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Interpreting ‘with’ the Preamble

Image Credit: Cultural Samvad

Since the preamble manifests the intent or high purpose behind enactment of various provisions in the Constitution, it may be used, despite being couched in general language, for the interpretation of the Constitution. There are two arguments so far as characterisation of the preamble as an interpretive tool is concerned:
Firstly– that the preamble may not used as an interpretive tool lest certain ambiguities arise,
Secondly– that the preamble may be used as an interpretive tool anytime since the Constitution must be read and interpreted in its entirety and the preamble forms a part of the Constitution.

The Founding fathers, somehow it seems, intended the preamble to be of the second type, something which could very well be concluded by Alladi Krishnaswamy’s comment during the Constituent Assembly Debates.
‘Though in an ordinary statute’, he said, ‘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).

Moreover, it remains a value-laden part that would leave the doors open for creative interpretation of the Constitution. The Supreme Court of India too, nonetheless it seems, has had conformed with the second argument in this concern ever since the pronouncement of the landmark Kesavananda Bharti judgement. It has been using, since then, the preamble and the DPSP’s as creative tools for interpretation of the Constitution. Though not much frequently, it has relied upon the preamble for constitutional interpretation prior to 1973 also. There are plethora of cases to testimonise this fact and this author considers it pretty imperative to mention some of them.

In A.K. Gopalan v. State Of Madras, Patanjali Sastri J agreed that in construing Part III of the Constitution, courts should keep in mind the high purpose and spirit of the Preamble. This, however, is not to say that the language of the provision should be so stretched to square off with this or that constitutional theory in disregard of the cardinal rule of interpretation. In Re: The Kerala Education Bill case, Das CJ recognised the relation between the preamble and fundamental rights and relied upon the preamble for wider interpretation of article 30 of the Constitution. He observed, beautifully, that:

One of the most cherished objects of our Constitution is, thus, to secure to all its citizens the liberty of thought, expression, belief, faith and worship. Nothing provokes and stimulates thought and expression in people more than education. It is education that clarifies our belief and faith and helps to strengthen our spirit of worship. To implement and fortify these supreme purposes set forth in the preamble, Part III of our Constitution has provided for us certain fundamental rights.

Justice S.R. Das

In Basheshar Nath v. CIT, the Apex court relied upon the preamble to conclude that the fundamental rights cannot be waived. The court reiterated what Mahajan CJ observed in Behram Khursed v. State of Bombay,

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 status and of opportunity. These fundamental rights have not been put in the Constitution merely for individual benefit, 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.

Mahajan CJ (page no. 653), Behram Khursed case

In Re: The Berubari Union case, relying upon the interpretation of the term ‘sovereign’ of the preamble, SC held that India possessed the power, like any other sovereign nation-state, to cede any part of its territory. Interpretive importance of the preamble was once again highlighted in the Golaknath Case, where SC observed that the preamble in nutshell contains the ideals and aspirations of the Constitution. It is not a platitude, but the mode of its realisation is worked out in details in the Constitution. In the Kesavananda Bharti case, SC relied upon the preamble to impose the limitation of basic features doctrine on the amending power of the Parliament under article 368 of the Constitution. Many of these basic features were indeed located in the preamble itself. In D.S. Nakara v. Union of India, Desai J relied upon the ‘socialist’ goal of the preamble and put forth what this author reckons as an absolute peach of an observation regarding pension schemes,

The goals for which pension is paid themselves give a fillip and push to the policy of setting up a welfare State because by pension the socialist goal of security of cradle to grave is assured at least when it is mostly needed and least available, namely, in the fall of life.  

If such be the goals of pension, if such be the welfare State which we propose to set up, if such be the goals of socialism, and conceding that any welfare measure may- consistent with economic capacity of the State- be progressively augmented with wider width and a longer canvass yet when the economic means permit the augmentation, should some be left out for the sole reason that while in the formative years of the nascent State they contributed their mite but when the fruits of their labour led to the flowering of economic development and higher gross national produce bringing in larger revenue and therefore larger cake is available, they would be denied any share of it?

Justice Desai

On this basis, that pension schemes came under a veil of socialism, it was held that benefits of pension schemes cannot be restricted to employees retiring after a certain date. Desai J specifically highlighted the interpretive importance of the preamble by observing that “while interpreting or examining the Constitutional validity of a legislative or administrative action, the touchstone of the Directive Principles in light of the preamble will provide a reliable yardstick to hold one way or other.” On the basis this very touchstone it was held in Atam Prakash v. State of Haryana, that right of pre-emption on consanguinity was unsustenable because it was feudal, paritical and opposed to the constitutional scheme of socialism as declared in the preamble.

A Letter: Aforesaid piece puts an end to ‘Interpreting the preamble’ series in the Anatomy of the Constitution collection. This author would now move to the other portions of the Constitution under the said collection but it remains a long road altogether. So be patient, stay tuned and keep reading. Regards!

12 thoughts on “Interpreting ‘with’ the Preamble

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  1. I am very much impressed by your work. I am very glad to inform you that I am starting an english magazine from the month of june. It will be of monthly edition- both digital and print. I am still in nascent stage of planning how to achieve this goal. It will cover everything- socio political issues, economy, law, science, tech, english poetry, short stories .. For the law and constitution part, I need someone of your calibre. Though I don’t know you personally, but i am still requesting you to be kind enough to write columns for me. You can write a series also if you want. If you are interested, then please reply in affirmative.

    Liked by 3 people

    1. I humbly appreciate this truly. I would love to do it especially the series ones like the preamble series I did. But would I have to necessarily to do it every month? Because very soon I’ll be starting my preparation for PCSJ (I want to be a Judicial officer) and in academics sometimes you have to prioritize one thing over other. That’s the only thing I wanted to ask. Like would I be required to write regularly every month?

      Liked by 1 person

      1. Thanks for replying. I appreciate your humbleness. Of course study is first priority. You take some time to write an article on any subject of the constitution. If related any supreme court judgements or famous case just like prashant bhushan one, you write an analysis. I will publish it as it is. No length or word limit. Lets see start with june month. Then we can continue every month depending on your timing. No pressure on you. You give your article at your own pace. Better ping me on 9620970892 WhatsApp. We will discuss further.

        Liked by 1 person

      2. I thought you will message yesterday. Koi nai. Project is only in planning stage. Do mahine hai. This is a good opportunity for you to spread law awareness plus increase readership of yours. I ll promote your blog plus monetize your efforts. Think … m mostly free on weekends as i m a working SAP professional. Feel free to ping me on next Sunday. Soch lo aram se..

        Liked by 1 person

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