22 May 2020 11:54 AM GMT
A live webinar was conducted by Lloyd Law College, Greater Noida on 08.05.2020 on the topic "The Spirit and Ethos of the Preamble to the Constitution". The former Chief Justice of India, Hon'ble Mr. Justice (Retd.) Dipak Misra was the speaker of the session. Justice Misra has explained about the significance of the Preamble of the Constitution in the following ways:- The Preamble of...
A live webinar was conducted by Lloyd Law College, Greater Noida on 08.05.2020 on the topic "The Spirit and Ethos of the Preamble to the Constitution". The former Chief Justice of India, Hon'ble Mr. Justice (Retd.) Dipak Misra was the speaker of the session. Justice Misra has explained about the significance of the Preamble of the Constitution in the following ways:-
The Preamble of the Constitution of India makes one feel the heartbeat of the great organic document. It encapsules the characteristics of the aspirations of the people and sets out the ideals of identifying the nature of the State the Constitution intends to have and further epitomizes the fundamental philosophy of an egalitarian society and a progressive nation. The words of the Preamble are simultaneously metaphysical and practical and lay down the objectives upon which the foundation of this country was laid.
"Preamble is the horoscope of our sovereign democratic republic", said K.M. Munshi. How eloquent and invaluable the statement is. The Preamble has been called the soul of the Constitution because every particular detail and the fundamental principles get the instinct of verbalization when other ideas are read in harmony with the Preamble. The Preamble makes every article very active and that is why, it is called a great declaration. Preamble acts as key to understanding of the Constitution and makes us understand what the founding fathers meant when they drafted this grand document. The Preamble was incorporated after all the Articles were drafted and after a keen and interesting debate; and that is why, every word used in the Preamble is absolutely precious. I personally feel that the Preamble is the structural rhythm and it tells us the source of authority of Constitution of India. It defines the objectives which the polity is intended to achieve and sets out the goals which the nation intends to achieve. These are the basic objectives. Preamble as it now stands defines India as a sovereign, socialist, secular and democratic republic committed to give its citizens justice, equality, liberty and fraternity with each of the words specifying the realm in which the said virtue must operate.
Justice is in the sphere of social, economic and political ; liberty is ensured in the realm of thought, expression, belief, faith and worship ; equalityassured when it comes to the sphere of status and opportunity and fraternity to promote the dignity of individual and the unity and integrity of the nation. One thing I would like to add about fraternity is that it lays emphasis on the dignity of the individual.
As I read the Preamble from time to time, it is not static. It encapsules and incorporates the generational spirit that always remains in the indestructible present. To explicate,"We the people" is not a time-bound concept but a representative concept of the constant present and it includes the past and the future as well. Presently, let us look at the precedents and try to understand how the judges have understood or what kinds of theories or perspectives can emerge from their understanding. In 1957, there was a presidential reference which formed the subject matter in Re : The Kerala Education Bill, 1957. The Constitution Bench noteably expressed that the words of the Preamble record the solemn resolve of the people of India. Nothing provokes and stimulates thought and expression in people more than education. I would like to call it "Theory of Resolve". The Constitution Bench accentuates that such resolution and understanding can be better understood if people are educated.
Then came quite a different situation. In 1960, in Re :Berubari Union and Exchange of Enclaves, the Court ruled that the Preamble is not a part of the Constitution. When the Court said that the Preamble is not a part of the Constitution, they stated that it is the key to open the mind of the Constitution makers meant for general purpose and does not confer anything else. I would like to call it "General Purpose Theory". This judgement held the field for more than a decade.
In 1973, in the locus classicus Kesavananda Bharati case, it has been firmly stated that the Constitution makers accorded to the Preamble a pride of place, put it on a pedestal and regarded it as a constant thread which runs throughout each and every Article of the Constitution. The Preamble was treated as sacrosanct and further regarded as a part of the Constitution. We find that through this judgment, the Court developed a "Constant Thread Theory"or"Constant Thread Doctrine" and added sacrosanctity to the Preamble.
Let us see and appreciate what the Court said in Indira Nehru Gandhi case- "the essential features of the great concepts are set out in the Preamble". If it is studiedly scrutinized, then we find that the Court has propounded the "Essential Feature Theory" as regards the Preamble.This"Essential Feature Theory" was further developed in the Minerva Mills case.In the nineties, the Supreme Court, with regard to the power of judicial review of declaration of Emergency under Article 356(1) of the Constitution of India, in S.R. Bommai case, referring to the Preamble, stated that, "Preamble of the Constitution is an integral part of the Constitution".
Prior to S.R. Bommai, in the famous Indira Sawhney case, it has been said that four-fold objectives are meant to secure to the citizens justice, liberty, equality and fraternity. They display statesmanship of the highest order and the Preamble of the Constitution of India is the sentiment and key of the minds of the Constitution framers. Carefully analyzed, the Court has unequivocally stated about the "Goal or Purpose Perspective". As it has been said in the judgement, "the goal enumerated in the Preamble of the Constitution, fraternity assuring the dignity of the individual and unity and integrity of the nation must, therefore, remain unattainable so long as the equality of opportunity is not ensured to all." Equality of opportunity is conceived from the purpose or design set out in the Preamble. Achievement theory is a dynastic process. Therefore, I would like to call it "Dynastic Achievement Theory". In this judgement, for the first time, Court, in clear words, said that the Preamble is the basic feature of the Constitution as it promises equality of opportunity and dignity to its citizens and ensures the State to take positive steps under Articles 15(4) and 16(4) of the Constitution of India. The introduction of the basic featureand conferring of the status of basic featureon the Preamble is absolute and unequivocal.
Second limb of explanation –The Preamble contains many words. I do not intend to explain each and every word although every word is precious like a jewel in the crown, a priceless diamond. Let us understand what is 'Sovereign'. Sovereign is to be understood as all power emanating from the people and the political system being accountable and responsible only to the people of this country. The Sovereign power is plenary and inherent in every Sovereign State to do all things like providing health, education, peace and good order. The Sovereign power is, however, subject to certain Constitutional limitations.
Socialism: The concept of 'Socialism', as has been stated in Minerva Mills case, is meant to crystallize a Socialistic State securing to its people socio-economic justice by interplay of Fundamental Rights and Directive Principles of State Policy. The constitutionality of the legislations are tested on the said touchstone.
Secular: The term 'Secular' is not defined anywhere in the Constitution of India. The word 'Secular' does not mean that the State will be anti-religious or an atheistic State. It means that the State has no religion. In S.R. Bommai case, it has been ruled :"the concept of Secularism was very much embedded in our Constitutional philosophy. The term 'Secular' is not defined as it is a very elastic term not capable of precise definition and perhaps best left undefined."
Democratic Republic: The words have to be read in a holistic manner. The Constitution of India has established a form of government that derives its power from the people and the people have the right to elect the government and to unseat the government as well. "That is why a little man's vote matters", as said by Winston Churchill. In the case of R. C. Poudyal, the Court stated that democracy is a multi-faceted system ; it refers to the political participation of the people in running the administration of the Government. It describes the State affairs and rule of law under which every citizen is assured the right to equal participation in the body polity. That is what democracy stands for.
Justice: It is a natural concept which is recognized by the Constitution. Justice refers to abolition of inequality from society, i.e., social justice. Political Justice means extinction of unreasonable distinction in political matters of the State. Economic Justice conveys that each person is entitled to equal pay for equal work and further must have equal opportunity. Talking about justice, the Court, in NCTE v. Venus Public Education Society,said, "Justice in its connotative expanse engulfs the liberalism of an ocean, a magnanimity of the Sun, the sternness of a mountain, simplicity of a saint, the austerity of a Spartan and the humility of a river. The concept of justice has to remain embedded in spite of adversities. It should remain unshaken, unterrified, unperturbed and loyal to the Rule of Law." This is the essence of Justice.
Liberty and Fraternity: Liberty talks of thought, expression, belief, faith and worship. It is essential to an individual as well as to the nation. Liberty means the right to express one's choice and choose. There should not be any impediment unless it is constitutionally impermissible. Liberty and freedom are not absolute. Any fetter put on liberty must be absolutely constitutionally valid. Despite the non-absolute nature of liberty, what has been said by a great thinker is recapitulating. It is said, "Like bones to the human body, and axle to the wheel, the wing to the bird, and the air to the wing, so is liberty the essence of life". Poetically you can describe this magnificent concept called liberty.
Coming to fraternity, it emphasizes on dignity and brotherhood. There can be dissent, there can be difference of opinion ; but there cannot be abuse.Dr. B.R Ambedkar had said, "Without fraternity, equality and liberty are no deeper than coats of paint". Thus, when holistically understood, the trinity of liberty, equality and fraternity are to be understood in a proper perspective and with a progressive vision.Recently, while explaining the meaning of the concept of transformative constitutionalism, the Apex Court said that it has at its kernel a pledge, promise and thirst to transform the Indian society so as to embrace therein, in letter and spirit, the ideals of justice, liberty, equality and fraternity as set out in the Preamble to our Constitution. These are the lines fromNavtej Singh Johar's casewhere the Court dealt with the rights of LGBTQ community.
In conclusion, dear students, I would like to suggest with sincerity and all the humility at my command that all of you shall take a pledge today to remain a loyalist to the noble ideology enshrined in the Preamble to the Constitution.
Before parting, I must express my thanks to the organizers of the Lloyd Law College, an institution which has determined itself to engage the students with virtual seminars and activities in these difficult times. They really deserve to be congratulated and I, without any inhibition or reservation, congratulate the organizers.
Thank you very much.
 AIR 1958 SC 956
AIR 1960 SC 845.
KesavanandaBharatiSripadagalvaru and Ors v. State of Kerala and Anr, (1973) 4 SCC 225 : AIR 1973 SC 1461
Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1
Minerva Mills Ltd. &Ors v. Union Of India &Ors, 1981 SCR (1) 206
 S.R. Bommai v. Union of India, AIR 1994 SC 1918
IndraSawhney v. Union Of India, AIR 1993 SC 477
R.C. Poudyal&Anr. v. Union of India &Ors., AIR 1993 SC 1804
 (2013) 1 SCC 223
Navtej Singh Johar v. Union Of India, (2018) 1 SCC 791