A Short Note on the Philosophy of our Preamble and Constitutional Jurisprudence

Constitution has acquired the highest norm in the Public Law. A good understanding of constitution and comparative law is a must for every law student. However, in our country, less emphasis is given on the comparative aspects of law. In comparative analysis, we can do a comparative study of common law system v. a common law system or common law system v. civil law system or civil law system v. civil law system.

In Golaknath’s case, the court emphasized on the principle of inclusivity of judiciary in Judicial Review. It saved the fundamental rights from the amendment process of Article 368. This case got further strengthened by the Kesavananda Bharti’s case. This case saved the Constitution, saved the country, saved the democracy and had it not been there, there could have been ‘autocratic democracy’ in our country. The political party in power felt insecure and introduced many amendments in the constitution depriving people of their fundamental rights. This case also upheld that Judicial Review is the basic feature of the constitution.

We, the people, phrase in our preamble was also used in the American Constitution. They enacted their own constitution in Philadelphia. Originally, our Preamble contained only three arrows, Sovereign, Democratic and Republic. Later on, Socialist and Secular arrows were added. These are considered to be the basic feature of the basic structure of the constitution. Basic feature of the basic structure has made the edifice of the Constitution. Sovereignty is vested in ‘we’, the people minus the referendum. Our constitution does not provide the provision for a referendum.

Preamble aims to ensure Distributive Justice for all. The concept of Equality in our preamble is against discrimination. But positive discrimination can exist for the neglected lot of the society.

One who looks at himself, must look at other in the same manner. This also envisages the concept of ‘unity in diversity’. This philosophy is engrained and eternal in our constitution. The words ‘unity’ and ‘integrity’ were added by the way of 42^nd Amendment.

It would be no exaggeration to say that our Constitution is prolific because it contains two constitutions in one constitution. The structure of law making bodies at the central level and state level are given in the constitution. And now, the third tier of governance is also incorporated in our Constitution by the way of 73^rd and 74^th Amendment. The State and the Centre have to mutually reciprocate each other. They have to be interdependent on each other and not independent from each other.

However, the principle of Financial Equalization has not been mentioned in our Constitution. German Constitution is the only example which contains the principles of Financial Equalization.

Due to all the above mentioned factors, the Preamble of our Constitution is the backbone of our country. It is the conscience of the nation.

In re Berubari Union and Golaknath were overruled in Kesavananda case stating that preamble is an integral part of the constitution.

What is the genesis and philosophy of the Constitution? It is the soul of our Country, India i.e. Bharat, the Union of States. India is an indestructible union of destructible states. Our constitution has a tilt towards the unitary character but federal in nature. It is the Suprema Lex of the Country. Kelsen propounded the pure theory of law. He propounded a normative thesis of law. But our Constitution is the mother of all laws. It is a treasure of National Heritage.

Also, our Constitution is not a Seasonal Document. It is a permanent document that binds the posterity for ages. Textual Constitution is not a seasonal document and our Constitutional Philosophy is expounding in nature.

(This short essay was prepared while taking notes in the Class of Professor K.L. Bhatia.)