SUBSTRATUM OF THE CONSTITUTION OF INDIA A LEGAL PHILOSOPHY ?
Today we hear opposition leader Shri. Rahul Gandhi that there is fear that if ruling party retains power in upcoming election than they will amend the constitution. First, we will see views of Jawaharlal Nehru, then we will discuss method of amendment and how many times Constitution is amended. Jawaharlal Nehru in constituent Assembly said, “During the discussion in the Constituent Assembly on this aspect, some members were in favour of adopting an easier mode of amending procedure for the initial five to ten years. Explaining why it was necessary to introduce an element of flexibility in the Constitution,” Jawaharlal Nehru observed in the Constituent Assembly on 8 November 1948, “While we want this Constitution to be as solid and as permanent a structure as we can make it, nevertheless there is no permanence in Constitutions. There should be a certain flexibility. If you make anything rigid and permanent, you stop a nation’s growth, the growth of a living, vital, organic people. Therefore, it has to be flexible … while we, who are assembled in this House, undoubtedly represent the people of India, nevertheless I think it can be said, and truthfully, that when a new House, by whatever name it goes, is elected in terms of this Constitution, and every adult in India has the right to vote – man and woman – the House that emerges then will certainly be fully representative of every section of the Indian people. It is right that House elected so – under this Constitution of course it will have the right to do anything – should have an easy opportunity to make such changes as it wants to. But in any event, we should not make a Constitution, such as some other great countries have, which are so rigid that they do not and cannot be adapted easily to changing conditions. Today especially, when the world is in turmoil and we are passing through a very swift period of transition, what we may do today may not be wholly applicable tomorrow. Therefore, while we make a Constitution which is sound and as basic as we can, it should also be flexible …” So Nehru ji was in favour of flexible Constitution. How many amendments till date: As of September 2023, there have been 106 amendments of the Constitution of India since it was first enacted in 1950. There are three types of amendments to the Constitution of India of which second and third type of amendments are governed by Article 368. Article 368 reads as under : Power of Parliament to amend the Constitution and procedure therefor (1) Notwithstanding anything in this Constitution, Parliament may in exercise of its constituent power amend by way of addition, variation or repeal any provision of this Constitution in accordance with the procedure laid down in this article. (2) An amendment of this Constitution may be initiated only by the introduction of a Bill for the purpose in either House of Parliament, and when the Bill is passed in each House by a majority of the total membership of that House and by a majority of […]
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“SECULARISM” IN THE PREAMBLE OF THE INDIAN CONSTITUTION – A CONTROVERSIAL ZONE
The Preamble was used by Supreme Court as an aid to construction in Behram Khurshed Pasikaka v. The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J., observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India having solemnly resolved to constitute India into a sovereign 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. These fundamental rights have not been put in the Constitution merely for individual benefits, though ultimately, they come into operation in considering individual rights. They have been put there as a matter of public policy and the doctrine of waiver can have no application to provisions of law which have been enacted as a matter of Constitutional policy. Is the Preamble part of our Constitution? This was decided in the matter of Berubari In Re: The Berubari Union And vs Unknown on 14 March 1960 Equivalent citations: AIR 1960 SC 845, 1960 3 SCR 250 There is no doubt that the declaration made by the people of India in the exercise of their sovereign will in the preamble to the Constitution is, in the words of Story, “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, and, as Willoughby has observed about the preamble to the American Constitution, “it has never been regarded as the source of any substantive power conferred on the Government of the United States, or on any of its departments. Such powers embrace only those expressly granted in the body of the Constitution and such as may be implied from those so granted”. In S.R.Bommai vs Union of India: It was held in this landmark judgment that : Secularism is one of the basic features of the Constitution. While freedom of religion is guaranteed to all persons in India, from the point of view of the State, the religion, faith, or belief of a person is immaterial. To the State, all are equal and are entitled to be treated equally. In matters of State, religion has no place. No political party can simultaneously be a religious party. Politics and religion cannot be mixed. Any State Government which pursues unsecular policies or unsecular course of action acts contrary to the constitutional mandate and renders itself amenable to action under Article 356. Note: This feature of secularism was rejected by the Constituent Assembly ( Drafting of Constitution Committee) on 6th December 1948. Bommai ( Supra) is said to be a landmark judgment of the Supreme Court on Article 356, it is true that Secularism is guaranteed as a fundamental right, but the word “Secularism” was never there in the Preamble of the Constitution of India 1949 and the insertion thereof was refused and negatived by the Constituent Assembly. Below is the link to the […]
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It is a very valid question that arise in mind in today’s scenario. When a State Government orders recitation or Preamble that it is incumbent Duty and responsibility of the Government to teach the correct status and history of our PREAMBLE. The draft Preamble was considered by the Assembly on October 17, 1949. Shiva Rao observes that “the object of putting the Preamble last, the President of the Assembly explained, was to see that it was in conformity with the Constitution as accepted. “Once the transfer of power had taken place the question of British Parliament’s subsequent approval which was visualised in the British Cabinet Commission’s original plan of May 1946 could no longer arise. The sovereign character of the Constituent Assembly thus became automatic with the rapid march of events without any controversy, and the words in the Preamble “give to ourselves this Constitution” became appropriate. The Preamble was adopted by the Assembly without any alteration. Subsequently the words and figure “this twenty-sixth day of November 1949” were introduced in the last paragraph to indicate the date on which the Constitution was finally adopted by the Constituent Assembly. Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. “If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble.” (see Tbibhuban Parkash Nayyar v. The Union of India) [1970] 2 S.C.R. 732- 737.As Sir Alladi Krishnaswami, a most eminent lawyer said, “so far as the Preamble is concerned, though in an ordinary statute we do not attach any importance to the Preamble, all importance has’ to be attached to the Preamble in a Constitutional statute”. (Constituent Assembly Debates Vol. 10, p.417). Our Preamble outlines the objectives of the whole Constitution. It expresses “what we had thought or dreamt for so long. The original 1947 Preamble of Indian Constitution is as under WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN 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 Behram Khurshed Pasikaka v.The State of Bombay [1955] 1 S.C.R. 613 at p. 653. After referring to Part III, Mahajan, C.J.observed: We think that the rights described as fundamental rights are a necessary consequence of the declaration in the preamble that the people of India have solemnly resolved to constitute India into a sovereign democratic republic and to secure to all its citizens justice, social, economic and political; liberty of thought, expression, belief, faith and worship; equality of […]
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