See discussions, stats, and author profiles for this publication at: https://www.researchgate.

net/publication/352689961

constitution of india (1)

Research · June 2021

DOI: 10.13140/RG.2.2.36233.77924

CITATIONS READS
0 758

1 author:

Varushi Mittal
University of Delhi
9 PUBLICATIONS 90 CITATIONS

SEE PROFILE

All content following this page was uploaded by Varushi Mittal on 23 June 2021.

The user has requested enhancement of the downloaded file.

“WE LIVE UNDER THE CONSTITUTION BUT THE
CONSTITUTION IS WHAT JUDGES SAY IT”.
- BY VARUSHI
 ABSTRACT

When judges change the meaning of the Constitution and

create new rights or grant Government powers that it was
not intended to have, they reduce the right of people to
govern themselves through the representative government
process. Historically, these are the circumstances in which
judges and their decisions have been fairly criticized.
It is rare for sitting Supreme Court Justices to appear
before the Senate Judiciary Committee, so I thank both of
you For sharing with us.

1
 Acknowledgement
Foremost, I would like to express my sincere gratitude to my advisor
Prof. Shahid Raza for the continuous support of my research, for his
patience, motivation, enthusiasm, and immense knowledge. His guidance
helped me in all the time of research and writing of this research
paper. I could not have imagined having a better advisor and teacher.
Besides my advisor, My sincere thanks also goes to Mr. D. Kumawat,
for the sleepless nights ,who have been supportive of my career
goals and who worked actively to provide me with the
protected academic time to pursue those goals. As my guide and
mentor, hehas taught me more than I could ever give him credit
for here. He has shown me, by his example, what a good
mentor(and person) should be.

Nobody has been more important to me in the pursuit

of this project than the members of my family. I
wouldlike to thank my parents, whose love and
guidance are with me in whatever I pursue. They are
the ultimate role models.

2
 “Long years ago we made a tryst with destiny and now the
time comes when we shall redeem our pledge, not wholly or in
full measure, but very substantially. At the stroke of the
midnight hour, when the world sleeps, India shall awake to life
and freedom.'' - -JAWAHARLAL NEHRU, just before midnight
on 14 August 1947.

3
"The seat of Justice is the seat of God"

4
The Preamble Of Indian Constitution
The Constitution of India begins with a Preamble. The Preamble
contains the ideals, objectives and basic principles of the
Constitution. The salient features of the Constitution have
evolved directly and indirectly from these objectives which flow
from the Preamble.
Is Preamble A Part of Constitution
The constitution of India was framed by a Constituent Assembly.
This Assembly was an indirectly elected body. It had laid down
certain ideals to be included in the Constitution. These ideals
included commitment to democracy, guarantee to all people of
India- Justice, Equality and Freedom. It had also proclaimed that
India will be a Sovereign Democratic Republic.

The Constitution of India begins with a Preamble. The Preamble

contains the ideals, objectives and basic principles of the
Constitution. The salient features of the Constitution have
evolved directly and indirectly from these objectives which flow
from the Preamble.
Preamble To The Constitution Of India
History: It is interesting to know that the Preamble, though the
Constitution opens with it, was not the first to come into
existence. It was the last piece of Drafting adopted by the
Constituent Assembly at the end of the first reading of the
5
Constitution and then seated in the beginning of the
Constitution. The motion to adopt the Preamble was moved on
17th October, 1949. Several amendments were suggested to the
Preamble but they all were negated.

At the end, the President moved the motion- “That the Preamble
stands part of the Constitution.” The motion was adopted on
November 2, 1946. The Preamble was added to the
Constitution.[1]
One of the members of the Constituent Assembly (Pandit Thakur
Das Bhargav) rose to poetic heights when he said, "The
Preamble is the most precious part of the Constitution. It is the
soul of the Constitution. It is a key to the Constitution. It is a
jewel set in the Constitution."

6
WE, THE PEOPLE OF INDIA, having solemnly resolved 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;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of
November,1949,do HEREBY ADOPT, ENACT AND GIVE TO
OURSELVES THIS CONSTITUTION.

A preamble is a preliminary statement of the reasons which have

made the passing of statute desirable and its position is located
immediately after the title and date of issuing the presidential assent.
A preamble is also used to introduce a particular section or group of
sections. Almost every modern constitution inaugurates with a
preamble, which it begins with and which embodies the objectives or
basic purposes which it has been adopted.
Apart from the enactment of the preamble of the constitution, the
preamble of a statute sets out the main objectives which the
7
legislation is intended to achieve. It is a sort of value- laden
introduction to the statute and many a time, it is very helpful in
understanding the policy and legislature. It expresses “what we had
thought or dreamt for so long. The real value of constitution and law
would, therefore, depend on the extent to which the stated objectives
of the preamble have been achieved.

The Importance of the Preamble

The wording of the Preamble highlights some of the fundamental
values and guiding principles on which the Constitution of India is
based. The Preamble serves as a guiding light for the Constitution
and judges interpret the Constitution in its light. In a majority of
decisions, the Supreme Court of India has ruled that neither it nor
any of its content is legally enforceable. The Preamble plays a
pivotal role when there is ambiguity in provisions of any Article or
interpretation becomes confusing. This is when the spirit of the
Preamble becomes the guiding factor. The Preamble is stem, root
and source of the constitution
The preamble serves the following points:-
1. It indicates the sources from where the constitution has com
viz. the people of India.
2. It contains the enacting clause which brings into force the
constitution.
3. It declares the freedoms which the people of India intended to
secure for all citizens and the basic type of government and polity
which was to be established.

8
Explanation of some of the important words in the Preamble
Sovereign:-
The word sovereign means supreme or independent. India is
internally and externally sovereign - externally free from the control
of any foreign power and internally, it has a free government which
is directly elected by the people and makes laws that govern the
people.

Socialist:-
The word socialist was added to the Preamble by the 42nd
amendment act of 1976, during the Emergency. It implies social and
economic equality. Social equality in this context means the
absence of discrimination on the grounds only of caste, colour,
creed, sex, religion, or language. Under social equality, everyone
has equal status and opportunities. Economic equality in this
context means that the government will endeavor to make the
distribution of wealth more equal and provide a decent standard of
living for all. This is in effect emphasizing a commitment towards the
formation of a welfare state.
India has adopted a mixed economy and the government has
framed many laws to achieve the aim.

Secular:-
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
9
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 religion. 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.
10
 WE LIVE UNDER THE CONSTITUTION BUT THE
CONSTITUTION IS WHAT JUDGES SAY IT”.
A common saying among lawyers is that the constitution is
whatever five judges say it is.
According To certain realists the coi has no meaning until it is
interpreted by the Supreme court. There's no matter of fact
about the constitution's meaning, independent of judicial
interpretation.

… For one thing, if this is correct, then it is logically meaningless to

say that the Supreme Court was “wrong” about what the
Constitution says. If the Supreme Court were to say that the
preamble is not part of the constitution then that is correct--it is as
true as anything can be and the fact that the words on the actual
page of constitution say is irrelevant. Thus it is literally impossible
for a majority of the Supreme Court to be wrong about what the
Constitution means, at the time that they issue a decision. Later on,
the Court might change its mind, but at the time that it issues a
decision, the majority must, as a matter of logic, be correct, under
11
this theory. So Justice B. P Sinha and Justice C. J. Gajendragadkar
was correct when these decisions were issued.

But in Kesavananda case vs , we find the following sentence: “B P

Sinha(berubari case) was not correct when it was decided, is not
correct today, and is hereby overruled.” But it is not possible for BP
SINHA to have been wrong when it was decided, since it was the
decision of a Supreme Court majority, and therefore was all that the
Constitution could mean. So the kesavananda majority must be
wrong when it says that BP Sinha was “not correct when it was
decided.” And yet the kesavananda decision is a decision of the
majority and therefore cannot be wrong about the fact that Beru bari
was wrong. This is just the classic Cretan Paradox—it is not
logically possible for both judgments to be right, and yet both must
be right if, in fact, the Constitution means only what the judges say it
means. The Supreme Court itself admits that it is capable of being
wrong about what the Constitution means; so even those who think
the Constitution means only what the Supreme Court says it means
must concede the point that, according to the Supreme Court
majority, the Constitution has a meaning other than what the
Supreme Court majority says.

Let’s go farther. If the Constitution only means what the judges say
it means because it’s a written document and must be given life by
the Court’s interpretation, then why is the same not true of Supreme
Court decisions themselves? They, too, are just words on a page,
and can have no meaning until the lower courts implement that
decision…(doctrine of precedence) and, again, the lower courts
cannot be wrong about their implementation of the decision, since a
written court decision means only what the reader says it means. So
12
if the Supreme Court says “segregation is unconstitutional,” that
decision means only what lower courts say it means, and if lower
courts interpret that as meaning “segregation is just fine,” then the
lower courts must be right, because the text means only what the
reader says it means!

Concluding my point here, I would like to just say that this is very
true that the preamble is the basic part of any document and it is but
obvious to our constitution because it is the supreme law of our
country, but Is it true that our constitution is so complete and
perfect. As we all know, we have more than 108 amendments in our
constitution. So before making any basic structure we have to first
finalise the structure and the provisions of our constitution. And
another thing is that if it is part of our constitution or the basic
structure of it then why do we need these many cases of judicial
reviews to finalise its existence. According to me the preamble is
the topic which gives its status from the very beginning when any
document, act or provision is enacted. It gives the overview of that
particular act so we can easily take the idea of what the act is all
about. In the constitution we can say that this plays a very big role in
understanding the provisions of the constitution. So if something
plays a great role to understand the provision of any act then how
that thing cannot be the part of it, and what is the other thing which
talks about the preamble as part of our constitution .This is the only
answer to that according to me. And the other question is about the
amendment of the preamble, so in reference to which according to
me with the time period or due to circumstances we always have a
13
View publication stats

need to amend our constitution so that if we are amending the

constitution then, how can the basic structure be the same?

Cases referred:-
1. In Re: berubari union (1) (1960) 3 SCR 250
2. Kesavananda Bharati V. state of Kerala (1973) 4 SCC 225
3. Golak Nath v. State of Punjab, !1967) 2 SCR 762
4. S.R.Bommai v. Union of India (1994) 3 SCC 1
5. Indra Sawhney v. Union of India AIR 1993 SC 477

Books referred:-
1. The constitutional law of India. By J.N.Pandey.
2. The preamble of the constitution “the spirit and the backbone of the
constitution of India”. By R.C.Lahoti.
3. The preamble of the constitution “An insight and comparison with
other constitutions”. By Aparajita Baruah.

14