Chapter 1.

Basic features of the Indian Constitution & the Constitutional Courts

The Constitution of India – Meaning and features; Preamble
i. Constitution-Meaning & Functions
ii. Salient Features of the Constitution of India
a) Modern Constitution
b) Lengthiest written Constitution
c) Preamble to the Constitution
d) Fundamental Rights; Directive Principles of State Policy; Fundamental Duties
e) Constitutional Provision for Amendment of the Constitution of India
f) Adult Suffrage
g) Single Citizenship
h) Independent Judiciary
i) Emergency Provision
j) Federal in form Unitary in character
k) Separation of Power - three organs of the government
l) Schedules to the Constitution
iii. Preamble to the Indian constitution – Importance of the Preamble; Amendability &
Justifiability of Preamble

Constitution-Meaning & Functions

A constitution is defined as the set of written rules that are accepted by all the people living
together in a country. The Constitution is the supreme law that determines the relationship
between people living in a territory and the relationship between people and government. A
constitution is the aggregate of fundamental principles or established precedents that constitute
the legal basis of a polity, organisation or other type of entity and commonly determine how that
entity is to be governed. The constitution provides the basic framework for the operation of the
country. It is the source of all legislative, executive, and judicial powers. It also stipulates the
basic rights of citizens and the legal rights of other residents

When these principles are written down into a single document or set of legal documents, those
documents may be said to embody a written constitution, for e.g. The Constitution of India. If
these principles are encompassed in a single comprehensive document, it is said to embody a
codified constitution like the Constitution of United States of America. The Constitution of the
United Kingdom is a notable example of an uncodified constitution which is instead written in
numerous fundamental Acts of a legislature, court cases, or treaties.

The Constitution of India is the longest written constitution of any country in the world, while
the Constitution of Monaco is the shortest written constitution. The Constitution of San Marino

pg. 1
might be the world's oldest active written constitution, since some of its core documents have
been in operation since 1600, while the Constitution of the United States is the oldest active
codified constitution.

The different functions of the constitution are:

1. The constitution should provide a set of basic rules that allows the people to live together
with trust and coordination.
2. The main function of a constitution is to lay out the basic structure of the government
according to which the people are to be governed. It should specify how the government
will be constituted, and define the powers of the three main organs of the government –
Executive, Legislature and Judiciary.
3. It should also lay down the limits on the powers of the government. It should distribute
power between the federal government and the states.
4. It should specify the rights of the citizens of a nation.
5. A constitution, besides thrusting on the rights of the citizens of the concerned nation, also
has embedded in it the duties that the citizens require to adhere to as well.
6. It is the supreme law that determines the relationship among people living in a territory
and also the relationship between the people and the government.
7. It expresses the aspirations of the people to create a good society.

Salient Features of the Indian Constitution:

The Constitution of India is the supreme law of India. The document lays down the framework
demarcating fundamental political code, structure, procedures, powers, and duties of government
institutions and sets out fundamental rights, directive principles, and the duties of citizens. It is
the longest written constitution of any country on earth. Dr. B. R. Ambedkar, who was appointed
as the Chairman of the Drafting committee on 30th August1947, is widely considered to be its
chief architect.

It imparts constitutional supremacy (not parliamentary supremacy, since it was created by a

constituent assembly rather than Parliament) and was adopted by its people with a declaration in
its preamble. The Parliament cannot override the constitution.

Every written Constitution in the World has its own unique features and the Indian Constitution
is no exception. But there are many salient features of the Indian Constitution that make it
distinct from the other Constitutions.

a. Modern constitution:

pg. 2
The constitution makers made it the world's richest document which consisted of human
knowledge, intellect, inheritance and civilizations that is best suited to the social, economic,
political, and cultural situations of the country. Nevertheless, it will be wrong to say that the
Indian constitution is a carbon copy of constitutions of countries in the world, since it has taken
several significant principles, procedures and provisions of the other countries but at the end it
came out with its own ability to choose, new directions, methods, principles, and constantly
aiming at new constitutional innovations.

b. Lengthiest Constitution in the World

The Indian Constitution has 395 Articles and 12 Schedules which makes it the lengthiest written
Constitution in the World. Just compare it the Constitutions of other countries. For instance, UK
does not have any written Constitution, while there are just 7 Articles in the US Constitution. Not
only this, but about 90 Articles have been added since 1951 and more than 100 Amendments.
But since the Articles are not added separately rather as part of an existing Article (eg. Article
21A, 35A etc) the total number of Articles remains the same at 395.

c. Preamble to the constitution

The Preamble consists of the ideals, objectives and basic principles of the Constitution.

● The salient features of the Constitution have developed directly and indirectly from these
objectives which flow from the Preamble
● It asserts India to be a Sovereign Socialist Secular Democratic Republic and a welfare
state committed to secure justice, liberty and equality for the people and for promoting
fraternity, dignity the individual, and unity and integrity of the nation.
● The Preamble is the nature of Indian state and the objectives it is committed to secure for
the people.

d. Fundamental Rights, Directive Principles of State Policy and Fundamental duties:

i. Fundamental Rights:

The Constitution of India grants and guarantees Fundamental Rights to its citizens.

The constitution of India confirms the basic principle that every individual is permitted to enjoy
certain basic rights and part III of the Constitution deals with those rights which are known as
fundamental right.

pg. 3
The Six FR include- Right to Equality; Right to Freedom; Right Against Exploitation; Right to
Freedom of Religion; Cultural and Educational Rights and Right to Constitutional Remedies
(Art. 32).

The fundamental rights are justiciable and are not absolute. Reasonable constraints can be
imposed keeping in view the security-requirements of the state.

ii. Directive Principles of State Policy:

A unique aspect of the Constitution is that it comprises of a chapter in the Directive Principles of
State Policy.

These principles are in the nature of directives to the government to implement them to maintain
social and economic democracy in the country.

iii. Fundamental Duties:

Article 51A of the Indian Constitution provides various fundamental duties. It was inserted by
the 42nd Amendment to the Indian Constitution in the year 1976. There are no specific provisions
to enforce fundamental duties in the Courts like the fundamental rights but it is also necessary to
follow the fundamental duties.

● To respect the Constitution and its ideals and to abide by the provisions of the
Constitution.
● To cherish and follow the noble ideals which inspired our national struggle for freedom.

● To value the rich heritage of our country.

● To defend our country when there is a necessity and to render national service when
called upon.
● To protect the environment and carry out measures to improve them.

● To safeguard the public property.

● To promote harmony and the spirit of a common brotherhood.

e. Amending the Constitution of India:

Amending the Constitution of India is the procedure of making modifications to the nation’s
fundamental law or supreme law. The procedure of amendment in the constitution is laid down

pg. 4
in Part XX (Article 368) of the Constitution of India. This procedure guarantees the sanctity of
the Constitution of India and keeps a check on uninformed power of the Parliament of India.

When it comes to ease of amendment the Indian Constitution strikes a fine balance between
rigidity and flexibility. Article 368 provides for two types of amendments:

1. Some provisions can be amended by a special majority of the Parliament i.e. a 2/3rd majority
of the members of each House present and voting and majority (that is, more than 50 percent) of
the total membership of each House.

2. Some other provisions can be amended by a special majority of the Parliament and with the
ratification by half of the total states.

This ensures that the Constitution is amended with the widest possible majority.

At the same time, some provisions of the Constitution can be amended by a simple majority of
the Parliament in the manner of ordinary legislative process. Such amendments do not fall under
the ambit of Article 368.

f. Universal Adult Suffrage

The Universal Adult Franchise means that every adult of the country should be given right to
vote without any discrimination based on any grounds like race, caste, religion etc. According to
the Universal Adult Franchise or Universal Adult Suffrage, all citizens who are 18 years and
above have the right to vote. This does not permit any form of discrimination. Every citizen
should have political equality.

The principle of Universal Adult Franchise is incorporated in Article 326 of the Indian
constitution which is related to the elections of the Loksabha and state assemblies. After the 61st
amendment to the Indian constitution in 1988, the voting age in the elections to the Loksabha
and the legislative assemblies of the state was lowered from 21 years to 18 years.

g. Single Citizenship

There is no separate citizenship for the States and the Centre like in various federal countries like
the U.S.A. There is single citizenship provided to our citizens.

The Indian constitution allows its citizens to hold single citizenship. They cannot claim separate
citizenship of their states or provinces. India is single Independent and Sovereign integrated state
and all citizens enjoy a common uniform citizenship. The aim behind the implementation of such
a doctrine is to develop a sense of nationalism among the native people. They are entitled to
equal rights and freedoms, and equal protection of the state.

pg. 5
h. Integrated Judicial system

The Constitution provides for a single integrated judicial system common for the Union and the
states.

The Supreme Court of India works at the apex level, High Courts at the state level and other
courts work under the High Courts.

Independent Judiciary is necessary to secure the philosophical foundations of the rule of law and
democracy.

Firstly, the judiciary has significant position in Indian Constitution. That is why the Constitution
makers created a separate Judiciary - independent of Legislature and Executive.

Secondly, the Constitution has ensured complete independence of Judiciary in the matters of
administration and finances.

In the case of S.P Gupta v Union of India (1982), the court held that the judges should be fearless
and should uphold the principle of rule of law. This is the basis of the concept of independence
of the judiciary.

The Judiciary ensures the proper functioning of the constitution and the enforcement of various
provisions of the Constitution. The Constitution makers ensured that Judiciary has to be
independent so that it will not be biased. The Supreme Court of India is considered as the
watchdog of democracy. It stands at the peak of single integrated judicial system. It operates as
defender of fundamental rights of Indian citizens and guardian of the Constitution.

There are various provisions in the Article which ensures the independence of the judiciary, viz:

● The appointment of Judges is independent and there is no involvement of any executive

authorities;
● The tenure of Judges is secured;

● The removal of judges from the tenure must be also based on the constitutional
provisions.

i. Emergency provisions

Indian constitution contains elaborate provisions to deal with those challenges that pose a threat
to the country’s security and unity. As evident from the word “emergency”, it refers to the

pg. 6
unexpected turn of events that causes the public authorities to take instant actions within their
boundary.

There are three types of emergencies under Constitution of India:

1. National emergency: Due to war, external aggressions, or armed rebellion (Art 352).
2. State emergency: Due to the failure of constitutional machinery in states, this is popularly
known as Presidential Rule (Art 356).
3. Financial emergency: Due to a threat to the financial constancy or credibility of India
(Art 360).

Article 352 to Article 360 of the Indian Constitution allows for emergency arrangements. These
provisions enable the central government to satisfy any abnormal situation effectively.

The central government becomes all powerful during the emergency period and the states go
under control of the union. The State may override the different individual freedoms in the
presidential state of emergency. Human civil rights, except Articles 20 and 21 of the Indian
Constitution are removed from the state or Nation during an emergency. Most of the
emergencies are brought about by breaking down administrative machinery.

The key idea behind legislative arrangements for emergencies was to safeguard the region from
autocracy paired with domestic chaos, wars, and foreign assaults. The rationality behind the
incorporation of these provisions of the Indian constitution is to protect the Sovereignty, Unity,
Integrity and Security of the nation, the democratic political system and the constitution.

j. Federal in form Unitary in character

A unitary system is composed of one central government that holds all the power, but a federal
system divides power between national and local forms of government. India or Bharat is called
a Union of States. But it is essentially a federal country with a strong union.

The Indian Constitution contains all the federal features of governance like dual system of
government (centre and states), division of powers between the three organs of state (executive,
judiciary and legislature), Supremacy of the Constitution, independent Judiciary and
bicameralism (lower house and upper house), written constitution and independent judiciary.

In spite of this, the Indian Constitution is unique as it contains many unitary features like a strong
centre, All India Services common to the centre and the states, Emergency provisions that can
modify the Constitution into a unitary one if the need arises, appointment of Governors by the
President on the advice of the centre etc.

pg. 7
Thus we see that the Indian constitution is federal in form but unitary in spirit. This means that
both central and state governments have their own powers. Though the state governments govern
their states but the centre government can dismiss the state government under Article 356.

k. Separation of Power

Separation of powers is the mechanism of governance in three branches i.e., as specified above
Legislative, Executive and Judiciary.

Three basic features of this division are-

✔ Each organ should have different persons in capacity

✔ One organ should not interfere in the functioning of the other organs, i.e., there shall be
independency of powers.
✔ One organ should not exercise a function of another

Separation of power prevents misuse of power of accumulation of power in a few hands,

separation of power safeguards the society from arbitrary and irrational power of the state.

1. Legislature - Legislature is the law-making body; it has the authority to make laws for a
political entity such as a country. Law enacted by the legislature is usually known as
primary legislation. Legislature forms the base for the functioning of the other two
organs.
2. Executive - Executive is the administrative head of the government which includes
Prime/Chief Ministers and President/Governors. Executive is completely dependent on
the powers the legislature grants it, and the actions of the executive may or may not be
subject to judicial review.
3. Judiciary - The Judiciary is the watchdog of the democracy, as it guards the constitution,
the judiciary comprises of the Supreme Court, the High Courts, District and other
subordinate courts.

Concentration of power in one centre/authority, can lead to maladministration, corruption,

nepotism and abuse of power. Separation of powers helps in-

✔ Preventing autocracy

✔ Create efficient administration

✔ Independency of power is maintained

pg. 8
 ✔ Prevents the legislature from enacting arbitrary or unconstitutional laws

l. Schedules to the Constitution

Schedules are a part of the Indian constitution which have details that are not mentioned in the
articles. At the time of its commencement, the Indian Constitution contained 8 schedules.
However, at present, there are 12 schedules in the Constitution of India.

List of Schedules

I. The First schedule has a list of union territories and states.

II. The second schedule has provisions for the President, governor of the state, speaker and
deputy speaker, and all the high position holders in the parliament.
III. The Third schedule includes oaths and affirmations.
IV. This schedule includes the allocation of seats in the council of states.
V. The Fifth schedule contains information for the control of SCs and STs.
VI. The sixth schedule includes the administration of tribal areas.
VII. The seventh schedule consists of a union and states list.
VIII. The eighth schedule is about the languages recognized in the country.
IX. The Ninth schedule controls the agreement of acts and regulations.
X. The tenth schedule has provisions for disqualification in case of a problem.
XI. The eleventh schedule explains the powers, authority and responsibilities of panchayats.
XII. The twelfth schedule explains the powers, authority and responsibilities of the
municipalities

Schedules are appended towards the end of an enactment to provide for additional details and
prescribe the forms for working out the policy underlying the provisions. The object of schedules
is to avoid encumbering the sections/articles with matters of excessive details. The schedules of
the Indian Constitution make it easier to make revisions or updates to the provisions as the
amendments are divided. Schedules can be used to solve a variety of problems. They can be
adhered to when clarification or more information is required on a subject matter.

Drawn from Different Sources

The Indian Constitution has been framed from multiple sources that include the Government of
India Act of 1935, and Constitutions of other countries.

List of Borrowed Features of Indian Constitution:

Name of Countries Borrowed Features of the Constitution
of India
Britain 1. Parliamentary government

pg. 9
 2. Rule of Law
3. Legislative procedure
4. Single citizenship
5. Cabinet system
6. Prerogative writs
7. Parliamentary privileges
8. Bicameralism
Ireland 1. Directive Principles of State Policy
2. Method of Election of the president
3. Members nomination to the Rajya
Sabha by the President
Unites States of America 1. Impeachment of the president
2. Functions of president and vice-
president
3. Removal of Supreme Court and High
court judges
4. Fundamental Rights
5. Judicial review
6. Independence of judiciary
7. Preamble of the constitution
Canada 1. Centrifugal form of federalism where
the centre is stronger than the states.
2. Residuary powers vest with the centre
3. Centre appoints the Governors at the
states
4. Advisory jurisdiction of the supreme
court
Australia 1. Concept of Concurrent list
2. Article 108 i.e. Joint sitting of the two
houses
3. Freedom of trade and commerce

USSR (Now Russia) 1. Fundamental duties

2. The ideals of justice (social, economic
and political), expressed in the Preamble.

France 1. Concept of “Republic”

2. Ideals of Liberty, Equality and
Fraternity(contained in the Preamble)

pg. 10
 Germany 1. Fundamental Rights are suspended
during Emergency
South Africa 1. Election of members of the Rajya
Sabha
2. Amendment of the Constitution
Japan 1. Concept of “procedure established by
Law”

iii. Preamble to the Indian constitution – Importance of the Preamble; Amendability &
Justifiability of Preamble

Meaning of Preamble

The term ‘Preamble’ means the introduction to a statute. It is the introductory part of the
constitution. 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.

The Preamble is an introductory statement, stating the aims and objectives of the constitution.
Accordingly, the preamble to the Indian constitution spells out the basic philosophy contained in
the body of the Indian Constitution.

The Preamble to the Constitution of India records the aims and aspirations of the people of India
which have been translated into the various provisions of the Constitution. A Preamble means
the introduction to the statute. The objectives before the Constituent Assembly were to
Constitute India into a “sovereign democratic republic” and to secure its citizens “justice liberty,
equality, and fraternity”. 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.

It is worthwhile to note that the preamble was adopted by the Constituent Assembly after the
Draft Constitution had been approved. 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.

Significance or Importance of Preamble

pg. 11
The Preamble, in brief, explains the objectives of the Constitution in two ways: one, about the
structure of the governance and the other, about the ideals to be achieved in independent India. It
is because of this, the Preamble is considered to be the key of the Constitution. Preamble as such
is widely accepted as the quintessence or soul and spirit of a constitution, as it embodies the
fundamentals and the basic of the constitution as well as the vision and commitment of a newly
liberated nation or people after its passing through the inevitable birth pangs of national
independence from an oppressive and colonial regime.

The Preamble serves the following purposes:

a) It indicates the source from which the Constitution comes, viz., the people of India.

b) It contains the enacting clause which brings into force the Constitution which makes it an
Act of the people, for the people and by the people.

c) It declares the rights and freedoms which the people of India intended to provide to all
citizens and the basic type of government and polity which was to be established.

d) In a Constitution, it presents the intention of its framers, the history behind its creation, and
the core values and principles of the nation.

e) The preamble basically gives idea of the Source of the Constitution, Nature of Indian State,
Statement of its objectives and Date of its adoption.

The Preamble does not grant any power but it gives a direction and purpose to the Constitution.
It outlines the objectives of the whole Constitution. The Preamble contains the fundamentals of
the constitution. The preamble to an Act sets out the main objectives which the legislation is
intended to achieve.

The proper function of the preamble is to explain and recite certain facts which are necessary to
be explained and recited before the enactment contained in an act of Parliament could be
understood. A preamble may be used for other reasons, such as, to limit the scope of certain
expressions or to explain facts or introduce definitions. It usually states or professes to state, the
general object and meaning of the legislature in passing the measure.

Hence it may be legitimately consulted for the purpose of solving an ambiguity or fixing the
connotation of words which may possibly have more meaning, or determining of the Act,
whenever the enacting part in any of these respect is prone to doubt. In a nutshell, a court may
look into the object and policy of the Act as recited in the Preamble when a doubt arises in its

pg. 12
mind as to whether the narrower or the more liberal interpretation ought to be placed on the
language which is capable of bearing both meanings.

History of the Preamble to Indian Constitution

The ideals behind the Preamble to India’s Constitution were laid down by Jawaharlal Nehru’s
Objectives Resolution, adopted by the Constituent Assembly on January 22, 1947.

Although not enforceable in court, the Preamble states the objectives of the Constitution, and
acts as an aid during the interpretation of Articles when language is found ambiguous.

Components of Preamble

It is indicated by the Preamble that the source of authority of the Constitution lies with the
people of India.

Preamble declares India to be a sovereign, socialist, secular and democratic republic.

The objectives stated by the Preamble are to secure justice, liberty, equality to all citizens and
promote fraternity to maintain unity and integrity of the nation.

The date is mentioned in the preamble when it was adopted i.e. November 26, 1949.

Key words in the Preamble

We, the people of India: It indicates the ultimate sovereignty of the people of India. Sovereignty
means the independent authority of the State, not being subject to the control of any other State
or external power.

Sovereign: The term means that India has its own independent authority and it is not a dominion
of any other external power. In the country, the legislature has the power to make laws which are
subject to certain limitations.

Socialist: The term means the achievement of socialist ends through democratic means. It holds
faith in a mixed economy where both private and public sectors co-exist side by side. It was
added in the Preamble by 42nd Amendment, 1976.

Secular: The term means that all the religions in India get equal respect, protection and support
from the state. It was incorporated in the Preamble by 42nd Constitutional Amendment, 1976.

Democratic: The term implies that the Constitution of India has an established form of
Constitution which gets its authority from the will of the people expressed in an election.

pg. 13
Republic: The term indicates that the head of the state is elected by the people. In India, the
President of India is the elected head of the state.

Objectives of the Indian Constitution

The Constitution is the supreme law and it helps to maintain integrity in the society and to
promote unity among the citizens to build a great nation.

The main objective of the Indian Constitution is to promote harmony throughout the nation.

The factors which help in achieving this objective are:

Justice: It is necessary to maintain order in society that is promised through various provisions
of Fundamental Rights and Directive Principles of State Policy provided by the Constitution of
India. It comprises three elements, which is social, economic, and political.

Social Justice – Social justice means that the Constitution wants to create a society without
discrimination on any grounds like caste, creed, gender, religion, etc.

Economic Justice – Economic Justice means no discrimination can be caused by people on the
basis of their wealth, income, and economic status. Every person must be paid equally for an
equal position and all people must get opportunities to earn for their living.

Political Justice – Political Justice means all the people have an equal, free and fair right without
any discrimination to participate in political opportunities.

Equality: The term ‘Equality’ means no section of society has any special privileges and all the
people have given equal opportunities for everything without any discriminations. Everyone is
equal before the law.

Liberty: The term ‘Liberty’ means freedom for the people to choose their way of life, have
political views and behavior in society. Liberty does not mean freedom to do anything, a person
can do anything but in the limit set by the law.

Fraternity: The term ‘Fraternity’ means a feeling of brotherhood and an emotional attachment
with the country and all the people. Fraternity helps to promote dignity and unity in the nation.

Importance of Objectives: It provides a way of life. It includes fraternity, liberty, and equality
as the notion of a happy life and which cannot be taken from each other.

pg. 14
 ✔ Liberty cannot be divorced from equality, equality cannot be divorced from liberty. Nor
can liberty and equality be divorced from fraternity.
✔ Without equality, liberty would produce the supremacy of the few over the many.

✔ Equality without liberty would kill individual initiative.

✔ Without fraternity, liberty would produce the supremacy of the few over the many.

✔ Without fraternity, liberty and equality could not become a natural course of things.

Whether Preamble is a part of the Indian Constitution?

It has been highly a matter of arguments and discussions in the past that whether Preamble
should be treated as a part of the constitution or not. The vexed question whether the Preamble is
a part of the Constitution or not was dealt with in two leading cases on the subject:

Beruberi Case - In Berubari Union and Exchange of Enclaves, re case [1960] the Supreme
Court ruled out that the Preamble to the Constitution, containing the declaration made by the
people of India in exercise of their sovereign will, no doubt it is “a key to open the mind of the
makers” which may show the general purposes for which they made the several provisions in the
Constitution but nevertheless the Preamble is not a part of the Constitution.

Kesavananda Bharati case - Kesavananda Bharati v. State of Kerala[1973] case has created
history. For the first time, a bench of 13 judges assembled and sat in its original jurisdiction
hearing the writ petition. Thirteen judges placed on record 11 separate opinions. To the extent
necessary for the purpose of the Preamble, it can be safely concluded that the majority in
Kesavananda Bharati case leans in favor of holding,

(i) That the Preamble to the Constitution of India is a part of the Constitution;

(ii) That the Preamble is not a source of power or a source of limitations or prohibitions;

(iii) The Preamble has a significant role to play in the interpretation of statutes and also in the
interpretation of provisions of the Constitution.

Kesavanada Bharati case is a milestone and also a turning point in the constitutional history of
India. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore, is

pg. 15
amendable under Article 368. It can be concluded that Preamble is an introductory part of our
Constitution. The Preamble is based on the Objective Resolution of Nehru. Preamble tells about
the nature of state and objects that India has to achieve. There was a controversial issue whether
Preamble was part of Indian Constitution there were a number of judicial interpretation but
finally Kesavanada Bharati case it was held that the Preamble is a part of the Constitution

Later on in S.R. Bommai v. Union of India c(1994) and in Union Government v. LIC of India
(1995) cases also the Supreme Court has once again held that the Preamble is an integral part of
the Constitution.

Whether Preamble can be amended like other parts of the Indian Constitution?

The issue that whether the preamble to the constitution of India can be amended or not was
raised before the Supreme Court in the famous case of Kesavananda Bharati v. State of Kerala,
1973[xiv]. The Supreme Court has held that Preamble is the part of the constitution and it can be
amended but, Parliament cannot amend the basic features of the preamble. The court observed,
“The edifice of our constitution is based upon the basic element in the Preamble. If any of these
elements are removed the structure will not survive and it will not be the same constitution and
will not be able to maintain its identity.”

Kesavananda Bharati case is a milestone and also a turning point in the constitutional history of
India. Chandrachud, J. held that it was impossible to accept the contention that the Preamble is
not a provision of the Constitution; it is a part of the Constitution and is not outside the reach of
the Constituent Assembly leaves no scope for this contention. It is transparent from the
proceedings that the Preamble was put to vote and was actually voted upon to form a part of the
Constitution. D.G. Palekar, J. held that the Preamble is a part of the Constitution and, therefore,
is amendable under Article 368. In the opinion of H.R. Khanna, J. the preamble is a part of the
Constitution and walks before the Constitution”. S.D. Dwivedi, J. expressing his concurrence
with the conclusion arrived at by A.N. Ray, J., held that the Preamble was a part of the
Constitution because the heading “The Constitution of India” was placed above the Preamble.
Thus, the majority of judges in the Kesavananda Bharati case bench has held that Preamble is
the part of the constitution and it can be amended but, Parliament cannot amend the basic
features of the preamble.

pg. 16
The preamble to the Indian constitution was amended by the 42nd Amendment Act,
1976 whereby the words Socialist, Secular, and Integrity were added to the preamble by
the 42nd Amendment Act, 1976, to ensure the economic justice and elimination of inequality in
income and standard of life. Secularism implies equality of all religions and religious tolerance
and does not identify any state religion. The word integrity ensures one of the major aims and
objectives of the preamble ensuring the fraternity and unity of the state.

Justifiability or Enforceability of the Preamble in the Court of law

The Preamble of our constitution is part of the Constitution but is not enforceable by courts. The
Preamble is non-Justifiable. This means that courts cannot pass orders against the government of
India to implement the ideas in the Preamble. The courts can take recourse to the Preamble in
order to explain and clarify other provisions of the constitution. This view was given by the
Supreme Court in the Berubari Union Case (1964) and Kesavananda Bharati Case (1973).

pg. 17