Special Note: Constitutional Law, HUMAN RIGHTS AND PREAMBLE OF THE INDIAN CONSTITUTION

PREAMBLE AND HUMAN RIGHTS

 

Written by Advocate Pinny Pathak

 

Listen to the audio clip for Easy Learning

The Constitution came into force on 26th January, 1950. The framers of the Constitution sought to unite the vast country with its great diversity of languages and creeds within a common bond of constitutional justice based on the great ideals of liberty, equality, fraternity and justice. Framers showed an uncompromising respect for human dignity, an unquestioning commitment to equality and non-discrimination, and an abiding concern for the poor and the weak. The preamble is of considerable legal significance in so far as embodies an enacting clause. The Preamble highlights some of the fundamental values and guiding principles on which the constitution is based. It is a guiding light having interpretational value. It plays a pivotal role in case of ambiguity. The Preamble of the Constitution of India is one of the best of its kind ever drafted. Both in ideas and expression it is a unique one. It embodies the spirit of the constitution to build up an independent nation which will ensure the triumph of justice, liberty, equality and fraternity.

Every human being is held entitled for human rights on the basis of simple characteristic of human being, and the same concept has also been recognized under the framework of international law in the shape of major human rights law instruments. Human rights are generally defined as those rights which a person possesses by his simple characteristic of being a human. Moreover, these are those rights which are available to a person and protect his interests, freedom, dignity and other rights against the interference and excesses of states and their agents. Major human rights include civil, political, cultural, economic, and social rights, and are universal in nature because these are available to all human beings, irrespective of nationality, race, sex or any other distinction.

The Preamble through its noble words promised Justice, social, economic and political; Liberty of thought, expression, belief, freedom of faith and worship; Equality of status and of opportunity and to promote Fraternity, assuring the dignity of the individual and the unity and integrity of the Nation. The enacting words, “We, the people of India …in our constituent assembly …do here by adopt, enact and give to ourselves this constitution”, signify the democratic principle that power is ultimately rested in the hands of the people. It also emphasizes that the constitution is made by and for the Indian people and not given to them by any outside power (such as the British Parliament). The phrase “we the people” emphasizes the concept of popular sovereignty as laid down by J. J. Rousseau- “All the power emanates from the people and the political system will be accountable and responsible to the people.”

  1. PREAMBLE OF THE INDIAN CONSTITUTION
  2. INTRODUCTION:

The Constitution of India begins with a Preamble which describes the nature of the Indian State and the objectives it is committed to secure. The Preamble of India reads as follows:-

“WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India into a SOVEREIGN, SOCIALIST,  SECULAR, 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[6]

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.”

Mr. K.M. Munshi describes the Preamble as the political horoscope of the Constitution. Thakur Dass Bhargawa says “The Preamble is the most precious part of the Constitution. It is the soul of the Constitution. It is a key to the Constitution. It is a jewel set in the Constitution.”

The Preamble of the Indian Constitution categorically accepts the principle of Popular Sovereignty. The Preamble of the Constitution of India is one of the best of its kind ever drafted, both in ideas and expression it is a unique one. It embodies the spirit of the Constitution to build up an independent nation which will ensure the triumph of justice, liberty, equality and fraternity. Preamble enshrines the ideas and philosophy of the constitution, and not the narrow objectives of the governments. It also does not provide any legal framework of constitutional law. Preamble is neither a source of power nor a source of limitations. It neither provides any power nor imposes any duty. Its importance is in role to be played in interpretation of statues, also in the interpretation of provisions of the Constitution. Constitution should be read and interpreted in the light of grand and novel vision expressed in the preamble. Preamble is neither enforceable not justifiable in a court of law. This implies that courts cannot pass orders against the government in India to implement the ideas in the Preamble.

  1. MEANING OF PREAMBLE:

According to Chambers Twentieth Century Dictionary, a preamble means preface, introduction, especially that of an act of Parliament, giving its reasons and purpose – a prelude.

Black’s Law Dictionary states that the preamble means a clause at the beginning or a statute explanatory of the reasons for its enactment and the objectives sought to be accomplished. Generally, a Preamble is a declaration made by the legislature of the reasons for the passage of the statute and is helpful in the interpretation of any ambiguities within the statute to which it is prefixed.

  1. HISTORY OF THE PREAMBLE TO THE INDIAN CONSTITUTION:

Often questions are raised such as is Preamble a borrowed feature? Is Preamble part of Constitution? What is relevance of Preamble?

            It is not incorrect to assume that idea of the Preamble was borrowed from the Constitution of U.S.A. It is important to note that in the legislative history of India, for the first time, the Government of India Act 1919 (Montague Chelmsford Reforms) had a separate preamble. However, government of India Act 1935 had no preamble. In its final paragraph, the Preamble specifies the important historical fact that the Constitution was adopted on 26th November, 1949. It was on this day that the Constitution received the signatures of the President of the Constituent Assembly and was declared passed. Further it is worthwhile to note that the preamble was adopted by the Constituent Assembly after the Draft Constitution had been approved. Unlike the Constitution of Australia, Canada or U.S.A., the Constitution of India has an elaborate preamble. The purpose of the Preamble is to clarify who has made the Constitution, what is its source, what is the ultimate sanction behind it, what is the nature of the polity which is sought to be established by the Constitution. It should be noted that preamble has been amended only once so far through the 42nd Constitution Amendment Act 1976. The words Secular, Socialist and Integrity were added to the Constitution. Preamble is said to be part of the Constitution. It was in Berubari Case[1], Supreme Court had held that Preamble is not a part of the Constitution. But later in Kesavanada Bharati Case[2], the Supreme Court gave an elaborate verdict which inter alia said that Preamble is Part of Constitution and is subject to the amending power of the parliament as any other provisions of the Constitution, provided the basic structure of the Constitution is not destroyed.

  1. AIM AND OBJECTIVE OF THE PREAMBLE:

The Preamble states the objectives which the Constitution is committed to secure for all the people of India. The ultimate aim of the makers of the Constitution was to have a welfare State and an egalitarian society projecting the aims and aspirations of the people of India who sacrificed everything for the attainment of country’s freedom. The basic idea behind it was the preamble should be in conformity with the provisions of the Constitution and express in a few words the philosophy of the constitution. It may be recalled that after the transfer of power, the Constituent Assembly became sovereign, which is reflected in the use of words “give to ourselves this Constitution” in the preamble. It also implied that the preamble emanated from the people of India and sovereignty lies with them. Chief Justice Subba Rao in Golak Nath v. State of Punjab[3] had held that “The preamble to an Act sets out the main objectives which the legislation is intended to achieve”.

  1. SIGNIFICANCE OF THE PREAMBLE:

The Preamble is one of the most significant parts of the Constitution of India. The significance of the preamble is that it sets out the aims and aspirations of the people and these have been embodied in various provisions of the constitution. The Preamble of the Constitution contains the basic objectives of the Constitution such as: to secure to all its citizens social, economic and political justice liberty of thought, expression, belief, faith and worship equality of status and opportunity, and to promote among them fraternity so as to secure the dignity of the individual and the unity and integrity of the Nation. The purpose of the Preamble is to clarify who has made the Constitution, what is its source, what is the ultimate sanction behind it; what is the nature of the polity which is sought to be established by the Constitution and what are its goals and objectives. It provides assurance of dignity of an individual and Ideals that the state should follow.

 

 

  1. HUMAN RIGHTS AND PREAMBLE OF THE INDIAN CONSTITUTION

It is stated that Human rights and the rights as mentioned in the Preamble of the Indian Constitution, which are further elaborated as Fundamental Rights and Directive Principles of State Policy, are identical. Rights as stated in the Preamble are resemblance of what the human rights constitute. The fundamental rights as stated under the Indian Constitution are also specified under the Universal Declaration and the International Covenants. These are stated in the tabular for as under.

  1. CIVIL AND POLITICAL RIGHTS IN THE UNIVERSAL DECLARATION OF HUMAN RIGHTS AND IN THE INDIAN CONSTITUTION
SR. NO. NAME OF RIGHTS UNIVERSAL DECLARATION INDIAN CONSTITUTION
1. Equality before Law Article 7 Article 14
2.      Prohibition of discrimination Article 7 Article 15(1)
3.      Equality of opportunity Article 21 (2) Article 16 (1)
4.      Freedom of speech and expression Article 19 Article 19 (1) (a)
5.      Freedom of peaceful assembly Article 20(1) Article 19(1) (b)
6.      Right to form associations or unions Article 23(4) Article 19(1) (c)
7.      Freedom of movement within the border Article 13 (1) Article 19(1) (d)
6.      Protection in respect of conviction for offences Article 11 (2) Article 20 (1)
7.      Protection of life and personal liberty Article 3 Article 21
8.      Protection of slavery and forced labour Article 4 Article 23
9.      Freedom of conscience and religion Article 18 Article 25 (1)
10.  Remedy for enforce med of rights Article 8 Article 32
11.  Right against Arbitrary Arrest Article 9 Article 22
12.  Right to social security Article 22 Article 29 (1)

 

Inspite of similarity there is difference between the Human rights and the Fundamental rights. Fundamental Rights are rights that are granted by a government. These rights are awarded through the country’s Constitution, and all people that fall under the jurisdiction of the Constitution are granted these rights without presumption or cost of privilege. Basically, these are the rights that are awarded to all citizens as per the legal system of the country without any conditions.

According to the United Nations Universal Declaration of Human Rights, the United Nations International Covenant on Civil and Political Rights, or the United Nations International Covenant on Economic, Social and Cultural Rights, there are some rights that are considered universally to be fundamental, such as the right to self-determination, right to liberty, right to due process of law, right to freedom of movement, right to freedom of thought, right to freedom of religion, right to freedom of expression, right to peaceably assemble, and the right to freedom of association.

There are many crossovers between human rights and fundamental rights. Human rights are all basic rights that a person as a human should have, whereas fundamental rights are rights that are protected by law. Oftentimes, fundamental rights as protected by law also cover and protect human rights, after all human rights are rights that each and every human should have, regardless of their race, gender, social and economic status, etc. Hence for practical purposes, fundamental rights and human rights are the same, as most civilized countries cover human rights under fundamental rights. However, in legality they may be different, as only fundamental rights are covered by law, and some authoritarian countries may not cover human rights under their fundamental rights.

A comparison between Fundamental Rights and Human Rights is as follows:-

  FUNDAMENTAL RIGHTS HUMAN RIGHTS
DISCRIPTION The rights that are awarded through the country’s Constitution and all people that fall under the jurisdiction of the constitution are granted these rights without presumption or cost of privilege. Human Rights are rights that each human should have. These are the most basics rights that protect a human from other humans. Human Rights are moral visions of rights that nearly everyone agrees a human should have.
ON THE BASIS OF Legality, Constitutionality Morality, Humanity
INCORPORATES ii.        Right to self-determination

iii.      Right to liberty

iv.      Right to due process of law

v.       Right to freedom of movement

vi.      Right to freedom of thought

vii.    Right to freedom of religion

viii.   Right to freedom of expression

ix.      Right to peaceably assemble

x.       Right to freedom of association

i.         Right to life

ii.        Freedom from torture

iii.      Freedom from slavery

iv.      Right to a fair trial

v.       Freedom of speech

vi.      Freedom of thought, conscience and religion

vii.    Freedom of movement

 

 

[1] AIR 1960 SC 845

[2] 1973 SC 1461

[3] 1967 AIR 1643

Leave A Comment