Demolish the last remnant of the ‘black days’ of the yesteryear

 

 

 

“Then Prime Minister Indira Gandhi set up a committee in 1976 under the Chairmanship of the then Minister of External Affairs Swaran Singh "to study the question of amendment of the Constitution in the light of experience".

 

“The bill for the Constitution (Forty-second Amendment) Act, 1976 was introduced in the Lok Sabha on 1 September 1976, as the Constitution (Forty-Second Amendment) Bill,1976 (Bill No. 91 of 1976). It was introduced by H. R. Gokhale, then Minister of Law, Justice and Company Affairs. It sought to amend the Preamble and articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357, 358, 359, 366, 368 and 371F and the Seventh Schedule.

 

It also sought to substitute articles 103, 150, 192 and 226; and insert new Parts IVA and XIVA and new articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A and 257A in the Constitution. In a speech in the Lok Sabha on 27 October 1976, Gandhi claimed that the amendment "is responsive to the aspirations of the people, and reflects the realities of the present time and the future".

 

 

“The bill was debated by the Lok Sabha from 25 to 30 October and 1 and 2 November. Clauses 2 to 4, 6 to 16, 18 to 20, 22 to 28, 31 to 33, 35 to 41, 43 to 50 and 56 to 59 were adopted in their original form. The remaining clauses were all amended in the Lok Sabha before being passed. Clause 1 of the bill was adopted by the Lok Sabha on 1 November and amended to replace the name "Forty-fourth" with "Forty-second", and a similar amendment was made on 28 October to Clause 5 which sought to introduce a new article 31D to the Constitution. Amendments to all the other clauses were adopted on 1 November and the bill was passed by the Lok Sabha on 2 November 1976. It was then debated by the Rajya Sabha on 4, 5, 8, 9, 10 and 11 November. All amendments made by the Lok Sabha were adopted by the Rajya Sabha on 10 November, and the bill was passed on 11 November 1976. The bill, after ratification by the States, received assent from then President Fakhruddin Ali Ahmed on 18 December 1976, and was notified in The Gazette of India on the same date. Sections 2 to 5, 7 to 17, 20, 28, 29, 30, 33, 36, 43 to 53, 55, 56, 57 and 59 of the 42nd amendment came into force from 3 January 1977. Sections 6, 23 to 26, 37 to 42, 54 and 58 went into effect from 1 February 1977 and Section 27 from 1 April 1977.

 

 

“The Act was passed in accordance with the provisions of Article 368 of the Constitution, and was ratified by more than half of the State Legislatures, as required under Clause (2) of the said article. State Legislatures that ratified the amendment are listed below”. The Preamble, and indeed the Constitution, was drafted in the light and direction of the Objective Resolutions adopted on January 22, 1947, which runs as follows:

 

(1) THIS CONSTITUENT ASSEMBLY declares its firm and solemn resolve to proclaim India as an Independent Sovereign Republic and to draw up for her future governance a Constitution. (2) wherein the territories that now comprise British India, the territories that now form the Indian States, and such other parts of India as are outside British India and the States, as well as such other territories as are willing to be constituted into the Independent Sovereign India, shall be a Union of them all; and (3) wherein the said territories, whether with their present boundaries or with such others as may be determined by the Constituent Assembly and thereafter according to the law of the Constitution, shall possess and retain the status of autonomous units, together with residuary powers, and exercise all powers and functions of government and administration, save and except such powers and functions as are vested in of assigned to the Union, or as are inherent or implied in the Union or resulting therefrom; and (4) wherein all power and authority of the Sovereign Independent India, its constituent parts and organs of government, are derived from the people; and (5) wherein shall be guaranteed and secured to all people of India justice, social, economic and political; equality of status, of opportunity, and before the law; freedom of thought, expression, belief, faith, worship, vocation, association and action, subject to law and public morality; and (6) wherein adequate safeguards shall be provided for minorities backward and tribal areas, and depressed and other backward classes; and (7) whereby shall be maintained the integrity of the territory of the Republic and its sovereign rights on land, sea, and air according to justice and the law of civilized nations, and (8) this ancient land attains its rightful and honoured place in the world and makes its full and willing contribution to the promotion of world peace and the welfare of mankind.

 

While moving the resolution for acceptance of the Objectives Resolution, Pandit Jawaharlal Nehru said: “It seeks very feebly to tell the world of what we have thought or dreamt for so long, and what we now hope to achieve in the near future. It is in that spirit that I venture to place this Resolution before the House and it is in that spirit that I trust the House will receive it and ultimately pass it. And may I, Sir, also with all respect, suggest to you and to the House that, when the time comes for the passing of this Resolution let it be not done in the formal way by the raising of hands, but much more solemnly, by all of us standing up and thus taking this pledge anew”.

 

After the plan of June 3, 1947, which led to the decision to partition the country and to set up two independent Dominions of India and Pakistan, on June 8, 1947, a joint sub- committee of the Union Constitution and Provincial Constitution Committees, took note that the objective resolution would require amendment in view of the latest announcement of the British Government. The announcement of June 3 had made it clear that full independence, in the form of Dominion Status, would be conferred on India as from August 15, 1947. After examining the implications of partition, the sub-committee thought that the question of making changes in the Objectives Resolution could appropriately be considered only when effect had actually been given to the June 3 Plan. (Special Sub-Committee minutes June 9, 1947. Later on, July 12, 1947, the special sub-committee again postponed consideration of the matter. Select Documents II, 20(ii), p. 617. (Shiva Rao's-Framing of India's Constitution-A study-(p. 127 footnote).

 

The Union Constitution Committee provisionally accepted the Preamble as drafted by B.N. Rao and reproduced it in its report of July 4, 1947 without any change, with the tacit recognition at that stage that the Preamble would be finally based on the Objectives Resolution. In a statement circulated to members of the Assembly on July 18, 1947 Pandit Jawaharlal Nehru inter alia, observed that the Preamble was covered more or less by the Objectives Resolution which it was intended to incorporate in the final Constitution subject to some modification on account of the political changes resulting from partition. Three days later, moving the report of the Union Constitution Committee for the consideration of the Assembly, he suggested that it was not necessary at that stage to consider the draft of the Preamble since the Assembly stood by the basic principles laid down in the Objectives Resolution and these could be incorporated in the Preamble in the light of the changed situation(Shiva Rao's-Framing of India's Constitution-A study- pp. 127-128 (also see footnote 1 p. 128). The suggestion was accepted by the Assembly and further consideration of the Preamble was held over.

 

Regarding the use which can be made of the preamble in interpreting an ordinary statute, there is no doubt that it cannot be used to modify the language if the language of the enactment is plain and clear. If the language is not plain and clear, then the preamble may have effect either to extend or restrict the language used in the body of an enactment. "If the language of the enactment is capable of more than one meaning then that one is to be preferred which comes nearest to the purpose and scope of the preamble." (See: Tribhuban Parkash Nayyar v. The Union of India) [1970] 2 S.C.R. 732- It may be mentioned that this Preamble and indeed the whole Constitution was drafted in the light of and directions contained in the "OBJECTIVES RESOLUTION" adopted on January 22, 1947.

 

It is important to trace the history of the shaping of the Preamble because this would show that the Preamble was in conformity with the Constitution as it was finally accepted. Not only was the Constitution framed in the light of the Preamble but the Preamble was ultimately settled in the light of the Constitution. This appears from the following brief survey of the history of the framing of the Preamble extracted from the Framing of India's Constitution (A study) by B. Shiva Rao. In the earliest draft the Preamble was something formal and read: "We, the people of India, seeking to promote the common good, do hereby, through our chosen representatives, enact, adopt and give to ourselves this Constitution, (Shiva Rao's Framing of India's Constitution-A study-p. 127.).

 

The first meeting of the Constituent Assembly took place on December 9, 1946 when the swearing in of members and election of a temporary president to conduct the business until the installation of a permanent head, took place. On December 13, 1946 Pandit Jawahar Lal Nehru moved the famous "Objectives Resolution" giving an outline, aims and objects of the Constitution. This resolution was actually passed on January 22, 1947 by all members of the Constituent Assembly (standing) and it declared among other matters that all power and authority of the sovereign Independent India, its constituent parts and organs of Government are derived from the people. By November 26, 1949 the deliberations of the Constituent Assembly had concluded and the Constitution had been framed. As recited in the Preamble it was on that date that the people of India in the Constituent Assembly adopted, enacted and gave to themselves "this Constitution" which according to Article 393 was to be called "The Constitution of India". In accordance with Article 394 that Article and the other Articles mentioned therein were to come into force at once but the remaining provisions of the Constitution were to come into force on the 26th day of January 1950.

 

(To be Continued…)