Every Constitution has a Preamble with which it begins and which embodies its objectives or basic purposes. The framers of the Constitution in this respect were in a most happy position. For, here was an opportunity for them to give expression to the dreams of a new order they had been dreaming of for years. Naturally, they were eager to draw up a Preamble which embodied the fundamental principles of that new order.
From a strictly legal point of view, the importance of a Preamble is limited. It cannot qualify the provisions of the enactment so long as its text is clear and unambiguous. But if the statute is ambiguous, the Preamble can be referred to in order to explain and elucidate it as “it is a key to open the mind of the makers of the Act and, the mischief’s they intended to redress”. The Supreme Court of India is substantially in agreement with this position.
The Preamble of the Constitution of India reads as follows:
“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 ASSEMBLY this twenty-sixth day of November 1949
do HEREBY ADOPT, ENACT, AND GIVE TO OURSELVJES THIS CONSTITUTION.” 1
The sentiments expressed in the Preamble were those described by Jawaharlal Nehru in the Objectives Resolution which he moved in the Constituent Assembly in its first session and which the Assembly adopted unanimously. But Nehru’s resolution itself had taken shape out of what had been already said many times by Mahatma Gandhi.
In 1931 when Gandhiji was standing on the deck of a ship taking him to London, as the spokesman and representative of nationalist India to the Second Round Table Conference, he was asked by a newspaper correspondent as to what Constitution he would bring back if he could help it. Gandhiji’s reply is worth reproducing here:
“I shall strive for a Constitution, which will release India from all thraldom and patronage, and give her, if need be, the right to sin. I shall work for an India, in which the poorest shall feel that it is their country in whose making they have an effective voice; an India in which there shall be no high class and low class of people; an India in which all communities shall live in perfect harmony.
There can be no room in such an India for the curse of untouchables or the curse of intoxicating drinks and drugs. Women shall enjoy the same rights as men. Since we shall be at peace with all the rest of the world, neither exploiting nor being exploited, we should have the smallest army imaginable.
All interests not in conflict with the interests of the dumb millions will be scrupulously respected, whether foreign or indigenous. Personally, I hate distinction between foreign and indigenous. This is the India of my dreams.”
It is not an exaggeration to say that not only in the Preamble but throughout the Constitution, there is a perceptible vibration of the Gandhian concept of independent India.
Reading through the Preamble, one can see the purposes that it serves, namely, the declaration of (1) the source of the Constitution, (2) a statement of its objectives and (3) the date of its adoption.
The opening words of the Preamble emphasise the ultimate authority of the people from whose will the Constitution emerges. Most of the modern constitutions emphasise the same principle. Since the Constituent Assembly “enacted and adopted” the Constitution in the name of the people of India, the question has been asked whether the Assembly was really representative of the people of India.
“Does the Constitution reflect the will of the people of India?” This question was raised both within and outside the Assembly. Notice of a motion to this effect was given by a member of the Assembly who asked the House to adjourn the discussion on the Draft Constitution altogether and called for a new House on the basis of adult franchise to be elected, claiming that such a House alone should deal with the framing of the Constitution. The motion was, however, rejected by the Assembly as there was no one to support it.
The circumstances under which the Constituent Assembly came into being will show that it was impracticable to constitute such a body in 1946 with adult suffrage as its basis. No part of the country had the experience of adult suffrage. To prepare an electoral roll on the basis of adult suffrage for the country and to hold elections on that basis would have certainly taken a number of years.
It was rightly thought unwise to postpone the task of constitution-making until such an election was held. At the same time the necessity for having a new Constitution made by Indians to suit the conditions and circumstances in the country was keenly felt. This was the main justification for accepting the Cabinet Mission Plan for constituting the Assembly through indirect election.
If the time factor was the main consideration in 1946, one might ask the question: “What prevented the Constitution being referred to the people through a referendum in 1950 for their approval?” Such a procedure would have established the popular character of the Constitution despite the fact that the Assembly was not elected on a popular basis. Here again, the answer is simple.
To conduct a nationwide referendum in involving some 180 million voters was indeed a task which involved elaborate preparation and enormous expense. But the effect of such a referendum was soon provided by the First General Elections of 1951-52 conducted under the new Constitution on the basis of adult suffrage.
In that election some of the leading Opposition Parties had declared that if they returned to power, they would scrap the present Constitution and write an altogether new one.
But the results of the election proved beyond any doubt that the Constituent Assembly although elected indirectly, was a fully representative body and the Constitution was an instrument of the popular will.
For, not only were those Parties who opposed the Constitution severely defeated at the polls, but almost every member of the Constituent Assembly who stood for election was returned to the new Parliament of India or a State Legislature with convincing majorities.
The talk of scrapping the Constitution has not been heard since then, and today, every political party in the country is wedded to the principle of supporting and upholding the Constitution and to working within its four corners if elected to power.
No one will seriously challenge today what Ambedkar said on the floor of the Constituent Assembly in 1949: “I say that this Preamble embodies what is the desire of every member of the House, that this Constitution should have its root, its authority, its sovereignty from the people. That it has”.
The Preamble as it was originally passed proclaimed the solemn resolution of the people of India to “constitute India into a sovereign, democratic republic”. The Forty-second Amendment (1976) added the terms Socialist and Secular after the term Sovereign.
India had already ceased to be a dependency of the British Empire by the passing of the Indian Independence Act, 1947. From the 15th of August 1947, to the 26th January 1950, her political status was that of a Dominion in the British Commonwealth of Nations.
But with the inauguration of the present Constitution, India became “a Sovereign Republic” like the United States of America or the Swiss Republic. However, India is still a member of the Commonwealth of Nations. This peculiar position is the result of an agreement reached at the Commonwealth Prime Ministers’ Conference in London in April 1949.
There, India made a declaration to the effect that notwithstanding her becoming a sovereign independent Republic, she would continue “her full membership of the Commonwealth of Nations and her acceptance of the King (of England) as the symbol of the free association of the Commonwealth”.
But it is to be noted in this connection that this declaration was extra-legal. There is no mention of in it the Constitution of India. It is a voluntary declaration which indicates a free association with no legal obligation. Its acceptance of the King (or Queen) of England as a symbolic head of the Commonwealth does not create any allegiance of the citizens of India to the King of England.
Hence this voluntary association of India with the Commonwealth does not affect her sovereignty in any manner and India could cut off that association as easily as it had been declared.
The concepts of socialism and secularism were implicit in the Constitution as it was originally passed. A number of provisions in Part IV of the Constitution dealing with the Directive Principles of State Policy (Articles 38, 39, 40 and 41 are examples) are intended to bring about a socialist order of society.
These objectives had been later summed up in the phrase “Socialistic pattern of society” and have been explained at length in the Five Year Plan documents. Similarly Articles 14, 15, 16 and 25 to 28 are intended to ensure the establishment and maintenance of a secular State in India.
The term “democratic” is comprehensive. In a narrow political sense it refers only to the form of government, a representative and responsible system under which those who administer the affairs of the State are chosen by the electorate and accountable to them.
But in its broadest sense, it embraces, in addition to political democracy, also social and economic democracy. The term “democratic” is used in this sense in the Preamble.
The term “republic” implies an elected head of the State. A democratic State may have an elected or a hereditary head. Britain is perhaps the best example of the latter type. There, the monarch, a hereditary ruler, is no hindrance to democratic government as the real power of the State is in the hands of the representatives of the electorate.
Under a republican form, on the contrary, the head of the State, single or collective, is always elected for a prescribed period. For example, in the United States the head of the State and Chief Executive the President is elected for a fixed period of four years.
In Switzerland, on the other hand, collegiums of seven members are elected for a period of seven years to constitute the Executive. By deciding to become a republic, India had chosen the system of electing one of its citizens as its President the head of the State at regular intervals.
The Preamble proceeds further to define the objectives of the Indian Republic. These objectives are four in number: Justice, Liberty, Equality and Fraternity. Justice implies a “harmonious reconcilement of individual conduct with the general welfare of society”.
The essence of justice is the attainment of the common good. It embraces, as the Preamble proclaims, the entire social, economic and political spheres of human activity.
The term “liberty” is used in the Preamble not merely in a negative but also in positive sense. It signifies not only the absence of any arbitrary restraint on the freedom of individual action but also the creation of conditions which provide the essential ingredients necessary for the fullest development of the personality of the individual.
Since society is constituted of individuals, social progress depends on the progress of the individual. Hence it is in the interest of society to ensure the maximum liberty of thought and action of the individual commensurate with social conditions and circumstances.
Liberty and equality are complementary. Equality does not mean that all human beings are equal mentally and physically. It signifies equality of status, the status of free individuals, and equality of opportunity. As the French Revolutionaries proclaimed: “Men are born and remain free and equal in rights. Social distinctions are based only upon public utility.”
Equality of opportunity implies the availability of opportunity to everyone to develop his or her potential capacities. The declaration of the Rights of Man and Citizen said: “Law is the expression of the public will. It must be same for all, whether it protects or punishes.
All citizens being equal in its eyes are equally eligible for all public dignities, places and employments according to their capacities and without distinction of their virtues and talents”. The concept of equality that is envisaged in the Preamble as it embraces both equality of status and of opportunity is the widest in scope.
Finally, the Preamble emphasises the objective of Fraternity in order to ensure both the dignity of the individual and the unity and integrity of the nation. The necessity of the spirit of brotherhood among the citizens was first emphasised by the French Revolution which adopted it along with liberty and equality as the foundations of the new order that it aimed to establish.
Ever since the French Declaration it has become a slogan of universal application. In its Declaration of Human Rights, the United Nations proclaims: “All human beings are born free and equal in dignity and rights. They are endowed with reason and conscience and should act towards one another in a spirit of the brotherhood”.
It is this spirit of brotherhood that is emphasised by the use of the term “fraternity” in the Preamble. In a country like India with many disruptive social forces, communal and caste, sectional and denominational, local and regional, linguistic and cultural, the unity and integrity of the nation can be preserved, only through a spirit of brotherhood that pervades the entire country, among all its citizens irrespective of their differences.
Through the establishment of a new nation based upon justice, liberty and equality, all must feel that they are the children of the same soil, of the same motherland and members of the same fraternity.
The Preamble of the Constitution of India is one of the best of its kind ever drafted. A glance over the Preambles of constitutions the entire world over will show that both in ideas and ideals and in expression, ours is unrivalled.
It embodies the spirit of the Constitution, the determination of the Indian people to unite them in a common adventure of building up a new and independent nation which will ensure the triumph of justice, liberty, equality and fraternity.
Commending the beautiful form in which the Preamble is couched, one of the members in the Constituent Assembly rose to poetic heights when he said: “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is key to the Constitution”.