Introduction
The Constitution is a document that prescribes how the state should be and what principles it will follow. It is crucial because it establishes the governance rules and defines the power of the government.
It also outlines a framework of regulations that limit the government's authority, preventing it from becoming tyrannical.
Constitutions worldwide provide norms for both the state and society to function, and understanding the underlying principles of a constitution requires a deep dive into the philosophy behind the document.
This involves examining not just how laws are legitimised in a constitution but also how they came into existence and the purpose they serve.
By employing this interpretive method, we can gain insight into the moral values embedded in a constitution and their relationship with the law.
The Indian Constitution is a document that establishes rules and forms of governance and empowers citizens by granting them rights. It serves as a means of social revolution and aims to transform society for the better.
Granville Austin, in his book, The Indian Constitution: Cornerstone of a Nation, calls it a document of ‘social revolution '.
The Constitution upholds universal values of liberty, equality, and fraternity, aligning with international constitutional law standards. Its principles are comparable to those of the United Nations Human Rights Declaration and other constitutions around the world.
The Preamble of the Indian Constitution holds the key to understanding its underlying philosophy, even though it is just one page long.
The ideas mentioned in the Preamble not only give the Constitution life, but they also stand for various ideologies.
These ideas offer insight into the kind of constitution the framers and current leaders envision. Essentially, the Preamble expresses the goals that the Indian Constitution aims to achieve.
The Objective Resolution, written before the Constitution of India, reflects the ideology behind the Constitution and serves as a source of legitimacy for it. This document embodies the aspirations, values, and national ethos of the leaders of the national struggle. It expresses what the makers of the Constitution expected from it and how it should be.
Objective Resolution
Jawaharlal Nehru introduced the Objective Resolution in the first session of the Constituent Assembly in 1946.
It was adopted in August 1947 after debates and discussions, and it defined the aims of the Constituent Assembly.
The resolution committed to establishing a sovereign democratic republic with equality of status and equal opportunity.
The resolution formed the basis for the Preamble of the Indian Constitution.
It provided direction to the constitution framers and laid down national goals for republicanism, social, political, and economic democracy, and minority rights.
Basic Structure Doctrine:
The Preamble of the Constitution states that the Constitution emerges from the people and can be amended except for the 'basic structure'.
The basic structure of the Constitution refers to the fundamental elements and values outlined in the Preamble.
The objectives mentioned in the Preamble define values and ideals as the norms followed by the state and the subjects; this constitutes the basic element of the Constitution.
According to the Supreme Court, the basic structure of the Constitution cannot be amended under Article 368.
The features of the basic structure include the supremacy of the Constitution, republican and democratic government, secular character, separation of powers, and federalism.
The Preamble is considered part of the Constitution, as established in Keshavananda Bharti v. The State of Kerala in 1973.
The Court in the Berubari case agreed that the Preamble was in the minds of the framers, but Justice Gajendragadkar stated that it was not a part of the Constitution and did not confer substantial powers.
However, in the Sajjan Singh v. State of Rajasthan case, the Court recognized the precision and deep deliberation of the Preamble and suggested that it should be considered part of the Constitution.
In the Golakh Nath v. State of Punjab case, the Court described the Preamble as the epitome of the principles on which the government functions and called it the 'soul' of the Constitution.
Justice Hidayatullah emphasized that the Preamble is a declaration of faith and belief in national fundamentals that should not be departed from or shaken.
In the Bharti Chandra Bhavan v. State of Mysore case, it was noted that the objective of the Preamble can help understand the Directive Principles of State Policy and Fundamental Rights.
It was argued that India frequently amends its Constitution, making it difficult to determine its original intent.
The Kesavananda Bharati v. State of Kerala, 1973, judgment established that the Preamble is part of the Constitution.
The judgment also stated that the power to amend the Constitution does not grant the power to destroy it.
It further emphasized that the Preamble is the fundamental framework of the Constitution.
The Supreme Court has ruled that Parliament cannot change the basic structure of the Constitution through amendments.
The basic structure includes
the supremacy of the Constitution,
a republican and democratic government,
a federal and secular character,
separation of powers, and
the mandate to build a welfare state
Other aspects of the basic structure include maintaining the unity and integrity of India, the sovereignty of the country, essential features of individual freedoms, provision of socio-economic justice, and liberty of thought, belief, expression, faith, and worship.
Equality of status and opportunity is also considered part of the basic structure.
The Supreme Court ruled in Minerva Mills (1980) that Parliament could not use its limited power to turn it into absolute power, and upheld the basic structure doctrine.
In 1976, the words 'socialist', 'secular', and 'unity of the Nation' were added to the Preamble of the Indian Constitution by the 42nd Amendment Act.
It was believed that these additions did not significantly change the nature of Indian politics.
The 42nd Amendment, passed during a state of emergency, received criticism and was later revised. The subsequent amendments retained the words 'socialist' and 'secular', indicating acceptance by the current political party and other parties.
The Preamble
The preamble is the introduction to the Constitution and sets the tone for the values and principles it upholds.
It serves as a guiding framework for Indian politics and social life, with the hope that these values will spread throughout society.
The key values outlined in the preamble include justice, liberty, equality, and fraternity.
The preamble also emphasises the importance of living with dignity and maintaining the integrity of the nation.
The Constitution emphasizes the empowerment of the people as an important aspect, along with the rule of law.
It is not just a theoretical document but must be implemented in action to bring about results.
The Constitution mandates that the state prioritize the education and economic interests of the weaker sections, as stated in the Preamble and the objective resolution.
Each word in the Constitution holds significance and plays a crucial role in shaping the governance system.
Text of the 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 ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT, AND GIVE TO OURSELVES THIS CONSTITUTION.
Ideals of the Preamble
Sovereignty:
India is considered sovereign according to the Constitution of India, as it is no longer under British rule and has the authority to make decisions for its people and territory.
Sovereignty requires freedom from foreign rule and the ability to govern oneself without interference.
India possesses supreme political power as an independent authority and can acquire or cede foreign or Indian territory according to the Constitution.
Indian sovereignty is not subject to the control of any other state or external powers.
India obtained the status of dominion in the Commonwealth of Nations with the Indian Independence Act in 1947.
India remains a member of the Commonwealth of Nations based on the agreement reached in London in 1949.
India became sovereign with the inauguration of the Constitution, not when it became independent.
The preamble of the Constitution reflects the source of authority of the people, from which the will of the people emerges.
Popular sovereignty is significant because the Constitution derives the ultimate authority of all government institutions from the people’s will.
The authority of the people is regularly updated through the process of elections.
The question of sovereignty arose in relation to India's membership in the Commonwealth Prime Ministers' Conference in 1949.
The word "British" was eventually dropped, and the structure of the conference was changed.
The voluntary nature of the association was dropped, leading to many countries re-joining, leaving, and even being expelled.
India no longer had any allegiance to the British crown.
Other functional associations, such as SAARC and the UN, have not affected India's sovereignty.
Interestingly, the promotion of peace and security is a directive principle of state policy of the Constitution.
Socialist:
"Democracy is the road to socialism."
- Karl Marx
The term "socialist" was added to the Indian Constitution in 1976, but the Constitution already had socialist elements in the form of certain Directive Principles of State Policy.
The constitution makers did not want to stick to any one ideology or ism, including socialism, but aimed to ensure economic justice and equality for all citizens.
The Forty-fifth Amendment Bill attempted to define "socialist" as being free from all forms of exploitation, but the bill was passed without the definition
Democratic socialism in India promotes a 'mixed economy' with both the public and private sectors co-existing side by side.
In Nakara v. Union of India, 1983, the Supreme Court said that democratic socialism aims to end poverty, ignorance, disease, and inequality of opportunity.
Indian democratic socialism is a blend of Marxism and Gandhism, leaning more towards Gandhian socialism.
Socialism in India aims at social justice and upholding legislation to remove economic inequality and protect the weaker sections of society.
The courts have interpreted the word 'socialist' in Articles 14 and 16 to establish a fundamental right to equal pay for equal work.
Liberalization and disinvestment in the public sector have shifted the interpretation of the Constitution away from nationalization and state ownership.
Secularism:
“Western dictionaries define secularism as the absence of religion, but Indian secularism does not mean irreligiousness. It means profusion of religions.”
- Shashi Tharoor
The term 'secular' was added to the Constitution of India by the 42nd Constitutional Amendment Act of 1976.
The Constitution guarantees freedom of religion and conscience, as well as freedom for those without religion.
The concept of Indian secularism differs from that of Western understanding.
Indian secularism is defined as a state that allows individual and corporate freedom of religion without being constitutionally connected to any religion.
The Indian Constitution promotes a positive type of secularism where all religions are treated equally and supported by the state
Indian secularism means that the state does not have an official religion.
According to Dr. Radhakrishnan in his 1956 book The Recovery of Faith, Indian secularism does not reject the relevance of religion or promote irreligion.
Secularism in India means that no religion should be given preferential status.
The Indian Constitution allows individuals to freely practice and propagate their religion of choice.
The state is not allowed to discriminate based on religion.
The concept of secularism in India is translated in Hindi not as dharmnirpeksha but as panthnirpeksha, which means independent of sects and promoting state neutrality in religious matters.
Democratic
“I understand democracy as something that gives the weak the same chance as the strong.”
– Mahatma Gandhi
Democracy is derived from the Greek words 'demos' and 'kratos,' meaning 'the people' and 'government,' respectively.
It is the basic feature of the Indian Constitution and cannot be amended.
The Indian Constitution establishes a representative parliamentary democracy, with the executive being accountable to the legislature.
Key features of the Indian democratic system include universal adult franchise, periodic elections, the rule of law, an independent judiciary, and the absence of discrimination.
The Indian parliamentary system is based on the British model because of its familiarity with the system and its ability to accommodate various groups in decision-making.
The Indian courts have the authority to question the constitutionality of laws passed by Parliament.
The term 'democratic' in the Preamble encompasses not only political democracy but also social and economic democracy.
Democracy in the political sense involves the right of every citizen to vote freely, but it also emphasizes the establishment of equality of status and opportunity, as well as social and economic justice.
The principle of ‘one person, one vote’ applies here.
Dr Ambedkar said that political democracy is nothing without social and economic democracy.
He believed that socio-economic democracy was the true aim of the Indian Constitution.
Republic:
The word ‘republic’ comes from the Latin word ‘Res publicus’ meaning ‘of the people’.
The term “republic” means that India has an elected state head called the President, elected indirectly for a fixed period of five years, whose powers are derived from the constitution.
The concept of a republic emphasizes the people as the supreme power, with no supreme class and equal access to public offices.
Justice:
The preamble places the idea of justice above other principles of liberty, equality, and fraternity.
It pushes forward social, economic, and political justice through Fundamental Rights and Directive Principles.
Social justice stands for equal treatment of all citizens without any social discrimination based on caste, race, religion, or sex; it also means the absence of privileges for any particular section of society and improvement in the condition of backward classes and women.
Article 23 of the Indian Constitution prohibits human beings from being trafficked and forced into labour.
Article 24 prohibits the employment of children in factories, the construction industry, and hazardous employment.
Article 38 encourages states to promote the welfare of the people by preserving and defending the social order.
Article 39 directs the state to ensure all citizens have an adequate means of livelihood, ownership, and control of the resources; wealth is not concentrated; and there is equal pay for equal work.
Liberty
The term ‘liberty’ means the absence of restraints. It refers to the freedom of an individual to do what they want without harming others or any government intervention.
It includes freedom of speech and expression, freedom of assembly, freedom to form associations or unions, freedom to move freely throughout the territory of India, and freedom to practice any profession or occupation.
The notion of liberty mentioned in the Constitution of India is not absolute.
The restrictions on freedom of speech and expression in Article 19(2) are made to regulate fundamental rights in a way that does not endanger the security of the state, friendly relations with foreign states, public order, decency or morality, contempt of court, defamation, or incitement to an offence.
Equality
Equality means that no person shall be discriminated against in the eyes of the law on the grounds of race, religion, caste, or gender.
It means that no one gets special treatment or advantages because of who they are or where they come from; the same rules apply to everyone, no matter how rich or poor, powerful or weak, they are.
For example, the President of India and a domestic worker have to follow the same laws and respect the same rights of others.
The recognition of equality includes some of the following provisions in the Constitution,
First, every person, from the President of the country to a domestic worker, has to obey the same laws and is equal before the law.
Second, no person can be discriminated against based on their religion, race, caste, place of birth, or whether they are female or male.
Third, every person has access to all public places and can use publicly available wells, roads, bathing ghats, playgrounds, hotels, shops, and markets.
Fourth, untouchability has been abolished.
Fraternity and Dignity
"Political democracy cannot last unless it lies at the base of social democracy. What does social democracy mean? It means a way of life that recognizes liberty, equality, and fraternity as the principles of life."
-Dr. B. R. Ambedkar
The concept of fraternity describes the people of a nation as having a sense of unity and belonging.
Fraternity, in the Indian context, is defined as a sense of brotherhood and belonging among all Indians.
It promotes human dignity and national integrity, aiming to create a world where everyone is equal and has the same rights.
It is described as a key component of democracy, along with liberty and equality. Fraternity plays a crucial role in breaking down social barriers and fostering unity among diverse individuals. Its significance lies in enhancing the dignity and unity of the country.
According to the preamble, fraternity guarantees two things, human dignity and national integrity.
The word “integrity” was added to the preamble by the 42nd Amendment Act of 1976.
The Constitution's goal is to ensure that everyone has a reasonable standard of living, with respect for one's dignity serving as the primary condition.
Fundamental duties in Article 51A make it the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India, to uphold and protect the sovereignty, unity, and integrity of India, and to promote harmony and brotherhood.
Features of the Indian Constitution
The longest-written constitution
The constitutions are classified as written, like the American Constitution, and unwritten, like the British Constitution.
The Constitution of India holds the title of being the longest and most detailed constitution in the world.
The Constitution includes both fundamental principles of governance and detailed administrative provisions.
The document also includes ordinary legislatures and established political conventions, which other constitutions did not include.
Rigid and Flexible
The process for amending a constitution determines whether it is rigid or flexible.
Indian constitution is a unique mixture of rigidity and flexibility.
A rigid constitution, like the American Constitution, is one that must be amended through a specific process.
A flexible constitution, like the British Constitution, is one that can be amended in the same way that regular laws are passed.
Federal system with Unitary features
The federal system of governance refers to the existence of more than one level of government in the country. In India, we have government at the centre level, state level, and the local level.
The Indian Constitution contains features of the federal system, like the division of power among the executive, judiciary, and legislature, the dual system of government, supremacy of the constitution, independent judiciary, and bicameralism.
However, it should be noted that the word “federation” hasn’t been used in the text of the constitution.
Indian Constitution also contains many features of the unitary system, such as a strong centre, all India services, an integrated judiciary, and appointment of the state governor by the centre.
Article 1 of the Indian Constitution clearly mentions that India is a “union of states,” which means that
Indian federation is not the result of an agreement by the states
No state has the right to secede from the federation
Therefore, this makes the Indian constitution a federal system with unitary features.
Fundamental Rights
The section on Fundamental Rights has often been referred to as the ‘conscience’ of the Indian Constitution.
Part III of the Indian Constitution guarantees six fundamental rights to all citizens.
The fundamental rights promote the idea of political democracy.
They operate as limitations on the tyranny of the executive and the arbitrary laws of the legislature.
They are justiciable in nature, that is, enforceable by the courts for their violation.
The Constitution also contains a section titled Directive Principles of State Policy in addition to the Fundamental Rights. The members of the Constituent Assembly created it in order to promote more significant social and economic reforms and to act as a manual for the independent Indian State in enacting laws and policies that contribute to eradicating widespread poverty.
Independent Judiciary
The constitution of India adopts an independent judiciary with the power of judicial review to restrict the supremacy of parliament.
A judicial review is itself a basic feature of the Constitution and cannot be amended.
Judicial review basically refers to examining the constitutionality of the government’s executive orders and legislative actions.
Also, the judicial system is free from the influence of the executive and the legislature.
The constitution itself gives the power of review to the judiciary, to both the Supreme Court and the High Court.
The Supreme Court stands as the apex court of the judicial system. Below the Supreme Court are the high courts at the state level.
Under the high court are the district court and other lower courts.
Transformative Constitutionalism
Transformative constitutionalism means the disruption of existing social structures with the means of law.
The phrase was first used by Karl Klare, who defined it as a long-term initiative of constitutional enactment, interpretation, and enforcement aimed at changing a nation's political and social institutions and power structures in favor of democracy, participation, and equality.
The fundamental rights have numerous articles that try to break the traditional patterns of unequal society, like Article 17, which bans the inhumane practice of untouchability.
Conclusion
N. A. Palkhivala called the Preamble the 'identity card of the Indian Constitution'; it embodies the Constitution's philosophy and shapes Fundamental Rights, Duties, and Directive Principles.
The Preamble can be amended, but not the part that builds the basic structure.
The Constitution is flexible enough to be amended but not too flexible; it has a federal structure with a strong state; judicial review protects its supremacy; its ultimate aim is social transformation.
FAQs: Preamble and Basic Structure (DU Exam Focus)
Q1. Who moved the objective resolution, and when?
Answer
Jawaharlal Nehru, on 13 December 1946, in the first session of the Constituent Assembly, adopted on 22 January 1947.
Q2. Is the Preamble a part of the Indian Constitution?
Answer
Yes, under Kesavananda Bharati v. State of Kerala (1973). The earlier Berubari case (Justice Gajendragadkar) held otherwise.
Q3. Which words were added to the Preamble in 1976?
Answer
'Socialist,' 'secular,' and 'unity of the nation' (with 'integrity') by the 42nd Amendment Act.
Q4. What is the basic structure doctrine?
Answer
Parliament cannot change the basic structure of the Constitution using Article 368, as reaffirmed in Minerva Mills (1980).
Q5. What is transformative constitutionalism?
Answer
Using law to disrupt unequal social structures; the term was coined by Karl Klare.