The Preamble Pledge of Social, Economic and Political Justice: Are They Out of
\nOrder 1
\nIt is a great honour to be present here this morning to deliver the
\nvaledictory address of the Session of the
\nWorkshop of Lawyers on \u201cThe
\nPreamble Pledge of Social, Economic and Political Justice : Are They Out of
\nOrder\u201d organized by Justice P.D. Desai Memorial Lecture Committee and the
\nTrustees of Praleen Public Charitable Trust. At the outset, I must express
\nmy profound respect for Late Justice P.D. Desai, who is one of the
\noutstanding personalities of the Indian judiciary.
\nHe is known for his
\nerudition and independence, two great qualities which are increasingly
\nbecoming rare commodities in Indian society.
\nApart from those two great
\nqualities required of a Judge, Justice Desai possessed other noble qualities
\nwhich distinguish great human beings in a crowd of sapiens.
\nTo understand whether the Preamble to our Constitution or the Pledge
\nof Social, Economic and Political Justice contained therein is out of order, it
\nis necessary to understand, first, what is the purpose sought to be achieved
\nby any constitution (written or otherwise).
\nThereafter, we need to examine
\nthe scheme of our Constitution and the significance of the Preamble to our
\nConstitution.
\n1
\nSpeech given by Justice J Chelameswar, Judge, Supreme Court of India, at the valedictory session of the
\nWorkshop of Lawyers being organised by \u2018Justice P D Desai Memorial Lecture Committee\u2019 and \u2018The Trustees of
\nPraleen Public Charitable Trust\u2019 at Ahmedabad on September 16, 2017
\n1The basic goal of any government is to establish an orderly society.
\nAn orderly society can be secured by any form of government, be it
\ndemocratic or autocratic.
\nThe refinement of human thought process
\nachieved out of experience gained through ages by mankind leads to the
\nevolution of liberal political ideas. Mankind realized that all power corrupts
\nand all governments tend to become oppressive.
\nIf power is concentrated
\nin one individual, the scope for oppression is greater. Therefore, the need to
\nfind ways and means to control the men who happen to have the power to
\ngovern either under a claim of \u2018divine right\u2019 or otherwise 2 .
\ndemocratic forms of governments were thus conceived.
\nParliamentary
\nThe powers of law
\nmaking and its enforcement were separated and came to be vested in
\ndifferent bodies \u2013 legislature consisting of elected representatives of the
\ncitizens and executive chosen by and answerable to the legislature.
\nWritten Constitutions are the next stage in the evolution of constitutional
\ndemocracies.
\nThey are a device invented to outline the powers and
\nfunctions of the various organs of the government and prescribe the limits of
\nthe authority of government. Such limitations are to be found either in the
\ntext of the Constitution or implications flowing from the text of the
\nConstitution. It is said
\n\u201cIf men were angels, no government would be necessary. If angels
\nwere to govern men, neither external nor internal controls on
\ngovernment would be necessary. In framing a government which is to
\nI do not wish to elaborate on the evolution of constitutional governance in its full detail as it would be beyond the
\nscope of today\u2019s topic.
\n2
\n2be administered by men over men, the great difficulty lies in this: you
\nmust first enable the government to control the governed; and in the
\nnext place oblige it to control itself.\u201d 3
\nThe primary purpose sought to be achieved by governance under a
\nconstitution is to secure the liberty of citizens and even non-citizens, who
\nare amenable to the authority of the State.
\nThe liberty and freedoms,
\nwhich people desire, cannot be secured by mere aspirations.
\nIt requires
\nconstant vigilance and commitment to constitutional culture on the part of
\nthe society as well as the individuals chosen to run the government to
\nsecure the liberty of the members of the society. Written constitutions are
\ngenerally open textured documents for the participatory evolution of
\ndemocratic practices.
\nThere is nothing in the text of our Constitution, either in the Preamble
\nor in any other part, which makes any declaration that the purpose of the
\nConstitution is to establish a government to secure an orderly society. That
\nis understood by default.
\nWhat else is sought to be achieved by the
\nConstitution? In other words, what are the goals sought to be achieved by
\nthe Constitution, requires examination.
\nEvery society has its own distinct history, its own problems emanating
\nfrom causes either natural or man-made over centuries. India had and still
\nhas its own peculiar problems.
\n3
\nThey are: vast population with relatively
\nThe Federalist No.51 (1788) [According to my version, it is Madison]
\n3limited natural resources, inequitable distribution of wealth among its people
\nand inequitable control over the natural resources and the means of
\nproduction of goods and services, mind-boggling diversity of religious,
\ncultural and social beliefs and practices of the various groups of inhabitants
\nof this country coupled with the complex political history of this country,
\nwhich compounded already existing problems.
\nEconomic disparities have always been huge in India. \u201c At the height of
\nMughal splendor under Shah Jahan, over a quarter of the gross national product of the
\nempire was appropriated by just 655 individuals, while the bulk of the approximately 120
\nmillion people of India lived on a dead level of poverty \u201d 4 .
\n300 years after the height of Mughal splendor at the time of framing
\nthe Constitution, neither the plight of the common man in India nor the
\npattern of the distribution of wealth was very different.
\nIndian population lived below the poverty line.
\nA huge chunk of
\nFood security was a major
\nconcern for them. Education and medical services were hardly accessible to
\nthem.
\nOn the social plane, Indian society was no more evolved and
\nprogressive
\nthan
\nwhat
\nit
\nwas
\nat
\nthe
\nheight
\nUntouchability was an approved social practice.
\nof
\nMughal
\nsplendor.
\nVarious sections of the
\npopulation pursued only the occupations undertaken by their ancestors.
\n4
\nThe Last Spring \u2013 The Lives and Times of the Great Mughals by Abraham Eraly, Epilogue, p.898
\n4Such occupations did not provide any financial gains sufficient to assure a
\ncomfortable life in the modern world. Those occupations restricted upward
\nmobility, both social and economic. Women formed an exclusive class.
\nThey suffered a great deal of disadvantage cutting across various social
\nsegments.
\nThey did not enjoy any right in the property of their families,
\neither parental or matrimonial. Their autonomy in many spheres of life such
\nas matrimonial and occupational was almost absent.
\nThese economic and
\nsocial problems made the enjoyment of the fruits of political freedom a
\nteasing illusion for a vast majority of people of this country.
\nOn the political front, a large part of the territory was directly under
\nthe control of foreign rulers who were legally not answerable to the people of
\nthe country and the remaining part of the territory was ruled by native
\nIndian rulers owing allegiance to the foreign ruler who claimed their
\nauthority by some \u201c divine right \u201d.
\nThe Constituent Assembly was fully aware of the various problems
\nwhich faced Indian society. The members of the Constituent Assembly were
\npeople of wisdom based on their deep study of human nature and history.
\nThey wanted to bring about a change.
\nThey were men and women with
\nnoble ideas who recognised that mere political independence would not
\nmake the Indian society any more happy than it was under the rule of alien
\nrulers.
\nThey realized that only a great social and economic revolution can
\nlead the Indian society to happiness. They wanted to create the structure of
\n5a government which is obliged by a constitutional mandate to address the
\nvarious problems faced by the Indian society.
\nThe idea of framing the Constitution is not either to create simply a
\nmanual of dos and don\u2019ts by the government or to replace a foreign ruler
\nwith an Indian ruler.
\nThe basic purpose of our Constitution is to create a legal document
\nwhich contains the principles which regulate the governance of the country
\nfor the purpose of enabling an orderly democratic and secular society where
\npeople can enjoy liberty.
\nTherefore, our Constitution is designed to provide
\na democratic form of government. A government based on laws made by
\nthe elected representatives of the people but not on the whims and fancies
\nof individuals.
\nEven the authority conferred by a Constitution to make laws
\ncan degenerate into autocracy.
\nTo eliminate such possibility, the authority
\nto make laws is vested in bodies (legislatures) whose membership is limited
\nby time and the members are chosen periodically through election by the
\ncitizens eligible to participate in the electoral process. The responsibility of
\nimplementing the laws made by the legislature is entrusted under the
\nscheme of the Constitution to the executive which is designed to be
\nanswerable to the legislature.
\nThe power of law making and implementing the law is divided
\nvertically between the Union and States.
\nIt is also horizontally divided
\n6between the three great branches of the State i.e. the legislative, the
\nexecutive,
\nand
\nthe
\njudiciary.
\nThe
\nConstitution
\ncontains
\nelaborate
\nstipulations describing how each one of the constitutional organs is required
\nto exercise the powers conferred on it for discharging obligation of providing
\ngood governance in order to establish not only an orderly society, but also a
\nsociety where people can live with human dignity and lead a happy life.
\nThe Constituent Assembly was aware of the historical truth that even
\nelected bodies can act irrationally and oppress the people.
\nwithout the examples of the tyranny of the majorities.
\nHistory is not
\nTherefore, in order
\nto protect the liberty of the citizens, our constitution declared certain rights
\nto be fundamental rights which cannot be transgressed even by legislature.
\nBut Fundamental Rights are also declared to be subject to certain exceptions
\nconceived in the larger interests of the society.
\nDemocracy is an aspect of political justice and it is sought to be
\nsecured by our Constitution by mandating under Article 326 that there shall
\nbe universal adult franchise.
\nIn other words, citizens above the age of 18 5
\nare declared entitled (subject to certain restrictions) to be voters at the
\nvarious elections to be held under the Constitution for the purpose of
\nchoosing the representatives of the people to the various legislative bodies 6
\nestablished under the constitution.
\n5
\nThe Constitution mandates periodic
\nInitially it was 21 years but amended by the Constitution 61 st Amendment in 1988.
\n6
\nThe two chambers of the Parliament viz. Lok Sabha and Rajya Sabha and the legislatures of the States. Legislative Assembly
\nin all the States and Legislative Council wherever they exist.
\n7elections to these legislative bodies.
\nVarious provisions of the constitution
\nalso stipulate that any citizen of India can become a member of the
\nLegislative Bodies subject to certain restrictions such as the minimum age
\nrequirement etc.
\nIt is important to notice that under the Constitution
\nthough both the right to vote or the right to contest for the membership of
\nany one of the legislative bodies created thereunder could be restricted on
\ncertain grounds specified in the Constitution, neither the financial status nor
\nthe religious belief of the citizen are part of those specified grounds. On the
\nother hand, the Constitution guarantees a fundamental right under Article 25
\nto all persons \u201c freedom of conscience and the right to freely profess, practise and
\npropagate religion of their choice \u201d
\nsubject of course to certain restrictions based
\non constitutionally prescribed parameters specified in that Article.
\nSuch
\nfundamental right, in the context of the electoral process, guarantees a
\nsecular democracy.
\nBy providing for a system of Government which is purely dependent
\nupon the choice of the electorate, our Constitution eliminated the possibility
\nof the establishment of any other form of Government, either monarchy or
\nautocracy.
\nSecuring economic and social justice is the next task of the
\nConstitution.
\nTherefore,
\nadministration of the
\ncertain
\nprinciples
\nwhich
\nshould
\nguide
\nthe
\nState in discharge of all its governmental functions
\n8were incorporated in the Constitution in Part-IV which contains the Directive
\nPrinciples of State Policy.
\nArticle 38 occurs in Part IV of the Constitution
\nwhich contains the Directive Principles of State Policy.
\n(i) Directive Principles are declared to be fundamental in the governance of
\nthe country, and it shall be the duty of the State to follow these Directive
\nprinciples in making laws.
\n(ii) Article 38, as was originally enacted read ;
\n\u201c38(1) The State shall strive to promote the welfare of
\nthe people by securing and protecting as effectively as it
\nmay a social order in which justice, social, economic and
\npolitical, shall inform all the institutions of the national
\nlife.\u201d
\nThe loud proclamation under Article 38 that the State shall strive to promote
\nthe welfare of the people by securing and protecting a social order in which
\njustice, social, economic and political shall inform all the institutions of the
\nnational life, is not only an acknowledgment of the existing injustice in the
\nvarious spheres of the national life but also the recognition of the obligation
\nof the State constantly to take necessary steps to secure a just social order.
\nThe framers of the Constitution were aware of the fact that it is
\npossible to secure a just social order only when certain problems
\ncontributing to the establishment of such an unjust social order are
\naddressed and the maladies remedied.
\nTherefore, the command under
\nArticle 39 to the State to direct its policy towards securing various goals
\nspecified therein.
\nThe salient features of Article 39 are ;
\n9\u201c(a) that the citizens, men and women equally, have the
\nright to an adequate means of livelihood.
\n(b)
\nthat the ownership and control of the material
\nresources of the community are so distributed as best to
\nsubserve the common good;
\n(c) that the operation of the economic system does not
\nresult in the concentration of wealth and means of
\nproduction to the common detriment.\u201d
\nWithout adequate means of livelihood any amount of political freedom
\nby itself does not make a human being anymore happier. To put it crudely,
\nthat we are not ruled by people whose skin colour is different from ours but
\nby people whose skin colour is akin to ours, is no freedom in the real sense.
\nThe happiness of human beings can broadly be stated to depend upon two
\nelements, material comforts and freedom from restraint of any kind either
\nphysical or mental. The availability of proper nutrition and health care and
\nappropriate clothing and residential arrangements are the fundamental
\ncomponents of material comfort. 7 In order to secure them, human beings
\nrequire a minimum of economic strength which is only possible where the
\nownership and control of the material resources of the community are so
\ndistributed as to best subserve the common good.
\nThe subservience of
\ncommon good is only possible where the operation of the economic system
\n7
\nArticle 47. Duty of the State to raise the level of nutrition and the standard of living and to improve public
\nhealth – The State shall regard the raising of the level of nutrition and the standard of living of its people and the
\nimprovement of public health as among its primary duties and, in particular, the State shall endeavour to bring about
\nprohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious
\nto health.
\n10does not result in concentration of wealth and means of production in a few
\nhands.
\nThe Preamble was framed only after the draft articles of the
\nConstitution had been discussed and finalized by the Constituent Assembly.
\nThe object of framing the Preamble at the end of the debate on the draft
\nConstitution was to ensure that the Preamble is in conformity with the
\nConstitution as accepted by the Constituent Assembly 8 . In other words, the
\nPreamble is a short hand version of the contents of the major principles
\nunderlying the scheme of the Constitution.
\nThe Preamble declares that the people of India resolved to constitute
\nthemselves into a democratic secular republic.
\nThe goals of the republic are
\nto secure to all its citizens; (i) justice, liberty and equality; (ii) to promote
\namongst all the citizens of India fraternity while assuring the dignity of
\nindividual and (iii) unity and integrity of the nation.
\nMay be it is a coincidence that Justice Shelat, another distinguished
\nson of Gujarat\u2019s soil, explained 9 the purpose of Preamble in the following
\nwords:
\n\u201cThe preamble serves several important purposes. Firstly, it indicates
\nthe source from which the Constitution comes viz. the people of India.
\nIt declares the great rights and freedoms which the people of India
\n8
\nIt is not without significance that the Preamble was passed only after draft articles of the Constitution had been
\nadopted with such modifications as were approved by the Constituent Assembly.
\n9 Keshavananda Bharati v. State of Kerala, AIR 1973 SC 1461
\n11intended to secure to all citizens and the basic type of government and
\npolity which was to be established. if any provision in the Constitution
\nhad to be interpreted and if the expressions used therein were
\nambiguous, the preamble would certainly furnish valuable guidance in
\nthe matter.
\n……… But the constant strain which runs throughout each and every
\narticle of the Constitution is reflected in the Preamble which could and
\ncan be made sacrosanct.
\nThe Preamble was, therefore, meant to
\nembody in a very few and well-defined words the key to the
\nunderstanding of the Constitution.
\nThe Preamble embodies the fundamentals underlying the structure of
\nthe Constitution.\u201d
\nIn Indira Nehru Gandhi case 10 , the Supreme Court declared that the
\nPreamble sets out the ideological aspirations of the people. Justice Bhagwati
\nin D.S. Nakara case 11 , opined that in deciding the constitutional validity of
\nany State action, be it legislative or administrative, the Courts are required
\nto examine the issue on the touchstone of Directive Principles of State Policy
\nin the light of the Preamble.
\nJustice Chinappa Reddy in Atam Prakash
\ncase 12 , described the Preamble as the guiding light for the interpretation of
\nthe Constitution.
\n10
\n11
\n12
\nIndira Nehru Gandhi v. Raj Narain, 1975 Supp. SCC 1
\nD.S. Nakara v. Union of India, AIR 1983 SC 130
\nAtam Prakash v. State of Haryana, AIR 1986 SC 859
\n12Various provisions of the Constitution are designed to secure social
\njustice.
\nThe pivot for securing social justice is the mandate of equality
\namong the people of India in all its aspects.
\nconstitutional
\ndeclaration
\nabolishing
\nuntouchability
\nArticle 17 makes a
\nand
\nmaking
\nit
\na
\npunishable offence to practice untouchability. Articles 14 to 16 are designed
\nto secure equality. Recognising the specific problem of inequality suffered
\nby the Scheduled Castes and Scheduled Tribes over
\ncenturies, the
\nConstitution made provisions for reservation of seats in favour of those
\nclasses in the legislative bodies 13 . It makes a special provision commanding
\nthat the claims of members of the Scheduled Castes and Scheduled Tribes
\nshall be taken into consideration consistently with the maintenance of
\nefficiency of administration, in the matter of appointments to services either
\nunder Union of India or under the States 14 .
\nThe Constitution enables the
\nmaking of special provisions in favour of socially and educationally backward
\nclasses of citizens, Scheduled Castes, Scheduled Tribes and also women and
\nchildren 15 . Further, the Constitution mandates under Article 46:
\n46. Promotion of educational and economic interests of
\nScheduled Castes, Scheduled Tribes and other weaker sections.
\nThe State shall promote with special care the educational and
\neconomic interests of the weaker sections of the people, and, in
\nparticular, of the Scheduled Castes and the Scheduled Tribes, and shall
\nprotect them from social injustice and all forms of exploitation.
\nVarious other provisions of chapters dealing with Directive Principles
\nmandate that the policy of the State should be directed towards securing
\n13
\n14
\n15
\nArticle 330 and 332.
\nArticle 335
\nArticles 15(3), (4) and Article 16(4)
\n13various rights like right to work, right to education, public assistance in the
\ncases of unemployment, old age sickness and other cases of undeserved
\nwants 16 . The State is mandated to make appropriate legislation to secure to
\nthe workers a living wage and conditions of work ensuring a decent standard
\nof life, enjoyment of leisure etc.
\nIt is in this background of the scheme of the Constitution that the
\nPreamble was framed.
\nIn pursuance to the various goals sought to be achieved by the
\nConstitution, laws have been made in the last seven decades both by the
\nParliament and the State Legislatures professedly to achieve one or the
\nother objective enshrined in the chapter of Directive Principles. Such laws
\nsecured their objectives with varying degrees of success.
\nEither the laws
\nwere not comprehensive enough to achieve the goal professedly sought to
\nbe secured by law or in some cases the implementation of law was not
\nintense enough to secure the objective sought to be secured by law.
\nIn my opinion, achievement of social justice was an object pursued by
\nthe successive governments with greater vigour than the achievement of
\neconomic and political justice. However, the achievement of social justice is
\nalso not complete, considerable social inequalities and unwholesome
\npractices have not been totally eliminated. In the last 70 years, this country
\n16
\nArticle 41
\n14still had to grapple with the practices of untouchability, the cruel practice of
\nsati, khap panchayats etc.
\nNeo-communal social practice also started
\ngaining currency, of late, across the country.
\nCaste-based organisations
\nmushroomed in the country claiming special treatment by the States. May
\nbe there were justification for such claims judged from the standards of the
\neconomic and social status of the group claiming such special status. But
\nthe very fact that such claims still persists goes to demonstrate that the
\nconstitutional goals are not yet achieved. It took almost five decades for the
\nParliament to create a right in favour of the Hindu woman in the coparcenary
\nproperty 17 .
\nThe rights of women in the realm of their intimate personal
\nchoice such as marriage and child bearing are still very nebulous.
\nThough,
\nattempts have been made, the goal posts are far away and the distance
\nvaries depending upon the religious denomination and\/or community to
\nwhich a woman belongs to.
\nA great deal of law making and policy framing revolved around
\nsecuring the goal of economic justice but the fact remains there are huge
\nchunks of population that still live below the poverty line without adequate
\nmeans, assurance of food, security and residence and access to the
\nopportunities of education and employment.
\nWith reference to certain
\nsegments, the inequalities are bizarre even as on today.
\n17
\nInterest of Hindu Women in Coparcenary Property under Hindu Succession Act, 2005
\n15In the realm of political justice, though it should be said that the
\ngreatest success of Indian democracy is that it retained its democratic form
\nby having periodic elections to legislative bodies.
\nThe content and the
\nquality of democracy leaves much to be desired. Money power plays a great
\nrole in the electoral process.
\nThe electoral process itself resulted in the
\nemergence of \u2018democratic dynasties\u2019.
\nI am conscious of the fact that the
\nemergence of \u2018democratic dynasties\u2019 is the social problem having its root in
\nthe maturity level of the Indian polity. But the problem is real.
\nA new oligarchy came into existence containing two classes of people.
\nPeople who get an opportunity to belong to the ruling class, i.e. (i) people
\nwho get a chance to become members of any one of the three great
\nbranches of the government, and (ii) others who have access to that ruling
\nclass.
\nAccess to the ruling class comes through either economic strength or
\npersonal proximity.
\nIn the Indian context personal proximity arises out of
\nthe considerations of religion, caste, language etc.
\nThe abovementioned
\nfactors, in my view, are antithetical to be goal of securing political justice
\ncontemplated by the Constitution.
\nIn the background of the current realities in the various spheres of
\nIndian societies, some of which have been mentioned above, I am of the
\nopinion that the Preamble is still in order will continue to be in order forever
\neven if all the social, economic and political problems of the Indian society
\n16are solved at some point of time in future.
\nNo civilization known to history
\nmaintained an absolute, socio political and economic equilibrium for eternity.
\nAny written constitution would be an incomplete document leaving
\nenough space for a participatory evolution of political ideals.
\nIndian
\nConstitution is no exceptional to it. The broad principles which formed the
\nbasis of the political ideals sought to be achieved by the Constitution are
\nindicated in the Preamble.
\nEach generation will have to modulate their
\npolitical ideals to suit the contemporary economic, social and political
\nrealities without compromising on the core principles.
\n* * * * *
\n17<\/p>\n","protected":false},"excerpt":{"rendered":"
The Preamble Pledge of Social, Economic and Political Justice: Are They Out of Order 1 It is a great honour to be present here this morning to deliver the valedictory address of the Session of the Workshop of Lawyers on … Continue reading