This Article is written by Nashita Nazneen. A student of B. S. Abdur Rahman Crescent Institution of Science and Technology Crescent School of Law.
Source of Constitution: “We the people of India…..” which means that the Constitution is created by Indians themselves with no external force. On behalf of the people, the Constituent Assembly framed the Indian Constitution to protect and govern the people of their country acting as the mother of all laws.
Nature of Constitution: Sovereign, Democratic, Secular, Socialist, and Republic.
Goals of Constitution: Justice, Equality, Liberty, and Fraternity.
- On 20 Feb 1947 British Government reported its expectation to move power from British India to India by June 1948.
- On 30 June 1947 Governor-General made a declaration to parcel region of Bengal and Punjab.
- On 18 July, 1947 the British Parliament passed the Indian Independence Act, 1947.
- Province of West Bengal is known as the State of West Bengal, with West Bengal to India and East Bengal to Pakistan now known as East Pakistan.
- In accordance with the announcement of partition, a boundary commission was appointed inter alia four Judges of High Courts and Sir Cyril Radcliffe was appointed as Chairman.
- Given the errand of the boundary, this segment depended on determining the bordering territories of Muslims and Non-Muslims alongside different components. They enquired and drafted a “Radcliffe Award” on 12 August, 1947.
- While deciding the partition of Darjeeling District and Jalpaiguri District which consists of 2.42% and 23.08% of Muslim population respectively, Berubari Union No. 12 hereinafter referred to as “Berubari” situated in Jalpaiguri District was then a part of Rajashahi Division was granted to India.
- Berubari constitutes an area of 8.75 sq miles with a population of 10-20 thousand residents. Berubari was divided horizontally where the adjacent part to India was retained in India.
- However, disputes arose because of the erroneous depiction of the map by the Award. One such dispute was in the Berubari area. The dispute arose due to omission in the written text i.e., not specified in the 1st Schedule of Indian Independence Act, 1947.
- This gave an opportunity to Pakistan to claim its right over Berubari alleged belonging to them. Pakistan claimed that the area constitutes 80% of Muslims and the demographic location also suggests the same.
- To resolve this issue of uneven distribution of land an agreement was entered between India and Pakistan popularly known as Nehru-Noon Agreement (hereinafter referred to as “Agreement”), 1958 according to the orders given by PM of India and Pakistan on 10 September, 1958, the Commonwealth Secretary, Ministry of External Affairs, Government of India and Pakistan.
- They discussed 10 items of disputes between two countries signed a joint note recording their agreement in respect of dispute and submitted to respective PMs. The view of this agreement was with the view of removing tension, resolving border disputes, problems relating to Indo-Pak border thereby establishing peaceful conditions.
- The public opposed this decision. The then President of India thought this as a question of law i.e., Constitutional validity of Agreement had arisen of such nature and importance, it is expedient that the opinion of SC of India should be obtained thereon under Art 143 of Constitution of India. By and by the request developed, regarding the force of the parliament to move the area of Berubari to Pakistan.
- Whether any legislative action necessary for the implementation of the Agreement relating to Berubari Union and which State’s claim over Berubari Union will prevail, Union of India or Pakistan?
- Is Preamble a part of the Indian Constitution?
- What is the nature of the treaty-making power of the sovereign State?
Berubari case was the Presidential Reference under Art 143(1) of the Constitution of India which comes up thought by seat comprising of 8 Judges headed by B.P. Sinha and C. J. Justice Gajendragadkar conveyed the consistent assessment of the Court. The SC held that the executive has the right to enter into an agreement with foreign States and execute the same but for this issue, special legislative laws are to be made in relation to the context until then India will have an exclusive right over the territory. The Court stated that the Parliament has to choose first to amend the Art. 3 under Art. 368 only if the Parliament chooses first to pass a Law amending Art. 3 as the proviso expressly mentions only power to acquire other territories and there is no provision to ceding (rule of construction viz. expression univs est exclusion atterius). After the amendment of Art 3 under Art 368, the following Agreement can be relatable to law. This Agreement amounts to cession or alienation of part of Indian territory is not a mere ascertainment or determination of boundary. This Agreement can be implemented without any legislation within competence. The question of Preamble was a persistent question throughout the case. It was then held that it forms the key to the mind of the formers of the Constitution but can’t preclude or control in any capacity or force any suggested preclusions or restrictions on the bar to change the Constitution contained in Art 368.Preamble clearly postulates that as the democratic-republican government the entire territory of India is beyond the reach of Parliament, which cannot be amended either by ordinary legislation or by the Constitutional Amendment. Makers of Preamble were very conscious of tragic partition, therefore, when they framed the Constitution; they were determined to keep the entire territory of India inviolable and sacred. “We, the people of India, having solemnly resolved to constitute India into a sovereign, democratic, republic…” unalterably proposes topographically and regionally should consistently keep on being majority rule and republican. In the very same Preamble, we can exercise sovereign will, in the words of Story, “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 the Preamble to the American Constitution, “it has never been regarded as the source of any considerable force gave on the Government of the United States or any of its specializations. Such powers grasp just those explicitly allowed in the body of the Constitution and, for example, might be inferred from those so conceded. What is true about powers is equally true about prohibitions and limitations.
The Court further held that even though the Preamble forms a key to the mind of the makers of the Constitution and strictly speaks of sovereign State yet it cannot restrain the legislative functions, nor it can be used for deciding an ambiguous part of the Constitution. It is not a source of the power conferred on government under the provisions of the Constitution. Additionally, it is difficult to acknowledge the presumption that the initial segment of the Preamble proposes a limitation on sovereignty. It is generally perceived that one of the traits of sway is the ability to cede portions of a national area if essential. If the terms utilized in any of the articles in the Constitution are questionable or are fit for two implications, in deciphering them some assistance might be looked for in the objectives enshrined in the Preamble. It is wrong to contend that the Preamble imports any limitation on the exercise of what is generally regarded as a necessary and essential attribute of sovereignty. The prominent Constitutional jurist, the Court held that the Preamble of the Constitution containing the declaration made by the individuals of India in the exercise of their sovereign will, most likely is a key to open the brains of designers of the Constitution which may show the overall purposes for which they made the few arrangements in the Constitution yet by the by the Preamble isn’t a piece of the Constitution. Cession of territory in law amounts to the transfer of sovereignty. Treaty making power can be exercised in a manner contemplated by the Constitution and subject to the limitations imposed by it. Whether the treaty made can be implemented by ordinary legislation or by Constitutional Amendment will naturally depend on the provisions of the Constitution only.
In brief, the following was decided in Berubari Case:
- A Preamble of the Constitution serves as a key to open the minds of the farmers and shows the general purpose for which they made the several provisions in the Constitution.
- The Preamble is not a part of our Constitution.
- It is not a source of the several powers conferred on government under the provisions of the Constitution.
- Such powers embrace those expressly granted in the body of the Constitution and such as may be implied from those granted.
- What is true about the powers is also true about the prohibitions and limitations.
- The Preamble did not indicate the assumptions that the first part of the Preamble postulates a very serious limitation on very important attributes of sovereignty.
The SC held that the Parliament of India isn’t competent under Art 3 for the usage of the Nehru-Noon Agreement. The contention in legal executive and assembly was self-evident. This was followed by an amendment of the Constitution by Parliament using the power of Art 368. The result was the 9th Constitutional (Amendment) Act, 1960. The Statement of Objects and Reasons annexed to the Constitution (Ninth Amendment) Act, 1960 states that around 73 miles of border have not yet been demarcated because of contrasts between the Governments of India and Pakistan regarding the interpretation of the Award. It also mentions that in the light of the Advisory Opinion of the SC in Special Reference No. 1 of 1959, it is proposed to revise the First Schedule of the Indian Constitution under a law relatable to Art 368 thereof to offer impact to transfer of these domains.
Though the Court was right in Berubari Case, that the legislative body need to amend Art 3 through Art 368 since it forms inconsistent as in pretext of law to act in accordance with treaty and treaty alone can’t lead to cession of territory itself, the Preamble cannot restrict the powers conferred by the Constitution or act as limitation of any form. Therefore, it cannot be used as a ground for resolving the question arising two ambiguous Articles of the Constitution. Berubari case was relied on in Golak Nath v. State of Punjab ((1967) 2 SCR 762) it was stated that on a parity of reasoning we are of the opinion that the Preamble cannot prohibit or control in any way or impose any implied prohibitions or limitations the bar to amend the Constitution contained in Art 368. Berubari overlooked a matter of record i.e., legislative history. Taking note of the Constitutional history, the motion adopted by the Constituent Assembly stated that Preamble stands a part of the Constitution.
This error was corrected in a 13 Judges assembly who sat in its original jurisdiction hearing the writ petition in the case Kesavananda Bharti vs. State of Kerala (AIR 1973 SC 1461) where the majority specifically rules that the Preamble was much as part of the Constitution as any other provision therein. This case created history. The following was observed in this case,
- The Preamble is a part of the Constitution.
- The Preamble is neither a source of power nor a source of limitation.
- The Preamble has a significant role to play in the interpretation of statutes, also in the interpretation of provisions of the Constitution.
In S. R. Bommai vs. Union of India ((1994) 3 SCC 477) a nine Judges bench laid down the new application of the Preamble under the Constitution, as follows:
- The Preamble indicates the basic structure of the Constitution.
- A proclamation under Art 356(1) is open to judicial review on the ground of violating the basic structure. If violated, the Preamble is liable to be struck down as unconstitutional.
In Indra Sawhney vs. Union of India (AIR 1993 SC 477) a nine Judge bench held that the four objectives mentioned in the Preamble display statesmanship of the highest order. They also pointed out that the Preamble spelled out the goals and the Constitution mentions the methodology to achieve those goals.
The Berubari Case read along with the decision given in Keshavanada Bharti case, with the Bommai case, it can be concluded that the SC was erroneous in holding that Preamble is not the of the Constitution, and neglecting the historical creation of Preamble, the Preamble forms the part of the basic structure which means that Preamble can be used in resolving disputes arising out of the two ambiguous Articles of the Indian Constitution.
In the opinion of R.M. Sahai, J. “the Preamble to the Constitution is a turning point. The Preamble of the Constitution has the sentiments and it is the key to the minds of the framers of the Constitution. The framers of the Constitution did not rest content with evolving the framework of the state; they also pointed out the goal as spelled out in the Preamble and the methodology for reaching that goal is elaborated in parts of the Constitution of India.”
In conclusion, it is very true that Preamble is the basic part of any document. As we all know that we have more than 108 amendments in our constitution. The preamble gives the overview of that particular act so we can easily take the idea of what the Act is all about. In the Constitution, it plays a very big role to understand the provisions of the constitution. Therefore the significance and necessity of a Preamble are never-ending. Just like any other provision which requires interpretation through various cases, Preamble is also one such aspect that can be interpreted in various ways without disrupting the basic structure of our Constitution.
- Disha Gupta, Preamble of Indian Constitution; Feb 8, 2020
- J.N. Pandey Constitutional Law of India 55th Edition, Central Law Agency
- Golak Nath v. State of Punjab ((1967) 2 SCR 762); https://www.intolegalworld.com/LegalArticles.aspx?title=preamble-of-indian-constitution-
- Indra Sawhney vs. Union of India (AIR 1993 SC 477)
- Kesavananda Bharti vs. State of Kerala ((1973) 4 SCC 225)
- Re Berubari Case, ((1960) 3 SCR 250)
- R. Bommai vs. Union of India ((1994) 3 SCC 477)
- Statement of Objects and Reasons – The Constitution (Ninth Amendment) Act, 1960
- Trishna Roy, Case Study on the Berubari Union And. Others vs. Unknown on 14 March, 1960; March 9, 2016