Preamble as an aid to interpretation Essay
Preamble as an aid to interpretation
The Preamble to an act is the lodestar and guides those who find themselves in a grey dealing with its provision. According to the canons of statutory interpretation, the proper function of a Preamble is to explain certain facts which are necessary to be explained before the enactments contained in the Act can be understood. In short it contains a recital of the facts or state of the law for which it is proposed to legislate by the statute, the object and policy of the legislation and evils or inconveniences it seeks to remedy1.
But though it is a recital of some inconveniences, it does not exclude others, for which remedy is given by the enacting parts of the statute. Hence, where the language of the enacting section is clear and unambiguous, the terms of the Preamble cannot qualify or cut down the enactment. The preamble being a part of the statute can be read along with the other provisions of the act to find out the meaning of the words in the enacting provisions as to decide whether they are clear or ambiguous.
The preamble is expected to express the scope, object and purpose of the statute, remedying the sought out evils of that statute. Hence the court may look into the object as recited in the Preamble when a doubt arises in its mind as to whether the narrower or the liberal interpretation ought to be placed on the language used in an enacting provision of the Constitution, which is capable of bearing both the meanings2.
The preamble provides a key to unlock and explore the spirit of an act. Without it, a proper appreciation of the objectives and values that find place in our Constitution seems a remote possibility. Therefore, it is essential to turn to the various expressions contained in the Preamble for a better understanding and interpretation of the Indian Constitution. In sum, the Preamble shows the general purpose behind the several provisions of the Constitution but, nevertheless, it is never regarded as a source of any substantive power or limitation.
Importance and Nature of the preamble:- The preamble of a statute is not an enactment but a mere recital of the intent of its framers and the mischief to be remedied and it may be considered as a key to the construction of the statute whenever the enacting part is open to doubt: but it cannot restrict or extend the enacting part when the latter is free from doubt3.
The help from the preamble can be taken when the answer is in positive sense. It has the function to explain the certain fact. It has been unequivocally observed that if the language of an enactment is clear and unambiguous, the preamble as no part to play in Interpretation. But if more than one interpretation is possible of a particular provision, help can be taken from the preamble of the Act to find out its true meaning. In a case, Lord Hold4 held that preamble is not the part of the statute but Lord Coke said that preamble is a key to open the mind of the framer.
In a case, Justice Dier observed that preamble is the key to open the mind of the makers of the act and the mischief, they intended to suppress. In Brett v/s Brett5, the words of SIR JOHN NICHOLL: “It is to the preamble more specially that we are to look for the reason or spirit of every statute, rehearsing this, as it ordinary does, the evil sought to be remedied, or the doubts purported to be removed by the statute, and so evidencing, in the best and most satisfactory manner, the object or the intention of the legislature in making or passing the statute itself.” In Re Berubery case, it is said that the preamble is the part of the statute.
In the case of Att. Gen. v/s H.R.V6. Prince Ernest Augustus of Hanover Lord Normand said: “when there is a preamble it is generally in its recitals that the mischief to be remedied and the scope of the Act are described. It is therefore, clearly permissible to have recourse to it as an aid to construing the enacting provisions. The preamble is not, however, of the same weight as an aid to construction of a section of the Act as are other relevant enacting word to be found elsewhere in the Act or even in related Acts.
There may be no exact correspondence between preamble and enactment, and the enactment may go beyond, or it may fall short of the indications that may be gathered from the preamble. Again the preamble cannot be of much or any assistance in construing provisions which embody qualifications or exceptions from the operation of the general purpose of the Act. It is only when it conveys a clear and definite meaning in comparison with relatively obscure or indefinite enacting words that the preamble may legitimately prevail.
The courts are concerned with the practical business of deciding his, and when the plaintiff puts forward one construction of an enactment and the defendant another, it is the court‟s business in any case of some difficulty, after informing itself of what I have called the legal and factual context including the preamble, to consider in the light of this knowledge whether the enacting words admit of both the rival construction put forward.
If they admit of only one construction, that construction will receive effect even if it is inconsistence with the preamble, but if the enacting words are capable of either of the constructions offered by the parties, the construction which fit the preamble may be preferred.” Eton College v/s Minister of Agriculture7 was a case in which the enacting words were unambiguous and so could not be controlled by the preamble. In a case8, it has been held by the court that preamble legitimately refer to remove any ambiguity, to fixed the meaning of the words which may have more than meaning.
The majority judgement in Keshavanand9 and Minerva Mills10 strongly relied upon the preamble in reaching the conclusion that the power of amendment conferred by Article 368 was limited and did not enable parliament to alter the basic structure of framework of the constitution. In Burrankur Coal Company v/s Union of India11, the Supreme Court was required to interpret Section 4(1) of the Coal Bearing Areas (Acquisition and Development) Act, 1957 according to which (whenever it appears to the Central Government that coal is likely to be detained from land in any locality, it may be notification in the official gazette, give notice of its intention to prospect for coal therein:
The preamble of this Act, however reads, „An Act to establish in the economic interest of India greater public control over the coal mining industry and its development providing for the acquisition by the State of „unworked land‟ containing or likely to contain coal deposits or of rights in or over such land for the extinguishment or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matters connected therewith.
It was argued that on the basic of section 4(1) acquisition of only virgin land could be begun in view of the use of the words „unworked land‟ containing or likely to contain coal deposits or of rights in or over such land for extinguishment or modification of such rights accruing by virtue of any agreement, lease, licence or otherwise, and for matter connected therewith.
It was argued that on the basic of section 4(1) acquisition of only virgin land could be begun in view of the use of the word „unworked land‟ in the preamble could not be taken to distort the clear intention of the legislature found out from the unambiguous language of the provision. Therefore, the provision empowers the government to issue notification showing its intention to prospect any land including virgin land.
Preamble of our constitution:
We, the People of India It is the resolve of the people if India to constitute India into Sovereign, Democratic, Republic. From the Preamble of the Constitution it is clear that the framers attached importance to the sovereignty of the people. The ideas reassert the sovereignty and paramount of the people’s will over everything. The idea of republic indicates the representative character of its sovereign democracy. It means that the absolute power vested in the people of India under the Constitution is to be exercised by them through their duly elected representative in the various union and states legislatures. Sovereignty
Sovereignty means the independence authority of a State. It has two aspects, external and internal. The external sovereignty of India means that it is not subject to the control of any other State or external power; and secondly, that it can acquire foreign territory and also cede any part of the Indian territory, subject to limitations (if any) imposed by the constitution.
From the internal standpoint it means that is has the power to legislate on any subject only to the federal division of legislative powers and other limitations imposed by the Constitution, e.g., the fundamental rights. One of the corollaries emanating from the doctrine of sovereignty is that of parens partiae. It means that it has the power and obligation of the sovereign to protect the rights and privileges of its citizens.
The doctrine can be invoked both in international as well as domestic courts, in order to vindicate the rights of the aggrieved citizens who are unable to enforce their rights12. In India, though the doctrine of parens partiae is not embodied in any express provision of the constitution, it has been derived from the Preamble, read with the Directive Principles in Articles 38, 39 and 39A. The only limits to the exercise of this power by the legislature are the fundamentals rights and other constitutional limitations14. Liberty, Equality and Fraternity
Liberty should be coupled with social restraint and subordinated to the liberty of the greatest number for common happiness. Our constitution attempts to strike a balance between individual liberty and social control. Under the Indian Constitution, while basic liberties are guaranteed and individual initiative is encouraged, the state has got the role of ensuring that no class prospers at the cost of other class and no person suffers because of drawbacks which are not his, but social. Equality is considered to be the essence of modern democratic ideology.
The Constitution makers placed the ideals of equality in a place of pride in the Preamble. All kinds of inequality based on the concept of rulers and the ruled or on the basis of caste and gender, were to be eliminated. All citizens of India should be treated equally and extended equal protection of law without any discrimination based on caste, creed, birth, religion, sex etc.
Similarly equality of opportunities implies that regardless of the socio-economic situations into which one is born, he/she will have the same chance as everybody else to develop his/ her talents and choose means of livelihood. Fraternity assures the dignity of the individual and the unity and integrity of the nation. Finally, it is the spirit of brotherhood that is emphasised by the use of the term “fraternity” in the Preamble. India being a multilingual and multi-religious state, the unity and integrity of the nation can be preserved only through a spirit of brotherhood that pervades the entire country, among all its citizens, irrespective of their differences.
The word secular was inserted into the Preamble by the 42nd amendment act of 1976, during the Emergency. It implies equality of all religions and [religious tolerance]. India therefore does not have an official state religion. Every person has the right to preach, practice and propagate any religion they choose. The government must not favor or discriminate against any religion. It must treat all religions with equal respect. All citizens, irrespective of their religious beliefs are equal in the eyes of law.
No religious instruction is imparted in government or government-aided schools. Nevertheless, general information about all established world religions is imparted as part of the course in Sociology, without giving any importance to any one religion or the others. The content presents the basic/fundamental information with regards to the fundamental beliefs, social values and main practices and festivals of each established world religions. The Supreme Court in S.R Bommai v. Union of India held that secularism was an integral part of the basic structure of the constitution. Democratic
India is a democracy. The people of India elect their governments at all levels (Union, State and local) by a system of universal adult franchise; popularly known as ‘One man one vote’. Every citizen of India, who is 18 years of age and above and not otherwise debarred by law, is entitled to vote. Every citizen enjoys this right without any discrimination on the basis of caste, creed, colour, sex, religion or education. Republic
As opposed to a monarchy, in which the head of state is appointed on hereditary basis for a lifetime or until he abdicates from the throne, a democratic republic is an entity in which the head of state is elected, directly or indirectly, for a fixed tenure. The President of India is elected by an electoral college for a term of five years. The post of the President of India is not hereditary. Every citizen of India is eligible to become the President of the country.
Through this project conclusion can be drawn that the preamble plays a very important role as an aid to interpretation of a particular statute. It serves as a great help and acts as a key in understanding the mindset of the legislature while drafting a particular statute. Preambles have the potential to do a better job of communicating with citizens than the actual text of statutes. Preambles attempt to explain and persuade before the text of the law commands. It not only helps the judges, but a common person can also get a rough idea as to what a particular statute is about.
For example- the preamble of our constitution gives us a great idea about the mind set of our constituent assembly. It tells us clearly that they wanted a sovereign and secular nation. It declares the basic type of government and polity which is sought to be established in the country. It declares the great rights and freedom which the people of India intended to secure to its entire citizen. It throws light on the source of the Constitution ie. the People of India.
But , where the language of the enacting section is clear and unambiguous, the terms of the Preamble cannot qualify or cut down the enactment. The interpretation through preamble is a very important aid to interpretation but over use of it can also lead to injustice The Preamble shows the general purpose behind the several provisions of the Constitution but, nevertheless, it is never regarded as a source of any substantive power or limitation. It should never be used in those situations where the section is clear itself.
Literature survey:- M.P Tondan: The preamble of a statue is a key to understanding of it may legitimately be consulted to solve an ambiguity which may have more than one or to keep the effect of the statute with in its real scope. And preamble cannot either restrict or extend the enacting part when the language and the object and scope of the act are not open to doubt. Avtar Singh:
The preamble can be an aid in constructing a provision when the provision is ambiguous. It can afford useful assistance to certain legislation intention but cannot control otherwise the plain meaning of a provision. G.P. Singh: The preamble is expected to express the scope, object and purpose of the act more comprehensively than the long title. It may recite the ground and cause of making the statute, the evils sought to be remedied or doubts- which may be intended to be settled.