Invoking the Preamble in times of protest

On January 26, 1950, exactly 71 years ago, we adopted, enacted and gave ourselves a Constitution which is first and foremost a social document. On this anniversary of the Constitution, when India is witnessing mammoth reforms, it’s pertinent for us to talk about the Preamble.

The Preamble records the aims and aspirations of the people of India. Considering that India is a pluralistic society of immense diversity — with different social, religious, cultural and linguistic expressions — it is significant to discuss the ideals of the Preamble.

In recognition of the fact that the Preamble was really speaking on behalf of the people of India, the Constituent Assembly began the Preamble with the words: “We, the people of India”. Alladi Krishnaswami Ayyar, while replying to K Santhanam’s question in regard to the date of the coming into force of the Preamble, said: “The Preamble will come into force in all its plentitude when the Constitution comes into force." (C.A.D. Vol. X, p. 418). So, the Preamble also came into force on January 26, 1950, as it is clear from the phrase “the remaining provisions of this Constitution” after November 26, 1949.

The Preamble, which is an identity card of the Constitution, is more akin in nature to the American Declaration of Independence (July 4, 1776) than to the preamble to the Constitution of the United States, opined justice Hidayatullah in the Sankari Prasad [1952] S.C.R. 89] case.

The Preamble gives direction and purpose to the Constitution which is reflected in the Fundamental Rights and Directive Principles of State Policy. The Preamble is the part of the Constitution as laid out in the Kesavananda Bharati case. This magnum opus case of the Indian judiciary also stated that the Preamble recites that the aim of the Constitution is to constitute India into a Sovereign Democratic Republic and to secure to “all its citizens” justice — social, economic and political — liberty and equality.

Today, the Preamble is being read out during social protests as an affirmation of rights and as a mark of dissent. It is important to understand that the philosophy of key terms like liberty, equality and fraternity which is delineated in the Preamble are sacred to all of us. We are under the oath of the supremacy of the Constitution, and rule of law mandates its abiding adherence not only for those who govern but also by the people at large.

Edifice of democracy

President Ram Nath Kovind, in his address to the nation on the eve of Republic Day, mentioned that “the wise men and women who framed the Constitution of India chose to insert key terms at the very beginning of the Constitution that is in the Preamble to build the foundation on which the edifice of our democracy rests. In fact, these were the values that guided our freedom struggle”.

All the framers of the Constitution and those involved in the freedom struggle had common aspirations — that is, to ensure justice, liberty, equality and fraternity to the people of India. Their dreams were aimed at ensuring a magnificent future for Bharat.

In the Kesavananda Bharati case, it was discussed that the voice of the people speaking through the Constituent Assembly constituted a new “Republic”, which was both “Sovereign and Democratic”. And the Preamble sought to secure the noble objectives mainly through the Fundamental Rights instituted in Part III and the Directive Principles of State Policy embodied in Part IV of the Constitution.

The idea of key words like democratic, justice, liberty, equality and fraternity have been cherished from time immemorial. Our Constituent Assembly debates contain the key words used in the Preamble, and are perpetual philosophies which help us to get our due and acts as an idea of life.

The Preamble acts as a constant reminder to lawmakers and policy-makers while formulating legislation and public policies. Joseph Story’s view of the function of the preamble, that it is a key to open the mind of the makers, as to the mischiefs which are to be remedied and the objects which are to be accomplished are very relevant.

The Preamble embodies Solus Populi Seprema Lex, which means the good of the mass of citizens is the supreme law, in our Constitution as well. On the face of it, the Preamble puts the four objectives of justice, social, economic and political, by means of which “the people” of India constituted “a sovereign democratic Republic”, in the Constitution of India.

So, the people must be free to speak for their rights and that must be fulfilled as guaranteed by the Constitution. However, rights are always correspond with duties. According to American jurist Wesley Newcomb Hohfeld, the term rights must be confined to only that which exists corresponding to a duty.

Therefore, in India’s context, reading the Preamble to mark a protest does not fulfil the purpose, rather it creates more confusion regarding jurisprudential insights versus contemporary interpretation of the key terms used in the Preamble. The right to ask for restoration of ideals guaranteed by the Constitution is a good thing but one must first fulfil the obligation of one’s duties.

As the Preamble indicates, it was to secure the basic human rights like liberty and equality that the people gave unto themselves the Constitution and these basic rights are an essential feature of the Constitution; the Constitution was also enacted by the people to secure justice, political, social and economic.

It is, of course, the task of every generation to seek out the meaning of these values for its times. These key principles should light our path to development because the Preamble records like a sun-beam the glowing thoughts and concepts of history which outline the objectives of the whole Constitution.

The writer teaches at Law Centre, University of Delhi. Views are personal