Preamble: Is it Justiciable?

The term “preamble” refers to the introduction of the Constitution’s preface. The Preamble to the Indian Constitution is based on Jawaharlal Nehru’s “Objective Resolution,” which was endorsed by the Constitution’s framers. The preamble of the Constitution does not say much, but it does indicate the reason for the adoption of the Constitution. The Preamble established the goals of Liberty, Equality, and Fraternity, and these guiding values are the Constitutional spirit, which is embodied in every Article of the Constitution. The Preamble is a statement of purpose that is important for interpreting constitutional provisions and should be considered when determining the constitutionality of a statute or executive action. Even though the preamble is the soul and spirit of the constitution, it is not without controversy. For example, whether the Preamble is a part of the Constitution or not, and whether or not a citizen of a nation to which he is subject can sue in a court of law if his rights as stated in the Preamble have been violated. Also, whether the Preamble is a part of the Constitution is contingent on the answer to the next question, which is a corollary to the first: whether the Preamble can be amended. The paper provides a brief overview of the Preamble’s authority and analyses its justiciability by responding to the above-mentioned questions on Preamble.

About Preamble

Preamble is the constitution’s preface. It encapsulates the core concept and ideals upon which the Indian Constitution is founded, namely, moral, political, and religious principles. The Preamble is the key to comprehending the thinking of the constitution makers, because it expresses the dreams of the founding fathers. The Preamble does not bestow any authority, but it does give the Constitution direction and purpose. It enumerates the Constitution’s overall goals. The fundamentals of the constitution are contained in the Preamble. The main goals of legislation are spelled forth in the preamble of an act.

Preamble emphasizes on the following-

  • The head of state, REPUBLIC, is not a hereditary monarch.
  • DEMOCRATIC, because the constitution is based on the will of the people.
  • Because no country has dominion over it, it is called SOVEREIGN.
  • The goal of a SOCIALIST is to eliminate inequity in position and opportunity.
  • SECCULAR, due to the fact that all religions are equal.
  • Fundamental Rights and the DPSP define the content of JUSTICE, LIBERTY, EQUALITY, and FRATERNITY.

 Our Constitution’s Preamble serves several purposes. It identifies the authority that the constitution stems from. It also lays forth the goals that the constitution aims to achieve and promote. Whether the state is socialist in character or secular in character, Constitution’s guide for the state’s functioning is the same. It encourages the state to take actions to implement the policy’s directive principles. For example, the then-government justified the land ceiling policy by citing the state’s socialist nature, as stated in the preamble. It aids the judiciary in making decisions based on the philosophical and intellectual underpinnings of the decisions. For example, in the recent Sabarimala[1] and Triple Talaq[2] cases, the Supreme Court stated that secularism and equality, as stated in the preamble, are the underlying Indian concept that must be followed. It serves as a code of conduct for Indian citizens. For instance, the preamble’s principle of equality and brotherhood compels citizens to remain secular, give up sectarian matters, and so on.

Can Preamble be Amended?

In the landmark case of Kesavanada Bharati v. State of Kerala[3], this subject was brought for the first time before the Supreme Court. In that case, the Attorney-General contended that the Preamble may be modified under Article 368’s[4] amending power. It was claimed that because the Preamble was a part of the Constitution, it could be changed just like any other provision. The petitioners, on the other hand, argued that Article 368’s amending power is limited. The preamble implies that the power of amendment is limited. The Preamble contains the fundamental components or characteristics of our Constitution. As a result, amending power cannot be utilized to eliminate or harm these fundamental elements listed in the Preamble. It was argued that because the Preamble is not part of the Constitution, it cannot be changed. The Supreme Court, on the other hand, held that the Preamble is a component of the Constitution, and therefore the Berubari[5] ruling was incorrect on this point.

On the topic of whether the Preamble can be amended, the majority concluded that it can because it is a part of the Constitution, but only if the “basic element” in the Preamble cannot be changed. The structure of our Constitution is based on the core principles indicated in the Preamble. If any of these aspects are eliminated, the structure will not be able to exist, and the Constitution will not be the same, nor will it be able to keep its identity. The Preamble says that the people of India resolved to establish a Sovereign Democratic Republic in their land. No one can claim that these words and expressions are in any way unclear. An amending power cannot be considered to provide Parliament the authority to remove any of these fundamental and basic policy characteristics. As a result, it is argued that the court’s decision is correct. The amending power cannot change the Constitution to the point where it loses its status as a “Sovereign Democratic Republic.” It can only be accomplished by destroying the Constitution.

Is Preamble a part of the Constitution?

In several circumstances, the Supreme Court of India has ruled that the Preamble is not an operative section of the Constitution and so cannot be used as a source of power. It has a limited scope of application and should only be used when there is any ambiguity or where the goal or meaning of any enactment is unclear. The Preamble cannot be used to control, qualify, or restrict if the enabling part of the Constitution, i.e., the operational part, is explicit and unequivocal. In other words, where the operational section’s wording or provisions are unambiguous, full effect should be given to the active portion, even if such provisions appear to conflict with the Preamble’s requirements. Two premises are extremely evident: one, that a preface may provide important information as to what the state wishes to achieve; and another, that if an enactment is itself clear and unambiguous, no preface may qualify or cut down the enactment. However, in India, the Preamble’s proper duty is to explain and recite certain facts that are required before the enactment included in a Parliamentary Act may be understood. The Preamble is frequently used to limit the scope of certain constitutional terms and to shed light on specific facts. When a doubt occurs, the Preamble assists in resolving the ambiguity or connotation of words that may have multiple meanings.

AK Gopalan Case-

In the case of AK Gopalan v. the State of Madras[6], it was argued in 1950 that the Preamble to the Constitution, which seeks to give India a democratic constitution, should be the guiding force in its interpretation, and that any law passed under Article 21[7] of the Constitution should be declared void if it violates the principle of natural justice, because otherwise the so-called “fundamental rights” to liaise with the government would be violated. The Supreme Court’s majority bench dismissed this argument, ruling that the term “law” in Article 21 relates to positive or state-made law rather than natural justice, and that the meaning of the language of Article 21 cannot be changed by referring to the language of Article 21.

Berubari Case-

The Berubari[8] case was relied upon Golak Nath case[9]. Wanchoo J. said- “On a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations on the bar to amend the Constitution contained in Article 368”. Bachawat, J. observed- “Moreover the Preamble cannot control the unambiguous language of the articles of the Constitution”. The Presidential Reference “under Article 143(1)[10] of the Constitution of India on the implementation of the Indo-Pakistan Agreement Relating to Berubari Union and Exchange of Enclaves,” which came up for consideration by an eight-judge bench led by Chief Justice B.P. Singh, was the subject of the Berubari case. The Court’s unanimous opinion was delivered by Justice Gajendragadkar. The court decided that while the Preamble to the Constitution, which contains the declaration made by the people of India in exercising their sovereign will, is undoubtedly “a key to open the mind of the makers” and may reveal the general purposes for which the various provisions in the Constitution were enacted, but it is not a part of the Constitution. Constitutional history was missed by the renowned judges who made up the Bench responding the Presidential Reference in the Berubari case, which is a matter of regret but also a matter of record. The Constituent Assembly’s motion declared unequivocally that the Preamble is an integral part of the Constitution. In the Kesavananda case, the error was corrected, and the majority clearly decided that the Preamble was as much a part of the Constitution as any other provision.

Bommai Case-

The Preamble of the Constitution is part of the essential framework of the Constitution, according to a majority of nine judges in the Bommai[11] case of 1994. A Proclamation made under Article 356(1)[12] is subject to judicial review if it violates the Constitution’s basic structure. It was said in the judgment that any proclamation made under Article 356(1) that contradicts any of the basic qualities enumerated in the Constitution’s Preamble is likely to be declared illegal. A further extension of this innovation is that a political party that makes religious appeals in its election manifesto violates the basic framework, and the President may impose President’s Rule on a Governor’s report that a party has made such an appeal. Three of the nine judges believe that the word “secularism” in the Constitution’s Preamble is a part of the Constitution’s basic framework.

Kesavananda Bharati Case-

The case of Kesavananda Bharati[13] has made history. For the first time, a bench of 13 judges convened and heard the writ petition under its original jurisdiction. Thirteen judges weighed in with 11 different opinions. To the extent necessary for the purposes of the Preamble, it can be safely concluded that the majority in the Kesavanada Bharati case leans in favor of holding that the Preamble to the Indian Constitution is a part of the Constitution, is neither a source of power nor a source of limitations or prohibitions and has a significant role to play in the interpretation of statutes, as well as the interpretation of the Constitution. As Jagan Mohan Reddy, J. said – “The Preamble to the Constitution which our Founding Fathers have, after the Constitution was framed, finally settled to conform to the ideals and aspirations of the people embodied in that instrument, have in ringing tone declared the purposes and objectives which the Constitution was intended no sub serve.”

Y.V. Chandrachud, J. noted an interesting argument advanced in the Kesavananda case that the Preamble may be a part of the Constitution, but it is not a provision of the Constitution, and thus we cannot amend the Constitution to remove the Preamble. Chandrachud, J., dismissed the arguments, holding that it was impossible to accept the argument that the Preamble is not a provision of the Constitution because it is a part of the Constitution and is not beyond the reach of the Constituent Assembly. The Preamble was placed to a vote and was really voted on to become a part of the Constitution, as evidenced by the proceedings. The argument is that the Preamble, like a sunbeam, preserves certain incandescent thoughts and notions of history, and that it is unamendable by its own nature since no present or future, no matter how powerful, can assume the capacity to change the genuine realities of previous history.

The Kesavanada Bharati case is both a watershed moment and a turning point in India’s constitutional history. The Preamble, according to D.G. Palekar, J., is a part of the Constitution and thus amendable under Article 368. He called the claim that the Fundamental Rights are an expansion of the Preamble “an exaggeration and half-truth.” Without a doubt, the Constitution is meant to serve as a vehicle for achieving the stated objectives. The preamble, in the opinion of H.R. Khanna, J., is a part of the Constitution and precedes it.” Because the heading “The Constitution of India” was placed above the Preamble, S.D. Dwivedi, J., agreed with the conclusion reached by A.N. Ray, J., and held that the Preamble was a part of the Constitution. Any inherent and implied constraints on the amending power cannot be read from the Preamble. It is worth noting that Justice Dwivedi declared the Preamble to be a part of the Constitution before referring to it as a provision of the Constitution. In light of Article 368 of the Constitution, Justice Beg dismissed the argument that a creature of the Constitution could not possibly have the authority to construct or recreate the Constitution, as Article 368 specifically allows for the extension or contraction of the scope of amendment powers. The Constitution makers kept the amending authority wide, elastic, and expansible in order to address the difficulties of the times posed by swiftly changing social, political, economic, national, and international conditions and situations. Finally, Beg J. concluded that Article 368 did not impose any limitations on constitutional amendment powers.

Minerva Mills Case-

The Supreme Court, adopting the Kesavananda principle, invalidated Clauses (4) and (5) of Article 368 introduced by the Forty-Second Amendment Act because they were in breach of the Constitution’s basic structure in the Minerva Mills[14] case (1980). As a result, the Parliament can amend every component of the Constitution as it stands now, but not the core structure of the Constitution, which includes the Preamble.

Indra Sawhney Case-

The Supreme Court of India, in the 1992 Indra Sawhney[15] case, emphasized the importance of the Constitution’s Preamble. The Supreme Court, praising the founding fathers’ role in constitutionalizing India, ruled that the republic was- “founded with the four-fold objective of securing to its citizens justice, liberty, equality and fraternity. Statesman of the highest order . . . belonging to the fields of law, politics, and public life, came together to fashion the instrument of change, the Constitution of India. They did not rest content with evolving the framework of the State, they also pointed out the goal-end and the methodology for reaching the goal. In the Preamble, they elaborated the methodology to be followed for reaching the goal.”

The court described the Preamble as “a turning point in history,” adding that it was also “a key to the minds of the writers of the Constitution.” The premise is straightforward: because the Preamble preserves the founding fathers’ essential beliefs, it provides guidance to future legislators in terms of what is considered constitutionally most appropriate at a given historical juncture. This has been proven by the court on multiple occasions. The most important judicial decision was the Kesavananda decision in 1973, which declared the Preamble to be an inherent part of the Indian Constitution.

Is Preamble Enforceable by Court of Law

Our Constitution’s Preamble is a part of the constitution; however, it is not enforceable by the courts. The Preamble is illegitimate. This means that courts cannot issue orders compelling the Indian government to adopt the Preamble’s ideals. The Preamble can be used by the courts to explain and clarify other parts of the constitution. The Supreme Court held this position in the Berubari Union and Kesavananda Bharati cases.

Conclusion

The words “socialistic” and “secular” were not in the original Preamble to India’s Constitution; they were inserted following a constitutional amendment in 1976[16], probably to emphasize the importance of these ideals in government; it also reflects the regime’s nature. Old concepts can, by implication, be rejected if new ideas can be adopted. Is it therefore correct to believe that the Preamble is sacred? This is a difficult question to answer. However, as several court decisions have demonstrated, these notions are inviolable as long as they are central to the Preamble. The Supreme Court has often stated that the Preamble is a part  of the Constitution, emphasizing that the concepts embodied herein can never be ignored or undercut when determining the constitutional validity of executive and legislative acts. Since the 1950 AK Gopalan case, India’s Supreme Court has consistently emphasized the relevance of the Preamble in determining whether a piece of legislation or executive action is justiciable.

This is a solid and persuasive constitutional stance as long as Article 21 of India’s 1950 Constitution guarantees “process established by law,” which also indicates that without it, the situation may not appear to be favorable and favorably tilted for the Preamble. After examining multiple aspects as well as multiple judgments and points of view in connection to the Preamble, we may conclude that the active expressive term preamble has a limited scope, whereas the passive expressive phrase preamble functions more authoritatively. Which means that, while the Preamble does not bestow authority on legislation, it may only operate as a director, it also restricts the authority of legislation because the Constitution and other laws should be understood in light of the preamble’s vision, not beyond or contrary to it. It has been concluded that the preamble is not justiciable and cannot be enforced in a court of law, and that states cannot pass laws based on the preamble. Although the Preamble is not enforceable in court, it describes the Constitution’s goals and serves as a guide for interpreting Articles when the language is unclear. While the Preamble may not be justiciable in and of itself, any test or challenge to laws and amendments made in violation of the Preamble’s principles must evaluate the Preamble’s content in order to evaluate the Constitutionality of the subject matter in question.


[1] Indian Young Lawyers Association vs The State of Kerala, (September 28, 2018).

[2] Shayara Bano vs Union of India And Ors. Ministry of…, (August 22, 2017).

[3] Kesavananda Bharati… vs State of Kerala And Anr, (April 24, 1973).

[4] Article 368 (Amendment of the Constitution) in The Constitution of India, (1949).

[5] The Berubari Union And … vs Unknown, AIR 1960 SC 845, (March 14, 1960).

[6] A.K. Gopalan vs The State Of Madras.Union Of …, 1950 AIR 27 (May 19, 1950).

[7] Article 21 (Right to life and personal liberty) in The Constitution Of India (1949).

[8] The Berubari Union And … vs Unknown, AIR 1960 SC 845, (March 14, 1960).

[9] Golaknath & Ors vs State Of Punjab & Anrs, 1967 AIR 1643 (February 27, 1967).

[10] Article 143 (Advisory Jurisdiction) in The Constitution Of India (1949).

[11] S.R. Bommai vs Union Of India, 1994 AIR 1918 (March 11, 1994).

[12] Article 356 (President’s rule) in The Constitution Of India (1949).

[13] Kesavananda Bharati… vs State of Kerala And Anr, (April 24, 1973).

[14] Minerva Mills Ltd. & Ors vs Union Of India & Ors, 1980 AIR 1789 (July 31, 1980).

[15] Indra Sawhney Etc. Etc vs Union Of India And Others, Etc. …, AIR 1993 SC 477 (November 16, 1992).

[16] The Constitution (Forty-second amendment) Act (1976).


Author: Baisakhi Rout from JGLS, Sonipat.


Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s