The question of amendability of preamble is closely related to another question: whether Preamble is a part of Indian Constitution or not?
- If it is a part of Constitution, Preamble can be amended with the same procedure of a Constitutional Amendment. If it’s not, then Preamble can’t be amended.
- The question whether the Preamble is a part of the Constitution or not was dealt with in two leading cases:
- Berubari Union Case (1960)
- Kesavananda Bharati case (1973)
Berubari Union Case
- The Supreme Court examined the question whether preamble is a part constitution in Berubari Union vs. Unknown case.
- Under the provision of Nehru-Noon Agreement of 1958 to resolve boundary dispute between India and East Pakistan (now Bangladesh), government of India decided to give half of Berubari Union No. 12 in Jalpaigudi thana, West Bengal to Pakistan. Also four Cooch Behar enclaves adjacent to this part were also given to Pakistan.
- But many criticized the decision of the government and raised the question regarding the power of the parliament to transfer the territory of Berubari to Pakistan.
- Government claimed that under Article 3, Government can change names, diminish the area and alter the boundaries of a state.
- The President referred this question to Supreme Court under Article 143(1).
- Supreme Court examined two questions:
- Does parliament has power to cede any territory of India to a foreign nation?
- Is preamble a part of Constitution?
- Regarding the first question Supreme Court held that Article 3(c) give parliament a power to diminish state territory but doesn’t give power to cede. Mere exercising power under article 3 is not sufficient, Parliament has to bring an amendment to the Constitution using power and procedure mentioned in article 368. (It should be noted that amendment using article 3 can be done by an ordinary majority in the parliament, but under Article 368, special majority is required)
- As the result the government enacted Constitution (9th Amendment) Act 1960 to make the agreement effective.
- Regarding the second question about preamble, Supreme Court held that that the Preamble shows the general purposes behind the several provisions in the Constitution, and is thus a key to the minds of the makers of the Constitution. But the court specifically said that Preamble is not a part of Constitution. This is to safeguard it from amendments.
Keshavananda Bharati Case
- In the famous Kesavananda Bharati vs. State of Kerala, Supreme Court again examined the question.
- Supreme Court rejected the earlier opinion and held that Preamble is a part of the Constitution. It observed that the Preamble 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.
- Since it is a part of Constitution, it can also be amended as per Article 368. But no amendments should change the basic structure of the Constitution.
- The 13-member bench also held that:
- Preamble is not a source of power nor a source of limitations
- Preamble has a significant role to play in the interpretation of statues also in the interpretation of provisions of the Constitution.
- In the S.R. Bommai case (1994), Supreme Court said that the Preamble indicates the basic structure of the constitution.
- In the LIC of India case (1995) also, the Supreme Court again held that the Preamble is an integral part of the Constitution.
- Though Keshavananda Bharati Judgment nullified Berubari Judgement, it is noteworthy that in both cases, Supreme Court held that the Preamble is not the source of any authority. Jus P.B. Gajendragadkar who authored Berubari case judgment aptly observed: “The preamble is neither a source of power nor a source of the deprivation of power.”
- In Keshavananda Bharati Case, though the Supreme Court declared the Preamble as a part of the Constitution, it could not suggest that the government could derive any additional power from the Preamble. Hence, the court cannot be expected to examine the constitutional validity of a legislative enactment or administrative measure by keeping their attention confined to the Preamble.
- The Preamble may better be looked upon as a ‘guiding star’ in the interpretation of law.