The Preamble: The Charter of Transformation

"and to promote among them all FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation". Fraternity is the only one of the four that is promoted rather than secured, because it cannot be conferred. Dignity of the individual is the phrase that later carried the whole of the modern law under article 21.

Justice, liberty, equality, fraternity: the order is Ambedkar's argument

In the Constituent Assembly, Ambedkar treated the three as a union and not a list. Liberty without equality would produce the supremacy of the few over the many; equality without liberty would kill individual initiative; and without fraternity, liberty and equality would require a constable to enforce them.

And he warned that the document was entering a contradiction. On 26 January 1950 India would have political equality and social and economic inequality: one man one vote and one vote one value in politics, and a denial of one man one value in social and economic life. He asked how long the contradiction could last and said that if it lasted long it would put political democracy in peril.

That passage is quoted in a judgment this book has verified. Ramaswamy J set it out in State of Karnataka v. Appa Balu Ingale, AIR 1993 SC 1126, and called it the beacon light in the administration of the law under the Protection of Civil Rights Act and other social legislations.

Why this belongs in a chapter on the Preamble. The Preamble is the resolution; Ambedkar's speech is the reason the resolution had to be made. Together they are the best short answer to any question about why India treats law as an instrument of transformation.

The Forty-second Amendment, and what it did and did not do

Three words were added in 1976: "Socialist", "Secular", and "integrity". The amendment is often described as inserting new ideals. The Supreme Court has taken the view that both socialism and secularism were already implicit in the scheme, and that the amendment made explicit what was implicit.

Secularism was so held in S.R. Bommai v. Union of India, (1994) 3 SCC 1. The judges recorded that Kesavananda Bharati and Indira Nehru Gandhi v. Raj Narain had already held secularism to be a basic feature, and that by the Forty-second Amendment what was implicit was made explicit.

The practical significance is for challenges to the amendment itself. A challenge to the words on the ground that they change the character of the Constitution has to meet the answer that they describe what the document already was.

Is the Preamble part of the Constitution?

The question is not academic; it decides whether the Preamble can be amended and whether it can be used to interpret.

The earlier view was that it was not part. In the Berubari Union reference the Supreme Court treated the Preamble as a key to the mind of the makers but not as part of the Constitution, and Mudholkar J noted that view in Sajjan Singh v. State of Rajasthan, AIR 1965 SC 845, adding that in one sense it does not form part of the Constitution and in another sense it does, and that the Indian Preamble gives a direction and purpose reflected in Parts III and IV.

Kesavananda Bharati settled it. The Preamble is part of the Constitution. It follows that it can be amended under article 368, and equally that an amendment cannot destroy the basic features it declares.

And its interpretive use is settled too. Where the language of a provision is clear, the Preamble does not control it. Where the language is ambiguous or admits of more than one meaning, the Preamble is a legitimate aid and the meaning that advances its objects is preferred.

A worked example

A statute reserves a proportion of seats in a State's medical colleges for candidates from a district that is educationally backward, and it is challenged under article 14.

Step one: is the language of article 14 ambiguous? Article 14 forbids the denial of equality before the law and the equal protection of the laws. The word "equality" does not tell you whether treating unequals alike is equality, so there is something to interpret.

Step two: what does the Preamble supply? Equality of status and of opportunity, and justice, social and economic. That supports reading article 14 as permitting, and sometimes requiring, differential treatment aimed at removing an existing disadvantage.

Step three: what does the Preamble not do? It does not authorise the reservation. The authority is article 15(4) and article 15(5), which are express provisions. The Preamble supplies the reading of article 14 in which those provisions are not an exception to equality but an application of it, which is the argument in [Protective Discrimination].

Step four, the limit. If the classification is arbitrary or the reservation exceeds what the express provisions permit, the Preamble cannot save it, because a Preamble does not confer power.

What this does NOT mean

It does not mean the Preamble is a source of power. No legislature can enact under the Preamble and no citizen can sue on it. It states objects.

It does not mean the Preamble is unenforceable in every sense. It is not directly enforceable, but as part of the Constitution and as a statement of basic features it does real work: an amendment that destroyed what it declares would fail the basic structure test.

And it does not mean the words added in 1976 changed the Constitution's character. The Court's position is that they made explicit what was already there, which is why they survived the challenge to the Forty-second Amendment that destroyed other parts of it.

Quick revision

The Preamble: sovereign, socialist, secular, democratic, republic; justice social economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; fraternity assuring the dignity of the individual and the unity and integrity of the Nation. "Socialist", "Secular" and "integrity" added by the Forty-second Amendment 1976. Berubari treated it as a key but not part; Kesavananda Bharati held it part of the Constitution, amendable but not so as to destroy basic features; Bommai held that secularism was already a basic feature and that the amendment made the implicit explicit. Interpretive rule: no help where the words are clear, a legitimate aid where they are ambiguous. Ambedkar: liberty, equality and fraternity as a union, and the warning about a life of contradictions, quoted in Appa Balu Ingale.

Test yourself

1. Reproduce the four objects in the order the Preamble states them. Justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of status and of opportunity; and fraternity assuring the dignity of the individual and the unity and integrity of the Nation.

2. Which words were added in 1976, and what did the Supreme Court say about their effect? "Socialist", "Secular" and "integrity". In Bommai the Court recorded that secularism had already been held a basic feature in Kesavananda Bharati and Indira Nehru Gandhi, and that the Forty-second Amendment made explicit what had been implicit.

3. Is the Preamble part of the Constitution, and what turns on the answer? Yes, since Kesavananda Bharati. It follows that it may be amended under article 368 and that an amendment destroying the basic features it declares is invalid, and that it is an aid to interpretation where a provision is ambiguous.

4. Why is "secure" the important verb? Because to secure something is to bring about what is not yet there. It is the clearest textual indication that the Constitution was written as a programme for a society rather than as a description of one.

5. State Ambedkar's contradiction and say why it belongs with the Preamble. That from 26 January 1950 India would have political equality and social and economic inequality, and that a democracy resting on that contradiction is in peril. It belongs with the Preamble because the Preamble is the resolution and the contradiction is the reason the resolution was needed.