CONSTITUTIONAL LAW

[06/09/2021 | MONDAY]

WHETHER A PART OF THE CONSTITUTION?

- Re1 Berubari case (AIR 1960 SC 845)
 Invoked the advisory jurisdiction of the SC
 Preamble cannot override the express provisions of the
Const.
 Preamble not a part of Const.
 Preamble cannot be regarded as a source of substantive
powers
 Limited application: can be resorted to in case of
ambiguity in provisions of the Const.
 Question of law in this case:
(i) Does Parliament have the right to give away
a part of the country to another country?
(Art. 1 of IND Const. does not talk about
the right to secede a part of the country)

A: the Parliament has the power to secede a

part of the country if they do not have
right over the territory.
(ii) Who has the power to amend constitution?
(Art. 368 of Ind Const.)

A: Art. 368 (before 1971) only read as

Procedure for Amendment; power was not
included yet.
- Kesavananda Bharti v State of Kerala (AIR 1973 SC 1461)
 SC overruled Re Berubari judgement
 Preamble was a part of the Const. History of Preamble
ignored in Re Berubari
 Preamble of extreme importance. Const. to be read &
interpreted acc to vision expressed in Preamble
 Preamble of Indian Const. was enacted & adopted by
constituent assembly by the same procedure as the rest
of the Const.
 Although it was presented in its initial form of
Objective Resolution as the first substantive issue to
be discussed. It was finalized as the last item in the
Const. making process to ensure its consistency with
the rest of the Const. because “Preamble forms part of
the Constitution” – Dr. Rajendra Prasad in the CAD
1
Re - Referral
CAN PREAMBLE BE AMENDED?
- Can be amended under Art. 368 (as it is considered as a
part of the Const.)
- But the basic structure of Preamble (and the Const.)
cannot be amended (Kesavananda Bharti case)