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QUESTION OF THE PREAMBLE: HOW FAR CAN THE PARLIAMENT GO WITH AMENDING IT?

INTRODUCTION AND ORIGIN

The Preamble to the constitution is arguably the most important document in the Constitution of India. The word preamble is derived from the Latin ambulare whose meaning translates ‘to walk’.[1] Similarly, the preamble is a document that ‘walks us’ into the ideas and objectives enshrined in the Indian Constitution. The objectives of justice, liberty, equality, and fraternity[2], in a wide ambit, are secured to the people residing in India.

The Preamble of the Indian Constitution was the result of an Objectives resolution as drafted by the first prime minister of the country Jawahar Lal Nehru and was passed on January 22nd, 1947. The preamble of the constitution was put to the vote before the assembly, and a consensus on the principles that emerged among the leaders of the nation regarding those principles was acknowledged by a democratic process of voting in the assembly hall after serious and lengthy debates on its important terms. The successful process of making the constitution was brought to fruition in the year 1950, and after the passing of nearly a three – fourth of century, the constitution has stood the test of time.

However, there needs to be a recognition of the fact that the governments of the country have not often followed the constitution in letter and spirit and have tried to amend the constitution and its provisions in their favor and for political reasons. The 42nd amendment of the constitution inserted the words ‘Socialist’ and ‘Secular’ in the preamble and the phrase unity and integrity of the nation.[3]

The political interference by parliament in the constitution and its interpretation has been a major conflicting area where the judiciary has tried to define the scope of such interference, which is the area of discussion in this piece.

AMENDMENTS IN THE PREAMBLE

The preamble of the Constitution of India has been amended only once in the year 1976 by virtue of the 42nd amendment of the constitution.[4]  The said amendment is responsible for the changes previously mentioned in the introduction. The adding of the word Socialist has raised eyebrows among many a scholar of the constitution and learned men in the field. The amendment as made by the parliament can be notably argued to be inspired by reasons which are not necessarily mere legislative in nature.

This realization prompts us to the question the extent of such amendments and the kind of effect which they are likely to have on the application of provisions of the constitution.

So, can the parliament amend the preamble in any way it wants? The answer is both yes and no.

The parliament in India, with the powers enshrined in article 368 can amend the whole of the preamble.[5] Looking at the literal interpretation of the article 368, there does not prima facie exist any limitation in the said article which restricts the amendments to be made in the constitution. This article however does prescribe different procedures for amendments which may affect different provisions of the constitution and may consequentially change provisions which the constituent assembly intended to be changed only with a certain amount of difficulty.

The literal interpretation of the article does not prescribe upon the constitutional limitation of any amendment made to other provisions and elements of the constitution such as the preamble, which can be possibly made with simple majority, but can have undesirable effects on the basic structure and the constitution’s functioning.

This situation was rectified in the landmark case of Kesavananda Bharti where the supreme court interpreted the article 368 and proclaimed that the preamble of the constitution cannot be amendment in a manner which contradicts the basic structure of the Constitution.[6] The said proclamation is based on the interpretation of the word ‘amendment’ as it exists in the article 368. Hence, any amendment under the article, which is a provision in the constitution, is subject to the judicial review and to the test of basic structure doctrine.

RECENT CRITICISMS AND PLEAS TO AMEND THE PREAMBLE

Certain political groups in the country have been pushing the demand to include and exclude certain provisions from the preamble, which they deem unnecessary or against their political beliefs. Contentions concerning the word ‘Socialist’ and ‘Secular’ are sounded most often.

The preamble has only been amended once to inscribe the words “socialist” and “secular” by the Constitution (Forty-second amendment) Act, 1976. Secularism is one of the basic features of the Constitution[7] and so are ‘Rule of Law’, ‘Rule of Equality’; “republican and democratic form of government”.[8]

Recent criticisms by the vice president and the law minister regarding the basic structure doctrine and Kesavananda Bharti judgment have ignited the debate further.

However, it is important to reiterate the conundrum that any amendment based on such opinions will also have to stand the test of basic structure doctrine and cannot be done until and unless their constitutionality is in consonance with the original intentions of the constituent assembly and the basic structure doctrine.

CONCLUSION

The Constituent Assembly during its initial deliberations pondered over the conceptualization of the objectives and guiding principles which would function as the Constitution’s foundation and reflect the Constitution’s democratic spirit. The objectives resolution, drafted and presented by the first Prime Minister stated objectives of the nation including guarantees of justice, social, economic and political; equality of status, of opportunity and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality.[9]

The beauty of the resolution, in the words of B. Shiva Rao was that it is:

“a solemn pledge to the people to be redeemed in the constitution they would frame: the resolution was a declaration, a firm resolve, a pledge, an undertaking  ̶  and, for all, a dedication. It had been drafted after mature deliberation and no effort had been spared to avoid all controversy.”[10] The objectives resolution, whose provisions ultimately led to the formation of the preamble, is proof of the genius of the Constituent Assembly. The parliament and state legislatures are bound by the provisions of the Constitution and its interpretations. The Preamble is an indispensable part of the constitution and the parliament’s amendments to it cannot go beyond the spirit of the constitution.

Author(s) Name: Mohak Chaudhary (Gujarat National Law University, Gandhinagar)

References:

[1] Ambulare, Wiktionary. Available at: https://en.wiktionary.org/wiki/ambulare#:~:text=(intransitive%2C%20humorous%20or%20rare%20and,humorous%20or%20literary)%20deambulare%2C%20passeggiare (Accessed: January 25, 2023).

[2] India Const. Preamble.

[3] India Const. Preamble, amended by The Constitution (Forty-Second Amendment) Act, 1976.

[4] India Const. Preamble, amended by The Constitution (Forty-Second Amendment) Act, 1976.

[5] India Const. art. 368.

[6] Vol 1, 16th edition, DD Basu, Shorter Constitution of India.

[7] Sri Adi Visheshwar of Kashi Vishwanath Temple, Varanasi v State of Uttar Pradesh, (1997) 4 SCC 606.

[8] Vol 1, 16th edition, DD Basu, Shorter Constitution of India.

[9] Constituent Assembly debates on 22 January, 1947 – Indiankanoon.org. Available at: https://indiankanoon.org/doc/618894/ (Accessed: January 25, 2023).

[10] First Edition, Justice R.C Lahoti, Preamble: The Spirit and Backbone of the Constitution of India, 2004