Preamble: 42nd Amendment Act, 1976 and Important Judgements Related to the Preamble

Dr. Manishika Jain- Join online Paper 1 intensive course. Includes tests and expected questions.

The Preamble
The Preamble
Constitution of India
Constitution of India

42nd Amendment Act, 1976

42 Amendment Act 1976

The Preamble can be amended under Article 368.

Two amendments made:

  • After Sovereign – SOCIALIST SECULAR words were added.
  • Unity of the Nation changed to Unity and Integrity of the Nation.

Philosophy of the constitution.

  • Expectations, aspirations and ambitions of the citizens.
  • A guideline framework for the actions of the state.
  • Judiciary uses it to interpret the constitution.
42 Amendment Act, 1976

The preamble provides four important pieces of information, namely:

The Source of the Constitution

We the people of India, adopt, enact and give to ourselves this constitution.

Type of Government

Sovereign, socialist, secular, democratic republic

Objectives of the Political System

Justice, liberty, equality and fraternity

Date of Its Adoption and Enactment

  • 26th of November 1949.
  • However, the Preamble came into force only on January 26th , 1950 with the rest of the constitution.

We the People of India … ″

People of India

Establishes India as a popular sovereignty, that is, constitution comes from people and the will of the people – Supreme.

Questions raised on the representativeness of the Constituent Assembly Did it actually represent all the people and their will?

  • Wide based membership of the Assembly – across the ideological spectrum. Special invitations given to make it more representative.
  • Philosophy of the National Movement as the guiding force in which had broad based participation from people from all walks of life.
  • The election of 1951 - 52 proved to be a referendum on the acceptance of Constitution by all Indians.
  • Granville Austin – Constituent Assembly was Congress and Congress was India – “one party body in a one-party country.”

Type of State

Sovereign

  • It means externally sovereign – India autonomous and free in international sphere – no body or organisation above the Indian state.
  • India part of international bodies and organisations with legally binding treaties – do not impinge on India՚s sovereignty.

Internally,

  • Legal Sovereignty vested in the people.
  • Political sovereignty distributed between Union and the States.

Socialist

Preamble: Socialist
  • Added by the 42nd constitution amendment act, 1976.
  • It was added because India tilting towards socialist means during this time – nationalization of banks, private companies etc.
  • Socialism in India meant – freedom from all forms of exploitation, social, political or economic. However, in the constitution it remains undefined.
  • Questions raised on India՚s socialist orientation post 1991 liberalization reforms.
  • In Samantha judgement, Supreme Court declares India continues to have socialist ends – “establishment of the Egalitarian social order through the rule of is the basic structure of the constitution.”
  • The socialist agenda of the Indian State can be found in the Directive principles of the State Policy.

Secular

  • Added by 42nd Constitutional Amendment Act, 1976
  • In original preamble, inclusion of the term “secular” was opposed by Dr BR Ambedkar on grounds that it՚s principles already enshrined in Fundamental Rights (Art. 25 – 30) .

Two important principles of Secularism are:

1. Separation of region from state and politics.

2. Religion as a part of private affairs of individual.

  • India follows its own unique model called as “contextually defined principled distance” as called by Rajeev Bhargava.
  • In S. R. Bommai case, the Supreme Court held that ‘secularism’ is a basic feature of the constitution.

Democratic

Preamble: Democratic
  • In narrow sense it means only the form of Government – a responsible and accountable government which can be changed by regular periodic elections.
  • In broader sense, it also includes social and economic democracy.

Republic

Preamble: Republic
  • It implies an elected Head of the State for a prescribed time.
  • The President of India – indirectly elected is the elected head of the State in India.

Justice

Preamble: Justice
  • Justice means harmonious relationship between individuals and society. it՚s balancing between the rights of an individual with the common good.
  • The preamble places Justice higher than other principles of Liberty, Equality and Fraternity.

The focus is on three dimensions of justice, namely:

  • Social Justice – all citizens are treated equally, without any adverse discrimination based on race, caste, religion, gender etc.
  • Economic Justice – minimising economic inequalities, providing livelihood resources to the vulnerable and marginalised.
  • Political Justice – equal rights to all citizens to participate in the political institutions and processes, and equal access to political power without any adverse discrimination based on caste, creed, religion etc.

Liberty

Preamble: Liberty

The preamble provides for a wide conception of liberty, that is,

1. Negative liberty – absence of arbitrary restraints on Citizens

2. Positive Liberty – creating conditions for the empowerment and self-actualization of citizens.

  • Liberty provided in Part Three of Indian Constitution – right to liberty of thought, expression, belief, faith and worship.
  • Article 21 Right to Life also provides many subsidiary rights to citizens e. g. Right to Privacy etc.

Equality

Preamble: Equality
  • Liberty and Equality share a complementary relationship for justice to be established.
  • Equality in the preamble does not focus on creating uniformity rather an egalitarian order.
  • It refers to equality of status and equality of opportunity.

Article 14 to 18 in the Indian constitution provide Right to Equality.

  • Equality before law and equal protection of law.
  • No discrimination on the basis or religion, race, caste, sex or place or birth in the matter of access to public places and public employment.

Affirmative action for marginalised and vulnerable classes – a testimony to the values of substantive equality enshrined in the constitution.

Fraternity

Preamble: Fraternity
Preamble: Fraternity
  • It is necessary to ensure the dignity of the individual and the unity and integrity of the nation.
  • The focus on the word DIGNITY is to ensure that the state will respect personality of each individual and considers it sacred.
  • The foundation of unity and integrity of the nation is the dignity of the individual.

Important Judgements Related to the Preamble

Berubari Case, 1960

The Supreme Court declared that “the Preamble is not a part of the Constitution.”

Sajjan Singh Case

the judgement of the Berubari case upheld.

Kesavanand Bharti Case, 1973

  • Earlier decision was reversed – The Preamble is PART of the constitution.
  • The preamble can be amended but without tangerine with the basic structure of the constitution.
  • Chief Justice Sikri observed, “Preamble of our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the guard and noble vision expressed in the Preamble.”
  • It is to be noted that Preamble is neither a source of power or limits the power overtly expressed in the constitution.

MCQs

1. The Preamble adopted on 26th November 1949, describes Indian state as

1. Sovereign

2. Democratic

3. Socialist

4. Republic

Answer:

I. 1 and 2

II. 2 and 3

III. 1,2 and 4

IV. All of the above

2. Find the incorrect statement.

1. Preamble is part of the constitution but cannot be amended.

2. Preamble is not part of the constitution.

3. Preamble can be amended with no exceptions.

4. The preamble is an explicit source of power for the government to carry out it socio-Economic agenda.

Answer:

I. 2 and 3

II. 1,2 and 3

III. 3 and 4

IV. All of the above

Developed by: