PREAMBLE -IMPORTANCE AND AMENABILITY

  Introduction :

The Preamble is a statement, comprising the aims and objectives of the constitution. So it can be said that the preamble to the Indian constitution highlights about motive contained in the body of the Constitution.

The Preamble, in short, highlights the objectives of the Constitution in two ways: first about the governance structure and the second about the vision and mission to be achieved.  Due to its utmost importance Preamble is considered as key to the Constitution. Preamble   embodies the fundamentals and the basic of the constitution and also the vision and commitment of a newly liberated nation or people.

 Although preamble is considered as  the quintessence or soul and spirit of a constitution  then also have to face  controversies. Out of various controversies, one among them is related to its amenability   as to whether it possess any accountability in the Constitution of India or not.

The matter of amenability of the Preamble has a wider interpretation which comprises aspects related to its accountability that are correlated with each other.  Like Preamble forms part of the Constitution or not, whether it can be challenged in the court of law by the citizen of the nation, in case of violation of rights mentioned in the Preamble, And if not, then whether the Preamble forms merely a preface or introduction piece of a page  Constitution book and furthermore whether the Preamble is a part of the Constitution would depend on the resolution of the next question, which follows as a corollary- whether the Preamble can be amended. So,  to analyze the authority or weightage of the Preamble one has to focus on these questions in order to establish the responsibility of the Preamble of the Indian Constitution.

Does the Preamble forms part of the Constitution or not?

Almost all Constitutions have a Preamble, though there may be variation with respect to form, content, and length of the Preamble from Constitution to Constitution. Regardless of these differences, the Preamble generally sets the ideals and goals which the  Constitution makers intend to achieve through that constitution.[1] So it may also be considered as “a key to open the mind of the makers of the Constitution which discloses the general purposes for which several provisions formed part of Constitution ”.[2] Therefore, the preamble is to be considered as a base for an understanding of the provisions contained or framed in the constitution   Subject to the below-mentioned clarification Preamble of the Constitution, and the Preamble of an Act both stand on the same platform.[3]

  In the case of English authorities, it is clear that the preamble is an admissible aid to the construction.  So can be considered as a legitimate aid in construing the enacting parts,  a preamble cannot be used to restrict or extend the enacting part of the statute in a case where the language, object, and scope of the Act are unambiguous and not in doubt.  However in case if ambiguity arises while interpretation, the Preamble can be used to explain and elucidate it,  Said by Lord Halsbury in the case of  LC  Powell v. Kempton Park Racecourse Co. Ltd.[4]

Till now there is clarity regarding two aspects: one that a preamble is like a torch to light as to what the statute intends to reach; and second, that if an enactment possesses the characteristics of clear and unambiguous no preamble can qualify or cut down the enactment.

 Indian Courts have followed the same proposition laid down by the English authorities in the use of preamble for interpretation of statutes. Our Supreme Court has stated, in Tribhuban Prakash Nayyar v. Union of Indiathat[5] “where there is no ambiguity, it is hardly necessary to have resort to preamble”. The Supreme Court has extended this principle in interpreting constitutional provisions. In Berubari Union and Exchange of Enclaves, re[6], the Supreme Court stated that “the preamble shows the general purposes behind the several provisions but, nevertheless, it is not a part of the Constitution and is never regarded as a source of any substantive power.” In re, Kerala Education Bill[7], the Supreme Court  provided  the same view. It stated that “the value of the preamble in respect of the in interpretation of the constitution is the same as that of the preamble to any other Act.

 The preamble of an Act is not introduced, discussed and passed in the enacting body – the legislature- like the enacted provisions – sections- of the Act. The Preamble of our Constitution is therefore , enacted and adopted by applying the procedure as applicable for the remaining part  of the Constitution. The difference was not brought to the notice of the Supreme Court in Berubari Union and Exchange of Enclaves, re[8], where it is observed that “the preamble is not part of the constitution”[9]. Later when the constituent history of the preamble was brought to the notice of the court in Kesavananda Bharati v. State of Kerala[10], it held that “the preamble of the constitution was part of the constitution and the observations to the contrary in Berubari Union[11] case were not correct”. The Preamble is also part of the basic structure of the Constitution. In the case of SR Bommai v. Union of India[12] and Union Government v. LIC of India[13] also the Supreme Court reiterated that the Preamble is an integral part of the Constitution.

 Preamble : Whether can be amended or not ?

The issue  that amendments in preamble to the constitution of India can be done or not was raised before the Supreme Court in the  case of Kesavananda Bharati v. State of Kerala.[14] An interesting argument advanced in this case has been noted by Y.V. Chandrachud, J. that though  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. Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the Constituent  For this contention there is no scope left by assembly It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution. The Preamble records like a sunbeam certain glowing thoughts and concepts of history and the argument are that by its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. 

Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. 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”. Undoubtedly, the Constitution is intended to be a vehicle by which the goals set out are hoped to be reached. S.D. Dwivedi, J. expressing his concurrence with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the Constitution because the heading “The Constitution of India” was placed above the Preamble. The Preamble cannot be construed as a source of reading any inherent and implied limitations on the amending power.

In  light of provisions as mentioned  in Article 368 of the Constitution, Justice Beg discarded the contention that a creature of the Constitution could not possibly possess the power to create a recreate the Constitution as Article 368 expressly provides for the expansion or diminution of the scope of the powers of amendment. The amending power so as to meet the challenges of the times offered by rapidly changing social, political, economic, national, and international conditions and situations was kept wide, elastic, and expansible by the Constitution makers. In conclusion, Beg J. held that there was no limitation on the powers of the constitutional amendment found in Article 368.

Thus, the majority of Kesavananda Bharati case bench has held that Preamble  forms part of the constitution and it can be amended but, Parliament cannot amend the basic features of the preamble. The court observed, “The edifice of our constitution is based upon the basic element in the Preamble. If any of these elements are removed the structure will not survive and it will not be the same constitution and will not be able to maintain its identity.”

The preamble to the Indian constitution was amended by the 42nd Amendment Act, 1976 whereby the words Socialist, Secular, and Integrity were added to the preamble by the 42nd amendment Act, 1976, to ensure the economic justice and elimination of inequality in income and standard of life.

Conclusion

Thus, after considering  various aspects and the related  judgments and views in relation to the Preamble,  it can be concluded that in active expressive term preamble has limited scope but passively it acts more authoritatively. Which means though the Preamble does not bestow power on legislation, it may only act as director but somewhere on the other it limits the power of legislation because the Constitution and other legislations should be read and interpreted in the light of the vision expressed in the preamble and not beyond or against the vision expressed in the preamble


Footnotes: 

[1] ‘The preamble contains in a nutshell its ideals and its aspirations”, per Subba Rao CJ in Golak Nath v. State of Punjab, AIR 1967SC1643.

[2] Berubari Union and Exchange of Enclaves,re, AIR 1960SC 845

[3] V.N. Shukla, Constitution of India, Eastern Book Company, Lucknow, 1990, pp.3, For details see,Maxwell, The Interpretation of Statutes (12th Edn. 1969) pp. 6-9

[4] 1899 AC 143, 153 (HL)

[5] AIR 1970 SC 540; (1970)2 SCR 732

[6] AIR 1960 SC 845; (1960)3 SCR 250

[7] AIR 1958 SC 956

[8] AIR 1960 SC 845.

[9] Ibid.

[10] (1973) 4 SCC 225; AIR 1973 SC 1461

[11] AIR 1960 SC 845

[12] (1994)3 SCC 1; AIR 1994 SC 1918

[13] 1995

[14] (1973) 4 SCC 225; AIR 1973 SC 1461

[15] AIR 1960 SC 845; (1960)3 SCR 250

[16] (1973) 4 SCC 225; AIR 1973 SC 1461

Aishwarya Says:

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