INTRODUCTION

A constitution is a set of fundamental principles or established precedents according

to which a state or other organisation is governed. When these principles are written
down into a single document or set of legal documents, those documents may be said
to embody a written constitution; if they are written down in a single comprehensive
document, it is said to embody a codified constitution. Some constitutions (such as
the constitution of the United Kingdom) are uncodified, but written in numerous
fundamental Acts of a legislature, court cases or treaties.1

The Constitution of India is the supreme law of India. It is the longest written
constitution of any sovereign country in the world, containing 448 articles in 25
parts,12 schedules and 101 amendments.The document lays down the framework
demarcating fundamental political code, structure, procedures, powers and duties of
government institutions and sets out fundamental rights, directive principles and the
duties of citizens.

It was in 1934 that the idea of a Constituent Assembly for India was put forward for
the first time by M.N. Roy, a pioneer of communist movement in India. In 1935, the
Indian National Congress [INC], for the first time, officially demanded a Constituent
Assembly to frame the Constitution of India. In 1938, Jawaharlal Nehru, on behalf
the INC declared that the Constitution of free India must be framed, without outside
interference, by a Constituent Assembly elected on the basis of adult franchise.

Before 1947, India was divided into two main entities – The British India which
consisted of 11 provinces and the Princely states ruled by Indian princes under
subsidiary alliance policy. The two entities merged together to form the Indian Union,
but many of the legacy systems in British India is followed even now. The historical
underpinnings and evolution of the India Constitution can be traced to many
regulations and acts passed before Indian Independence.

HISTORICAL BACKGROUND
Indian democracy is a Parliamentary form of democracy where the Executive is
responsible to the Parliament. The Parliament has two houses – Lok Sabha and Rajya
Sabha. Also, the type of governance is Federal, ie there is separate executive and
legislature at Centre and States. We also have self-governance at local government

1 Lakshmikanth, M, Indian Polity, fth edition, Mc Graw Hill Education.

fi

 levels. All these systems owe their legacy to the British administration. Let us see the
historical background of Indian Constitution and its development through years.2
Regulating Act of 1773
• The first step was taken by the British Parliament to control and regulate the
affairs of the East India Company in India.
• It designated the Governor of Bengal (Fort William) as the Governor-General
(of Bengal).
• Warren Hastings became the first Governor-General of Bengal.
• Executive Council of the Governor-General was established (Four members).
There was no separate legislative council.
• It subordinated the Governors of Bombay and Madras to the Governor-General
of Bengal.
• The Supreme Court was established at Fort William (Calcutta) as the Apex
Court in 1774.
• It prohibited servants of the company from engaging in any private trade or
accepting bribes from the natives.
• Court of Directors ( the governing body of the company) should report its
revenue.3

Pitt’s India Act of 1784

• Distinguished between commercial and political functions of the company.
• Court of Directors for Commercial functions and Board of Control for political
affairs.
• Reduced the strength of the Governor General’s council to three members.
• Placed the Indian affairs under the direct control of the British Government.
• The companies territories in India were called “the British possession in India”.
• Governor’s councils were established in Madras and Bombay.

Charter Act of 1813

• The Company’s monopoly over Indian trade terminated; Trade with India open
to all British subjects.

Charter Act of 1833

• Governor-General (of Bengal) became as the Governor-General of India.
• First Governor-General of India was Lord William Bentick.
• This was the final step towards centralisation in the British India.
• Beginning of a Central legislature for India as the act also took away
legislative powers of Bombay and Madras provinces.
• The Act ended the activities of the East India Company as a commercial body
and it became a purely administrative body.

2 https://www.clearias.com/historical-background-of-indian-constitution/

3 ibid
2

 Charter Act of 1853

• The legislative and executive functions of the Governor-General’s Council
were separated.
• 6 members in Central legislative council. Four out of six members were
appointed by the provisional governments of Madras, Bombay, Bengal and
Agra.
• It introduced a system of open competition as the basis for the recruitment of
civil servants of the Company (Indian Civil Service opened for all).

Government of India Act of 1858

• The rule of Company was replaced by the rule of the Crown in India.
• The powers of the British Crown were to be exercised by the Secretary of State
for India
• He was assisted by the Council of India, having 15 members
• He was vested with complete authority and control over the Indian
administration through the Viceroy as his agent
• The Governor-General was made the Viceroy of India.
• Lord Canning was the first Viceroy of India.
• Abolished Board of Control and Court of Directors.

Indian Councils Act of 1861

• It introduced for the first time Indian representation in the institutions like
Viceroy’s executive+legislative council (non-official). Three Indians entered
Legislative council.
• Legislative councils were established in Centre and provinces.
• It provided that the Viceroy’s Executive Council should have some Indians as
the non-official members while transacting the legislative businesses.
• It accorded statutory recognition to the portfolio system.
• Initiated the process of decentralisation by restoring the legislative powers to
the Bombay and the Madras Provinces.4

India Council Act of 1892

• Introduced indirect elections (nomination).
• Enlarged the size of the legislative councils.
• Enlarged the functions of the Legislative Councils and gave them the power
of discussing the Budget and addressing questions to the Executive.

Indian Councils Act of 1909

• This Act is also known as the Morley- Minto Reforms.
• Direct elections to legislative councils; first attempt at introducing a representative
and popular element.

4 Supra note 2
3

 • It changed the name of the Central Legislative Council to the Imperial Legislative
Council.
• The member of Central Legislative Council was increased to 60 from 16.
• Introduced a system of communal representation for Muslims by accepting
the concept of ‘separate electorate’.
• Indians for the first time in Viceroys Executive Council. (Satyendra Prasad Sinha,
as the law member)

Government of India Act of 1919

• This Act is also known as the Montague-Chelmsford Reforms.
• The Central subjects were demarcated and separated from those of the
Provincial subjects.
• The scheme of dual governance, ‘Dyarchy’, was introduced in the Provincial
subjects.
• Under dyarchy system, the provincial subjects were divided into two parts –
transferred and reserved. On reserved subjects, Governor was not responsible
to the Legislative council.
• The Act introduced, for the first time, bicameralism at centre.
• Legislative Assembly with 140 members and Legislative council with 60
members.
• Direct elections.
• The Act also required that the three of the six members of the Viceroy’s
Executive Council (other than Commander-in-Chief) were to be Indians.
• Provided for the establishment of Public Service Commission.5

Government of India Act of 1935

• The Act provided for the establishment of an All-India Federation consisting of
the Provinces and the Princely States as units, though the envisaged federation
never came into being.
• Three Lists: The Act divided the powers between the Centre and the units into
items of three lists, namely the Federal List, the Provincial List and
the Concurrent List.
• The Federal List for the Centre consisted of 59 items, the Provincial List for
the provinces consisted of 54 items and the Concurrent List for both consisted
of 36 items
• The residuary powers were vested with the Governor-General.
• The Act abolished the Dyarchy in the Provinces and introduced ‘Provincial
Autonomy’.
• It provided for the adoption of Dyarchy at the Centre.
• Introduced bicameralism in 6 out of 11 Provinces.
• These six Provinces were Assam, Bengal, Bombay, Bihar, Madras and the
United Province.
• Provided for the establishment of Federal Court.

5 Supra note 2
4

 • Abolished the Council of India.

Indian Independence Act of 1947

• It declared India as an Independent and Sovereign State.
• Established responsible Governments at both the Centre and the Provinces.
• Designated the Viceroy India and the provincial Governors as the
Constitutional (normal heads).
• It assigned dual functions (Constituent and Legislative) to the Constituent
Assembly and declared this dominion legislature as a sovereign body.

MAKING OF THE CONSTITUTION

Composition of the Constituent Assembly
1. The total strength of the Constituent Assembly was to be 389. Of these, 296 seats
were to be allotted to British India and 93 seats to the Princely States. Out of 296
seats allotted to the British India, 292 members were to be drawn from the eleven
governors' provinces and four from the four chief commissioners' provinces, one
from each.

2. Each province and princely state (or group of states in case of small states) were
to be al-lotted seats in proportion to their respective population. Roughly, one
seat was to be allot-ted for every million population.

3. Seats allocated to each British province were to be divided among the three
principal communities—Muslims, Sikhs and general (all except Muslims and
Sikhs), in proportion to their population.

4. The representatives of each community were to be elected by members of that

community in the provincial legislative assembly and voting was to be by the
method of proportional representation by means of single transferable vote.

5. The representatives of princely states were to be nominated by the heads of the

princely states.6

6 Lakshmikanth, M, Indian Polity, fth edition, Mc Graw Hill Education.

fi

Working of the Constituent Assembly

The Constituent Assembly held its first meeting on December 9, 1946. The Muslim
League boycotted the meeting and insisted on a separate state of Pakistan. Dr
Sachchidananada Sinha, the oldest member was elected as the temporary President of
the Assembly, following the French practice.7

Later, Dr. Rajendra Prasad was elected as the President of the Assembly. Similarly,
both H.C. Mukherjee and V.T. Krishnamachari were elected as the Vice-Presidents of
the Assembly. In other words, the Assembly had two Vice-Presidents.

FEATURES OF THE CONSTITUTION

- Lengthiest Written Constitution
The Indian constitution is the most voluminous constitution. At its commencement, it
contained 395 articles divided into 22 parts and 8 schedules. It contains not only the
fundamental principles of governance but also detailed administrative provisions.

The great bulk of the Indian constitution is due to several factors :

• The framers of our constitution have borrowed some of the great constitutional
principles from the foreign constitutions. The loopholes of these foreign
constitutions were properly avoided to ensure healthy political life to the
citizens. Thus, the Parliamentary form of government were adopted from the
British, the fundamental rights from the U. S. constitution, the Directive
principles from the Irish constitution and the idea of emergency from the
German Constitution and the Government of India Act of 1935.8

• Unlike other constitutions, the Indian constitution provides not only the basic
law. It also provides very detailed and minute administrative provisions. This
was to prevent subversion of the constitution through legislative process. These
details saves a lot of time.

7 Supra note 6
8 https://www.importantindia.com/1986/main-features-of-indian-constitution/

 • The vastness of the country and its population size and diversity, compelled the
framers of the constitution to make provisions for the protection and promotion
of the interests of different regions and groups in the country. Thus, the
constitution has elaborate provisions for the minorities, scheduled castes and
tribes, etc.
- Drawn from Various Sources
In formulating the Constitution of India, the founding fathers used several sources.
The values and ideals of the national movement guided their path. The national
movement influenced them to adopt secularism as the ideal. Some provisions of
Government of India Act 1935 were used by them and several features of foreign
constitutions influenced them, and were adopted by them.
The structural part of the Constitution is, to a large extent derived from the
Government of India Act of 1935. The philosophical part of the Constitution - The
Fundamental Rights and the Directive Principles of State Policy derive their
inspiration from the American and Irish Constitutions respectively. The political part
of the Constitution that is the Principle of Cabinet Government and the relations
between the executive and legislature have been largely drawn from the British
Constitution. The other provisions of the Constitution have been drawn from the
constitutions of Canada, Australia, Germany, France, South Africa, Japan and so on.9

- Blend of Rigidity and Flexibility

The Constitution of India is rigid in parts. Some of its provisions can be amended in a
difficult way while others can be amended very easily. In some cases, the Union
Parliament can amend some parts of the Constitution by passing a simple law.

Article 368, of the Constitution provides for two special methods of amendment:

(i) Most of the provisions of the Constitution can be amended by the Union
Parliament by passing an Amendment Bill by a majority of total membership and
2/3rd majority of members present and voting in each of its two Houses.

(ii) For the amendment of some specified parts, a very rigid method has been
provided. Under it, first the Union Parliament passes the Amendment Bill by a
majority of total membership and 2/3rd majority of members present and voting in
each house , and then it goes to the State Legislatures for ratification. The
Amendment gets passed only when it is approved by not less than one half of the
several states of the Union.
Thus the Constitution of India is partly rigid and partly flexible.

9 Supra note 8
7

 - Preamble of the Constitution

The Preamble to the Constitution of India is a well drafted document which states the
philosophy of the constitution. It declares India to be a Sovereign Socialist Secular
Democratic Republic and a welfare state committed to secure justice, liberty and
equality for the people and for promoting fraternity, dignity the individual, and unity
and integrity of the nation. The Preamble is the key to the constitution. It states in
nutshell the nature of Indian state and the objectives it is committed to secure for the
people.

- Federal Constitution
The Indian constitution is a federal constitution. The term federal has not been used
in the constitution. Instead India has been described as a “Union of States.” However
all the characteristics of a federation viz. two sets of government—national
government and a number of governments of the component units, and the division of
powers between the national government and the governments of the units. The
constitution is the supreme and both the centre and the state government derive its
power from it. There is a federal judiciary to act as the guardian of the constitution
and to settle disputes between the centre and the units—are all present in the Indian
constitution.10

- Parliamentary form of Government

The Indian constitution provides for parliamentary form of government both at the
centre and in the states. This is borrowed from the Westminster model. The adoption
of this model is partly due to India’s long familiarity with it during the British rule. In
such form of government, the head of the Government and the head of the state are
two different individuals. For example, the head of the council of ministers in India is
the Prime Minister, whilst the President is the head of the state of India. Even though
the Indian Parliamentary is largely based on the British pattern, there are two
fundamental differences between the two. For example, the Indian Parliament is not a
sovereign body like the British Parliament. Further, the Indian State has an elected
head (monarchy).
Also, the Constitution provides for a Bicameral Legislature at the Union level and
names it as the Union Parliament. Its two Houses are: The Lok Sabha and the Rajya
Sabha. The Lok Sabha is the lower, popular, directly elected house of the Parliament.
It represents the people of India.The Rajya Sabha is the upper and, indirectly elected
second House of Parliament. It represents the states of the Indian union. Of the two

10http://www.yourarticlelibrary.com/constitution/constitution-of-india-26-salient-features-of-the-
constitution-of-india/40334

 houses, of Parliament, the Lok Sabha is a more powerful House. It alone has financial
powers. The Union Council of Ministers is collectively responsible before the Lok
Sabha.

- 7. Fundamental Rights
Under its Part III C (Articles 12-35), the Constitution of India grants and guarantees
Fundamental Rights to its citizens. It is called the Indian Bill of Rights. Initially, 7
Fundamental Rights were granted but after the deletion of the Right to Property from
the list of Fundamental Rights (44th Amendment Act 1979) their number came down
to six.11

The Six Fundamental Rights are:

(i) Right to Equality:

It provides for Equality before Law, End of Discrimination, Equality of Opportunity,
Abolition of untouchability and Abolition of Titles.

(ii) Right to Freedom:

It incorporates six fundamental freedoms -freedoms of speech and expression,
freedom to form associations, freedom to assemble peaceably without arms, freedom
to move freely in India, freedom of residence in any part, and freedom of adopting
any profession or trade or occupation. It ensures personal freedom and protection in
respect of conviction for certain offences.
The Constitution lays down that the freedom of life and liberty cannot be limited or
denied except in accordance with the procedure established by law. Now under Art
21A-Right to Education for the children between the ages of 6-14 years has been
granted. Article 22 guarantees protection against arbitrary arrest and detention.

(iii) Right against Exploitation:

This Fundamental Right prohibits sale and purchase of human beings, forced labour
and employment of children in hazardous jobs and factories.

(iv) Right to Freedom of Religion:

The grant of this right involves the freedom of conscience, religion and worship. Any
person can follow any religion. It gives to all religions freedom to establish and
maintain their religious institutions. No person can be compelled to pay any tax for
the propagation of any religion. The state cannot levy a tax for any religion and
constitution prohibits the imparting of religious instructions in schools and colleges.

11 Supra note 10
9

 (v) Cultural and Educational Rights:

Under this category the Constitution guarantees the rights of the minorities to
maintain and develop their languages and cultures. It also confers upon them the right
to establish, maintain and administer their educational institutions.

(vi) Right to Constitutional Remedies (Art. 32):

This fundamental right is the soul of the entire Bill of Rights. It provides for the
enforcement and protection of Fundamental Rights by the courts. It empowers the
Supreme Court and High Courts to issue writs for the enforcement of these rights.

- Fundamental Duties of the Citizens:

In its Part IVA (Article 51 A) the Constitution describes the following Fundamental
Duties of a citizen:
1. Respect for the Constitution, the national flag and the national anthem;
2. Cherish the noble ideals of the freedom struggle;
3. Uphold and protect the sovereignty, unity and integrity of India;
4. Defend the country and render national service when called;
5. Promote the common brotherhood of all the people of India and renounce any
practice derogatory to the dignity of women;
6. Preserve the rich heritage of the nation’s composite culture;
7. Project the natural environment and have compassion for living creatures;
8. Develop scientific temper, humanism and spirit of inquiry and reform;
9. Safeguard public property and abjure violence; and
10. Strive for excellence in all individual and collective activity.
11. Duty of the parents to send their children to schools for getting education.
The Fundamental Duties are, however, not enforceable by the courts.12

- Directive Principles of State Policy

Part IV of the Constitution dealing with the ‘Directive Principles of State Policy’
provides one of the most striking features of the Indian Constitution. The Directive
Principles are instructions to the state for securing socio-economic developmental
objectives through its policies. These are to be implemented by both the Union for the
States.
For example, Directive Principles direct the state to ensure for the people adequate
means of livelihood, fairer distribution of wealth, equal pay for equal work,
protection of children, women, labour and youth, old age pension, social security,

12 Supra note 10
10

local self-government, protection of the interests of the weaker sections of society;

promotion of cottage industries, rural development, international ‘peace friendship
and co-operation with other states etc. The aim of Part IV is to secure and strengthen
socio-economic democracy in India.

- Adult-Suffrage
Another feature of the Constitution is that it provides for universal adult suffrage. All
men and women enjoy an equal right to vote. Each adult man and woman above the
age of 18 years has the right to vote. All registered voters get the opportunity to vote
in elections.

- Single integrated State with Single Citizenship

India is the single Independent and Sovereign integrated state. Presently it has 28
states and 7 Union Territories. All citizens enjoy a common uniform citizenship. They
are entitled to equal rights and freedoms, and equal protection of the state.”13

- Independence of Judiciary:
The Indian Constitution establishes a judicial system that is integrated as well as
independent. Independence of the judiciary is the principle that the judiciary should
be politically insulated from the legislative and the executive power. That is, courts
should not be subject to improper influence from the other branches of government,
or from private or partisan interests.
The judges of the Supreme Court and High Courts are appointed by the central
executive. But, once appointed, they are no more controlled by any authority. The
Constitution secures to the Judges, the tenure of service and they cannot be removed
before the expiry of their tenure except by impeachment under the Constitution. Their
salaries and allowances, once determined by the Union Parliament, cannot be
diminished to their disadvantage. The courts are vested with the power of judicial
review and they can examine the constitutional validity of a law made by the
Parliament as well as by a State Legislature.

- Emergency Provisions
The Constitution of India contains special provisions for dealing with emergencies.

It recognises three types of possible emergencies:

13 Supra note 10
11

(1) National Emergency (Article 352) an emergency resulting from war or external
aggression or threat of external aggressions against India or from armed rebellion
within India or in any of its part;

(2) Constitutional Emergency in a State (Article 356) an emergency resulting from

the failure of constitutional machinery in any state; or some states and

(3) Financial Emergency (Article 360) an emergency resulting from a threat to

financial stability of India.
The President of India has been empowered to take appropriate steps for dealing with
these emergencies. During the period of an emergency, the powers of the President,
actually of the PM and the Union Council of Ministers Cabinet increase
tremendously. President can take all steps deemed essential for meeting an
emergency. These are called emergency powers of the President.

PREAMBLE OF INDIAN CONSTITUTION

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.

Introduction
The Preamble to the Constitution of India records the aims and aspirations of the
people of India which have been translated into the various provisions of the
Constitution.14 A Preamble means the introduction to the statute. The objectives
before the Constituent Assembly were to Constitute India into a “sovereign
democratic republic” and to secure its citizens “justice liberty, equality and

14 https://www.lawctopus.com/academike/preamble-constitution-india/

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 fraternity”. The ultimate aim of the makers of the Constitution was to have a welfare
state and an egalitarian society projecting the aims and aspirations of the people of
India who sacrificed everything for the attainment of country’s freedom. It is
worthwhile to note that the preamble was adopted by the Constituent Assembly after
the Draft Constitution had been approved. The basic idea behind it was the preamble
should be in conformity with the provisions of the constitution and express in a few
words the philosophy of the constitution. It may be recalled that after the transfer of
power, the Constituent Assembly became sovereign, which is reflected in the use of
words “give to ourselves this constitution” in the preamble. It also implied that the
preamble emanated from the people of India and sovereignty lies with them.15

Chief Jusitce Subba Rao in Golak Nath v. State of Punjab16 had held that “The
preamble to an Act sets out the main objectives which the legislation is intended to
achieve”.

Meaning and Concept

The term ‘Preamble’ means the introduction to a statute. It is the introductory part of
the constitution. A preamble may also be used to introduce a particular section or
group of sections. According to Chambers Twentieth Century Dictionary, a preamble
means preface, introduction, especially that of an act of Parliament, giving its reasons
and purpose – a prelude.
Black’s Law Dictionary states that the preamble means a clause at the beginning or a
statute explanatory of the reasons for its enactment and the objectives sought to be
accomplished. Generally, a Preamble is a declaration made by the legislature of the
reasons for the passage of the statute and is helpful in the interpretation of any
ambiguities within the statute to which it is prefixed.
The Constitution opens with a Preamble. Initially, the Preamble was drafted by Sh. B.
N. Rau in his memorandum of May 30, 1947 and was later reproduced in the Draft of
October 7, 1947. In the context of the deliberations by the Constituent Assembly, the
Preamble was reformulated. The Committee claimed that they had tried to embody in
it the spirit, and as far as possible, the language of the Objectives Resolution.
Constitutions all over the world generally have a preamble. The form, content and
length of the preamble differ from constitution to constitution. Irrespective of these
differences the preamble generally sets the ideas and goals which the makers of the
constitution intend to achieve through that constitution.

Object, Purpose and Scope of the Preamble

The Preamble does not grant any power but it gives a direction and purpose to the
Constitution. It outlines the objectives of the whole Constitution. The Preamble

15 Supra note 11
16 1967 AIR 1643, 1967 SCR (2) 762
13

contains the fundamentals of the constitution. The preamble to an Act sets out the
main objectives which the legislation is intended to achieve.
The proper function of preamble is to explain and recite certain facts which are
necessary to be explained and recited, before the enactment contained in an act of
Parliament could be understood. A preamble may be used for other reasons, such as,
to limit the scope of certain expressions or to explain facts or introduce definitions. It
usually states, or professes to state, the general object and meaning of the legislature
in passing the measure. Hence it may be legitimately consulted for the purpose of
solving an ambiguity or fixing the connotation of words which may possibly have
more meaning, or determining of the Act, whenever the enacting part in any of these
respect is prone to doubt. In a nutshell, a court may look into the object and policy of
the Act as recited in the Preamble when a doubt arises in its mind as to whether the
narrower or the more liberal interpretation ought to be placed on the language which
is capable of bearing both meanings.

In A.K Gopalan v. State of Madras,17 it was contended that the preamble to our
constitution which seeks to give India a ‘democratic’ constitution should be the
guiding start in its interpretation and hence any law made under Article 21 should be
held as void if it offends the principles of natural justice, for otherwise the so-called
“fundamental” rights to life and personal liberty would have no protection. The
majority on the bench of the Supreme Court rejected this contention holding that
‘law’ in Article 21 refers to positive or state made law and not natural justice, and that
this meaning of the language of Article 21 could not be modified with reference to the
Preamble.

In Re Berubari Union Case,18 The Supreme Court held that the preamble had never
been regarded as the source of any substantive power conferred on the government or
on any of its departments. The court further explained that “what is true about the
powers is equally true about the prohibitions and limitations”. It, therefore, observed
that the preamble had limited application. The court laid down that the preamble
would not be resorted to if the language of the enactment contained in the
constitution was clear. However, “if the terms used in any of the articles in the
constitution are ambiguous or capable of two meanings, in interpreting them some
assistance may be sought in the objectives enshrined in the Preamble.”

In Kesavananda Bharati Case,19 The Supreme Court attached much importance to

the Preamble. In this case, the main question before the Supreme Court related to the
scope of amending power of the Union Parliament under Article 368 of the
Constitution of India. The Supreme Court traced the history of the drafting and
ultimate adoption of the Preamble.
17 1950 AIR 27, 1950 SCR 88
18 AIR 1960 SC 845
19 AIR 1973 SC 1461
14

 A majority of the full bench held that the objectives specified in the preamble contain
the basic structure of our constitution, which cannot be amended in exercise of the
power under Article 368 of the constitution. It was further held that being a part of the
constitution, the preamble was not outside the reach of the amending power of the
Parliament under article 368. It was in the exercise of this amending power that the
constitution (42nd amendment) Act 1976 amended the preamble inserting therein, the
terms socialist, secular and integrity.

In the 1995 case of Union Government v. LIC of India20 also The Supreme Court
has once again held that the Preamble is an integral part of the Constitution.

The Preamble serves the following purposes:

a) It indicates the source from which the Constitution comes, viz., the people of
India.

b) It contains the enacting clause which brings into force, the Constitution which
makes it an act of the people, for the people and by the people.

c) It declares the rights and freedoms which the people of India intended to provide to
all citizens and the basic type of government and polity which was to be established.

Contents of the Preamble

Preamble is part of our constitution. The contents of Preamble play an important role
in interpretation of our constitution.

“WE, THE PEOPLE OF INDIA”

The preamble begins with the words “We the people of India…” thus clearly
indicating the source of all authority of the constitution. The words “We, the people
of India” declare an unambiguous term that the Constitution has been adopted,
enacted and given to themselves by the people of India. It emphasizes the sovereignty
of the people and the fact that all powers of government flow from the people. It is
the people of India on whose authority the Constitution rests. Although the
constitution was not directly voted upon by the people of the country as it was
practically impossible for four hundred million people to take part in the voting, it is
clear from the Preamble that the framers of the constitution has been promulgated in
the name of the people, attached importance to the sovereignty of the people and the
constitution. The constitution is not based on the mandate of several states which
constitute the units of the Union. In this sense also, the constitution is one, given by

20 (2003) 179 CTR Raj 432

15

the people of the country to themselves. Jawahar Lal Nehru in the constituent
assembly stated that the word ‘People’ indicated that the constitution was not created
by the States, nor by the people of the several States but by the people of India in
their aggregate capacity.

SOVEREIGN
According to Preamble, the Constitution of India has been pursuance of the solemn
resolution of the people of India to constitute India into a ‘Sovereign Democratic
Republic’, and to secure well defined objects set forth in the preamble. Sovereignty
denotes supreme and ultimate power. It may be real or normal, legal or political,
individual or pluralistic. In monarchial orders, sovereignty was vested in the hands of
monarchs. But, in republican form of governments, which mostly prevails in the
contemporary world, sovereignty is shifted to the elected representatives of the
people. According to D.D Basu, the word ‘sovereign’ is taken from Article 5 of the
constitution of Ireland. ‘Sovereign or supreme power is that which is absolute and
uncontrolled within its own sphere’. In the words of Cooley, “A state is sovereign
when there resides within itself supreme and absolute power, acknowledging no
superior”. Sovereignty, in short, means the independent authority of a state. It has
two aspects- external and internal. External sovereignty or sovereignty in
international law means the independence of a state of the will of other states, in her
conduct with other states in the comity of nations. Sovereign in its relation between
states and among states signifies independence. The external sovereignty of India
means that it can acquire foreign territory and also cede any part of the Indian
territory, subject to limitations imposed by the constitution. On the other hand,
internal sovereignty refers to the relationship between the states and the individuals
within its territory. Internal sovereignty relates to internal and domestic affairs, and is
divided into four organs, namely, the executive, the legislature, the judiciary and the
administrative. Though India became a sovereign country on 26th January, 1950,
having equal status with the other members of the international community, she
decided to remain in the Commonwealth of Nations.21

SOCIALIST
The term ‘socialist’ literally means a political-economic system which advocates
state’s ownership of the means of production, distribution and exchange. Concise
Oxford Dictionary defines ‘socialism’ as a political and economic theory of a social
organisation which advocates that the means of production, distribution and exchange
should be owned or regulated by the community as whole.” Even before the term was
added by the 42nd Amendment in 1976, the Constitution had a socialist content in the
form of certain Directive Principles of State Policy.
Notably, the Indian brand of socialism is a 'democratic socialism' and not a
'communistic socialism' (also known as 'state socialism') which involves the

21 Supra note 13
16

nationalisation of all means of production and distribution and the abolition of private
property. Democratic socialism, on the other hand, holds faith in a 'mixed economy'
where both public and private sectors co-exist side by side'. As the Supreme Court
says, 'Democratic socialism aims to end poverty, ignorance, disease and inequality of
opportunity. Indian socialism is a blend of Marxism and Gandhism, leaning heavily
towards Gandhian socialism'.

SECULAR
In Webster’s Dictionary the word ‘secular’ has been described as a ‘view of life’, or
of any particular matter based on premise that religious considerations should be
ignored or purposefully excluded or as a system of social ethics based upon doctrine
that ethical standards and conduct be determined exclusively without reference to
religion. It is the rational approach to life and it refuses to give plea for religion. For
the first time, by the 42nd amendment of the constitution in 1976, the term-‘secular’
was inserted into the Preamble but without a definition of the term. Secular is derived
from the Latin word speculum, which means an indefinite period of time. Although
the term secular was not included anywhere in the constitution, as it was originally
adopted on November 26, 1949, the founding fathers of the constitution were clear in
their mind as to what they meant by secularism. It traces its origin from West in
context of Christian religion. Unlike in the West, in India, Secularism was never born
out of the conflict between the church or the temple and the State. It was rooted in
India’s own past history and culture. It is based on the desire of the founding fathers
to be just and fair to all communities irrespective of their number. The term secular
inserted by the Constitution (42nd Amendment) Act, 1976, explains that the state
does not recognise any religion as a state religion and that it treats all religions
equally, and with equal respect, without, in any manner, interfering with their
individual rights of religion, faith or worship. It does not mean that it is an irreligious
or atheistic state. Nor, it means that India is an anti-religious state. It neither promotes
nor practices any particular religion, nor it interferes with any religious practice. The
constitution ensures equal freedom to all religions.

In S.R Bommai v. Union of India,22 a nine judge bench of the Apex Court observed
that the concept of “Secularism” was very much embedded in our constitutional
philosophy. What was implicit earlier had been made explicit by the constitution
(42nd amendment) in 1976.
Explaining further, the Court said that while freedom of religion was guaranteed to all
persons, from the point of view of the State, the religion, faith or belief of person
was immaterial. " To the State all are equal and are entitled to be treated. equally",
Court held.

22 AIR 1994 SC 1918

17

 In Aruna Roy v. Union of India, the Supreme Court has said that secularism has a
positive meaning that is developing, understanding and respect towards different
religions.

DEMOCRATIC
The term Democracy is derived from Greek words ‘demos’ which means ‘people’ and
‘kratos’ which means ‘authority’. It thus means government by the people.
Democracy may properly be defined as that form of government in the administration
of which the mass of adult population has some direct or indirect share.
The basic principle of democracy in a society governed by the rule of Law is not only
to respect the will of the majority, but also to prevent dictatorship of the majority”.
Democracy may be a direct or indirect democracy. In a direct democracy every
people exercise the power of the government. The people as a whole not only carry
on the government, but can even change the constitution by their direct vote. In an
indirect democracy, the people elect their representatives who carry on the
administration of the government directly. It is also known as representative
democracy. In India, constitution provides for a Parliamentary Representative
Democracy.

The Apex Court in Union of India v. Association for Democratic Reforms23,

observed: “A successful democracy posits an ‘aware’ citizenry”. “Democracy cannot
survive”, the court said, without free and fair elections, without free and fairly
informed voters.” This states that free and fair elections are the most important
features of democracy. Thus democracy implies that all three tiers of the government
machinery i.e. the Executive, the Legislature and the Judiciary should be separate, yet
mutually independent. Democracy is also a way of life and it must maintain human
dignity, equality and rule of law.
Thus, the sovereign Constitutional state established by the framers could only be
Ramrajya and people’s democracy. Only in the democratic state the sovereignty
would be vested in the people and the Nation. In reaffirmation to the democratic
principle, the Constitution was adopted, enacted and adopted by the Constituent
Assembly in the name of, and for “We, the People of India.”

REPUBLIC
A republic means a state in which the supreme power rests in the people and their
elected representatives or officers, as opposed to one governed by the king or a
similar ruler. The word ‘republic’ is derived from res publica, meaning public
property or commonwealth. According to Montesquieu, “a republican government is
that in which a body, or only a part of people, is possessed of the supreme power”.
The term ‘republic’ is used in distinction to monarchy. A republic means a form of
government in which the head of the state is an elected person and not a heredity
monarch like the king or the queen in Great Britain. Under such a system, the
political sovereignty is vested in the people and the head of the state is the person

23 AIR 2002 SC 2112

18

elected by the people for a fixed term. In a wider sense, the word ‘republic’ denotes a
government where no one holds the public power as a proprietary right, but all power
is exercised for the common good-where inhabitants are the subjects and free citizens
at the same time. The constitution of India envisions the Indian government as a
‘republican form of government’, in which, the ultimate power resides in the body of
the people exercised via universal adult suffrage. The president of India who is the
executive head of the state is elected by the people (though indirectly) who holds
office for a term of five years. All citizens are equal in the eyes of law, there is no
privileged class and all public offices are open for all the citizens without any
distinction on basis of race, caste, sex or creed.
In a republic, the state sovereignty is vested in, and held by the people, and the
political power is exercised popularly as an expression of the people’s sovereign
command, grace or pleasure.24

JUSTICE
The preamble of the constitution of India professes to secure to all its citizens
political, economic and social justice.
Social justice means the abolition of all sorts of inequities which may result from the
inequalities of wealth, opportunity, status, race, religion, caste, title and the like. To
achieve this ideal of social justice, the constitution lays down the directives for the
state in Part IV of the constitution.
The expression ‘economic justice’ means justice from the stand pint of economic
force. In short, it means equal pay for equal work, that every person should get his
just dues for his labour irrespective of his caste, sex or social status.
Political justice means the absence of any unreasonable or arbitrary distinction among
men in political matters. The constitution has adopted the system of universal adult
suffrage, to secure political justice.
The expression ‘justice’ is the harmonious reconcilement of individual conduct with
the general welfare of the society. An act or conduct of a person is said to be just if it
promotes the general well-being of the community. Therefore, the attainment of the
common good as distinguished from the good of individuals is the essence of justice.
Justice is considered to be the primary goal of a welfare state and its very existence
rests on the parameters of justice.

LIBERTY
The preamble of constitution of India professes to secure liberty of belief, thought,
expression, faith and worship which are essential to the development of the
individuals and the nation. Liberty or freedom signifies absence of external
impediments of motion. It implies absence of restraint. Liberty is power of doing
what is allowed by law. Aristotle stated that in democracy, liberty is supposed, for it is

24 Kumar, Narender, Constitutional Law of India, tenth edition, Allahabad law agency.

19

commonly held that no man is free in any other government. Democracy is closely
connected with the concept of liberty. Therefore, certain minimal rights are to be
enjoyed by every person in a community for free and civilised existence in the civil
society. In an ordered society, the liberty of no individual can be absolute or
unfettered. It must be subject to social control, in order to protect the collective
interests of the aggregate of the individuals who constitute that society.
Liberty is the most cherished possession of a man. Liberty is the right of doing an act
which the law permits. Constitution has recognised the existence of rights in every
man. “Liberty is confined and controlled by law, whether common law or statute. It is
a regulated freedom. It is not an abstract or absolute freedom. The safeguards of
liberty lie in the good sense of the people and in the system of representative and
responsible government, which has been evolved. Liberty is itself the gift of law and
may by the law forfeited abridged”
According to John Salmond, “the sphere of my legal liberty is that sphere of activity
within which the law is contend to leave me alone”. The constitutional law of the
country has fully guaranteed liberty through its mechanisms, judiciary and
established rules of justiciability.25

EQUALITY
Guaranteeing of certain rights to each individual is meaningless unless all equality is
banished from the social structure, and each individual is assured of equality status
and opportunity for the development of what is best in him. Rights carry no meaning,
if they cannot be enjoyed equally by all members of the community. One of the main
tasks of the constitution makers was to ensure equality of status and opportunity for
all and to provide basis for ultimately establishing an egalitarian society. They
proceeded to achieve these objectives by incorporating a set of fundamental
principles into the constitution.
D.D. Basu has observed that it is the same equality of status and opportunity that the
constitution of India professes to offer to the citizens by the preamble.Equality of
status and opportunity is secured to the people of India by abolishing all distinctions
and discriminations by the state between citizen and citizen on the ground of religion,
race, caste sex and by throwing open ‘public places’, by abolishing untouchability
and titles, by securing equality for opportunity in the matters relating to employment
or matters relating to employment or appointment to any office under the state.
Equality is one of the magnificent cornerstones of Indian democracy. An equality
status permeates the basic structure of the constitution.

FRATERNITY
Fraternity means the spirit of brotherhood, a feeling that all people are children of the
same soil, the same motherland. The term was added to the preamble by a drafting
committee of the constituent assembly, “as the committee felt the need for fraternal

25 Supra note 23
20

concord and the goodwill in India was never greater than now and that this particular
aim of the new constitution should be emphasised by special mention in the
Preamble”. Fraternity means brotherhood, the promotion of which is absolutely
essential for a country which is composed of many race and religions. Brotherhood is
a particular kind of relationship which links all human beings, irrespective of gender
and generation. A democratic system will function in a healthy manner only if there is
a spirit of brotherhood, oneness among the people of the land. Fraternity is not
possible unless the dignity of each individual is preserved and mutually respected.
The longing for forming company paves the way for fraternity. Peaceful co-existence,
live and let live others, mutual understanding, feeling for inter-se cooperation,
attitude of adjustment, sacrifice, to be useful to others, enjoyment of common weal,
solidarity for defence of all and other good human qualities develop fraternity- are the
promotion for the concept of fraternity. The expression ‘to promote among them all’
preceding the word ‘fraternity’ is significant in this respect. ‘Among them all’
promotes, more particularly the word ‘all’-not only among under privileged classes
but also among the entire people of India. ‘Do hereby adopt, enact’ etc. has been
borrowed from the last line of the preamble of the Irish constitution.26

26 Supra note 23
21

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