Justice J.M. Shelat and Justice A.N. Grover

Edited Excerpt from Kesavananda Bharthi Case

Preamble as guiding light in interpretation of Constitution

The preamble serves several important purposes. Firstly, it indicates the source from which the Constitution comes viz. the people of India. Next, it contains the enacting clause which brings into force the Constitution. In the third place, it declares the great rights and freedoms which the people of India intended to secure to all citizens and the basic type of government and polity which was to be established.

From all these, if any provision in the Constitution had to be interpreted and if the expressions used therein were ambiguous, the preamble would certainly furnish valuable guidance in the matter, particularly when the question is of the correct ambit, scope and width of a power intended to be conferred by Article 368.

The stand taken up on behalf of the respondents that even the preamble can be varied, altered or repealed, is an extraordinary one. It may be true about ordinary statutes but it cannot possibly be sustained in the light of the historical background, the Objectives Resolution which formed the basis of the preamble and the fundamental position which the preamble occupies in our Constitution.

Limits of Amending Power

It constitutes a land-mark in India’s history and sets out as a matter of historical fact what the people of India resolved to do for moulding their future destiny. It is unthinkable that the Constitution makers ever conceived of a stage when it would be claimed that even the preamble could be abrogated or wiped out.

If the preamble contains the fundamentals of our Constitution, it has to be seen whether the word amendment in Article 368 should be so construed that by virtue of the amending power the Constitution can be made to suffer a complete loss of identity or the basic elements on which the Constitutional structure has been erected, can be eroded or taken away.

While dealing with the preamble to the United States, Constitution it was observed by Story (Commentaries on the Constitution of the United States, 1833 edition, Volume I), that the preamble was not adopted as a mere formulary; but as a solemn promulgation of a fundamental fact, vital to the character and operations of the Government.

The effect of preamble on Amending powers of Parliament

Now let us examine the effect of the declarations made and the statements contained in the preamble on interpretation of the word “amendment” employed in Article 368 of the Constitution. The first thing which the people of India resolved to do was to constitute their country into a Sovereign Democratic Republic. No one can suggest that these words and expressions are ambiguous in any manner. Their true import and connotation is so well known that no question of any ambiguity is involved.

The question which immediately arises is whether the words “amendment or amended” as employed in Article 368 can be so interpreted as to confer a power on the amending body to take away any of these three fundamental and basic characteristics of our polity. Can it be said or even suggested that the amending body can make institutions created by our Constitution undemocratic as opposed to democratic; or abolish the office of the President and, instead, have some other head of the State who would not fit into the conception of a “Republic”.

The width of the power claimed on behalf of the respondents has such large dimension that even the above part of the preamble can be wiped out from which it would follow that India can cease to be a Sovereign Democratic Republic and can have a polity denuded of sovereignty, democracy and Republican character.

No one has suggested-it would be almost unthinkable for anyone to suggest-that the amending body acting under Article 368 in our country will ever do any of the things mentioned above, namely change the Constitution in such a way that it ceases to be a Sovereign Democratic Republic.

But while examining the width of the power, it is essential to see its limits, the maximum and the minimum; the entire ambit and magnitude of it and it is for that purpose alone that this aspect is being examined. While analysing the scope and width of the power claimed by virtue of a Constitutional provision, it is wholly immaterial whether there is a likelihood or not of such an eventuality arising.

Consequences of a particular construction

It is difficult to accede to the submission on behalf of the respondents that while considering the consequences with reference to the width of an amending power contained in a Constitution any question of its abuse is involved. It is not for the courts to enter into the wisdom or policy of a particular provision in a Constitution or a statute. That is for the Constitution makers or for the parliament or the legislature. But that the real consequences can be taken into account while judging the width of the power is well settled. The Court cannot ignore the consequences to which a particular construction can lead while ascertaining the limits of the provisions granting the power.

According to the learned Attorney General, the declaration in the preamble to our Constitution about the resolve of the people of India to constitute it into a Sovereign, Democratic Republic is only a declaration of an intention which was made in 1947 and it is open to the amending body now under Article 368 to change the Sovereign Democratic Republic into some other kind of polity. This by itself shows the consequence of accepting the construction sought to be put on the material words in that article for finding out the ambit and width of the power conferred by it.

The other part of the Preamble may next be examined. The Sovereign Democratic Republic has been constituted to secure to all the citizens the objectives set out. The attainment of those objectives forms the fabric of and permeates the whole scheme of the Constitution. While most cherished freedoms and rights have been guaranteed the government has been laid under a solemn duty to give effect to the Directive Principles.

Both Parts III and IV which embody them have to be balanced and harmonised-then alone the dignity of the individual can be achieved. It was to give effect to the main objectives in the Preamble that Parts III and IV were enacted.


Kesavananda Bharthi v. Union of India (1973)