More Menu

Preamble to the Constitution

byPosted at

 Contents

  1. What is a ‘Preamble’
  2. Significance of the ‘Preamble’ of the Constitution
  3. Preamble
  4. Terms and phrases contained in the Preamble
  5. Social Justice
  6. Body of the Constitution
  7. State
  8. Fundamental Rights

What is a 'Preamble'

Before we look at the Preamble of the Constitution, we need to know what the term "Preamble" means. Not only does the Constitution have a Preamble, but so does every other piece of law. In a few sentences, the Preamble explains what the law is trying to do. It says what wrongs it wants to fix, what rights it wants to give, and who it wants to protect.

Let’s read the Preamble to the Juvenile Justice (Care and Protection of Children) Act 2015, referred to as the JJ Act 2015 :
‘An Act to consolidate and amend the law relating to children alleged and found to be in conflict with law and children in need of care and protection by catering to their basic needs through proper care, protection, development, treatment, social reintegration, by adopting a child-friendly approach in the adjudication and disposal of matters in the best interest of children and for their rehabilitation through processes provided and institutions and bodies established, hereunder and for matters connected therewith or incidental thereto.’

If you read the JJ Act 2015's Preamble, you can figure out that it is a law about two types of children: "children alleged and found to be in conflict with the law" and "children in need of care and protection." The goal is to help these kids get back on their feet by taking a child-friendly approach and keeping their best interests in mind.

The Preamble also makes it easier to understand what the law says. If any part of the law is unclear, it must be interpreted in a way that is consistent with the Preamble, or harmonised with it. For example, the JJ Act 2015 was made to care for, protect, and rehabilitate children. However, if there is ambiguity in a particular provision that could be interpreted in two ways:
(1) that which is against the interest of a child for whom the law was made; or
(2) that which furthers the interest of such a child, the correct interpretation would be the second, as the sai says.

Significance of the ‘Preamble’ of the Constitution

India had just won its political freedom through a revolutionary struggle in which everyone took part, no matter what religion, caste, or region they were from. The goal wasn't just to get rid of foreign oppression; it also included making a democratic, equal society and putting an end to all kinds of exploitation and dictatorship.

In the Preamble of the Constitution, you can read about the hopes and dreams that the people of India wanted to see come true through the different parts of the Constitution.

The Preamble explains why the Constitution's main parts were written the way they were and helps people figure out what they mean. In Kesavananda Bharati vs. State of Kerala [1973 (4) SCC 225], Chief Justice Mr. S.M. Sikri said,
“It seems to me that the Preamble of the Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Constitution.”

The importance of the Preamble is extensively dealt with in Kesavananda Bharati’s case : “The elements of the basic structure are indicated in the preamble…”. ‘Basic structure’ is illustrated in the said judgment to include, 

  1. Supremacy of the Constitution; 
  2. Republican and Democratic form of Government;
  3. Secular character of the Constitution;
  4. Justice, social, economic and political; 
  5. Liberty of thought, expression, belief, faith and worship; 
  6. Equality of status and of opportunity, 
The said ruling goes on to say,
“All the elements of the Constitutional structure, it is said, are to be found in the preamble and the amending body cannot repeal or abrogate these essential elements because if any one of them is taken away the edifice as erected must fall.”

Preamble

WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN
SOCIALIST SECULAR 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 OUR CONSTITUENT ASSMEBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.’

The Constitution (Forty-Second Amendment) Act of 1976 added the words "socialist," "secular," and "integrity" to the beginning of the Constitution. It's important to keep in mind that the Constitution has always been "socialist" and "secular." Adding these words to the Preamble did not change the basic structure of the Constitution. Instead, it just made it clearer that the Constitution had this kind of character.

Terms and phrases contained in the Preamble

‘WE, THE PEOPLE OF INDIA….do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION’ :This phrase means that the Indian Constitution is based on what the people want and wasn't forced on them. It also means that the people are the most important source of power.

SOVEREIGN : Sovereignty means that a state has its own power. In the case of India, it means that India is no longer ruled by the British. The two parts of sovereignty are:
(1) External Sovereignty: This means that India is not controlled by any other state or power from outside of India.
(2) Internal sovereignty, which means that the parliament has the power to make laws on any issue without interference from a foreign power. External sovereignty also means that other countries agree that India is a separate country. 

SOCIALIST : The main goal of socialism is to get rid of differences in income, status, and opportunities and give working people a good standard of living. This word means that India is a Welfare State and that the government should get involved in the economy to create a more equal society by bringing down the differences between its people. In a socialist country, the government has the power to take over any business and run it as a public service.

SECULAR : It means that the state doesn't have a religion of its own and doesn't favour one religious group over another. The state shouldn't treat different religions differently, and all religions should be respected. A political party shouldn't support a certain religion, because that would mean that if that party wins, other religions would be in a worse position if that party is in charge. In the context of the Preamble, the word "secular" does not mean "anti-religion." Instead, it means that the government will not give money to any religion or punish people for practising or professing any religion.

DEMOCRATIC : Rule by the people, for the people, and by the people means that the people are in charge of the government in the end. This is done by holding regular elections. The power of a democratic state comes from how well its citizens work together. India is a representative democracy that uses the parliamentary form of democracy. This means that the head of the state and the head of the government are two different people.

REPUBLIC : The head of state is chosen by the people, not by a monarch or a leader who is passed down from generation to generation. India's President is the leader of the country. Members of both Houses of Parliament and Members of Legislative Assemblies vote on who will be the President of India. 

JUSTICE : Social justice, economic justice, and political justice are all parts of what justice means. Social justice means that no one is better or worse off than anyone else. Economic justice means that wealth should be shared out in a fair way. Political justice means that everyone should have the same chances to take part in public life and the political process. The focus is on getting rid of social, economic, and political imbalances and making sure that the needs of different groups are met. The goal is to treat everyone fairly by giving the weaker parts of society the facilities and chances they need to get rid of their problems and be able to live with dignity. It also shows that if there is a conflict of interest, the courts should lean toward helping the weaker people. It says again that the Constitution is a socialist document. 

LIBERTY : Freedom and liberty are two words that mean the same thing. But the word "liberty" in the Preamble does not mean physical freedom. Instead, it means freedom of thought, speech, belief, faith, and worship.

EQUALITY : The law should treat everyone the same way. Also, everyone should have the same rights and opportunities. The government should try to make a society where everyone has the same rights and opportunities by getting rid of or at least narrowing the gaps between its people.

FRATERNITY : Fraternity is the same as brotherhood, and it is very important in a society with many different things, like India, which has many different languages, religions, communities, etc. "Unity in Diversity" means that differences add to the social fabric of a country.

Social Justice

Ensuring social justice for its people is a crucial facet of a Welfare State. The Supreme Court has on several occasions described and emphasized the concept of ‘social justice’.In D.S. Nakara vs. Union of India [(1983) 1 SCC 305], the Supreme Court states, “Socio-economic justice stems from the concept of social morality coupled with abhorrence for economic exploitation. And the advancing society converts in course of time moral or ethical code into enforceable legal formulations.

Consumer Education and Research Centre vs. Union of India[(1995) 3 SCC 42] : “The Constitutional concern of social justice as an elastic continuous process is to accord justice to all sections of the society by providing facilities and opportunities to remove handicaps and disabilities with which the poor etc. are languishing and secure dignity of their person. The Constitution, therefore, mandates the State to accord justice to all members of the society in all facets of human activity.”

Dalmia Cement (Bharat) Ltd. Vs. Union of India [(1996) 10 SCC 104] : “Social justice is the comprehensive form to remove social imbalance by law harmonising the rival claims or the interests of different groups and / or sections in the social structure or individuals by means of which alone it would be possible to build up a welfare State. The ideal of economic justice is to make equality of status meaningful and life worth living at its best removing inequality of opportunity and of status – social, economic and political.”

Saduram Bansal vs. Pulin Behari Sarkar [(1984) 3 SCC 410] : “There is no ritualistic formula or any magical charm in the concept of social justice. All that it means is that as between two parties if a deal is made with one party without serious detriment to the other, then, the court would lean in favour of the weaker section of society. Social justice is the recognition of greater good to a larger number without deprivation or accrual of legal rights of anybody. If such a thing can be done, then social justice must prevail over any technical rule.”

State of Karnataka vs. Praveen Bhai Thogadia [(2004) 4 SCC 684 : “Welfare of the people is the ultimate goal of all laws and State action, and above all the Constitution. They have one common object that is to promote the well-being and larger interest of the society as a whole and not of any individuals or particular groups carrying any brand names.”

Body of the Constitution

The Constitution is divided into XXII Parts and 395 Articles.Each Part of the Constitution deals with a particular subject and is accordingly titled – Part I, The Union and its Territory; Part II, Citizenship, and so on. Each provision in the Constitution is called Article, referred to as ‘Art.’ Each Article is also titled. For example, Article 21 is titled Protection of life and personal liberty. Certain Articles may be divided into clauses and sub-clauses.For example, Article 19 (1) (a) – Article 19 is titled Protection of certain rights regarding freedom of speech, etc., clause (1) states, “All citizens shall have the right”, and sub-clause (a), “to freedom of speech and expression”.

State

Fundamental rights can be used to sue the government. Article 32 and Article 226 of the Constitution say that people can go to the Supreme Court or High Courts if their fundamental rights are violated. Indian constitutional courts are the Supreme Court and the High Courts.

The state has been given the responsibility of making sure that people's basic rights are not violated. Because of this, it is important to understand what the Constitution means by the word "state." Art. 12 says what the word "STATE" means.
“Art.12. In this Part, unless the context otherwise requires, ‘the State’ includes the Government and Parliament of India and the Government and the Legislature of each of the States and all local or other authorities within the territory of India or under the control of the Government of India.”

When it comes to Part III, Fundamental Rights, Article 12 talks about the "state." Article 36, which is part of Part IV, Directive Principles, uses the same definition:  “In this Part, unless the context otherwise requires ‘the State’ has the same meaning as in Part III.”

Article 12's use of the word "includes" makes it seem like the definition covers everything, but it doesn't. Article 12 is easy to understand because it makes it clear that it applies to both the Central government and the State governments' legislative bodies, which are the Members of Parliament and the Members of Legislative Assemblies. Local authority refers to the units of local self-government, such as nagar panchayats, municipal councils, municipal corporations, panchayats, panchayat samittis, and zilla parishads. It also includes the state's Executive branch, which includes the President, Governors, Collectors, Talathis, Tehsildars, Secretaries and Deputy Secretaries of different departments, etc.

The term "other authorities" has been defined by the courts. "Other authorities" refers to government agencies like the police, the armed forces, the Housing and Area Development Authority, the Industrial Development Corporation, and the Pollution Control Board. Other authorities also include government hospitals, schools, and post offices, as well as banks and public companies like Air India. Article 12 also applies to an authority that was set up by a law.

When it comes to the state's judicial bodies, Article 12 covers the lower courts and tribunals, but not the higher courts. In India, the Supreme Court and the High Courts are the "superior courts." In Rupa Ashok Hurra vs. Ashok Hurra [(2002) 4 SCC 388], the Supreme Court said, "It has been pointed out above that Article 32 can only be used to enforce the fundamental rights given in Part III, and it is a settled position in law that no judicial order passed by any superior court in judicial proceedings can be said to violate any of the fundamental rights set out in Part III." Article 12 of the Constitution also says that the superior courts of justice do not fall under the power of the State or other authorities. To see if a body or authority is part of the "state," you need to look at (a) whether the state gives that body or authority money and (b) whether the state controls the management and policies of that body or authority. In the case Zee Telefilms Ltd. vs. Union of India [(2005) 4 SCC 649], the Supreme Court ruled that a private organisation that performs a public function is never the "state."

Fundamental Rights

 The fact that fundamental rights are in the Constitution shows that the people who made it wanted everyone to have these rights, and it is the state's job to make sure that these rights are not violated. In A.K. Gopalan vs. State of Madras [AIR 1950 SC 27], the Supreme Court said about "fundamental rights," "There can be no doubt that the people of India have, in exercise of their sovereign will as expressed in the Preamble, adopted the democratic ideal which assures to the citizen the dignity of the individual and other cherished human values as a means to the full development and expression of his personality, and in delegating to the legislature, the executive, and the judiciary, Simply put, the Indian people have given their power to the state's legislative, executive, and judicial bodies, but they have kept their Fundamental Rights for themselves. Fundamental Rights are the most basic rights that everyone should have. Without them, a person can't grow as a whole person in line with the ideas in the Preamble. The people who made the Constitution made sure that fundamental rights could be enforced in court because they are so important.

Any law that goes against basic rights is not valid (Article 13). "Law" includes any ordinance, order, bye-law, rule, regulation, notification, custom, or usage that has the force of law. So, Article 13 includes both legislation and delegated legislation. Delegated legislation is when the legislature gives the executive the power to make laws. For example, the legislature might pass an Act or statute, but the legislature has given the executive the power to write Rules for that Act. The Rules are what make the law work because they say how it should be put into effect. All laws, whether they are laws or not, should be based on basic rights. If someone breaks the law, they can ask the Supreme Court or High Court to make that law or part of it not valid.

In general, the Constitution divides the Fundamental Rights into the following groups:
  1. Right to Equality : Article 14 – Equality before law; Article 15 - Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth; Article 16 - Equality of opportunity in matters of public employment; Article 17 - Abolition of Untouchability; and Article 18 - Abolition of titles. 
  2. Right to Freedom : Article 19 - Protection of certain rights regarding freedom of speech, etc.; Article 20 - Protection in respect of conviction for offences; Article 21 - Protection of life and personal liberty; Article 21A - Right to education; and Article 22 - Protection against arrest and detention in certain cases. 
  3. Right against Exploitation : Article 23 - Prohibition of traffic in human beings and forced labour; and Article 24 - Prohibition of employment of children in factories, etc. 
  4. Right to Freedom of Religion : Article 25 - Freedom of conscience and free profession, practice and propagation of religion; Article 26 - Freedom to manage religious affairs; Article 27 - Freedom as to payment of taxes for promotion of any particular religion; and Article 28 - Freedom as to attendance at religious instruction or religious worship in certain educational institutions. 
  5. Cultural and Educational Rights : Article 29 - Protection of interests of minorities; and Article 30 - Right of minorities to establish and administer educational institutions. 
  6. Right to Constitutional Remedies : Article 32 - Remedies for enforcement of rights conferred by this Part.
Post a Comment
Tag, ,

Comments

Thank You