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The Preamble

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
FRATERNITY assuring the dignity of the individual and the unity and integrity of the Nation;
IN OUR CONSTITUENT ASSEMBLY this  26th day of November 1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS CONSTITUTION.

Preamble

In general, preamble is an introduction to the law.  Law is written in technical language hence it may not be easy to understand the intent of the law. Hence preambles are attached. The custom to attach preambles with the constitution started with US constitution. The first written constitution in the world.


Important Judicial Decisions.

Supreme Court, the ultimate interpreter of the constitution had to deal with three basic issues related to the preamble.
1] Whether preamble is a part of the constitution?
2] Whether preamble can be amended?
3] Whether constitution has to be interpreted in light of the preamble?

1] Whether preamble is a part of the constitution?

Supreme Court in Berubari Union case (1960) held that preamble is not a part of the constitution. Why? As suggested by Pratap Bhanu Mehta, Indian constitution is cosmopolitan. While interpreting judiciary takes into account the legal traditions followed in different countries. In above case, it took the precedent from USA. In case of USA, Supreme Court of USA did not accept preamble as a part of the constitution.
Supreme Court in Keshavanand Bharati case (1973) held that preamble is part of the constitution. It mentioned that preamble is ‘integral part’ of the constitution. It further added that preamble contains ‘the basic structure’ of the constitution. Why changed? Supreme Court admitted that it had overlooked an important fact linked to preamble. What was the fact? Preamble was adopted by the constituent assembly by the motion which held that preamble is adopted as the part of the constitution.

2] Can preamble be amended?

Art 368, which deals with the procedure of the amendment, only mentions about amendment of ‘the provision’ and not ‘part’ of the constitution. Preamble is a part but not provision. What was Supreme Court’s view? SC clarified that preamble can be amended. This is an example of ‘creative interpretation’ by judiciary. Why judiciary required to allow the amendment of the constitution? Preamble was last to be adopted by the constituent assembly with the purpose that there should be organic unity between the preamble and the main body. Hence it may happen that the preamble appears disjointed in light of amendments in the constitution. Thus it was expedient on the part of the judiciary to allow the amendments.

3] Significance of the preamble in the interpretation of the constitution.

In A.K. Gopalan case (1950) SC held that constitution need not to be interpreted in the light of preamble, to be used only where there is ambiguity.
In Berubari Union case (1960) SC held that preamble is like a lighthouse or a key to open the minds of constituent assembly where there is ambiguity.
In Keshavanand Bharati case (1973) SC held that constitution has to be interpreted in the light of ‘noble vision’ expressed in the preamble.


Ideals of Indian state as found in the preamble.

Preamble provides the philosophy of the constitution, the idea behind the entire process of formulation of the constitution. It explains the idea of India. As per preamble, India is SOVEREIGN, SOCIALIST, SECULAR, DEMOCRATIC REPUBLIC. The most unique feature of Indian state as found in the preamble is that it is a SECULAR state. India is a secular state in ‘the widest sense of the term’. The idea of India as a secular state is what distinguishes it from the idea of Pakistan. Pakistan as a homeland for the Muslims of the subcontinent whereas India as a nation where people belonging to different religions, adhering to different ways of life can live the life of dignity.

In the words of Rabindranath Tagore,

“Where the mind is without fear
and the head is held high,
where knowledge is free.
Where the world has not been broken up into fragments by narrow domestic walls.
Where words come out from the depth of truth,
where tireless striving stretches its arms toward perfection.
Where the clear stream of reason has not lost it’s way
into the dreary desert sand of dead habit.
Where the mind is led forward by thee
into ever widening thought and action.
In to that heaven of freedom, my father,
LET MY COUNTRY AWAKE!”

Rabindranath Tagore, Gitanjali.

1] Sovereignty.

It denotes that India is no more a colony. It is independent nation with right to self-determination. Both – in external and internal sphere India has freedom to make policies.

India as a sovereign country exercising the freedom of choice has been brought into question because of globalization. Globalization means more interconnected world. It weakens the sovereignty of state in theory. However in case of India it cannot be said that it has weakened the sovereignty. Ability to exercise freedom depends on power and there is a phenomenal increase in the power of India. India is today recognized as emerging power, an economic power, a nuclear power, strongest contender for permanent seat in UN security council.
However it is not correct to say that there has been no dilution at all. In fact globalization expects nations to exercise their sovereignty in a more responsible manner, acting in concert with each other.

2] Socialist.

Socialism was added in 1976. However as a country with large no. of poor, there has been inclination towards socialism. Indian socialism is a type of Fabian socialism. i.e. State led socialism. The social and economic rights given in part 4 of the constitution represent Indian socialism. Socialism aims at equality. Constitution aims to make people equal in terms of dignity. However according to SC, in Samatha vs State of Andhra Pradesh (1997) , socialism in India means reducing inequalities in income and status, providing equality of opportunity and a life of dignity.

India as a socialist country has been put to a question mark since India had adopted neo-liberal model of development based on Washington consensus. Since 1990s, there has been increase in inter-state and intra-state disparities. As per Oxfam report 2017, 1% of Indians hold 70% of the wealth. If we understand poverty in terms of deprivations, there has been growth in hunger and malnutrition. Though the number of people living below poverty line have declined in absolute terms, yet relative poverty has increased. Since 1990s, left wing extremism has become the biggest internal security threat.
Though above situation is a matter of concern, yet we cannot say that govt. has completely ignored the ideals of socialism. We have accepted the concept of inclusive growth in 11th and 12th five year plans, to address the unemployment, poverty schemes like MNREGA, Right to food, Right to Education has been introduced. The govt. is also trying to achieve financial inclusion so that majority of the people can be brought within the social security net with minimum leakages. For a country of India, with huge no. of poor in the world, socialism will always remain relevant.

3] Democratic.

Constitutionally India is representative democracy with a free and fair elections under an autonomous election commission. India has also tried to introduce direct democracy at the level of gramsabha. Though India is the best example of democratic governance in the third world, however in comparison to the western countries, India is procedural democracy rather than substantive. Even in terms of procedural democracy, there are problems like criminalization of politics, use of money and muscle power. There is a urgent need for electoral reforms to address criminalization. Though so far, supreme court working in association with election commission and civil society have tried to limit the factors of money and muscle power. e.g. in Lily Thomas case, (2013) SC has struck down Section 8 (4) of the representation of people’s act, 1951. Government has introduced Right to Information, Citizens Charters, Social Auditing to introduce ‘citizen centric’ governance.

4] Secular

Secularism like any other concept in politics remains a highly contested concept. There are different models of secularism. The terms secularism is western in origin. Secularism is called as ‘child of Christianity’ and ‘the product of modernity’.
The protestant movement in Christianity led to the rolling back of religion or God from the public sphere and confined God to the personal sphere. Thus secularism denotes 1) The separation of personal and political.  2) The idea of secularism is linked with the idea of sovereignty of the state. It means, in matters of public sphere, the law made by the state shall be supreme.  3) Secular state gives freedom of conscience.  4) Secular state adopts religious neutrality.
Secularism is linked to the rise of nation states. It was realized that religion has resulted into 30 years of war in Europe. Hence the nation states where people belonging to different religions exist, a new secular, rational ideology is needed to keep them united. Thus nationalism get links with secularism. It was expected that state should not discriminate among the citizens on the ground of religion. Scholars like Machiavelli, Hobbes and John Locke contributed to the evolution of the western idea of secularism. We can summarize the salient features of the model as
1] Strict separation between religion and state.
2] Religious neutrality.
3] The interlinked concepts to secularism are  a) Democracy.  b) Rational basis of nationalism. (Secular nationalism)  c) Universal citizenship.  d) UCC – Uniform Civil Code.  e) Equality before law.

We can explain the idea of secular state on the basis of following triangle.

image 7

Neutrality is a negative idea. Equidistance is a concept of positive secularism.

Indian model of secularism.

Secularism is a historical idea. According to prof. Rajeev Bhargav, /Imp personality to quote in secularism/ Indian model of secularism is politically negotiated model. It is a product of certain circumstances which were prevailing in the country.

History of Indian model.

The idea of India as a secular state is a response of Congress to the demand of Pakistan by Muslim League. Hence one of the most distinctive and debatable feature of Indian model is the special rights which are enjoyed by the minorities. This is also the main reason that Hindu rightist scholars like Arun Shauri and the leaders like Advani calls constitutional/congress model as a model of minority appeasement and thus ‘pseudo secular’. According to Arun Shauri, secularism is based on the equality before law, equal treatment of all citizens, which is missing in the Indian model. Indian model is a combination of western and indigenous. It includes often contradictory principles.
1| Simultaneous existence of rights of an individual as well as groups.
2| Simultaneous existence of universal citizenship along with multi-cultural citizenship or differentiated citizenship.
Hence it becomes challenging task for judiciary and gives scope for the communal politics. One of the greatest tests which judiciary has to pass through are
1| How it deals with the issue of uniform civil code which not only includes the question on nature of secularism but also gender justice.
2| Similarly the case of Ramajanmabhoomi puts a huge challenge to judiciary in defining Indian secularism.

Constitutional provisions dealing with secularism.

Secularism is made explicit in preamble by 42nd Amendment Act.
The entire part of FR establishes India as a secular state. e.g. Art 14,15,16,17, 25-30.
Universal Adult Franchise. Art 325
Abolishing separate communal electorate.
Independent judiciary.
Autonomous Election Commission.

Basis of Indian Secularism.

If western model is based on Hobbes, Locke, Machiavelli Indian model is based on:
1] Pandit Nehru: He looked at secularism as religious neutrality. (Modernist approach). Indian word for neutrality is ‘Pantha Nirpekshata’, not ‘Dharma-nirpekshata’ (western approach).

2] Gandhi: He understood that religion cannot be separated from life of Indians. He believed that Indian secularism would mean communal harmony based on spirit of toleration drawn from ideals of Ashoka.
Gandhi described it as ‘Sarvadharma Sambhava’. It is an appeal to people, while other two are related to state.

3] Ambedkar: He believed that democracy is in the root of secularism. Democracy is not one man one vote, but also one value. Social and economic democracy is as important as political. Hence he advocated protection of minority rights, reform of Hindu institution as a feature of Indian secularism.

Thus the constitutional model is based on views of above leaders, contested by Hindu rightist group, calling it pseudo-secular. Main objective is lack of UCC, special minority rights.

Academic Perspective of Indian secularism:

(Vedic ideal – There is one truth but different intellectuals say it differently).
D. E. Smith started academic debate on status of India as a secular state. According to him, there are three essential features of secularism: 1] Universal citizenship / Equality of status, 2] Freedom of religion, 3] Separation between religion and state.
According to him India has some of the features but not all. Third feature is missing. He was skeptical of success of secularism in India considering 80% of population is Hindu. In such situation, minorities appear to be custodians of state. It means minorities have to be cautious of state remaining secular.

Mark Galanter has questioned the ethnocentric approach of Smith. There is no point evaluating Indian state on standards of European model.

Unique features of Indian model?

According to Prof. Rajiv Bhargav, Indian model is known as principled distance model. He has given seven features of Indian model.
1] No strict separation. Porous boundaries.
2] State is not averse to religion (Unlike communist states), however state does not identify with particular religion.
3] Different religions are in the foundation of the state i.e. Symbols, policies are grounded in religion, specially Buddhism.
4] Politically negotiated model that is a bargain between majority and minority.
5] Indian model is not based on any overarching idea. (Just a response to circumstances).
6] There is no active hostility, nor passive indifference towards religion.
7] Indian model is substantive model.

He gives three models.
1] Strict neutrality – France
2] Ultraprocedural – USA. US constitution mentions anti establishment clause. It means, it clearly mentions neither federal nor state government can either promote a religion or declare it official religion.
3] Substantive. Built on values of liberty, equality, fraternity, dignity.

Criticism of Principled distance model

Pratap Bhanu Mehta has criticized the Indian model. In theory it appears rational but in practice it gives scope for plausibility. Indian secularism is a balancing act. It legitimizes vote bank politics. Congress used to model to placate one group or the other at different times. Flirting with all religions, is no longer viable. Principled distance is misleading. It is casting secularism in a mould to hide communalism. It keeps all communities insecure at all times.
According to Rajiv Bhargav, Indian secularism continues to be misunderstood . It’s nuances, complexities and distinctiveness continues to remain painfully elusive.

Besides P.B. Mehta, other scholars like Romilla Thapar, Ashish Nandy, T.M. Modan are also critical of Indian model.
Ashish Nandhi in his book ANTI SECULAR MANIFSTO rejects the idea of secularism calling it western. He says that instead of separating religion from state, there is need of promoting religion in public sphere, emphasizing on dialogue, imparting religious education in school to minimize politicization of religion – Neo Gandhian.

T.N. Mohan is pessimistic in context of success of project of secularism. The reason being South Asia is a place where religion is ‘way of life’.

Romilla Thapar finds existing model a ‘faint model’ (weak) of secularism. India needs a bold model – Marxist model.
Achin Vanaik and Akeel Bilgrami also support the stronger model, and do not support Nandy’s view, considering it Nostalgic.


Idea of Justice found in the Preamble.

JUSTICE – SOCIAL, ECONOMIC  AND  POLITICAL.
“Justice is the first virtue of the Social System.” – John Rawls.

No state can exist if people perceive that it is unjust. Preamble explains the idea of justice found in the constitution. It is a comprehensive idea of justice. i.e. Justice – social, economic and political.
Social Justice – In India, social injustice had been present in terms of the discrimination based on caste and gender. Constitution of India prohibits discriminations based on caste, color, race, sex etc. It not only prohibits discriminations, it also provides for affirmative action in favor of the weaker sections.
Economic Justice – The directive principles of state policy especially Art 39B and 39C, aim to reduce the inequalities of income and wealth. And to achieve the aim of equitable distribution of resources. It contains many other social and economic rights. Like Right to adequate wages. Right to work. Promotion of educational & economic interests of members of scheduled caste and scheduled tribe, Raise the level of nutrition and standard of living, including public health.
Political Justice – Universal adult franchise. Independent election commission, reservations for the weaker sections like members of SC, ST community in parliament and assemblies. Reservation for women along with backward class members in all the three levels of panchayats.
Conclusion – Though mentioned separately, yet justice social, economic and political form and integrated idea.

Uniform Civil Code (UCC).

UCC is an independent topic itself. Please visit here.

Posted in PSIR 1B

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Arvind

Topic : DEMOCRATIC
CORRECTION: Lily Thomas case, (2013) SC has struck down *Section 4 (3)*
It should be section 8(4)

42K112K4

Pratap Bhanu Mehta has criticized the Indian model. In theory it appears rational but in practice it gives scope for plausibility. plez explain

Last edited 3 months ago by 42K112K4
kumar

constitutional morality is missing Sir/Maam

Partha

CONSTITUTIONAL MORALITY TOPIC IS MISSING..PLS ADD IT

Partha

the constitutional morality topic is missing..can u please add it