The Preamble: meaning, scope and importance - Constitutional Law I

Check the judgment before you rely on this. Every case cited here has been checked to exist — the citation resolves and names the right parties. The propositions attributed to each case have not been verified line by line against the judgment. Case names link through to the full judgment: read it before quoting a holding in an examination answer, and never carry a proposition from notes into court on trust.

The examinable core. Three questions decide most answers on the Preamble: is it part of the Constitution, can it be amended, and can it be enforced? The first two changed judicial position between 1960 and 1973, which is exactly why they are set.

1. The text and what it declares

The Preamble declares that the people of India, having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic, secure to all citizens justice — social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and promote among them all fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

Four things are worth separating out.

The source of authority. “We, the people of India” — the Constitution derives its authority from the people, not from the Crown or from any earlier statute. This is the constitutional basis of popular sovereignty.
The nature of the State. Sovereign, socialist, secular, democratic, republic. Socialist and secular were inserted by the Forty-second Amendment, 1976, along with the words and integrity in the fraternity clause.
The objectives. Justice, liberty, equality and fraternity — the order is not accidental and echoes the French revolutionary triad, with justice placed first.
The date. 26 November 1949, the day of adoption.

2. Is the Preamble part of the Constitution?

This is where the case law sits, and the position reversed.

In In re Berubari Union, 1960 INSC 49, AIR 1960 SC 845, the Supreme Court, on a reference under Article 143, held that the Preamble is not a part of the Constitution. It described the Preamble as a key to open the mind of the makers, useful where the language of an Article is ambiguous, but not a source of substantive power or limitation.

That view was displaced in Kesavananda Bharati v. State of Kerala, 1973 INSC 91, (1973) 4 SCC 225. The Court held that the Preamble is a part of the Constitution, that it was enacted by the Constituent Assembly in the same manner as the rest, and that it is of extreme importance in construing the Constitution. Berubari was held to be wrong on this point.

Do not confuse the two propositions. Berubari held the Preamble is not part of the Constitution. Kesavananda held it is. The examiner is testing whether you know which way round, and that Kesavananda is the position today.

3. Can the Preamble be amended?

Yes, but subject to the basic structure. Because Kesavananda held the Preamble to be part of the Constitution, it follows that it falls within the amending power of Article 368. The Forty-second Amendment did in fact amend it, adding socialist, secular and integrity, and that amendment has stood.

But the same case supplies the limit. The Preamble states the basic features — sovereignty, the democratic republican form, secularism, justice, liberty, equality — and an amendment that destroyed one of them would fail as damaging the basic structure. So the Preamble is amendable in form but its core is protected in substance.

4. How far can a court use it?

The Preamble is not enforceable. No one can go to court claiming a breach of the Preamble alone, in the way one enforces a fundamental right under Article 32. It confers no power on the State and imposes no prohibition.

What it does is interpretive. Where the words of an Article admit of more than one meaning, the Preamble indicates which meaning advances the purpose of the Constitution. Courts have used it to read the sweep of the equality clause, to give content to secularism, and to justify a purposive rather than a literal reading of Part III. Its role in S.R. Bommai v. Union of India, 1994 INSC 111, (1994) 3 SCC 1, is illustrative: secularism, a word that appears in the Constitution chiefly in the Preamble, was held to be a basic feature.

5. The objectives, briefly

Justice — social, economic and political. Social justice underlies Articles 15, 16 and 17; economic justice underlies much of Part IV; political justice is secured by universal adult franchise.
Liberty — of thought, expression, belief, faith and worship. Given legal shape by Articles 19 and 25.
Equality — of status and of opportunity, made enforceable by Articles 14 to 18.
Fraternity — assuring the dignity of the individual and the unity and integrity of the nation. The dignity limb has become important through Article 21.

How this is examined

Constantly, and in both shapes. As a short note: the Preamble, or the objectives of the Preamble, or whether the Preamble is part of the Constitution. As an essay: discuss the nature, scope and importance of the Preamble, or examine whether the Preamble can be amended.

Two habits that improve the answer. First, quote the Preamble accurately — it is short enough to reproduce and the marks are easy. Second, always give Berubari and Kesavananda together, in that order, and say plainly which one governs today. An answer on the Preamble without those two cases is an answer about the text only.

Now go and read the questions themselves: Constitutional Law I past question papers.