Role of Preamble in Interpretation of Statutes

Contents

Introduction ......................................................................................................................................3

Meaning of Preamble .......................................................................................................................3

Object and Scope of Preamble: ........................................................................................................4

Is it part of our Constitution or not ...............................................................................................5

Interpretational Value of the Preamble ........................................................................................6

Preamble as Interpreter of Legislation and statutes: ....................................................................8

As provider of Authority to the Indian Constitution: ...................................................................8

Amendment to the Preamble ..........................................................................................................9

Conclusion .....................................................................................................................................10

Bibliography ..................................................................................................................................11

Page | 2
 Role of Preamble in Interpretation of Statutes

Introduction

After the attainment of independence the people of India were looking for a government of their
own to fulfill the aspirations they had cherished during the freedom struggle. As the leaders had
promised that after the independence India will have a government based on the ideas of
democracy and justice, it was hence, necessary to give a proper shape to these ideas and
ideals.1These were enshrined by the Constituent Assembly in the Constitution of India

The Constitution is the documentation of the founding faiths of a nation and the fundamental
directions for their fulfillment. So much so, an organic, not pedantic, approach to interpretation,
must guide the judicial process. The healing art of harmonious construction, not the tempting game
of hair-splitting promoters the rhythm of the rule of Law.2

Meaning of Preamble

Preamble means a preliminary or introductory statement, especially attached to a statute or

constitution setting forth its purpose.3Preamble is introductory part of the Constitution. The
constitution of India opens with Preamble. The Preamble to a constitution is expected to embody
the fundamental value and the philosophy on which the constitution is based and the aims and
objectives which the founding fathers enjoined the polity to strive to achieve. Therefore, it is also
regarded as the key to open the mind of the makers of the Constitution which may show the general
purposes for which they made several provisions in the Constitution. For these reasons the
Preamble is also a legitimate aid in the interpretation of the provisions of the Constitution. It
expresses “what we thought or dreamt for so long”4. It can be said that the constitution embodies
a solemn form of all the ideas and aspirations for which the country had struggled during the
British regime.5In simple words the Preamble serves as an introduction to the Constitution and
highlights in brief the basic ideas for which the constitution stands and what the frames of the
Constitution sought out to achieve for the citizens of India.

1
Making of the Constitution: The Preamble and Political Philosophy, URL: http://nos.org317courseEL-
4%20THE%20PREAMBLE%20AND%20POLITICAL%20PHILOSOPHY.pdf
2
Fatehchand v. State of Maharashtra, AIR 1977 SC 1825 at 1827: 1977 (2) SCR 828: (1977) 2 SCC 670.
3
Berubari Union and Exchange of Enclaves, Re , AIR 1960 SC 845, 856: (1960) 3 SCR 250
4
Sir AlladiKrishnaswami- Constituent Assembly Debates. Vol. 10, 417.
5
KeshvanandaBharti v. State of Kerala , AIR 1973 SC 1461

Page | 3
 Role of Preamble in Interpretation of Statutes

Object and Scope of Preamble:

The Constitution of India has an elaborate Preamble. The purpose of Preamble is to clarify who
has made the Constitution, what is its source, what are ultimate sanctions behind it; what is the
nature of the polity which is sought to be established by the constitution and what are its goals and
objectives?

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 contains the fundamentals of the
constitution. The preamble to an Act sets out the main objectives which the legislation is intended
to achieve.

Preamble states the objects which our constitution seeks to establish and promote and also aids the
legal interpretation of the constitution where language is found ambiguous.[13] For a proper
appreciation of aims and aspirations embodied in our constitution, therefore, we must turn to the
various expressions contained in the Preamble. Combining the ideals of political, social and
economic democracy with that of equality and fraternity, the Preamble seeks to establish what
Mahatma Gandhi described as The India of my dreams, namely

“An India, in which the poorest shall feel that it is their country in whose making an effective
voice? An India in which all Communities shall live in perfect harmony”.

The Preamble to our Constitution serves several purposes:

a) It contains the enacting clause which brings the Constitution into force.
b) It declares the great rights and freedoms which people of India intended to secure to all its
citizens.
c) It declares the basic type of government and polity which is sought to be established in the
country.
d) It indicates the source from which our Constitution derives its authority.

Preamble indicates ultimate source for the validity of and the sanction behind the constitution is
will of the people. Thus the source of the Constitution are the people themselves from whom the
Constitution derive s its ultimate sanction. This assertion affirms the Republican and Democratic
character of the Indian polity and Sovereignty of the people. The People of India thus constitute
the sovereign political body who hold the ultimate power and who conduct the government of their
elected representatives. As regard the nature of the Indian Polity, the Preamble to the Constitution
declares India to be ‘Sovereign Secular Democratic Republic.’ As to the grants objectives and
socio-economic goals to achieve which the Indian Polity has been established, these are stated in

Page | 4
 Role of Preamble in Interpretation of Statutes

the Preamble. These are: social, economic and political Justice, 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.

Is it part of our Constitution or not

It has been highly a matter of arguments and discussions in past that whether Preamble should be
treated as a part of constitution or not, that means whether or not a citizen of a nation to which he
is subject to can challenge in the court of law if in case his rights have been infringed which were
mentioned in the Preamble. And if not, then whether The Preamble is merely a preface or
introduction piece of page in the book of our Constitution. And also whether the Preamble is a part
of the Constitution would depend the resolution of the next question, which follows as a corollary
- whether the Preamble can be amended, if at all.

The vexed question whether the Preamble is a part of the Constitution or not was dealt with in two
leading cases on the subject:

1. Beruberi Case6

2. Kesavananda Bharati case7

Beruberi case was the Presidential Reference “under Article 143(1) of the Constitution of India on
the implementation of the Indo-Pakistan Agreement Relating to Beruberi Union and Exchange of
Enclaves” which came up for consideration by a bench consisting of eight judges headed by the
Chief Justice B.P. Singh. Justice Gajendragadkar delivered the unanimous opinion of the Court.
The court ruled out that the Preamble to the Constitution, containing the declaration made by the
people of India in exercise of their sovereign will, no doubt is “a key to open the mind of the
makers” which may show the general purposes for which they made the several provisions in the
Constitution but nevertheless the Preamble is not a part of the Constitution.

Kesavananda Bharati[18]case has created history. For the first time, a bench of 13 judges
assembled and sat in its original jurisdiction hearing the writ petition. Thirteen judges placed on
record 11 separate opinions. To the extent necessary for the purpose of the Preamble, it can be
safely concluded that the majority in Kesavanada Bharati case leans in favor of holding,

(i) That the Preamble to the Constitution of India is a apart of Constitution;

6
In Re: Beruberi Union (I), (1960) 3 SCR 250
7
(1973) 4 SCC 225

Page | 5
 Role of Preamble in Interpretation of Statutes

(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;

(iii) The Preamble has a significant role to play in the interpretation of statutes, also in the
interpretation of provisions of the Constitution.

Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of
India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is
amendable under Article 368. He termed submission that the Fundamental Rights are an
elaboration of the Preamble, as “an overstatement and half- truth”. Undoubtedly, the Constitution
is intended to be a vehicle by which the goals set out are hoped to be reached.

It can be concluded that Preamble is introductory part of our Constitution. Preamble is based on
the Objective Resolution of Nehru. Preamble tells about the nature of state and objects that India
has to achieve. There was a controversial issue whether Preamble was part of Indian Constitution
there were number of judicial interpretation but finally Kesavanada Bharati case it was held that
the Preamble is a part of the Constitution.

Interpretational Value of the Preamble

This chapter deals with the importance and role of preamble of Indian Constitution and provides
for why it is immensely important to have the preamble as it plays numerous roles indicating the
source from which the constitution derives its authority, states the objects which the constitution
seeks to establish and promote, acts as a guiding principle in the interpretation of constitution and
framing of other important statutes.

The Preamble of Indian Constitution reflects the basic structure and the spirit of the Constitution.
It is regarded as the preamble serves as a channelizing tool for the interpretation of the constitution
as a whole. The preamble acts as the preface of the constitution of India and lays down the
philosophical ideas. It represents the entire constitution in its written words. It contains the basic
structure of the constitution and thus considered to be a vital part. The preamble is significant
because it highlights the type of society and government it wishes to establish. However, the
preamble does not contain laws enforced in a court but, no law can be enacted or amended in a
manner that violates the spirit of the preamble. Thus the preamble of the constitution of India is
un-amendable.

Preamble of Constitution of India is an introductory note to the constitution. It is like summary for
our constitution, regard as soul of it. To understand the motto of constitution Preamble works as a
guide so we can understand how Preamble is important. The Preamble declares four aims in the
governance of India-

Page | 6
 Role of Preamble in Interpretation of Statutes

Justice- social, economic and political;

Liberty of thoughts, expression, belief, faith and worship;

Equality of status and opportunity; and

Fraternity assuring the dignity of the individual and the unity and integrity of the nation.

Preamble as Projector of ‘Desired Established State’

The Preamble proclaims the solemn resolution of the people of India to constitute India into a
'Sovereign socialist, secular democratic republic. The Preamble was adopted with the constitution
in the constituent assembly. It came into effect in 1950 along with the constitution. The original
draft of the constitution opened with the words ‘Sovereign Democratic Republic’ in the first line.
The words ‘Socialist and Secular’ were inserted by the 42nd amendment in 1976. The same
amendment contributed to the changes of the words unity of the nation into unity and integrity of
the nation. The significance of the preamble of Indian constitution lies in the ‘We the People’.
These words emphasizes that the ultimately the powers are vested in the hands of the people of
India. The expression state that the constitution is made by and for the people of India. In addition
to that the preamble also lays down the essential national goals for every citizen justice, liberty,
equality and fraternity.

According to the preamble of the constitution of India, the word Sovereign occupies a vitall role
in the country. It means supreme or independent and embodies India is internally and externally
sovereign and is free from the control of any foreign power. Furthermore, the country has a free
government which is directly elected by the people and makes laws that govern the people.

The word Socialist also has enormous significance as it implies economic and social equality. The
word was added by the 42nd amendment act8, 1976 during the emergency. In addition to that
Social equality identifies the absence of discrimination on the grounds only of caste, colour, creed,
sex, religion or language. Besides, social equality has equal status and opportunities. The preamble
also guarantees secularism. The word Secularism was also inserted into the preamble by the 42nd
amendment act 1976. Secularism implies equality of all religions and religious tolerance and does
not identity any state religion.
The preamble of Indian Constitution also puts forth the words Democratic and Republic. India
follows a Democratic form of government. The people of India elect their government at all levels
such as Union, State and local by a system of universal adult franchise. India is also a Republic, in
a country where the head of the state is elected directly or indirectly, for a fixed tenure. The

8
Fourty-second Amendment Act to the Indian Constitution, 1976

Page | 7
 Role of Preamble in Interpretation of Statutes

president of India is the titular head of the state. Thus, the preamble plays a pivotal role and serves
two important purposes including and indicate to the source from which the constitution derives
its authority and stating the objects, which the Constitution seeks to establish and promote.

Page | 8
 Role of Preamble in Interpretation of Statutes

Preamble as Interpreter of Legislation and statutes:

The Constitution of India starts with a preamble which contains the spirit of the constitution and
every legislation framed is in conformity with the spirit of the preamble and thus the
constitutionality and objects of the statutes are tested. The preamble also bears the aims and
objectives that the people of India seek to establish with the establishment of Indian Constitution,
any legislation made is made with the purpose and in accordance with the objectivity of the
preamble itself. So, ‘Preamble is the Legislation in a nutshell’. It is a preparatory statement. It
contains the recitals showing the reason for enactment of any legislation and prevents the
legislation to fall in the arms of ambiguity.

In Kashi Prasad v. State of UP9 the court held that even though the preamble cannot be used to
defeat the provisions of the legislation itself, but it can be used as a vital source in making the
interpretation of the legislation

As provider of Authority to the Indian Constitution:

The preamble to the constitution of India begins with ‘We the People of India’, thus conferring
that the authority of the constitution lies in the people of India, who have themselves led to the
enactment of constitution for their own governance.

The provision of the constitution of India cannot be overridden by the Preamble.

In Re Berubari10, the Supreme Court held that the Preamble was not a part of the constitution and
therefore it could not be regarded as a source of any substantive power.

In Keshavananda Bharati’s case11, the Supreme Court rejected the above view and held the
preamble to be a part of the constitution. The constitution must be read in the light of the preamble.
The preamble could be used for the amendment power of the parliament under Art. 368 but basic
elements cannot be amended. The 42nd Amendment has inserted the words “Secularism,
Socialism and Integrity” in the preamble. General rules of interpretation of the constitution

1. If the words are clear and unambiguous, they must be given full effect.

9
AIR 1950 All 732
10
AIR 1960 SC 845, 1960 3 SCR 250
11
Kesavananda Bharati vs State Of Kerala, Writ Petition (civil) 135 of 1970

Page | 9
 Role of Preamble in Interpretation of Statutes

2. The constitution must be read as a whole.

3. Principles of Harmonious construction must be applied.

4. The constitution must be interpreted in a broad and liberal sense.

5. The court has to infer the spirit of the constitution from the language.

6. Internal and External aids may be used while interpreting.

7. The Constitution prevails over other statutes.

Amendment to the Preamble

The issue that whether the preamble to the constitution of India can be amended or not was raised
before the Supreme Court in the famous case of Keshavanand Bharti Vs. State of Kerala,1973.
The Supreme Court has held that Preamble is the part of the constitution and it can be amended
but, Parliament cannot amend the basic features of the preamble. The court observed, "The edifice
of our constitution is based upon the basic element in the Preamble. If any of these elements are
removed the structure will not survive and it will not be the same constitution and will not be abl
e to maintain its identity."

The preamble to the Indian constitution was amended through the 42nd amendment act 1976. And
the words Socialist, Secular and Integrity were added to the preamble by the 42nd amendment Act,
1976, to ensure the economic justice and elimination of inequality in income and standard of life.
Secularism implies equality of all religions and religious tolerance and does not identity any state
religion. The word integrity ensures one of the major aims and objectives of the preamble ensuring
the fraternity and unity of the state.

Page | 10
 Role of Preamble in Interpretation of Statutes

Conclusion

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 is an introductory statement, stating the aims and objectives of the constitution.
Accordingly, the preamble to the Indian constitution spells out the basic philosophy contained in
the body of the Indian Constitution. The Preamble is so important because it highlights the type of
society and government it wishes to establish. The preamble does not contains any law that can be
enforced in the court of law but no law can be enacted or amended in a manner that it violates the
spirit of Preamble.

In conclusion I would like to just say that this is very true that 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 knows that 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 the
part of our constitution or the basic structure of it then why we need these many cases or 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 enacted. It gives the overview of
that particul ar act so we can easily take the idea of what the act is all about. In constitution we can
say that this plays a very big role to understand 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 the part of our constitution .this is
the only answer to that according to me.

Page | 11
 Role of Preamble in Interpretation of Statutes

Bibliography

 Basu, Durga Das, Shorter Constitution of India, Volume 1, Lexis Nexis Butterworths
Wadhwa, Nagpur, 2010.

 Singh, Mahendra P. , Constitution of India., Eastern Book Company Lucknow, 2008.

 Kumar, Narender, Introduction to the Constitutional Law of India, 1st Ed., Allahabad Law
Agency, Allahabad, 2009.

 Oxford Dictionary & Thesaurus, 9th Impression, 2007.

 Majumdar , P.K., & Kataria , R.P, Commentary on the Constitution of India, Volume 1,
Orient Publishing Company, Allahabad, 2009.

 SR Myneni., Political Science for Law Students, Allahabad Law Agency, Allahabad,2006.

 The Constitution Of India, Bare Act, Universal Law Publishing Co. Pvt. Ltd. New Delhi,
2010.

 http://www.ambedkar.org

 http://www.indiastudychannel.com

 from http://www.indianetzone.com

 http://www.indiankanoon.org

 http://www.legalserviceindia.com

 http://www.mkgandhi.org

 http://parliamentofindia.nic.in

 http://www.preservearticles.com

Page | 12