fathers, and allowing it to raise its ugly head poses a severe threat to secularism and national integrity.
• Justice P.B. Sawant: Observed that fraternity remains a dream without equality of opportunity, and political justice is a myth without economic justice. Securing employment is a direct means of social leveling.
• Justice R.M. Sahai: Declared that our Constitution was a "break with the past" that outlawed communal reservations from governance.
• Justice B.P. Jeevan Reddy: Traced "Liberty, Equality, Fraternity" as the battle-cry of the French Revolution, which was adopted as our constitutional motto with the concept of "Justice - social, economic, and political" superadded to it as the sum total of modern political thought.

Acharya J.B. Kripalani's Historic Speech

During the Constituent Assembly debates on 17th October, 1949, Acharya J.B. Kripalani observed that the President of the Assembly, like a good host, had reserved the "choicest wine for the last". He reminded the nation: "What we have stated in this Preamble are not legal and political principles only. They are also great moral and spiritual principles... Democracy is equality of man and implies fraternity and non-violence above all. Violence is anathema to Democracy."

Section 5: The Three-Dimensional Interpretational Value of the Preamble

Core Concept & Analytical Framework

The interpretational value of the Preamble operates across three distinct constitutional dimensions: (a) as an interpreter of the Constitution itself; (b) as a source of interpretation for ordinary statutes; and (c) with international treaties serving as an aid to interpreting the Preamble.

(a) Preamble as Interpreter of the Constitution

As affirmed in Kesavananda Bharati, Chandra Bhavan, and Dharwad District PWD cases, the Preamble is invoked to determine the ambit, sweep, and scope of Fundamental Rights and Directive Principles:

• Striking Down Unconstitutional Reservations: In AIIMS Students' Union v. AIIMS, the Supreme Court struck down reservation within reservation, holding that reservation not protected by the Constitution subverts the Preamble's promise of fraternity, unity, and individual dignity.
• Sovereign Will of the People: In Kehar Singh v. Union of India, Chief Justice R.S. Pathak held that all powers belong to the people, entrusted to functionaries to operate a constitutional order as spelled out in the Preamble.
• Canons of Construction (Justice Jaganmohan Reddy): The Preamble is resorted to: (1) to open the mind of the makers as to the mischiefs to be remedied; (2) where doubts arise upon enacting words; and (3) to prevent an obvious absurdity even where words are plain. It cannot enlarge express powers or create substantive powers.

(b) Preamble as Source of Interpretation of Other Statutes

According to Kelsen, the Preamble gives a Constitution greater dignity and efficacy. In 1977, following the 42nd Amendment, the word "Socialist" became a beacon to set up a "vibrant throbbing socialist welfare society" in place of a feudal exploited society. Landmark applications include:

• Koluthara Exports Ltd. v. State of Kerala: Upheld the Kerala Fishermen Welfare Fund Act, 1985 as fulfilling the social security objectives of the Preamble.
• Sri Srinivasa Theatre v. Govt. of T.N.: Upheld legislative freedom in taxation to remove prevailing inequalities as envisaged by preambular equality.
• P. Ramachandra Rao v. State of Karnataka: Reaffirmed the right to speedy trial under Article 21 using the preambular concept of justice.
• National Textile Workers' Union v. P.R. Ramakrishnan: Granted company workers the right to be heard in winding-up petitions.
• Randhir Singh v. Union of India: Construed Articles 14 and 16 with the Preamble and Article 39(d) for equal pay for equal work.
• D.S. Nakara v. Union of India: Ruled that the Preamble is the floodlight illuminating the path of the State, granting enhanced pension benefits.
• Sanjit Roy v. State of Rajasthan: Wages below the statutory minimum held to be "forced labour" under Article 23, violating the Preamble.
• Sanjeev Coke Mfg. Co. v. Bharat Coking Coal Ltd.: Upheld Coking Coal Mines Nationalisation Act under Article 39(b) and Preamble. Justice Chinnappa Reddy noted: "Scales of justice are just not designed to weigh competing social and economic factors. In such matters legislative wisdom must prevail and judicial review must abstain."

(c) International Documents as Aid to Interpretation of the Preamble

Where domestic law is silent, Indian courts utilize international instruments to effectuate preambular justice and equality:

• Madhu Kishwar v. State of Bihar: Used the UN Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW, 1979) to uphold tribal women's inheritance rights, stating that CEDAW enjoins the Court to breathe life into the dry bones of the Constitution.
• Vishaka v. State of Rajasthan: Formulated binding workplace sexual harassment guidelines using CEDAW in search of preambular gender justice.
• Kirloskar Brothers Ltd. v. ESI Corpn.: Relied on the Universal Declaration of Human Rights (UDHR, 1948) and ICCPR to enforce state welfare duties.