S Saraswati
Nothwithstanding the Government putting to rest the recent row over the Preamble of the Constitition, the debate provides a disturbing insight. The issue today is not about the significance of the Preamble, its amendability, or its legality and sanctity but thar parties are playing politics and that too vigorous electoral politics.
Recall a big controversy had erupted over the reproduction of the original Preamble of the Constitution in official advertisements on Republic Day omitting the two terms “socialist” and “secular”, which were added to the Preamble by the famous 42nd amendment in 1976. The I&B Ministry had replied that this was not a mistake, but a representation of “an artistic depiction of an original historical document”. Further, Minister Arun Jaitley later issued instructions that all advertisements/Government communication should use the amended version of the Preamble.
On the occasion of the anniversary celebration of the Indian Republic, the reproduction of the Preamble in its original form seems quite appropriate to some people as part of recollection of our historical heritage.
Interestingly, political exchanges were centred on the omission of the word “secular” and not so much about “socialist”. Self-styled guardians of secularism have obviously moved away from socialism and are perhaps ready to delete the term from the Preamble.
Another omission, omitted in public debates today is the word “integrity” – also added by the 42nd amendment – to elaborate “fraternity” as “assuring the dignity of the individual and unity and integrity of the nation”. It seems that it is admitted to be redundant by the critics of the advertisement as the entire constitutional arrangement is based on the principle of upholding the unity and integrity of the nation. Considered impartially, this omission gives credence to the argument that the Republic Day advertisement was a replica of the original Preamble without later amendments with no ulterior motives.
The controversy seemed worthless and indeed meaningless, and showed that some vested interests are constantly on the look out for opportunities to raise secular versus communal issues. Anyway, it has raised our curiosity to probe into the causes for exclusion and inclusion later of the two terms – “socialist” and :secular” in the Preamble irrespective of its relevance today. An important similarity between the two words is that both are politically loaded, yet undefined and open to different interpretations.
The Preamble is an important part of a law or Constitution that conveys its spirit and goals. It gives the purpose for which the various provisions of the law/Constitution are made. It is described as “the soul of the Constitution which lays down the pattern of our political society” by a former Supreme Court Judge, Hidayatullah.
The Preamble reflects the vision of the founding fathers of our Constitution. The principles enshrined in it pervade the entire social and cultural fabric of the nation which is much wider than political institutions. The Preamble signifies a solemn declaration of the beliefs of a political community.
In essence, the original Preamble of the Indian Constitution provides the ethics of the Constitution and the amendments added political elements.
The drafting and adoption of the Preamble were not accomplished as an easy job. First drafted by B N Rao in May 1947 and included in the draft Constitution in October 1947, it was placed before the Constituent Assembly in October 1949. The draft of the Preamble was considered and passed by the Constituent Assembly after adoption of the main text on 26th November 1949. All the provisions of the Constitution including the Preamble came into force on 26th January 1950.
Suggestions to include the terms “socialist’ and ‘secular” were made in the Constituent Assembly, but given up after debate.
Even before the 42nd amendment that inserted the word “secular” in the Preamble, secularism had been declared as one of the basic features of the Constitution in 1973 in the Keshavananda Bharti vs. State of Kerala. It is beyond the amending powers of the Parliament as per the verdict in SR Bommai case of 1994.
The Supreme Court has frequently pronounced unconstitutional amendments which violate the basic structure of the Constitution including its Preamble.
With a very few exceptions, all democratic Constitutions in the world begin with a Preamble enunciating the philosophy, vision, and goals of the nation at the time of the framing of the Constitution. So also, international charters, UN Conventions, international agreements, and national laws contain a Preamble setting forth the aims and objects intended to be served.
The Preamble is not just a formal introduction, but requires careful drafting to concur with the text. It has many potential effects which are acknowledged in many democratic countries. Resolving differences among the constituent countries took a long time in finalizing the Preamble of the European Constitution. In Australia, in 1998 a referendum was taken on the question of adopting a new Preamble and a promise was made that if adopted it could not be made enforceable by Courts. Whether the Preamble is justiciable has always been a contentious issue in Australia. The referendum didn’t accept revision of the Preamble in 1999.
The US Supreme Court has observed that although the Preamble indicates the general purposes for which the people ordained and established the Constitution, it has never been regarded as the source of any substantive power conferred on the American Government or 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 powers.
However, in India, judicial opinion holds that since the Preamble embodies the philosophy underlying the Constitution, it cannot be brushed aside as a surplus. Wherever a provision in the Constitution is ambiguous and where no specific provision is made, judicial reference to the Preamble is common. Its true function is to “expound the nature, extent, and application of the powers” conferred by the Constitution.
In Keshavanand Bharti case, judges reversed the earlier decision that the Preamble was not a part of the Constitution. They pointed out that the Preamble was also adopted in the same manner as other provisions of the Constitution and hence its part. However, it is only the preliminary statement of the reasons for the Constitution and not the “source of any prohibitions or limitations”.
Going over the political and juridical journey of the Preamble of the Constitution is really unnecessary in the present debate. Today, an artificial bogey is created that dropping the word “secular” is a prelude to dropping secularism – an obsession with some political parties to keep alive “communal” issues and assume a posture of guardians of minority interests.
Dropping secularism is neither possible nor advisable in the pluralist country that is home to a variety of cultures. All political players are doubtless aware of this. Neutral observers closely watching the politics of political parties cannot miss the developing pattern in the creation of imaginary issues and problems between parties contesting for power.
There are many genuine problems confronting the nation that await consensual action of political leaders. It is time that we stop meaningless debates and shift attention to developmental issues.
In diverting public attention from serious issues particularly during elections, all political parties appear to be adept and surpass one another. They have to be more serious about their tasks and responsibilities. The media can cleanse politics to some extent by ignoring petty controversies and worthless debates.-INFA
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