Preamble and Making of the Constitution Notes

Making of the Constitution

What is a constitution?

A constitution is a sacred document consisting of general rules and regulations through which a country is governed.

Need of the Constitution?

Constitution is an important law of land which determines the relation between citizens and the government of a country.

Basic Ideals of a country – The constitution sets out the basic ideals that forms the basis of a kind of country that the citizens aspire to live in.
Fundamental nature of society – The constitution of a country represents
the fundamental nature of society of that country. For ex – Secular society of India.
Country’s political system – The constitution defines the nature of political system of the country. For ex – American constitution declares American political system as Presidential form of system while Indian constitution declares Indian government as having parliamentary form of government.
Ensures equality – The constitution ensures equality in the society by providing equal rights to all the sections of the society. For ex – Article 14 ensures equality before law.
Control over authority – The constitution lays down rules that guard against the misuse of authority by political leaders.
Control over majority – Constitution plays an outstanding role in ensuring that a dominant group does not use its powers against less powerful groups. For ex – Articles 14 to 18 ensures right to equality.
To save us from ourselves – Constitution saves us in taking such decisions which might not be in the larger interest of the nation.

Background of Indian Constitution

“Swaraj will not be a free gift of the British Parliament. It will be a declaration of India’s full self-expression” – Mahatma Gandhi

The foundations of responsible government in India were laid by the end of 19th century when the demands for reforms in the council were put forth by nationalists.

After the formation of the Indian National Congress in 1885, the demand for representation of Indians within the council upsurged which led to the enactment of Indian Council act 1892 which provided for indirect elections for the members of the legislative assembly. But this was just a drop in the ocean and this adds to the agitation of Indian Nationalists.

The National movement by the end of 2nd decade of 20th century had begun to espouse the doctrine of self-determination or the rights of Indians to frame their own constitution.

On 8th February 1924, a resolution was introduced by Motilal Nehru, which asked the government for the scheme of constitution of India. This was the first time when the demand for a constitution was put officially.

In 1934, M.N Roy put forth the idea of constituent assembly. The idea was that the Indians would make their own constitution via a constituent assembly.

After a series of failed negotiations (Government of India act 1935, August Offer etc.) between the British and the nationalists, consensus was made between INC and the British under Cabinet Mission plan and this led to the formation of constituent assembly.

Organisational Structure of the Assembly

The seats for each province and princely state were to be allotted in proportion to their respective population.
Seats allotted to each British Province were to be divided among three principal communities – Muslims, Sikhs and General in proportion to their population. General included representatives of Parsis, SCs, Indian Christians, Anglo Indians, Tribals and Women.
The representatives of the princely states were to be nominated by the heads of the princely states.

Elections of the constituent assembly

The elections to the constituent assembly of India were held in July-August 1946.
The members were elected by the provincial assemblies by a single, transferrable vote system of proportional representation.
Out of 296 seats, 208 won by Congress, 73 by Muslim league and 15 by small groups and independent candidates.
After the election, Muslim league refused to join the assembly and demanded a separate constituent assembly for Muslims in India.
Dr. Sachidananda Sinha (the oldest member) was elected as the temporary president of the assembly.
Dr.Rajendra Prasad was later selected as the president of the assembly with two vice-presidents – HC Mukherjee and VT Krishnamachari.

Sessions of the assembly

The assembly held its first meeting on 9th December 1946.
The first meeting was attended by 211 members as the Muslim league boycotted the constituent assembly.
The assembly took 11 sessions over a period of two years to compose and compile the constitution.
The last session of the assembly was held on 24th January 1950.

Working of the assembly

During the first session of the assembly (on 13th December 1946), Jawahar Lal Nehru moved the “Objective Resolution” which laid down the fundamentals and philosophy of the constitution.
The objective resolution was unanimously passed on 22nd January 1947.
The assembly decided that they would not vote on any matter, rather they would decide every matter with consensus of each member.

Work of the assembly was organized into 5 stages:

Committees were asked to present reports on basic issues. (List of committees given)
BN Rau prepared an initial draft based on the reports of the committee and his own research into the constitutions of other countries.
Drafting committee presented a detailed draft of the constitution which was then published for public comments.
Discussion of draft constitution and proposal of amendments.
Adoption of constitution.

Committee and Chairperson

Union Powers committee – JN Nehru

Union Constitution committee – JN Nehru

States committee – JN Nehru

Provincial committee – Sardar Patel

Rules of procedure committee – Dr. Rajendra Prasad

Steering committee – Dr. Rajendra Prasad

Fundamental rights sub-committee – JB Kriplani

Minorities sub-committee – HC Mukherjee

North East frontier tribal areas and Assam excluded and partially excluded

areas sub-committee – Gopinath Bordoloi

Excluded and partially excluded areas (other than those in Assam) sub-

committee – AV Thakkar

The final draft of the constitution was introduced on 4th November 1948. The third and final reading of the draft constitution was held on 14th November 1949.
On 26th November 1949, the motion on draft constitution was passed and received the signatures of members and the president.
The constitution as adopted on 26th November 1949 contained a preamble, 395 articles and 8 schedules.
Some provisions pertaining to citizenship, elections, provisional parliament etc. came into force on 26th November 1949 while the remaining constitution came into force on 26th January 1950 which we celebrate as Republic Day.

Other functions performed by the assembly

Adoption of National flag on 22nd July 1947
Ratification of India’s membership in common wealth in May 1949
Adoption of National song and National Anthem on 24th January 1950
Election of Dr. Rajendra Prasad as the first president of India on 24th Jan 1950.

Preamble of the Constitution

What is a Preamble?

N.A. Palkhivala, an eminent jurist called the preamble as the “Identity card of the constitution”

A preamble is an introduction of a document which gives the basic idea and philosophy about that document.

Similarly, preamble of a constitution outlines the intention of its framers, history behind its creation, core values and principles of the nation and fundamentals on which the country is based. The preamble contains the summary and essence of the constitution.

The American constitution was the first to introduce preamble. From there, various countries have borrowed the idea of preamble.

The preamble to the Indian constitution was partially based on the “Objective Resolution” moved by JN Nehru.

Text of the Preamble

We, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC and 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.

Key Words in the Preamble

“The people of India” – This signifies that the constitution has been adopted, enacted and given by the people of India for the people of India. It declares that the supreme powers are in hands of the people of India. The ultimate authority in the Nation is the people of India.

“Sovereign” – This signifies that India is an independent nation both internally and externally. All the internal and external issues of India are controlled by her. It recognizes no foreign authority as its master. The power of India is absolute and uncontrolled within its vicinity.

“Socialist” – This term was added in the preamble through the 42nd Amendment act 1976. The Indian version of socialism is democratic which is a blend of Marxism and Gandhian socialism. The Democratic socialism aims to end poverty, ignorance, disease and inequality. In this type of socialism, both public and private sectors co-exist side by side. In the Avadi session of 1955, congress adopted the resolution to establish a socialist society and took measures accordingly.

“Secular” – This term was also added by the 42nd constitutional amendment act 1976. It signifies that the state would not give any preference to a particular religionand that all the religion are treated as equal with equal respect. There would not be any state religion. Indian secularism is related to “Sarva Dharma Sambhava” which is different from the western secularism where there is a complete separation between the state and the religion.

“Democratic” – The word democracy is derived from Greek words ‘demos’ which means ‘the people’ and ‘Kratos’ which means ‘authority. So, it means government by the people. In India, we have indirect democracy where the country is governed by the representatives elected by the people. The constitution provided for a parliamentary form of government where executive is responsible to the legislature for all its policies and actions. In addition to the political democracy, the constitution makers had put emphasis on the social democracy which means a way of life which recognizes liberty, equality and fraternity.

“Republic” – The term ‘Republic’ is used in distinction to ‘Monarchy’. A republic means a form of government in which the head of the state is elected and not a hereditary monarch. In India, the constitutional head, President is elected indirectly in contrast to the hereditary king or queen of Britain.

The term republic also signifies the absence of any privileged class and vesting of political sovereignty in the hands of people and not in a single individual like a king.

“Justice” – The constitution ensures Social, Economic and Political justice to the citizens of India.

Social justice – This implies the equal treatment to all the citizens without any social discrimination based on caste, colour, sex, religion, creed etc.
Economic justice – This implies equal renumeration for equal work irrespective of caste, creed, religion etc.
Political justice – It implies the absence of any arbitrary distinction among people in political matters. The “Universal Adult Suffrage” ensures political justice in the country.

Social justice and Economic justice combine to form ‘Distributive Justice’

“Liberty” – Liberty is one of the indispensable aspects of living a dignified life. The constitution makers kept this in mind and provided the citizens the liberty of thought, expression, belief, faith and worship. The term liberty signifies the absence of all undue interference with individual’ actions on the part of state.

“Equality” – The constitution of India ensures equality to all citizens which implies the absence of special privileges to any section of the society. The equality of status and of equal opportunity is given to the people by abolishing all the discrimination by the state.

“Fraternity” – The term ‘Fraternity’ signifies the sense of brotherhood among Indians. The constitution does not provide any absolute provision for promoting Fraternity but there are certain provisions which have the essence of fraternity. For ex – Common citizenship, right to move freely etc.

Dignity – For promotion of Fraternity, dignity of an individual has to be promoted. For ensuring dignity of an individual, certain provisions are enshrined in the constitution viz; Fundamental rights, DPSPs etc.

Unity and integrity – Article 1 of the constitution describes India as a “Union of States” where the states have no rights to secede from the union. The phrase also aims at overcoming hindrances to national integration.

Is Preamble a part of the constitution?

The question whether the preamble is a part of constitution or not had been persisted for a long time. In various landmark cases, the Supreme court gave its opinion on the same question.

In Berubari Union case, Supreme Court despite recognizing the significance of Preamble opined that the Preamble is not a part of the constitution.
In the landmark Keshavananda Bharati case, the Supreme court rejected the earlier opinion and held that Preamble is a part of the constitution and opined that the constitution should be read and interpreted in the light of the noble vision enshrined in the preamble.
In SR Bommai Case, the SC held that the preamble is not only a part of the constitution but it is a most important part of the constitution.
In the LIC of India case, Supreme court once again held that the Preamble is an integral part of the constitution

Is Preamble Amendable?

In Berubari Union case, it was held that the preamble is not a part of the constitution. Hence it is not amendable.
In Keshavananda Bharti case, the preamble was declared an integral part of the constitution. The SC opined that every part of the constitution including the preamble can be amended without disturbing the basic structure of the constitution.
In 42nd amendment 1976, the preamble was amended and three words – Secular, Socialist and integrity were added in the preamble.
In Minerva mills case, it was held that the amendment done in the preamble in 42nd amendment did not disturb the basic structure of the constitution and hence it is constitutional.
Hence, the preamble is amendable without disturbing the basic structure of the constitution.

Is preamble enforceable or justiciable?

The preamble is not justiciable or enforceable in the courts. It means that one cannot move to any court for violation of any provision mentioned in preamble.