Preamble to the Constitution as a guide to discovery of its basic structure

February 23, 2018

 

 

 

The Constitution of India has been guiding the fortunes of the country since 1952 and successive amendments have raised the important concern of what is the basic structure of the Constitution which should remain inviolate. No decision has tried to formulate and lay down the characteristics of this structure. This paper tries to sense the basic structure in the Preamble of the Constitution.

 

 

As a consequence of the recommendations of the Cabinet Mission of British Government that visited India that was formulated in its Plan on 16th May 1946, the Constituent Assembly was formed through indirect elections in provincial assemblies with Muslims and Sikhs being given special representation. The Muslim League did not join the Assembly in the beginning but by early 1947, representatives of the Muslim League and princely states also joined.The Constituent Assembly thus had 217 representatives, including 15 women. The Constituent Assembly met for the first time on 9th December 1946 and later in June 1947, the delegations from the provinces of Sindh, East Bengal, Baluchistan, West Punjab and NWFP withdrew, in order to form a similar Constituent Assembly of Pakistan which began to meet in Karachi. The Assembly formally approved the draft Constitution on November 26, 1949. The date of commencement of the Constitution was fixed for 26th January 1950 a day now commemorated in India as Republic Day. After coming in to effect of the Constitution, the Constituent Assembly became the Provisional Parliament of India, which continued in existence until after the first elections under the new Constitution took place in 1952.

 

 

The hope of Indians from the making of this body was expressed by J L Nehru in these words:-

 

 

"The first task of this Assembly is to free India through a new constitution, to feed the starving people, and to clothe the naked masses, and to give every Indian the fullest opportunity to develop himself according to his capacity."

 

 

The Constitution of India, in the manner of all enactments, has a preamble which explains the mind of the makers of the enactment and the mischief they intend to remedy by it. In this analysis below we travel through the phrases of the Preamble to unearth the collective mind of the members of the Constituent Assembly that made them agree on a draft for the Constitution for the new State of Independent India.

 

 The Preamble reads as below;

 

 

“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.”


   A para wise analysis of the Preamble has been attempted below:-

 

 

 


 Part I "“WE, THE PEOPLE OF INDIA,  - this part clarifies that the people are the ultimate Law Makers unlike what went on in the past. Under the predecessor state, laws for India were given by the British parliament.

Part II "having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC" The portion assigns a name to the formal structure of the new State that is being created

Part III "and to secure to all its citizens:" the Objective of the 'resolution' in terms of advantages that will accrue to all citizens. This part suggests that by the expression "We the people of India" the Preamble assumes that the people would have the status of citizens of the New State that gets made by enactment of the Constitution.

Part IV "JUSTICE, social, economic and political;" Justice in a very traditional way has no economic or social content as in Feudal or Slavery based societies. By introduction of these two terms, the Preamble lays down that it wants India to become a Welfare State.

Part V "LIBERTY, of thought, expression, belief, faith and worship;". The preamble thus lays down that the objective is to give Freedom to each
Citizen of thought speech and religion.

Part VI "EQUALITY of status and of opportunity;" The notion of equality has many shades. In Communism, it is supposed to mean a state where each is provided according to his need. The Constitution is more restrained in the usage of the term. It protects equality of the status of any citizen before the laws of the land. It also ensures that he cannot be denied any opportunity to achieve or attain something for reasons of birth, religion etc. The expression ‘Status’ may be read to mean the sum total of rights and duties of a citizen and the word ‘Opportunity’ is meant to mean a chance or occasion for doing something. In more general terms it can also mean a convenience of time and place for doing something.

Part VII "and to promote among them all" Here the preamble changes course. Now it is not talking about the rights of the citizens that have to be secured to them but it is a direction to the new State to do things that will promote Fraternity that in turn will assure the dignity of the individual and the unity and integrity of the Nation. Fraternity means brotherhood and the Constitution appear to assume that if all citizens see themselves as brothers they will protect the dignity of one another and remain united.

Part VIII "IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November 1949," The preamble gives the date on which the Constitution was formulated.

Part IX "DO HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION." Laws are made by citing provisions of already existing Law that enables lawmaking. It is not so for the Constitution which is modeled as Mother of all Indian laws. The preamble here has explained that this Constitution seeks no authority for its own legitimacy. The People of India have adopted it, enacted it and thereby given it to themselves. The Peoples authority is the basis for the legitimacy of the Constitution and therefore the Constitution distinguishes itself from the laws of many states where a faith is the basis of the state laws, such as in Islamic countries or the erstwhile Kingdom of Nepal. By saying that the People of India have legitimized the Constitution, the Preamble reinforces its secular credentials.
 

 

Though the Constitution may be amended the Preamble is inviolate and is the bedrock of the Constitution that imparts it with Fundamental Structure. When all arguments fail and proposals get rejected, a judicial authority can seek the basic foundation of the Constitution of India in its preamble. 

 


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