LECTURE 1- PREAMBLE

TEXT OF THE PREAMBLE

“Preamble is the Horoscope of our Sovereign Democratic Republic”
“We, THE PEOPLE OF INDIA1, having -K M Munshi (Member of Drafting Committee of CA)
solemnly resolved to constitute India
into a SOVEREIGN2 SOCIALIST5 ➢ Although Preamble forms an Introductory part of the COI, it was made
SECULAR6 DEMOCRATIC3 REPUBLIC4 & adopted at the last, after the conclusion of Constitutional Debates
and to secure to all of its citizens:
➢ Constitutional Debates for framing Constitution of India were started
JUSTICE7, social, economic, & political;
on 9th December 1946
LIBERTY8 of thought, expression, belief
faith and worship; ➢ Aims & Objectives Resolution (Moved by Pt Jawahar Lal Nehru), on
9
EQUALITY of status and of 13th December 1946
opportunity; and to promote among
them all; ➢ These resolutions formed a source/ a Blue- Print of the Preamble of
India, & was later adopted on 22ndJanuary 1947 by the Constituent
FRATERNITY assuring the dignity of
Assembly
the individual and the unity and
integrity of the Nation;
➢ Aims & Objectives Resolution, thus, became the source of preamble
IN OUR CONSTITUENT ASSEMBLY this of India (NOT PREAMBLE, only source)
twenty- sixth day of November, 1949,
do HEREBY ADOPT, ENACT, AND GIVE
TO OURSELVES THIS CONSTITUTION”. CONSTITUTIONAL AIMS & OBJECTIVES ADOPTING AO
DEBATES RESOLUTION (JLN) RESOLUTIONS
(9/12/1946) (13/12/1946) (22/01/1947)

Inserted in 42nd Constitutional

Amendment, 1976 (by Ms. Indira
Gandhi) ➢ Structure of Preamble was adopted for the first time by USA in its
Constitution (First written constitution in the world); many countries
subsequently followed the structure of preamble. India also adopted the
Is Preamble a plan according to concept from USA
which the constitution was written?
➢ Constitution of India was enforced on 26/01/1950 (to commemorate
No, because it was written in the Poorna Swaraj Movement, which started on 26/01/1930)
last. First whole COI was written,
then summary was made, its
reflection; it came to be known as
Preamble
Explanation to Text of the Preamble

Why Preamble is Important? 1

We the people mean the Source of power of India, is the people of India
(aka AUTOCTHONY which means ruled by the soil, meaning ruled by the
In order to understand the COI,
Indigenous people of India. In order words, India is not a dominion i.e., no
Preamble is referred
country controls India)
Preamble acts as the light house, as
identification card of COI

Preamble does not give any power;

it provides a guidance in case when
something written in COI is not clear
 Constituent Assembly was formed to make the COI

Members of CA were elected by Members of Provincial Legislative Council (now MLAs), not
people

Sanction to form CA was provided by 2nd Cabinet Mission, 1946 (ENGLAND, not people)

When Permission by England, then why the text WE THE PEOPLE?

WE THE PEOPLE is showing the phenomenon of AUTOCTHONY

India got Independence through India Independence Act, 1947

As per IIA, 1947, on 18/07/1947, ‘On the appointed day of 15 August 1947, British India shall be
divided into two autonomous dominions, INDIA and PAKISTAN’

Autonomous Dominion means Independence was subjective on the pendency of Constitution to

be adopted by the respective dominions; till that day, King of England will be the Head of State.
Once Constitution is adopted, then India will no longer be dominion

Also, as per IIA 1947, once the constitution had been framed, it had to be sent to British for
approval; since the SOURCE OF POWER was 2nd Cabinet Mission of England

Dr Ambedkar did not send (or forgot to send) the drafted constitution to British for approval citing
“Procedural Error”; and hence, the word “WE THE PEOPLE” stayed (otherwise 2nd Cabinet Mission
would have been written)

On 26/1/1950, India did not remain dominant, since COI was Enforced
➢ 2
SOVEREIGN
o No influence of any external power wrt dealing with the country
o UNO (India became a member in 1945) recommendations are not binding on India, since their
recommendation not mention in COI. These are merely recommendations which have no binding on
the sovereignty of India
o In 1949, JLN proposed to join Common wealth (Group of Countries which were at any point in time
were colonies of British). Nehru justified joining Commonwealth citing otherwise India will be alone.

Constitution was not drafted by 15/8/1947; so, from the period between 15/08/1947 till adoption of
Constitution of India, Government of India Act 1935 will act as the Interim Constitution of India (as
per India Independence Act, 1947)
Since COI was drafted by Indians, it had to be declared to the world that India would be Sovereign
hereafter. It did so by drafting Article 395 at the end of the Constitution- ‘From 26 January 1950, we
are repealing both India Independence Act 1947 & Government of India Act 1935’; India will follow
its own constitution
On 26 January, hence, Military might is displayed in the presence of Head of India (President), to
express the Sovereign status of India
 Besides it would be an extra-legal arrangement without any obligation or liability; it could be left at
any point in time

o Are Indians Sovereign? - No, because Indians are bound by Law. Only case when Indian is sovereign
(i.e. not under the influence of anyone), is while casting vote during elections (it is known as Universal
Adult Suffrage)

➢ 3
DEMOCRATIC
o Abraham Lincoln- “Democracy is Government by the people, of the people & for the people”
o In other words, people are the ones who will choose the decision of the country

DEMOCRACY

INDIRECT DEMOCRACY DIRECT DEMOCRACY

People will elect representatives People will debate, discuss &

through Free, Fair & Timely Elections. decide regarding any issue (Small
In other words, elected countries where referendum and
representatives will take decisions in plebiscite is possible like
place of people. This is Indirect Cantonment area of Switzerland,
Democracy. Australia etc.)

Democracy is essentially a majority

rule, whoever gets more votes, gets
more representation and forms the
govt, & the remaining will form
opposition

Democratically elected govt wields

unlimited powers, & it could become
dictatorship by numbers. Hence, in
order to limit the democratic powers,
the word REPUBLIC is inserted to bring
COI into effect (Concept of LEX REX-
Law is the king of kings; this concept
has been derived from the concept of
Republic)

➢ 4
REPUBLIC (Dual concept of Republic for India)
o 1st Concept- Republic means no one is above the law. Republic introduces the concept of LEX REX
which states Supremacy of the Constitution. It stops the country from becoming Dictatorship
 o 2nd concept- Head of the state in India shall be an elected representative (No dynast as in case of UK).
Benefit is that the source of power remains with the people (We the People); that means, people will
control ultimately.
o Democracy is important, but republic is more important to be adopted

➢ 5
SOCIALIST
o In 1950, if the word socialism had been specifically inserted in COI, then it would have projected to
the world that it is Marxist Socialism (Resources in the state are in the control of the state which it
will distribute equally to all people). So instead of writing the word socialist, BR Ambedkar explained
it in the form of the statement “EQUALITY OF STATUS & OF OPPORTUNITY”

o Socialism, in context of India, is Gandhian Socialism (as inserted by 42nd CA 1976). It means, resources
will not be distributed equally, rather, opportunity to earn resources will be distributed equally (not
the wealth of Ambani, but the chance to become Ambani).

o Insertion of word Socialism through 42nd CA, 1976, was merely a political statement; the constitutional
significance of it is absolutely zero (Since it was already explained by Dr BR Ambedkar)

➢ 6
SECULAR
o In 1950, if the word Secular had been specifically inserted in the COI, then it would have again
projected to the world that India is Western Secular (Means no interference of State in Religion & No
interference of Religion in the affairs of the state)(Previously State & Religion used to govern the
country; however they separated eventually, as a result of FRENCH REVOLUTION. EG: Head of church
cannot be women declared by church, although discrimination yet no interference from state)

o Dr Ambedkar explained that India is watchfully ambivalent. State has no religion & neither does it
stops anyone from practicing any religion. However, if any anti national activity is carried out in the
name of religion, state will interfere & punish. In India, no divorce between state & religion. EG:
Sabarimala case

o So, he rather included Text as “Liberty of thought, expression, belief of faith & worship”

o Indira Gandhi inserted the word Secular through 42nd CA 1976, only to make political statement. It has
no constitutional significance

➢ 7
JUSTICE- Social, Economic & Political
o Why Justice in priority? Because;
o Justice is the final epitome of civilized society
o Justice has been enforced by passing Fundamental Rights & Directive principles of State Policy

➢ 8
LIBERTY of thought, expression, belief, faith & worship
o Thought & Expression- Indicated in Article 19 of Fundamental Rights
o Belief, Faith & Worship- Indicates Secular Spirit
 o Is there any difference between Liberty & Freedom? Yes, Liberty is an inherent right to individual,
whereas freedom is provided by someone else
o Liberty is of 2 types:
▪ Positive Liberty- Gives an individual the best opportunity to become the best possible of
oneself
▪ Negative Liberty- State will not be able to limit your personal liberty by arbitrary action
(Article 20) (Laissez Faire)

➢ 9
EQUALITY of
o Status and of Opportunity- Indicates Socialist Spirit
o and to promote them all;

➢ FRATERNITY assuring the dignity of the individual and the unity & Integrity of the nation
o Fraternity- Brotherhood amongst us, i.e., all Indians are Fraternal Brothers & Sisters. Common
spirit being single citizenship in India (vs USA where Dual citizenship exists)
o Although Indians are fraternal brothers & sisters, they carry Individual rights too

➢ In our Constituent assembly this 26th day of November 1949, do hereby adopt, enact, and give to
ourselves this constitution (autochthony)

BERU BARI CASE

Division of India & Pakistan (EP & WP) happened on the basis of Radcliffe Line
However, it missed New Jalpaiguri Region of West Bengal which should have been gone to EP.
This are is known as BERU BARI
The region was subsequently demanded by Pakistan in 1952
In 1958, as per Nehru- Noon Agreement, JLN committed to cede BERU BARI to Pakistan
Parliament of India, however, advised JLN that as per Article 3 of COI, Union Govt can form new
state, and Increase or Decrease the boundary of the state; however, ceding away of any region
is not specifically mentioned anywhere; so not possible
JLN however stated that Preamble mentions that India is a Democracy & since he is
democratically elected representative of the country, and holds the Parliament, they can take
decisions which are in the interest of the nation. According to him, Preamble is alsoa part of the
Constitution
Dr Rajendra Prasad (President of India; President of Constituent Assembly), used his power
under art 143, known as Presidential Reference, and asked SC, whether Preamble is a part of the
constitution?
SC in BERU BARI CASE (1960) adjudicated that Preamble is not a part of the Constitution. So,
Article 3 has to be amended in order to cede such any areas to that effect
Accordingly, JLN amended Article 3 in 9th CA, 1960; and handed over Beru Bari to Pakistan

KESAVANANDA BHARATI vs UNION OF INDIA- SC held that judgement in Beru Bari case was not
correct; and they overruled the Beru Bari Judgement. They adjudicated that PREAMBLE IS AN
INTEGRAL PART OF THE COI
➢ When Indira Gandhi amended Preamble through 42nd CA 1976; she essentially changed the summary or
Photograph of COI; i.e., changing preamble, has no impact on COI. Changing Preamble (photograph) is
Fraud without changing the COI. Hence, Justice SS Seerwei severely criticized the amendment

➢ Preamble is amendable, but it should not be amended; since it is a summary, not a plan. A change in plan
entails change in COI, but a change in summary doesn’t necessarily mean change in COI