Free writing practice solution - series 2 - Topic : Power of parliament to amend the Constitution

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UPSC LAW OPTIONAL MAINS FREE WRITING PRACTISE – SERIES 2 | TOPIC : POWER OF PARLIAMENT TO AMEND CONSTITUTION | SOLUTION

QUESTION : The goals specified in the preamble contain the basic structure of the Constitution, which cannot be amended under Article 368 of the Constitution. Analyse this statement in the light of the leading decision cases.

IMPORTANCE OF THIS QUESTION | Concept of this question has been asked several times in UPSC LAW OPTIONAL MAINS, most important concept to be covered.

Preamble is an introductory statement and contains various basic features and objectives of the Constitution. The following objectives of Constitution are laid in the Preamble-

a)Declaring India as- Sovereign, Secular, Socialist, Democratic and Republic

b)Promises to provide to all citizens of India-

• Justice- social, economical and political

• Liberty- of thought, expression, belief, faith and worship

• Equality of status and opportunity

• Fraternity assuring the dignity of individual and

• Unity and integrity of the nation

PREAMBLE FROM WEAK TO MIGHTY | In Berubari Union & v. Unknown, 1960, The Supreme Court stated that, “the preamble shows the general purposes behind the several provisions but, nevertheless, it is not a part of the Constitution and is never regarded as a source of any substantive power.”

Then in Kesavananda Bharti v. State of Kerala, (1973) it was argued that even Preamble can be amended by virtue of Article 368 as it was held as part of the Constitution.

KEY POINT TO NOTE | The court held that preamble consists of basic features of the Constitution but amending power under Article 368 cannot be used to destroy it. It was held that amendment power under Article 368 is not absolute and basic structure of the Constitution cannot be destroyed by amendment.

In this case, the judges stated the basic features of Constitution which are contained in the Preamble. C.J. Sikri observed “It seems to me that the Preamble to our Constitution is of extreme importance and the Constitution should be read and interpreted in the light of the grand and noble vision expressed in the Preamble.”

According to him, the concept of ‘basic structure’ includes-

• Supremacy of the Constitution

• Republican and democratic form of the government

• Secular nature

• Federal character of the Constitution

• Separation of power between different organs of the government

J. Shelat and J. Gover stated that following two are also ‘basic structure’ of the Constitution-

• Welfare state principle contained in Directive principles of state policy

• Unity and integrity of the nation

J. Hedge and J. Mukherjee held the following as ‘basic structure’

• Sovereignty of India

• Democratic character

• Unity of the nation

• Individual freedoms provided to citizens

• Mandate to establish a welfare state

J. Jaganmhan Reddy stated that following features of Preamble are considered as ‘basic structure’ of the Constitution-

• Sovereign democratic republic

• Parliamentary democracy

• Organs of the government

In S.R. Bommai v. Union of India,(1994) also the Supreme Court had held that ‘Secularism’ is considered as ‘basic structure’ of the Constitution.

In Minerva Mills v. Union of India,1980 the Supreme Court had struck down Article 368 Clauses (4), (5) which destroyed basic structure of the Constitution because these provisions gave absolute power to the Parliament to amend the Constitution while Kesavananda judgment provided for limited amending power.

Therefore our preamble is quite important and cannot be swayed upon by legislature. This features brings in required rigidity to our constitution, thereby true aim of our constitution remains.

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