WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and to secure to all its citizens:
JUSTICE social, economic and political;
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;
IN OUR CONSTITUENT ASSEMBLY this twenty-sixth day of November, 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.
What Is in Preamble
[COMMENTS] ⇒The Preamble set out the spirit of the Constitution
- The Preamble assures to the people of India a polity whose basic structure is described therein as a Sovereign Democratic Republic; Parliament may make any amendments to the Constitution as it deems expedient so long as they do not damage or destroy India’s sovereignty and its democratic, republican character .
- Since the Constitution had conferred a limited amending power on the Parliament, the Parliament cannot under the exercise of that limited power enlarge that very power into an absolute power. Indeed, a limited amending power is one of the basic features of our Constitution and therefore, the limitations on that power cannot be destroyed. In other words, Parliament cannot, under Article 368, expand its amending power so as to acquire for itself the right to repeal or abrogate the Constitution or to destroy its basic and essential features. The donee of a limited power cannot by the exercise of that power convert the limited power into an unlimited one. The very 42nd Amendment which introduced clauses (4) and (5) in Art. 368 made amendments to the preamble to which no exception can be taken. Those amendments are not only within the framework of the Constitution but they give vitality to its philosophy; they afford strength and succor to its foundations. By the aforesaid amendments, what was originally described as a ‘Sovereign Democratic Republic’ became a “Sovereign Socialist Secular Democratic Republic” and the resolution to promote the ‘unity of the Nation’ was elevated into a promise to promote the “unity and integrity of the Nation”. These amendments furnish the most eloquent example of how the amending power can be exercised consistently with the creed of the Constitution. They offer promise of more, they do not scuttle a precious heritage[ MINERVA MILLS LTD. AND OTHERS Versus UNION OF INDIA AND OTHERS AIR 1980 SC 1789 ]
History of Making Constitution
|29 Jan||Muslim League demands dissolution of Constituent Assembly.|
|February||Communal rioting in Punjab|
|20 February||Prime Minister Attlee announces the British intention of leaving India by June 1948, and Mountbatten to succeed as Viceroy.|
|23 February||Jinnah declares that the Muslim League will not yield an inch in their demand for Pakistan|
|4-5 March||Outbreak of communal disturbances in Lahore, Multan and other Pujabi towns.|
|12 March||Gandhi begins a tour of the riot-affected areas of Bihar|
|18 March||Prime Minister’s letter sent to Viceroy-designate on the policy and principles in accordance with which power should be transferred|
|24 March||Mountbatten sworn in as Viceroy and governor-General|
|31 March||Viceroy holds the first of five interviews with Gandhi|
|5 April||Viceroy holds the first of six interviews with Jinnah|
|15-16 April||Conference of Governors; approval for draft proposals for the transfer of power|
|15 April||Issue of joint Gandhi-Jinna appeal for abstention from acts of violence and disorder|
|1 May||Nehru acquaints Mountbatten with Congress Working Committee’s reactions to recent developments|
|18 May||Mountbatten leaves for London for talks with Cabinet|
|28 May||Cabinet India and Burma Committee: concluding meeting with Mountbatten|
|30 May||Mountbatten arrives back in Delhi|
|2 June||Mountbatten meets Indian leaders and gives them Partition Plan|
|3 June||Mountbatten, Nehru, Jinnah and Baldev Singh give a broadcast on the Plan over All India Radio|
|4 June||Mountbatten gives a Press Conference on the Plan|
|5-7 June||Mountbatten discusses partition machinery with Indian leaders and Indian Cabinet|
|12 June||First meeting of Partition Committee|
|20 June||Votes in Bengal Legislative Assembly result in decision that Province should be partitioned|
|25 June||Indian Cabinet agrees to establish States Department|
|4 July||Indian Independence Bill is published|
|9 July||Mountbatten advises Attlee of his decision to accept the Governor-Generalship of India|
|16 July||Last meeting of the Interim Government|
|18 July||Indian Independence Bill receives Royal Assent|
|19 July||The Executive Council (Transitional Provisions) Order, reconstituting the Interim Government into two separate groups representing the two successor governments of India and Pakistan, published|
|11 August||Jinnah elected President of the Constituent Assembly of Pakistan|
|14 August||Pakistan Independence Celebrations in Karachi; Viceroy addresses Pakistan Consituent Assembly|
|14 – 15 August midnight||Power transferred|
|15 August||Jinnah sworn in as Governor-General of Pakistan; Mountbatten sworn in as Governor-General of India; Independence Day Celebrations in Delhi|
In November, 1939, the Congress Working Committee adopted a resolution which declared that-
“Recognition of India’s independence and the right of her people to frame their constitution through a Constituent Assembly is essential.[ Constituent Assembly Debates (Proceedings) (9th December,1946 to 24th January ,1950]
[ Extract of Debates ]
In 1922 Mahatmaji( M. K. Gandhi) wrote:-
‘Swaraj will not be a free gift of the British Parliament. It will be a declaration of India’s full self-expression, expressed through an Act of Parliament. But it will be merely a courteous ratification of the declared wish of the people of India. The ratification will be a treaty to which Britain will be a party. The British Parliament. when the settlement comes, will ratify the wishes of the people of India as expressed through the freely chosen representatives.”
The need for having a constitution as per Sir S. Radhakrishnan (United Provinces General on Wednesday, the 11th December, 1946 :-
- The first Britisher to arrive in this country was a Jesuit Missionary in 1579. He was followed by merchants who came to trade but stayed to rule. In 1765 the authority was transferred to the East India Company, Later it_ was gradually subordinated to and replaced by the authority of Parliament and it has been continuing till now on the famous principle enunciated by Cecil Rhodes-the principle fundamental to imperialism, philanthropy plus 5 per cent. On that principle it has worked. Right through however there were protests against the British rule. All these protests became canalized when the Indian National Congress was established in 1885. It adopted mild methods till the advent of Mahatma Gandhi when it became aggressive and dynamic. In 1930 the Resolution for the Independence of India was passed at Lahore and we are now here to give effect to that resolution. The British are empirics from beginning to end. It was Lord Palmerston who said ‘we British have no eternal principles, we have only eternal interests’. When they adopt any particular line of action you ‘May take it that it Is not a willing surrender of power or authority but it is response to the historic necessities of the case. When the discontent grew up they gave us the Morley-Minto Reforms and they introduced the principle of communal electorates and these communal electorates were intended to keep, the people apart, The higher mind of Britain advised the local officials that they would betray the trust placed upon them if they foisted communal electorates. They would inject a poison into the very body politic which could be removed if at all, at the cost of a civil war. We know how those anticipations are getting realized today. We had after that the Montford ‘Reforms and then the 1935 Act, the Cripps’ proposals and now the Cabinet Plan. The latest Statement of His Majesty’s Government on this question indicates how it is not in human nature to surrender power easily. (Hear, hear) Playing off one section against another is unworthy of a great people. It is much too clever to be permanent and would embitter the relations of this country and Great Britain. (Hear, hear). It is essential for the British to understand that if an act is done it must be done with the utmost grace. AR the same we are here assembled to draw up a constitution for future India. A constitution is the fundamental law of the nation. It should embody and express the dreams and passions, the ideals and aspirations of the people. It must be based on the consent of all, and respect the rights of all people who belong to this great land.
- It is essential for any constitution which is drawn up to make all the citizens realise that their basic privileges–education, social and economic are afforded to them; that there will be cultural autonomy; that nobody will be suppressed; that it will be a constitution which will be democratic in the true sense of the term, where, from political freedom we will march on to economic freedom and equity, Every- individual should feel that he Is proud to belong to this great, land.
- Apart from all these, a nation does not depend on identity of race, or sentiment, or on ancestral memories, but it depends on a persistent and continuous way of life that has come down to us. Such a way- of life, belongs to the very soil of this land. It is there indigenous to this country as much as the waters of the Ganges or the snows of the Himalayas. from the very roots of our civilization down in the Indus Valley to the present day, the same great culture is represented among Hindus and Muslims, we have stood for the ideal of comprehension and charity all these centuries.
- I remember how Anatole France went up to the Musse Guimet on the first of May 1890 in Paris and there in the silence and simplicity, of the gods of Asia reflected on the aim of existence-, on the meaning of life, on the values which peoples and Governments are in search of. Then his eyes fell on the statue of the Buddha. France felt like kneeling down and praying to him as to a God, the Buddha, eternally young, clad in ascetic robes, seated on the lotus of purity with hip two fingers upraised admonishing all humanity to develop comprehension, and charity, wisdom and love, prana and karuna. If you have understanding, if you have compassion, you will be able to overcome the problems of this world. Asoka, his great disciple, when he found his Empire inhabited by men of all races and religions said-“Samavaya eva sadhuh.”Concord alone is the supreme good”.India is a symphony where there are, as in an orchestra, different instruments, each with its particular sonority, each with its special sound, all combining to interpret one particular score. It is this kind of combination that this country has stood for. It never adopted inquisitorial methods. It never asked the Parsis or the Jews or the Christians or the Muslims who came and took shelter there to change their creeds or become absorbed in what might be called a uniform Hindu humanity. It never did this. “Live and let live”–that has been the spirit of this country. If we are true to that spirit, if that ideal which has dominated our cultural landscape for five or six thousand years and is still operating, I have no doubt that the crisis by which we are faced today will be overcome as many other crises in our previous history have been overcome. Suicide is the greatest sin. To murder yourself, to betray yourself, to barter away your spiritual wealth for a mess of pottage, to try to preserve your body at. the expense of your spirit-that is the greatest sin. If we therefore stand out for the great ideal for which this country has stood, the ideal which has survived the assaults of invaders, the ideals to which the unheeding world today is turning its attention, if we are able to do it, the flame which has sustained us in overcoming foreign rule, will fire our efforts to build a united and free India.
CONSTITUTION ASSEMBLY WAS SOVEREIGN
In the word of The Hon’ble Diwain Bahadur Sir N. Gopalaswami Ayyangar (Madras: General) :
- The statement of the Cabinet Mission, I would describe as the law of the constitution of this Assembly. That constitution derives its authority not from the fact that its authors were three Members of His Majesty’s Government but from the fact that the proposals made therein have been accepted by the people of this country. Any limitations on the powers of this Assembly which are indicated in that Statement are thus self-imposed imposed by ourselves on this Assembly; and the document, and its subsequent exposition by its authors have made it clear that this Assembly has got the constituent power of amending this constitution, of varying. or adding to what is provided for in that document, not excluding even what are declared to be its fundamentals.The law of the constitution of this Assembly does not vest in any outside authority, Judicial or otherwise, the interpretation of any of its provisions. In one single instance alone does it require that the Chairman should obtain the advice of the Federal Court at the request of the majority of either of the major communities in the Assembly before he takes a decision on the issue. It follows therefore that the decision of all questions of interpretation of the law of the constitution of this Assembly will be in the Chairman’s hands, subject to such directions as this Assembly itself may give. Reference to an outside authority for decision or even advice in respect of other matters could be made only on authority given by a decision of this Assembly and no such decision could be binding on this Assembly unless it has agreed to abide by it. The idea, therefore, adumbrated in a recent statement of His Majesty’s Government, that ‘either side’, those are the words used, is free to ask an outside authority to decide matters of interpretation and that the Assembly should accept whatever decision it may give, cannot be implemented except on the authority of a resolution of this Assembly. (Hear, hear). The Suggestion made in this statement, if implemented without an affirmative resolution of this Assembly, would detract from its sovereign powers and I have no doubt that Dr. Rajendra Prasad will resist such an attempt to his utmost. (Applause)I would, before closing, refer only to one other aspect of this idea of the sovereignty of this Assembly. the task before the Assembly is not merely one of settling of the constitution-, it also includes deciding the method of its implementation so far as India and her people are concerned. In other words, we have to take over power from those who are in possession of it: the method-of that taking over of power will be one to ‘be decided by this Assembly. The fact that His Majesty’s Government claim to decide the mechanics of the transfer of power, to which in substance they are already committed, does not, in my view, detract from the sovereignty of this Assembly so far as its task is concerned.
The Hon’ble Pandit Jawahar Lal Nehru (United Provinces: General) moved the draft resolution on Friday, the 13th December 1946 :-
- I beg to move: “(1)This Constituent Assembly declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution; (2)WHEREIN the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) WHEREIN the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the Law of the Constitution, shall possess and retain the status of autonomous Units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in or assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and (4) WHEREIN all power and authority of the Sovereign Independent India,its constituent parts and organs of government, are derived from the people; and (5)WHEREIN shall be guaranteed and secured to all the people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith worship, vocation, association and action, subject to law and public morality; and (6)WHEREIN adequate safeguards shall be provided for minorities, backward and tribal areas, and depressed and other backward classes; and (7)WHEREBY shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to Justice and the law of civilised nations, and (8)this ancient land attains its rightful and honoured place in the world and make its full and willing contribution to the promotion of world peace and the welfare of mankind.”
- This House has perfect freedom to draw up that Constitution and when others come into this House, they will have perfect freedom too to fashion that constitution. This Resolution therefore steers between these two extremes and lays down only certain fundamentals which I do believe,, no group or party and hardly any individual in India can dispute. We say that it is our firm and solemn resolve to have an Independent sovereign republic. India is- bound to be sovereign, it is bound to be independent and it, is bound to be a republic. I will not go into the arguments about monarchy and the rest, but obviously we cannot produce monarchy in India out of nothing. It is not there. If it is to be an independent and sovereign State, we are not going to have an external monarchy and we cannot have a research for some local monarchies. It must inevitably be a republic. Now, some friends have raised the question: “Why have you not put in the word “democratic” here. Well, I told them that it is conceivable, of course, that a republic may not be democratic but the whole of our past is witness to this fact that we stand for democratic institutions. Obviously we are aiming at democracy and nothing less than a democracy. What form of democracy, what shape it might take is another matter? The democracies of the present day, many of them in Europe and elsewhere, have played a great part in the world’s progress. Yet it may be doubtful if those democracies may not have to change their shape somewhat before long if they have to remain completely democratic. We are not going just to copy, I hope, a certain democratic procedure or an institution of a so-called democratic country. We may improve upon it. In any event whatever system of Government. we may establish here must fit in with the temper of our people and be acceptable to them. We stand for democracy, It will be for this House to determine what shape to give to that democracy, the fullest democracy, I hope. The House will notice that in this Resolution, although we have not used the word ‘democratic’ because we thought it is obvious that the word ‘republic’ contains that word and we did not want to use unnecessary words and redundant words, but we have done something must more than using the word. We have given the content of democracy in this Resolution and not only the content of democracy but the content, if I may say so, of economic democracy in this Resolution. Others might take objection’ to this Resolution on the ground that we have not said that it should be a Socialist State. Well, I stand for Socialism and, I hope, India will stand for Socialism and that India will go towards the constitution of a Socialist State and I do believe that the whole world will have to go that way. What form of Socialism again is another matter for your considerations But the main thing is that in such a Resolution, if, in accordance with my own desire, I had put in, that we want a Socialist State, we would have put in something which may be agreeable to many and may not be agreeable to some and we wanted this Resolution not to be controversial in regard to such matters. Therefore we have laid down, not theoretical words and formulae, but rather the content of the thing we desire. This is important and I take it there can be no dispute about it. Some people have pointed out to me that our mentioning a republic may somewhat displease the Rulers of Indian States. It is possible that this may displease them. But I want to make it clear personally and the House knows. that I do not believe in the monarchical system anywhere, and that in the world today monarchy is a fast disappearing institution. Nevertheless it is not a question of my personal belief in this matter. Our view in regard to these Indian States has been, for many years, first of all that the people of those States must share completely in the freedom to come. It is quite inconceivable to me that there should be different standard and degrees of freedom as between the people in the States ind tile people outside the States. In what manner the States will be Parts of that Union that is a matter for this House to consider with ,he representatives of the States. And I hope in all matters relating to the States, this House will deal with the real representatives of the States. We are perfectly willing, I take it, to deal in such matters as appertain to them, with the Rulers or their representatives also, but finally when we make a constitution for India, it must be through the representatives of the people of the States as with the rest of India. Who are present here. (Applause). In any event, we may lay down or agree that the measure of freedom must’ be the same in the States elsewhere. It is a possibility and personally I should like a measure of uniformity too in regard to the apparatus and machinery of Government. Nevertheless, this is a point to be considered in co-operation and in consultation with the States. I do not wish, and I imagine this Constituent Assembly will not like, to impose anything on the States against their will. If the people of a particular State desire to have a certain form of administration, even though it might be monarchical. it is open to them to have it. The House will remember that even in the British Commonwealth of Nations today, Eire is a Republic and yet in many ways it is a member of the British Commonwealth. So, it is a conceivable thing. What will happen, I do not know. because that is partly for this House and partly for others to decide. ‘there is no incongruity or impossibility about a certain definite form of administration in the States, provided there is complete freedom and responsible Government there and the people really are in charge. If monarchical figure-heads are approved by the people of the State,-of a particular State, whether I like it or not, I certainly will not like- to interfere. So I wish to make it clear that so far as this Resolution or Declaration is concerned, it does not interfere in any way with any future work that this Constituent Assembly may do, with any future negotiations that it may undertake. Only in one sense, if you like, it limits our work, if you call that a limitation, i.e., we adhere to certain fundamental propositions which are laid down in the Declaration. Those fundamental propositions, I submit, are not controversial in any real sense of the word. Nobody challenges them in India and nobody ought to challenge them and if anybody does challenge, well, we accept that challenge and we hold our position. (Applause).
RULE OF LAW ENGINEERED IN CONSTITUTION ASSEMBLY
Shrimati Dakshayani Velayudan (Madras: General) on Thursday, the 19th December 1946 , in his speech while supporting the draft Resolution said :-
Mr. Chairman, before I express my views on the Resolution, let me pay my humble homage to our Revolutionary Father, Mahatma Gandhi (applause). It is his mystic vision, his political idealism and his social passion that gave us the instruments to achieve our goal. I submit that a Constituent Assembly not only frames a constitution, but also,gives the people a new framework of life. To frame a constitution is an easy job, because there are many models for us to imitate. But to renew a people on a new foundation requires the synthetic vision of a planner. The Independent Sovereign Republic of India plans a free society. In our ancient polity, there were conflicts between absolutism and republicanism. The slender flame of republicanism was snuffed out by the power political States. The Lichavi Republic was the finest expression of the democratic genius of our ancients. There, every citizen was called a Raja. In the Indian Republic of tomorrow, the power will come from the people……
We could understand the attitude of the Princes in this matter from the statement made by the members of the Negotiating Committee who represent the Chamber of Princes. But here comes a Maharaja with a historic message to his people. I mean the Maharaja of the Cochin State, which is one of the most advanced States in India and I am proud to say that I belong to it. Here is a part of the message:
“I believe in pure constitutional rule and, throughout my life, I have sedulously cultivated an attitude towards life and institutions which are antipathetic to autocracy and personal rule.”From this message it is obvious that the power comes from the people. In the Indian Republic there will be no barriers based on caste or community. The Harijans will be safe in a Republican State of the Indian, Union. I visualise that the underdogs will be the rulers of the Indian Republic. I therefore appeal to the Harijan Delegates of this Constituent Assembly that they should not harp on separatism. We should not make ourselves the laughing stock of our future generations by harping on separatism. Comunalism, whether Harijan, Christian, Muslim or Sikh, is opposed to nationalism. (Hear, hear.) What we want is not all kinds of safeguards. It is the moral safeguard that gives real protection to the underdogs of this country. I am not at all afraid of the future of the Harijans. It is not safeguards that go to improve the status of the Harijans.
The other day we heard Mr. Churchill waxing eloquent over the question of the Harijans. He said that the British Government is responsible for the life and welfare of the so-called Scheduled Castes of India. I would like to ask him one question. What has the British Government done to improve the social status of the Harijans? Did they ever pass any legislation to remove the social disabilities of the Harijans except producing some chaprassis and butlers? And Mr. Churchill also complained that the Harijans were thrown at the mercy of the Caste Hindus, their oppressors. Mr. Churchill cannot take the 70 million Harijans of this land to Great Britain to give them protection. He may give protection to a few communalists who might fly to England. Mr. Churchill should understand that we are Indians. The Harijans are Indians and they have to live in India as Indians and they will live in India as Indians. We also heard recently that the Scheduled Castes are considered as a minority. Nothing of the sort is mentioned in the State Paper of May 16. 1 refuse to believe that the 70 million Harijans are to be considered as a minority. Neither Lord Pethick-Lawrence, the Secretary of State for India, nor even the Prime Minister, Mr. Attlee, nor even the Leader of the Opposition, Mr. Churchill, is going to improve the condition of the Harijans What we want is the removal, immediate removal, of our social disabilities. Only an Independent Socialist Indian Republic can give freedom and equality of status to the Harijans. Our freedom can be obtained only from Indians and not from the British Government.
Let me make a personal appeal to Dr. Ambedkar to join the nationalist forces of this country. He is the only leader of the Harijan community and his non-co-operation with the nationalist forces is a great tragedy to the Harijans; his co-operation with the nationalist forces will enhance the emancipation of the Harijans. Here is a unique occasion for you Sir, (addressing Dr. Ambedkar) to place your services before the country.
The Harijans will be free only in a Socialist Republic India, and let us all support the Resolution and work for its implementation even if it demands the utmost sacrifices from us.
CONSTITUTION IS THE EPITOME OF ‘RULE OF LAW’
A contemporary Definition of ‘Rule of Law’ :-
Effective rule of law reduces corruption, combats poverty and disease, and protects people from injustices large and small. It is the foundation for communities of peace, opportunity, and equity – underpinning development, accountable government, and respect for fundamental rights.[World Justice Project.org]
Review Of The Constitution
FIRST EVER REVIEW OF THE CONSTITUTION BY THE THIRTEEN SUPREME COURT JUDGES
- PRESERVING THE IDENTITY OF THE CONSTITUTION IS THE THEME SONG OF KESAVANANDA BHARATI CASE :
‘Amend as you may even the solemn document which the founding fathers have committed to your care, for you know best the needs of your generation. But, the Constitution is a precious heritage; therefore, you cannot destroy its identity’.