Legal Service India - Preamble: A Part of The Constitution or Not
law  in India

Preamble: A Part of The Constitution or Not

Written by: Mohit Agrawal and Romit Agrawal - V year and IV year Law Students from Aligarh Muslim University and Gujarat National Law University
click here for LIVE help-desk
Chat with us  (2 PM - 9 PM IST)
Legal Advice | Find a lawyer | Constitutional law | Judgments | forms | PIL | family law | Cyber Law | Law Forum | Income-Tax | Consumer laws | Company laws
Search On:laws in IndiaLawyers Search

Copyright Online in India
Right from your Desktop - Ph no: 9891244487

Home \ Constitutional Law \ Constitution

Latest Articles | Articles 2013 | Articles 2012 | Articles 2011 | Articles 2010 | Articles 2009 | Articles 2008 | Articles 2007 | Articles 2006 | Articles 2000-05

Preamble:- A Part of The Constitution or Not

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. Berubari case [1]
2. Kesavananda Bharti case [2]

On the answer to the primary question- 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.

Berubari case was the Presidential Reference Under Art. 143(1) of the Constitution of India on the implementation of the Indo-Pak agreement relating to Berubari union and exchange of enclaves which come up for consideration by a bench consisting of eight judges headed by B.P.Sinha, C.J. Justice Gajendragadkar delivered the unanimous opinion of the court. Quoting story, the eminent Constitutional jurist, the court held 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 minds of framers of the Constitution” 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.

The holdings in Berubari Case has been succinctly summed up later by Shelat and Grover, JJ. In Kesavananda Bharti case as under:
1. A Preamble to the Constitution serves as a key to open the minds of the framers, and shows the general purpose for which they made the several provisions in the Constitution;
2. The Preamble is not a part of our Constitution;
3. It is not a source of the several powers conferred on government under the provisions of the Constitution;
4. Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted;
5. What is true about the powers is equally true about the prohibitions and limitations;
6. The Preamble did not indicate the assumptions that the first part of the Preamble postulates a very serious limitation on one of the very important attributes of sovereignty.

Berubari case was relied on in Golaknath case [3], Wanchoo, J. said- On a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitationson the bar to amend the Constitution contained in Article 368.

Bachawat, J. observed- Moreover the Preamble cannot control the unambiguous language of the Articles of the Constitution.

It is a matter of regret, yet the eminent Judges constituting the bench answering the presidential reference in Berubari Case overlooked a matter of record, that constitutional history. The motion adopted by the Constituent Assembly stated in so many words that the Preamble stands as a part of the Constitution. The error came to be corrected in Kesavananda Bharti case where the majority specifically ruled that the Preamble was as much a part of the constitution as any other provision therein. It would be interesting to note what some out of the thirteen Judges constituting the bench which decided Kesavananda Bharti case had to say about the preamble.

Kesavanada Bharati Case has created a history. For the first time, a bench of 13 Judges assembled and sat in its original jurisdiction hearing the writ petition. 13 Judges placed on record 11 separate opinions. It is not an easy task to find out the ratio of the holding of the court in the same case. It was held in this case:
a. that the Preamble to the Constitution of India is a part of Constitution
b. that the Preamble is not a source of power nor a source of limitations
c. the Preamble has a significant role to play in the interpretation of statues, also in the interpretation of provisions of the Constitution.

Moreover in Bommai case [4] the majority of nine Judges laid down a new application of the Preamble under the Constitution, which is as follows:
1. The Preamble indicates the basic Structure of the Constitution

2. A Proclamation under Article 356(1) is open to judicial review on the ground of violating the basic structure of the Constitution.

3. It follows that a proclamation under Article 356(1), which violates any of the basic features, as summarized in the Preamble of the Constitution is liable to be struck down as unconstitutional.

4. A further extension of this innovation is that a political party, which appeals to religion in its election manifesto, acts in violation of the basic structure, and the President may impose President’s Rule on a report of the Governor that a party has issued such a manifesto.
In the same case three of the nine Judges have opined that the word “secularism” in the Preamble of our Constitution.

A discussion on Preamble cannot be complete without making a reference of Mandal Commission case [5], which was decided by a larger bench of nine Judges. A rainbow of judicial thoughts reflecting the significance, value and message of the Preamble. B.P. Jeevan, J. held that the four folding objective of securing to its citizens justice, liberty, equality and fraternity displays statesmanship of the highest order Constitution of India.. The framers of the Constitution did not rest content with evolving the framework of the state; they also pointed out the goal as spelled out in the Preamble and the methodology for reaching that goal is elaborated in parts of the Constitution of India. In the opinion of R.M. Sahai, J. the preamble to the constitution is a turning point in history. The Preamble of the constitution has the sentiments and it is the key to the minds of the framers of the Constitution.

1. In Re:berubari union(1) (1960) 3 SCR 250
2. Kesavananda Bharti 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

The author can be reached at: / Print This Article


Lawyers Search

• Find a lawyer
• Know your legal options
• Information about your legal issues

File Mutual Consent Divorce

Right Away
Call us at Ph no: 9650499965
Copyright Registration Online Right from your Desktop...
*Call us at Ph no: 9891244487

Legal Advice

Get legal advice from Highly qualified lawyers within 48hrs.
with complete solution.

    Your Name                Your E-mail

Legal Service India

lawyers in Delhi
lawyers in Chandigarh
lawyers in Allahabad
lawyers in Lucknow
lawyers in Jodhpur
lawyers in Jaipur
lawyers in New Delhi
lawyers in Nashik
Contract laws
Protect your website
Army law
lawyers in Mumbai
lawyers in Pune
lawyers in Nagpur
lawyers in Ahmedabad
lawyers in Surat
Faridabad lawyers
Noida lawyers
lawyers in Dimapur
Trademark Registration in India
Woman issues
Famous Trials
lawyers in Kolkata
lawyers in Janjgir
lawyers in Rajkot
lawyers in Indore
Gurgaon lawyers
Ghaziabad lawyers
lawyers in Guwahati
Protect your website
Law Colleges
Legal Profession
Transfer of Petition
Lawyers in India - Search by City legal Service India
lawyers in Chennai
lawyers in Bangalore
lawyers in Hyderabad
lawyers in Cochin
lawyers in Agra
lawyers in Siliguri
Lawyers in Auckland
Cause Lists
Immigration Law
Medico Legal
lawyers in Dhaka
lawyers in Dubai
lawyers in London
lawyers in New York
lawyers in Toronto
lawyers in Sydney
lawyers in Los Angeles
Cheque bounce laws
Lok Adalat, legal Aid and PIL

About Us | Privacy | Terms of use | Juvenile Laws | Divorce by mutual consent | Lawyers | Submit article | Lawyers Registration | Sitemap | Contact Us

legal Service is Copyrighted under the Registrar of Copyright Act ( Govt of India) © 2000-2015
ISBN No: 978-81-928510-0-6