Lesson 1- Philosophy of the Indian Constitution, Preamble and Basic Features Important Notes

 

Lesson 1- Philosophy of the Indian Constitution, Preamble and Basic Features

Objective resolution

Objective Resolution was moved in the first session of the Constituent Assembly on 13, December, 1946 by Jawahar Lal Nehru. It was adopted by the Assembly on 22, August, 1947 after debate and discussions. The resolution was,in fact, the text defining the aims of the Constituent Assembly which was responsible for deciding what had to go in the constitution making. The resolution presented a moral commitment to the assembly to establish a sovereign democratic republic with equality of status and equal opportunity. The resolution was, of course, the basis for the Preamble which is known as the spirit and soul of the Indian Constitution. Objective Resolution gave direction to the constitution framers.

 

Basic Structure doctrine:

The Preamble says that people are the ultimate authority and the constitution emerges from them. The word emerges is used rather than emerged because the constitution can be amended according to time but not the ‘basic structure’. What does basic structure of the Constitution mean? Why does it matter anyway? The objectives mentioned in the Preamble defines values and ideals to be the norms followed by the state and the subjects, this constitutes the basic elementof the Constitutions.

In Berubari case, the Court agreed that Preamble was in the minds of the framers. Justice Gajendragadkar said that Preamble was not a part of the Constitution. It does not confer any substantial powers upon the legislatures or the other organs of the state. Later in another important judgment, Sajjan Singh v. State of Rajasthan, the Court said that the Preamble has been marked by precision, is of deep deliberation and the framers of the constitution attached special significance to it. The Court suggested that Preamble should be considered as part of the Constitution. In Golakh Nath v. State of Punjab, the Court said that the Preamble epitomizes principles on which the government was to function, it also called it ‘soul’of the Constitution-eternal and unaltered.

 

In the Minerva Mills, 1980, the Supreme Court ruled that Parliament could not use its limited power and turn it into an absolute power, and upheld the basic structure doctrine. In the same light, Justice Y.V. Chandrachud struck down the provisions of the 42nd amendment that were not repealed by 44th amendment.

In 1976, ‘socialist’, ‘secular’, ‘unity of the Nation’ were added to the Preamble by the forty second amendment act in 1976. How these words could be added to the Preamble when the Court said that basic structure of the Constitution cannot be amended and Preamble is part of the Constitution. It was believed that these additions did not make any substantial difference to the nature of the Indian politics. Also, the forty second amendment which was passed by the Parliament in the time of emergency was highly criticised.

 

The Preamble

Preamble is the introduction to the Constitution. It is the spirit and soul of the Constitution. It is the mould in which the constitution is cast. The preamble to the Constitution contains the values which were valid and still are in the present, vital for Indian politics and social life. The spirit of the Preamble will be relevant for the times to come. People that framed the Constitution hoped that values should percolate down to the grassroots. Preamble presents a kind of bird’s eye view of these key values. In these key values and concepts there is an establishment of new social order based on justice which is social, economic and political, liberty of thought and expression, belief, faith, worship, equality of status and opportunity and most importantly fraternity.

Empowerment of the people as an agenda of the Constitution is as important as the rule of law character of the document. It is not merely a normative piece but it must be actually in action and result. The Constitution directs the state to promote special areas of education and economics interest of the weaker section as directed by the Preamble and the objective resolution. As discussed above that the key words make the Constitution come alive.

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;

Andto 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

Sovereignty: India is proclaimed to be sovereign by the Preamble to the Constitution of India. The British crown no longer has possession and it no longer has any dependency on it; it cannot be called a colony or a dominion. To be a sovereign both, externally and internally, India not only needs to be free from foreign rule but also to take decision on its own for the people and the territory without any interference. India possesses supreme political power as an independent authority and has a right to govern itself also, it can acquire foreign territory and cede any part of Indian territory in accordance to the Constitution.

The words of the preamble reflects the source of authority of the people. From this authority of the people. From this authority emerges the will of the people. Popular sovereignty is significant because the Constitution expressed it when it derives the ultimate authority of all government institutions from the will of the people. This authority is updated in regular intervals via the process of elections.

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Ideals:

Socialist: The word socialist was added in the constitution in the forty second amendments in 1976 but even before the term was added, the Constitution had a socialist content in the form of certain Directive Principles of State Policy Articles 38, 39, 40. Socialist pattern of society pushing forward a socialist order. It has been explained at length in five-year plan documents.

The Constitution Bill which was the Forty fifth Amendment Bill tried to define ‘Socialist’. Socialist would mean ‘free from all forms of exploitation-social, economic and political’. Unfortunately, the Bill was passed without the definition

Democratic socialismlike that of Indian polity has faith in a 'mixed economy' where both public and private sectors co-exist 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 and Indian socialism is a blend of Marxism and Gandhism, leaning heavily towards Gandhian socialism.

The Courts read word ‘socialist’ with Articles 14 and 16, to deduce a fundamental right to equal pay for equal work. The courts also struck down a statute which failed to achieve the socialist goal to the fullest extent. After the addition of the word, they would interpret the Constitution and lean more in the favour of nationalisation and state ownership but this came to an end with the advent of liberalization and disinvestment in public sector.

 

Secular: The term 'secular' was added by the 42nd Constitutional Amendment Act of 1976. Just like the word socialist, 'secular state' is not mentioned in the Constitution but the Constitution establishes a secular state guaranteeing fundamental rights to freedom of religion in Articles 25 to 28. The Constitution guarantees a person’s freedom of religion and conscience and freedom for one who has no religion.

The idea of secularism in India is different from the western notion of secularism. Donald Eugene Smith defines Indian secularism, he writes, “The secular state is a state which gives individual and corporate freedom of religion, is not constitutionally connected to religion, nor does it seek either to promote or interfere with religion. “The Indian Constitution embodies a positive kind of secularism where all religions have the same status and support from the state.

Indian Constitution gives full opportunity to all persons to profess, practice and propagate religion of their choice. Constitution restraints the State from discriminating on grounds of religion. Single citizenship is assured to all persons irrespective of their religion. In Bal Patil v Union of India, 2005, The Supreme Court said that the concept of secularism to put it in a nutshell is that the State will have no religion. Interestingly, secularism is translated in hindinot as dharmnirpeksha but as panthnirpekhsa which literally means independent of sects and in the sense, state neutrality in the matters of religion.

 

Democratic: Democracy comes from Greek words ‘demo’ which means ‘the people’ and ‘kratos’ means ‘government’. Democratic polity is basic feature of our Constitution, it cannot be amended. 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 on certain grounds are the manifestations of the democratic character of the Indian polity.

The term 'democratic' is used in the Preamble in the broader sense embracing not only political democracy but also social and economic democracy. In mere political terms, democracy means the right of every citizen to freely vote in election. The principle of ‘one person one vote’ applies here. But it does not only mean so. It calls upon establishment of equality of status and opportunity. It guarantees social and economic justice. Dr. Ambedkar, in Constituent Assembly Debates, said that political democracy is nothing without social and economic democracy.

 

Republic: The term 'republic' in our Preamble says that India has an elected head called the President, elected indirectly for a fixed period of five years. All powers of the head is derived from the Constitution. The word ‘republic’ comes from a Latin word ‘Res publicus’ meaning ‘of the people’. The idea of republic emphasises on the people to be supreme with no privileged class and no discrimination admission to public offices. The head of the state is elected by people and in a republic form of government, the people choose the representatives. In the Federalist Papers, Madison says, “Republic is a government which derives its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices during pleasure, for a limited period, or during good behaviour.”

 

Justice: Preamble places the idea of Justice above other principles of liberty, equality and fraternity. The promise of principle of justice is for all citizens. The term 'justice' in the Preamble pushes forward social, economic and political justice by various provisions of Fundamental Rights and Directive Principles.

Economic justice is reflected in Article 39 which directs the State to try secure all citizen to have an adequate means of livelihood, ownership and control of the material resources of community are so distributed as best to subserve the common good, wealth is not concentrated and there is equal pay for equal work. Economic justice would then mean equal treatment. And reduction of gap between the rich and the poor

Political justice is essentially reflected in the right to participation of people in political processes and institutions without any discrimination. Article 39A states that the State shall secure that the operation of the legal system promotes justice, on a basis of equal opportunity, and other way, to ensure all opportunities for securing justice are not denied to any citizen by reason of economic or other disability.

 

Liberty: The term 'liberty' means the absence of restraints. The activities of individuals to be free from government intervention. The Preamble to the Indian Constitution pushes forward a positive notion of liberty where government has to provide opportunities for the development of individual personalities. For the Preamble, liberty does not only means absence of restraints, it also aims at securing liberty of thought, expression, belief, faith and worship, through their Fundamental Rights, enforceable in court of law, to all Indian citizen.

These restrictions are made to regulate fundamental rights in the way that it does not endanger security of the state, friendly relations with Foreign States, public order, decency or morality or in relation to contempt of court, defamation or incitement to an offence.

Equality: The term 'equality' means the absence of special privileges to any section of the society. Positive notion of equality means providing adequate opportunities for all individuals without any discrimination. The Preamble secures equality of status and opportunity to all citizens of India in all dimension of life; civic, political and economic. In the legal aspect of equality all citizens are equal before law.

 

Fraternity and Dignity: The high ideals of justice, equality and liberty are meaningless if fraternity is not promoted. Indian fraternity find its strength in provisions of common citizenship which aims at nation building with strong fellowship. Dr. Ambedkar in Constituent Assembly debates said that fraternity means a sense of common brotherhood of all Indians-of Indians being one people. He believed that the principle of fraternity, which gives unity and solidarity, was difficult to achieve. It was essentially reasoned on the inherent socio-economic inequality in India which makes the need for the principle of fraternity direr.

Fundamental Duties in Article 51A makes it 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, to uphold and protect the sovereignty, unity and integrity of India and to promote harmony and brotherhood.

 

Features of Indian Constitution:

Written constitution: Indian Constitution is one of the longest written constitutions. Parliament essentially operates within the limits prescribed in the Constitution. The document also includes ordinary legislatures and established political convention which other constitutions did not include.

Amenability: Indian Constitution is neither rigid nor flexile but a mixture of the two. In 368 lies the provision for amendment of the text in the Constitution. There are two types of amendment processes.

Federal system of governance: Indian Constitution establishes a federal system of government with a constitutional division of powers between the union and the states. However, it does contain a number of a-federal features such as a strong centre, a single Constitution, single citizenship, appointment of state governor by the Centre. It should be noted that the word ‘federation’ hasn’t been used in the text of the Constitution.

Fundamental Rights: Fundamental Rights promotes idea of political democracy. Most importantly, Article 13 prohibits the State from making a law that either takes away totally or abrogates in part a fundamental right. They are enforceable by the courts for their violation.

Judicial Review: The Constitution of India adopts an independent Judiciary with the power of judicial review which restricts the supremacy of the Parliament. The Constitution itself gives power of Review to the judiciary, both Supreme Court and High Court. It should be noted that Judicial Review is itself a basic feature of the constitution and it cannot be amended.

Transformative constitutionalism: Indian Constitution aims at transforming the society and to fulfil this aim, it empowers the State. Transformative constitutionalism essentially means the disruption of existing social structures with the means of law. Karl Klare coined the term and defined it as a long term project of constitutional enactments, interpretation and enforcement committed to transforming a country’s political and social institutions and power relationships in a democratic participatory and egalitarian direction. In similar vein one can observe the features of the Indian Constitution which are transformative in nature.

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