Events & Issues
New Delhi, 9 February 2015
Preamble Controversy
NO SUBSTANCE, SIMPLY POLITICS
By 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artistic depiction of an original historical document”.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
(Copyright,
India News and Feature Alliance)
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