It is interesting to note that the Preamble, though the Constitution opens with it, was not the first to come into existence. It was the last piece of drafting adopted by the Constituent Assembly at the end of the first reading of the Constitution and then mentioned in the beginning of the Constitution.
The motion to adopt the Preamble was moved on 17th October, 1949. The President of the Drafting Committee moved the motion — “That the Preamble stands part of the Constitution.” The motion was adopted on November 2, 1949. The Preamble was added to the Constitution.
The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases on the subject:
1. Berubari Case (Held Not part)
2. Kesavananda Bharati Case (Held as part)
On the answer to the primary question — whether the Preamble is a part of the Constitution, would depend on the resolution of the next question, which follows as a corollary – whether the Preamble can be amended, if at all.
Preamble is not a part of the Constitution
Berubari Case was the main Reference “under Article 143(1) 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 a Bench consisting of eight Judges headed by the Chief Justic B.P. Sinha. Justice Gajendragadkar delivered the unanimous opinion of the Court.
The Court ruled that the Preamble to the Constitution, containing the declaration made by the people of India in exercise of their sovereign will, no doubt is “a key to open the mind of the makers” which may show the general purpose for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.
The holding in ‘Berubari case’ has been summed up later by Justice Shelat and Justice Grover. in Kesavanand case (vide para 534) as under:
A Preamble to the Constitution serves as a key to open the minds of the makers, and show the general purpose for which they made several provisions in the Constitution;
The Preamble is not a part of our Constitution;
It is not a source of the several powers conferred on government under the provisions of the Constitution;
Such powers embrace those expressly granted in the body of the Constitution ‘and such as may be implied from those granted’;
What is true about the powers is equally true about the prohibitions and limitations;
The preamble did not indicate the assumption that the first part of Preamble postulates a very serious limitation on one of the very important attributes of sovereignty viz. ceding territory as a result of the exercise of the sovereign power of the State of treaty-making and on the result of ceding a part of the territory.
Berubari case was relied on in Golak Nath case Justice Wanchoo, said:
Justice Bachawat, observed:
“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”.
Justice Bachawat, observed:
“Moreover the Preamble cannot control the unambiguous language of the Articles of the Constitution.”
Preamble as a part of the Constitution
It is a matter of regret, yet a matter of record, that constitutional history was overlooked by the eminent Judges constituting the Bench answering the Presidential Reference in ‘Berubari case’. The motion adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution.
The error came to be corrected in ‘Kesavananda case’ where the majority specifically ruled that the Preamble was as much a part of the Constitution as any other provision therein. Kesavananda Bharti case has thus created history.
It would be interesting to note what some out of the thirteen Judges constituting the Bench which decided ‘Kesavananda Bharati’ case had to say about the Preamble, For the first time, a Bench of thirteen Judges assembled and sat in its original jurisdiction hearing the writ petition.
Thirteen Judges placed on record 11 separate opinions. It is not an easy task to find out the ratio of the holding of the Court in Kesavananda Bharati case. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the majority in Kesavananda Bharati case leans in favour of holding,
that the Preamble to the Constitution of India is a part of the Constitution;
that the Preamble is not a source of power nor a source of limitations or prohibitions; and
the Preamble has a significant role to play in the interpreatation of statutes also in the interpretation of provisions of the Constitution.
When it is necessary to determine the width or reach of any provision or when there is any ambiguity or obscurity in the provision which needs to be clarified or when the language admits of meanings more than one the Preamble may be relied on. However, the Preamble cannot be utilised as an aid to interpretation when the language is plain and unambiguous.
An interesting argument advanced in Kesavananda case has been noted by Justice Y.V. Chandrachud, that the Preamble may be a part of the Constitution but is not a provision of the Constitution and therefore, you cannot amend the Constitution so as to destroy the Preamble.
Discarding the submissions Chandrachud, J. held that it was impossible to accept the contention that the Preamble is not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of the amending power under Article 368. The record of the Constituent Assembly leaves no scope for this contention. It is transparent from the proceedings that the Preamble was put to vote and was actually voted upon to form a part of the Constitution.
The Preamble records, like a sunbeam, certain glowing thoughts and concepts of history and the argument is that in its very nature it is unamendable because no present or future, however mighty, can assume the power to amend the true facts of past history. Though the true facts of past history cannot be changed yet the Preamble in other parts can be amended.
Keesavananda Bharati case is a milestone and also a turning point in the constitutional history of India. The divergence in judicial opinion on issues of grave constitutional significance which arose for decision in the case is amazing and interesting to any student of constitutional law.
Each of the learned Judges recording his opinion has chosen the choicest words and has been at his best while translating into words the dreams of our Founding Fathers and of “We, the people of India.”
Justice D.G. Palekar, held that the Preamble is a part of the Constitution and, therefore, is amendable under Article 368. He termed the submission that the Fundamental Rights are an elaboration of the Preamble, as “an overstatement and a half-truth”.
In the opinion of Justice H.R. Khanna, the Preamble is a part of the Constitution. He developed a concept of natural rights linked with cherished values like liberty, equality and democracy as enthroned in the Preamble. He agreed that such rights are inalienable and cannot be affected by an amendment of the Constitution for these are cherished values and representative of those ideals for which men have striven through the ages.
Justice Khanna, also rejected the submission that the Preamble is not a part of the Constitution but “walks before the Constitution”. In his opinion, the Preamble was as much a part of the Constitution as its other provisions and hence amenable to constitutional amendment excepting those provisions which relate to the basic structure or framework of the Constitution, and therefore to the extent to which the Preamble itself is amendable, its provisions other than those relating to basic structure cannot be read as imposing any implied limitations on the power of amendment.
Justice S.N. Dwivedi, expressing his concurrence with the conclusion arrived at by Justice A.N. Ray, held that the Preamble was a part of the Constitution. It is noteworthy that Justice Dwivedi held the Preamble to be a part of the Constitution and then also referred to it as a provision of the Constitution.
In conclusion, Justice Beg, held that there was no limitation on the powers of constitutional amendment found in Article 368.
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