Sovereignty and Preamble Essay
Sovereignty and Preamble
On analysing the Preamble according to its qualitative characteristics it can be divided into three parts. The first part of Preamble is said to be declaratory, whereby the people of India adopted, enacted and gave to themselves this Constitution in their Constituent Assembly. The second part is resolutionery, whereby the people of India solemnly resolve themselves into a sovereign, democratic republic. The third part is promissory in nature, it is a promise to secure to all the citizens; justice, liberty, equality and fraternity together with dignity of the individual and unity and integrity of the nation.
Another way of looking at the structure of the Preamble could be by referring to the three events which gives three messages to the past, present and future. “We, the people of India, having solemnly resolved in our Constituent Assembly this 26th day of November, 1949” is record of past event that has already happened. The following part “do hereby adopt, enact and give to ourselves this Constitution” is a simultaneous event i. e. , present event. And after that the rest of the Preamble is: “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; And to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;” is meant as future or destiny of the “We, the people”, “nation”, “the republic, that is, India” and it outlines the hopes and aspirations of the people of India, a solemn promise made on that day not only to themselves but also the generations to come and posterity. 1 We, the people of India
In the Constitution it has nowhere been explicitly stated that all the powers on ultimate analysis vest in the people of India or the residuary powers of the sovereignty vests in the people. There was a controversy over the issue whether the Constituent Assembly could truly be called representative of the people of India. The Constitution was not subjected any ratification by the direct vote of the people. The expression “we the people” has been borrowed from the Constitution of Eire and the Constitution of United States of America. In Union of India Vs.
Madan Gopal2 it was held that our Constitution as it appears from the Preamble derives it authority from the people of India. This is based on the contents of the Preamble itself. However the fact remains that neither the Constituent Assembly nor the people of India ever doubted or questioned the representative character of the Constituent Assembly and their acting on behalf of the people of India. Crafting of Preamble With regard to the crafting of the Preamble, it can be observed that every word has been cautiously chosen. The order in which the words have been arranged is with proper significance and suggestion.
It is pertinent at this stage to refer to what K. M. Munshi said in Indian Constitutional Documents, Vol. I: Pilgrimage to Freedom to delve into the minds of framers of the Constitution. As compared to the Objectives Resolution passed in December 1946, the Preamble reflected the changes that had come over the country as a result of the Partition and the integration of the Indian States. 3 The republic is visualized in the Preamble as a form of government of the people, for the people and by the people, through their freely elected representatives.
This was the reason that it was found essential to qualify sovereignty of the republic by the word “democratic”. 4 The content of the word “democratic” was made clear by emphasizing “liberty, of thought, expression, belief, faith and worship and equality of status and of opportunity”. An independent sovereign state might well become dictatorial or develop into what is euphemistically called “people’s government”. 5 The Preamble on the one hand emphasized on “the unity of the nation” and on the other hand, as much on the “dignity of the individual.
” The Union is implied with an obligation by the use of the word “dignity” to respect the personality of an individual, creating conditions where the citizen could seek individual self-fulfilment. It is observed that K. M. Munshi has tried to deal with the concept of sovereignty in more detail as we see in the Preamble and Constitution. He has tried to identify where sovereignty rests factually and juristically in our Constitution. K. M. Munshi observes; “The Union Government is not sovereign, because its powers only from the Constitution.
Parliament and State Legislatures are not sovereign; legislation can be struck down by the Supreme Court. The Supreme Court is not sovereign, though it can declare the Acts of Parliament and state legislatures unconstitutional, for it derives its powers from the Constitution. The States in India are not sovereign; the residuary powers are with the Union, as also the express power of altering their boundaries. Parliament has also the power of superseding the legislature and the Government of a State in an emergency. ”6
It could therefore be concluded that Constitution is sovereign but in a juristic sense only. If it were treated as a sacrosanct then only the sovereignty could be maintained. Within its framework itself people will get accustomed to carry their political, social, economic activities. I believe what Justice R. C. Lahoti writes as to the place of the people of India. On the forehead of the Constitution, the people of India are given a predominant place. It is not just a resolution but a solemn resolution by the people of India in the Preamble.
If we analyse the phrase “sovereign, democratic, republic” then we would observe that “sovereign” and “democratic”, they both qualify “republic”. It is evident that both words “sovereign” and “democratic” are of equal importance. It could have been phrased as “democratic, sovereign, republic” but that was not done. It will be very difficult for democracy to “survive” without assigning sovereignty. Sovereignty along with being the quality of democracy is also the source of democracy. Further, to qualify as democratic, republic should be preceded by “democratic”.
Hence, the order of words in the phrase is; “sovereign, democratic, republic”. Why a sovereign, democratic, republic? The answer to this lies in the following line—to secure to all its citizens and justice, liberty, equality fraternity. Every citizen is guaranteed justice, liberty, equality fraternity. It conveys the fact that what the citizens had lacked earlier is now assured by the Constitution. The words justice, liberty, equality fraternity are carefully placed in that order. Liberty is meaningless without justice and it would also not survive without justice.
Justice and liberty would secure equality. Justice and liberty would express themselves into equality. In the words of Dr. Ambedkar, fraternity means; “A sense of common brotherhood of all Indians- of Indians being one people. It is the principle which gives unity and solidarity to social life. It is a difficult thing to achieve. ” Sans justice, liberty and equality, fraternity would be a wishful thinking. The four words placed in the order reflect the working of the Constitution as to what had been the ideology at the beginning. To the question whether sovereignty exists in people of India, M. H. Beg, J.
drew a distinction between “political sovereignty” and “legal sovereignty”, and held whole of legal sovereignty was transmitted from British Parliament to the people and territory of this country in British India and to Constituent Assembly which spoke in the name of the People of India. 7 He held that legal sovereignty lies in the Constitution whereas the political sovereignty resides in the people of India. The concept was developed by Beg,J. that the “sovereignty of constitution” is a feature” “inherent in a genuine whole. ” Without thinking there cannot be any expression. It is the liberty of though which enables liberty of expression.
Belief occupies a place higher than thought and expression. 8On the liberty of thought and expression rests the belief of the people, according to Justice Lahoti. If we place it on the three angles of a triangle, thought and expression would the bases of the triangle where belief would be placed at the upper angle. 9 Belief, Thought and Expression Belief Thought Expression If there is absence of expression, belief and thought then there is lack of faith. Respect for thought, belief, expression and faith gives meaning to worship and such worship would not pose any threat and any risk to liberty of one and all. Justice, liberty and equality
If we secure justice, liberty and equality the fraternity is assured. Fraternity can only be held forward and furthered, it cannot be inculcated, it can only be promoted. The prime constituent of fraternity is dignity of the individual and fraternity assured dignity of the individual. Both are interdependent and intertwined. It is difficult for unity and integrity of the nation to survive unless the dignity of every individual is guaranteed. It is impossible to assume that citizens would stand united and integrated where there is a potent risk to their individual dignity, it has not been guaranteed or it has been taken away.
It is the regard and respect by every individual for the dignity of the other that brings unity and integrity of the nation almost. Justice . Equality Liberty Justice promises to give people what they are entitled to in terms of basic rights to food, Clothing, housing, participation in the decision-making and living with dignity as Human Beings. The Preamble covers all these dimensions of justice – social, economic and political. Besides, the granting of political justice in the form of universal adult franchise or the representative form of democracy.
The Preamble also mentions about liberty of thought and expression. These freedoms have been guaranteed in the Constitution through the Fundamental Rights. Though freedom from want has not been guaranteed in the Fundamental Rights, certain directives to the State have been mentioned in the Directive Principles. The importance of the judiciary in India in this connection must also be highlighted in this country. In this connection reference may be made to two decisions of the Supreme Court viz. , Govt of A. P. and others vs. P. Laxmi Devi10 and Deepak Bajaj vs. State of Maharashtra and others11.
In these cases, the Supreme Court has emphasized the importance of liberty for progress, and has observed that the judiciary must act as guardians of the liberties of the people, protecting them against executive, or even legislative arbitrariness or despotism. Liberty, Equality and Fraternity are not to be treated as separate entities but a trinity. They form a union in that and to divorce one from the other is to defeat the very purpose of Democracy. 12 Fraternity, Dignity, Unity and Integrity In the background of India’s multi-lingual, multi-cultural and multi-
religious society and keeping in view the partition of the country, the framers of the Constitution were very much concerned about the unity and integrity of our newly independent country. There was a need for harmonious co-existence among various religions, linguistic, cultural and economic groups. Inclusion of phrases like ‘dignity of individuals’, ‘fraternity among people’ and ‘unity and integrity of the nation’ in the Preamble highlight such a need. Chapter II Preamble- Whether Part of Constitution? Though the Constitution opens with the Preamble it is quite amusing to note that the Preamble was not the first to come into existence.
At the end of the first reading of the Constitution it was in fact the last piece of drafting adopted by the Constituent Assembly and then it was seated at the beginning of the Constitution. On 17th October, 1949 the motion to adopt the Preamble was moved. Amendments to the Preamble were suggested but all of them were negated. The motion was moved by the President – “That the Preamble stands part of the Constitution. ”The motion was adopted on November 2, 1976. The Preamble was added to the Constitution. 13 Whether the Preamble is part of the Constitution or not, this vexed issue was dealt in two leading cases on that subject: Berubari Case14
Keshavananda Bharti Case15 Whether the Preamble is considered to be the part of Constitution, on the to this crucial question would depend the resolution of the following question, which as a corollary follows that whether the Preamble can be amended at all. “Under Article 143(1) of the Constitution, Berubari Case16 was the Presidential Reference on the implementation of Indo-Pakistan Agreement Relating to Union and Exchange of Enclaves which came up for consideration by a Bench consisting of eight Judges headed by the Chief Justice B. P. Sinha . The unanimous decision of the Court was given by Justice Gajendragadkar.
Quoting story, the eminent constitutional jurist, the Court rules that the Preamble to the Constitution, containing the declaration made by the people of India in the exercise of their sovereign will, no doubt is “a key to open the mind of the makers” which may show the general purposes for which they made the several provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution. Willoughby on American Constitution was quoted as saying— “It has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments.
Such powers embrace onlt those expressly granted in the body of the Constitution and such as may be implied from those so granted. ”17 What had been held in Berubari Case18 was concisely stated in the Kehsavananda Case19 by Shelat and Grover, JJ. as under: “ 1. A preamble to the Constitution serves as a key to open the minds of the makers, and shows the general purpose for which they made the several provisions in the Constitution. 2. The preamble is not the part of our Constitution. 3. It is not a source of several powers conferred on government under the provisions of the Constitution; 4.
Such powers embrace those expressly granted in the body of the Constitution ‘and such as may be implied from those granted’; 5. What is true about the powers is equally true about the prohibitions and limitations; 6. 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 sovereign power of the State of treaty-making and on the result of ceding a part of the territory. 20 ” Berubari Case21 was relied on in Golak Nath case22 , Wanchoo, J.
said— “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. ” Bachawat, J. observed— “Moreover the Preamble cannot control the unambiguous language of the articles of the Constitution. ” Justice Lahoti observes that while answering the Presidential Reference in Berubari Case23 it is a matter of regret and also a matter of record that the constitutional history was overlooked by the eminent Judges constituting the Bench.
The motion that was adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution. In the Keshavananda Bharti Case it was expressly ruled by the majority that like any other provision of the Constitution Preamble was also the part of the Constitution. It is interesting to observe what some of the judges had to say about the Preamble in Keshavananda Bharti Case. This case has created history. A special bench of 13 judges was constituted to hear the case (the case was heard for 5 month and the court gave the longest judgement running into 595 pages).
11 separate opinions were placed by thirteen judges placed on record. To the extent necessary for the purpose of the Preamble, it can be safely concluded that the majority in Keshavanada Bharati case leans in favour of holding, (i) that the Preamble to the Constitution of India is a apart of Constitution; (ii) that the Preamble is neither a source of power nor a source of limitations or prohibitions; (iii) the Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of Constitution.
24 It is a very difficult task to find out as what is the ratio in Keshavananda Bharti Case. I believe with what Justice R. C. Lahoti further says; 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. But when the language is clear and unambiguous then the Preamble could not be made use of as an aid of interpretation. 25