PREAMBLE OF THE CONSTITUTION
The American Constitution was the first to begin with a Preamble. The term ‘preamble’ refers to the
introduction or preface to the Constitution. It contains the summary or essence of the Constitution.
The Preamble to the Indian Constitution is based on the ‘Objectives Resolution’, drafted
and moved by Pandit Nehru, and adopted by the Constituent Assembly.
N A Palkhivala, an eminent jurist and constitutional expert, called the Preamble as the ‘identity card of the Constitution’.
It has been amended by the 42nd Constitutional Amendment Act (1976), which added three new
words—socialist, secular and integrity.
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
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”
INGREDIENTS OF THE PREAMBLE:
- Source of authority of the Constitution —— derivs from the people of the country
- Nature of the Constitution —– India to be Sovereign, Socialist, Secular, Democratic, Republic polity
- Objective of the Constitution —— justice, liberty, equality and fraternity
- Date of adoption of the Constitution —– November, 26, 1949.
KEY WORDS OF THE PREAMBLE:
- India is neither a dependency nor a dominion of any other nation, but an independent state.
- There is no authority above it
- It is free to conduct its own affairs (both internal and external)
India’s membership to the Common wealth of Nations and accepting British Crown as the head of Commonwealth doesn’t affect the Sovereignty in any manner. Similarly with United Nations Organisation(UNO).
Being a sovereign state, India can either acquire a foreign territory or cede a part of its territory in favour of a foreign state.
Added by 42nd Constitutional amendment Act 1976. Socialist is mentioned in the Constitution explicitly.
Congress party established a Socialistic pattern of Society in Avadi Session in 1955.
Indian brand of socialism is a ‘democratic socialism’ and not a ‘communistic socialism’ (also known as ‘state socialism’)
- Communistic socialism —— the nationalisation of all means of production and distribution and the abolition of private property.
- Democratic socialism ——– faith in a ‘mixed economy’ where both public and private sectors co-exist side by side.
The new economic policy (1991) of liberalisation, privatisation and globalisation has diluted the socialist credentials of the Indian State.
Added by 42nd Constitutional amendment Act 1976. Secular word is mentioned in the Constitution implicitly.
Articles 25 to 28 guaranteeing the fundamental right to freedom of religion.
The Indian Constitution embodies the positive concept of secularism ie, all religions in our country (irrespective of their strength) have the same status and support from the state.
Is based on the doctrine of popular sovereignty, that is, possession of supreme power by the people.
Democracy is of two types—
- Direct Democracy —- the people exercise their supreme power directly as is the case in Switzerland.
Four devices —- Referendum, Initiative, Recall and Plebiscite
- Indirect Democracy —– the representatives elected by the people exercise the supreme power.
Two kinds —– Parliamentary and presidential
The Indian Constitution provides for representative parliamentary democracy under which the executive is responsible to the legislature for all its policies and actions.
Universal adult franchise, periodic elections, rule of law, independence of judiciary, and absence of discrimination —— the manifestations of the democratic character of the Indian polity.
Political democracy lies at the base of Social democracy ——- a way of life which recognises liberty, equality and fraternity.
A democratic polity can be classified into two categories—
- monarchy —– the head of the state (usually king or queen) enjoys a hereditary position.
- republic —– the head of the state is always elected directly or indirectly for a fixed period.
The ideal of justice—social, economic and political—has been taken from the Russian Revolution (1917).
Social justice —– the equal treatment of all citizens without any social distinction based on caste, colour, race, religion, sex and so on.
Economic justice —— the non-discrimination between people on the basis of economic factors. It involves the elimination of glaring in-equalities in wealth, income and property. A combination of social justice and economic justice denotes what is known as ‘distributive justice’.
Political justice —— all citizens should have equal political rights, equal access to all political offices and equal voice in the government.
The term ‘liberty’ —– the absence of restraints on the activities of individuals, and at the same time, providing opportunities for the development of individual personalities.
The Preamble secures to all citizens of India liberty of thought, expression, belief, faith and worship, through their Fundamental Rights, enforceable in court of law, in case of violation.
The term ‘equality’ —– the absence of special privileges to any section of the society, and the provision of adequate opportunities for all individuals without any discrimination.
The Preamble secures to all citizens of India equality of status and opportunity. This provision embraces three dimensions of equality—civic, political and economic.
Civic Equality —-
- Equality before the law (Article 14).
- Prohibition of discrimination on grounds of religion, race, caste, sex or place of birth (Article 15).
- Equality of opportunity in matters of public employment (Article 16).
- Abolition of untouchability (Article 17).
- Abolition of titles (Article 18).
Political Equality —–
- No person is to be declared ineligible for inclusion in electoral rolls on grounds of religion, race, caste or sex (Article 325).
- Elections to the Lok Sabha and the state assemblies to be on the basis of adult suffrage (Article 326).
Economic Equality —–
- The Directive Principles of State Policy (Article 39) secures to men and women equal right to an adequate means of livelihood and equal pay for equal work.
9. FRATERNITY —– A sense of brotherhood.
The Constitution promotes this feeling of fraternity by the system of single citizenship.
The Fundamental Duties (Article 51-A) say that it shall be the duty of every citizen of India to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic, regional or sectional diversities.
The Preamble declares that fraternity has to assure two things—the dignity of the individual and the unity and integrity of the nation. (The word ‘integrity’ has been added to the preamble by the 42nd Constitutional Amendment (1976).
The ideals of liberty, equality and fraternity in our Preamble have been taken from the French Revolution (1789–1799).
PREAMBLE AS PART OF THE CONSTITUTION
In the Berubari Union case (1960), the Supreme Court said that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution.
The terms used in any article are ambiguous or capable of more than one meaning, some assistance at interpretation may be taken from the objectives enshrined in the Preamble. Despite this recognition of the significance of the Preamble, the Supreme Court specifically opined that Preamble is not a part of the Constitution.
In the Kesavananda Bharati case (1973), the Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that the Preamble is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.
In the LIC of India case (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution.
Two things should be noted:
- The Preamble is neither a source of power to legislature nor a prohibition upon the powers of legislature.
- It is non-justiciable, that is, its provisions are not enforceable in courts of law.
AMENDABILITY OF THE PREAMBLE
The question as to whether the Preamble can be amended under Article 368 of the Constitution arose for the first time in the historic case of Kesavananda Bharati (1973). The petitioner contended that the amending power in Article 368 cannot be used to destroy or damage the basic elements or the fundamental features of the Constitution, which are enshrined in the Preamble.
The Supreme Court, however, held that the Preamble is a part of the Constitution. The Court stated that the opinion tendered by it in the Berubari Union (1960) in this regard was wrong, and held that the Preamble can be amended, subject to the condition that no amendment is done to the ‘basic features’. The Court held that the basic elements or the fundamental features of the Constitution as contained in the Preamble cannot be altered by an amendment under Article 368.
The Preamble has been amended only once so far, in 1976, by the 42nd Constitutional Amendment Act, which has added three new words—Socialist, Secular and Integrity—to the Preamble. This amendment was held to be valid.
SALIENT FEATURES OF THE CONSTITUTION
1. Lengthiest Written Constitution
Constitutions are classified into
- written, like the American Constitution
- unwritten, like the British Constitution
The Constitution of India is the lengthiest of all the written constitutions of the world containing 395 article (divided into 22 parts) and 8 schedules. Presently (2013), it consists of a Preamble, about 465 Articles (divided into 25 Parts) and 12 Schedules.
Four factors have contributed to the elephantine size of our Constitution:
- Geographical factors
- Historical factors
- Single Constitution for both the Centre and the states except Jammu and Kashmir
- Dominance of legal luminaries in the Constituent Assembly
2. Drawn From Various Sources
Dr B R Ambedkar proudly acclaimed that the Constitution of India has been framed after ‘ransacking all the known Constitutions of the World’.
- The Structural part of constitution derived from Government of India Act 1935
- The Philosophical part of the Constitution namely
- Fundamental rights ——– American Constitution
- DPSP ——- Irish Constitution
- The political part of the Constitution
- The principle of Cabinet Government ——– British Constitution
- the relations between the executive and the legislature ——– British Constitution
3. Blend of Rigidity and Flexibility
- A rigid Constitution ——- special procedure for its amendment, example, the American Constitution.
- A flexible constitution ——– amended in the same manner as the ordinary laws are made, example, the British Constitution.
The Constitution of India is neither rigid nor flexible but a synthesis of both. Article 368 provides for two types of amendments:
- Some provisions can be amended by a special majority of the Parliament, i.e., a two-third majority of the members of each House present and voting, and a majority (that is, more than 50 per cent), of the total membership of each House.
- Some other provisions can be amended by a special majority of the Parliament and with the ratification by half of the total states.
4. Federal System with Unitary Bias
The term ‘Federation’ has nowhere been used in the Constitution. Article 1 describes India as a ‘Union of States’ which implies two things:
- Indian Federation is not the result of an agreement by the states
- No state has the right to secede from the federation.
Federal system of government:
- Two government, division of power
- written Constitution
- supermacy of Constitution
- rigidity of Constitution
- independent judiciary and bicameralism
Unitary or non-federal features
- a strong Centre
- single Constitution
- single citizenship
- flexibility of Constitution
- integrated judiciary
- appointment of state governor by the Centre
- all-India services
- emergency provisions, and so on.
5. Parliamentary Form of Government
The parliamentary system is based on the principle of cooperation and co-ordination between the legislative and executive organs while the presidential system is based on the doctrine of separation of powers between the two organs.
The features of parliamentary government in India are:
- Presence of nominal and real executives
- Majority party rule
- Collective responsibility of the executive to the legislature
- Membership of the ministers in the legislature
- Leadership of the prime minister or the chief minister
- Dissolution of the lower House (Lok Sabha or Assembly).
6. Synthesis of Parliamentary Sovereignty and Judicial Supremacy
- The doctrine of sovereignty of Parliament ——– British Parliament
- The principle of judicial supremacy ——- American Supreme Court.
The framers of the Indian Constitution have preferred a proper synthesis between the British principle of parliamentary sovereignty and the American principle of judicial supremacy.
- The Supreme Court ———- can declare the parliamentary laws as unconstitutional through its power of judicial review.
- The Parliament —— can amend the major portion of the Constitution through its constituent power.
7. Integrated and Independent Judiciary
The Indian Constitution establishes a judicial system that is integrated as well as independent.
- Supreme Court —— at the top integrted judicary —— the guarantor of the fundamental rights of the citizens and the guardian of the Constitution
- High Court —— at the state level
- Subordinate Court ——at the district level
Supreme Court —— independent —- security of the tenure of the judges, fixed service conditions for the judges, all expenses charged on Consolidated Fund of India, ban on practice after retirement, separation of judiciary from executive.
8. Fundamental Rights
The Fundamental Rights are meant for promoting the idea of political democracy. Part III of the Indian Constitution guarantees six 11 fundamental rights to all the citizens:
- Right to Equality (Articles 14–18)
- Right to Freedom (Articles 19–22)
- Right against Exploitation (Articles 23–24)
- Right to Freedom of Religion (Articles 25–28)
- Cultural and Educational Rights (Articles 29–30)
- Right to Constitutional Remedies (Article 32).
9. Directive Principles of State Policy
According to Dr B R Ambedkar, the Directive Principles of State Policy is a ‘novel feature’ of the Indian Constitution. They are enumerated in Part IV of the Constitution.
- They can be classified into three broad categories—socialistic, Gandhian and liberal–intellectual.
- The directive principles are meant for promoting the ideal of social and economic democracy.
- They seek to establish a ‘welfare state’ in India.
- In the Minerva Mills case 12 (1980), the Supreme Court held that ‘the Indian Constitution is founded on the bedrock of the balance between the Fundamental Rights and the Directive Principles’.
10. Fundamental Duties
Added during the operation of internal emergency (1975–77) by the 42nd Constitutional Amendment Act of 1976 on the recommendation of the Swaran Singh Committee. The 86th Constitutional Amendment Act of 2002 added one more fundamental duty.
The Part IV-A of the Constitution specifies the eleven Fundamental Duties. The fundamental duties serve as a reminder to citizens that while enjoying their rights, they have also to be quite conscious of duties they owe to their country, their society and to their fellow-citizens.
11. A Secular State
The Constitution of India does not uphold any particular religion as the official religion of the Indian State. The Constitution reveal the secular character of the Indian State:
- The term ‘secular’ was added to the Preamble of the Indian Constitution by the 42nd Constitutional Amendment Act of 1976.
- The Preamble secures to all citizens of India liberty of belief, faith and worship.
- The State shall not deny to any person equality before the law or equal protection of the laws (Article 14).
- The State shall not discriminate against any citizen on the ground of religion (Article 15).
- Equality of opportunity for all citizens in matters of public employment (Article 16).
- All persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate any religion (Article 25).
- Every religious denomination or any of its section shall have the right to manage its religious affairs (Article 26).
- No person shall be compelled to pay any taxes for the promotion of a particular religion (Article 27).
- No religious instruction shall be provided in any educational institution maintained by the State (Article 28).
- Any section of the citizens shall have the right to conserve its distinct language, script or culture (Article 29).
- All minorities shall have the right to establish and administer educational institutions of their choice (Article 30). The State shall endeavour to secure for all the citizens a Uniform Civil Code (Article 44).
12. Universal Adult Franchise
The Indian Constitution adopts universal adult franchise as a basis of elections to the Lok Sabha and the state legislative assemblies. Every citizen who is not less than 18 years of age has a right to vote without any discrimination of caste, race, religion, sex, literacy, wealth, and so on. The voting age was reduced to 18 years from 21 years in 1989 by the 61st Constitutional Amendment Act of 1988.
13. Single Citizenship
The Indian Constitution is federal and envisages a dual polity (Centre and states), it provides for only a single citizenship, that is, the Indian citizenship. In countries like USA, each person is not only a citizen of USA but also a citizen of the particular state to which he belongs
14. Independent Bodies ——— the bulworks of the democratic system of Government in India
- Election Commission to ensure free and fair elections to the Parliament, the state legislatures, the office of President of India and the office of Vice-president of India.
- Comptroller and Auditor-General of India to audit the accounts of the Central and state governments. He acts as the guardian of public purse and comments on the legality and propriety of government expenditure.
- Union Public Service Commission to conduct examinations for recruitment to all-India services and higher Central services and to advise the President on disciplinary matters.
- State Public Service Commission in every state to conduct examinations for recruitment to state services and to advice the governor on disciplinary matters.
15. Emergency Provisions
The Constitution envisages three types of emergencies, namely:
- National emergency on the ground of war or external aggression or armed rebellion (Article 352)
- State emergency (President’s Rule) on the ground of failure of Constitutional machinery in the states (Article 356) or failure to comply with the directions of the Centre (Article 365)
- Financial emergency on the ground of threat to the financial stability or credit of India (Article 360).
During an emergency, the Central Government becomes all-powerful and the states go into the total control of the centre. It converts the federal structure into a unitary one without a formal amendment of the Constitution. This kind of transformation of the political system from federal (during normal times) to unitary (during emergency) is a unique feature of the Indian Constitution.
16. Three-tier Government
The 73rd and 74th Constitutional Amendment Acts (1992) have added a third-tier of government (i.e., local) which is not found in any other Constitution of the world.
The 73rd Amendment Act of 1992 ——– panchayats (rural local governments) by adding a new Part IX and a new Schedule 11 to the Constitution.
The 74th Amendment Act of 1992 ——— municipalities (urban local governments) by adding a new Part IX-A and a new Schedule 12 to the Constitution.
Sources of the Constitution at a Glance
1. Government of India Act of 1935 ———– Federal Scheme, Office of governor, Judiciary, Public Service Commissions, Emergency provisions and administrative details.
2. British Constitution ————– Parliamentary government, Rule of Law, legislative procedure, single citizenship, cabinet system, prerogative writs, parliamentary privileges and bicameralism.
3. US Constitution ————- Fundamental rights, independence of judiciary, judicial review, impeachment of the president, removal of Supreme Court and high court judges and post of vice-president.
4. Irish Constitution ———- Directive Principles of State Policy, nomination of members to Rajya Sabha and method of election of president.
5. Canadian Constitution ——— Federation with a strong Centre, vesting of residuary powers in the Centre, appointment of state governors by the Centre, and advisory jurisdiction of the Supreme Court.
6. Australian Constitution ———– Concurrent List, freedom of trade, commerce and inter-course, and joint sitting of the two Houses of Parliament.
7. Weimar Constitution of Germany ——— Suspension of Fundamental Rights during Emergency.
8. Soviet Constitution (USSR, now Russia) ———- Fundamental duties and the ideal of justice (social, economic and political) in the Preamble.
9. French Constitution ———- Republic and the ideals of liberty, equality and fraternity in the Preamble.
10. South African Constitution ——— Procedure for amendment of the Constitution and election of members of Rajya Sabha.
11. Japanese Constitution ——— Procedure established by Law.
MAKING OF THE CONSTITUTION
It was in 1934 that the idea of a Constituent Assembly for India was put forward for the first time by M. N. Roy, a pioneer of communist movement in India and an advocate of radical democratism. In 1935, the Indian National Congress (INC), for the first time, officially demanded a Constituent Assembly to frame the Constitution of India and in 1938, Jawaharlal Nehru declared that ‘the Constitution of free India must be framed, without outside interference, by a Constituent Assembly elected on the basis of adult franchise’. ………… READ MORE
Historical Background of Indian Constitution
The present Indian administrative structure is largely a legacy of the British rule in India. The forces of British Indian history have left a lasting imprint on the prevailing administrative system. The analysis in the following acts seeks to show how the administrative system that the British evolved, while sharing the imperfections inherent in all human institutions, brought about inestimable benefits in terms of experiments which eventually helped in our becoming a parliamentary democracy……. READ MORE
- A parliament is a legislative, elected body of government.
- Generally a modern parliament has three functions: representing the electorate, making laws, and overseeing the government.
- The term is derived from Anglo-Norman parlement, from the verb parler ‘talk’.
- Many parliaments are part of a parliamentary system of government, in which the executive is constitutionally answerable to the parliament……… READ MORE