November 22, 2013

Craving the original

A preamble is a historical statement of a monumental event. Amending it amounts to diminishing the efforts of the framers of the Constitution.

Indian Emblem

The dark days during the Emergency (from 1975-1977) witnessed a vicious attack on India’s Constitution; and the Amendment of the Preamble (to the Constitution) was a part of that subversion. Through Section 2 of the 42nd Constitution (Amendment) Act, the Parliament inserted the words ‘Secular’ and ‘Socialist’ in our Preamble. The stated goal was to reiterate the incumbent government’s commitment to the two ideals; and, it felt that incorporating them into the Preamble would be a significant gesture. Thus the instrument that embodied the aspirations of the Indian people at the time of the Constitution’s framing was drastically changed.

This step was widely criticised, including by those who believed in both the ideals. While secularism has been consistently held to be an essential feature of the Constitution, socialism is best described as, to borrow from Justice K.K. Mathews’, “an extra-terrestrial” concept. The Constituent Assembly went to great lengths to ensure that the Constitution was flexible and did not prescribe any economic policy. They realised that it would be against propriety to impose one economic model on succeeding generations, and chose to repose faith in the wisdom of future elected representatives.

The Amendment gave an exalted status to the philosophy of socialism, and its proponents – across all the three organs of the State – argued that this economic ideology is deeply ingrained in the fabric of the Constitution. As the amendment did not lay down the precise contours of the term ‘socialism’, there was uncertainty about the manner in which it would affect constitutional adjudication. Even though the Supreme Court had settled the law by holding that the Preamble could not be a source of substantive power (or a limitation on power), there was a concern that the addition of the word ‘Socialist’ in the Preamble would enable the courts to lean towards nationalisation and other socialistic measures.

The effect of the amendment was evident, for instance, in the case of Samatha v. State of A.P., where the apex court held that to achieve the goal (of socialism) set out in the Preamble, the Constitution envisaged a planned economy. In the case of D.S. Nakara v. Union of India, the Supreme Court pronounced that “the basic framework of socialism is to…provide security from cradle to grave.” The insertion of the word ‘Socialist’ in the Preamble also emboldened Justice Krisna Iyer – a socialist  ex-Judge – to claim that any Judge who does not subscribe to the philosophy of socialism violates the oath (s)he took to uphold the Constitution.

The amendment was also criticised by H.M. Seervai – an eminent authority on India’s Constitutional Law. In his opinion, though the Parliament had the power to amend it, the only correct way of doing so would be to set out the original Preamble with the introductory words: “WHEREAS the people of India in their Constituent Assembly enacted the following Preamble and WHEREAS Parliament in the… year of the Republic desires to add to the Preamble, be it enacted as follows: After the word ‘sovereign’ add the words ‘socialist secular’.” Since the Preamble was a historical fact, any attempt at amending it some other way would be misplaced.

In this backdrop, it is worth examining some impediments that the government had to encounter in the path of the Preamble’s amendment. One of the fundamental questions raised was whether the Preamble is a part of the Constitution or not. The Supreme Court dealt with this issue in a) Berubari case  [a Presidential Reference under Article 143(1) of the Constitution] and b) Kesavananda Bharti v. State of Kerala . In the former, it was held that the Preamble is a “key to open the minds of the makers” and is not a part of the Constitution. It was also held that it is neither a source of substantive power, nor a limitation on powers. However, in the Kesavananda Bharti case, after carefully examining the Constituent Assembly debates, the apex court arrived at the conclusion that it is a part of the Constitution. It rejected the contention advanced by Nani Palkhivala – the counsel for the petitioner – that the Preamble is a “part of the Constitution statute, and not the Constitution”; thus making it incapable of being amended. The underlying notion was that the Preamble comes before the Constitution and hence, cannot be brought within the ambit of Article 368 (under which constitutional amendments are enacted).

But, in light of the proceedings of the Constituent Assembly, it was held that this argument was untenable. Subsequently, Palkhivala advanced an ingenious argument that even though the Preamble may be a part of the Constitution, it does not qualify as a provision of the Constitution within the meaning of Article 368. As it had already been established from the record of the Constituent Assembly that the Preamble was intended to be a part of the Constitution, the latter argument had much more force. Accepting this contention could have enabled the judiciary to preserve the Preamble’s sanctity. But, the apex court rejected this contention as well, thus allowing the government to amend the Preamble a few years later.

India’s judiciary has often adopted a non-conventional approach in interpreting constitutional provisions, and the Constitution would have been better served if it had adopted a similar approach and accepted the second argument. As some of the Supreme Court’s most enduring contributions to constitutional jurisprudence – for example, the Basic Structure doctrine – were not a result of explicit text, but necessary implications, its discomfort with refusing to make the Preamble a subject-matter of an amendment under Article 368 was unwarranted.

Since the Preamble is often used to interpret the ambiguous provisions of the Constitution and other statutes, it becomes important that it is not amended at the whims of the government of the day. Resolving ambiguity in constitutional/statutory provisions becomes difficult when the words of the Preamble itself are ambiguous, and even the Supreme Court has said so on several occasions. Thus, constitutional propriety was sacrificed at the altar of politics and constitutional adventurism. Unfortunately, the populist nature of our politics has ensured that speaking out against this amendment is not feasible even for reformist politicians.

Moreover, by its very nature, a Preamble is intended to be a historical statement of a monumental event. Amending it would amount to diminishing the efforts and the hard work of the framers of the Constitution. As Chief Justice Maurice Gwyer – of the Federal Court of India – said in the case of Bhola Prasad v. King Emperor:

“But we doubt very much whether a Preamble retrospectively inserted in 1940 in an Act passed 25 years before can be looked at by the Court for the purpose of discovering what the true intention of the legislature was at the earlier date. A legislature can always enact that the law is, and shall be deemed always to have been, such and such; but that is a wholly different thing from imputing to dead and gone legislators a particular intention merely because their successors at the present day think that they might or ought to have had it.”

Photo: dinesh_valke

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