Without securing to Indian citizens the ideals enumerated in the preamble to Indian constitution such as “JUSTICE, LIBERTY, EQUALITY and FRATERNITY”, the legislature’s attempt to derive legislative power from the constitution and the implementation of such power by the executive are no less than a fraud committed with “WE, THE PEOPLE OF INDIA”. The arrangement of words in the preamble makes the above proposition clear.
The “enactment” of the constitution is preceded by words like “resolved” and “secure”. So, the ultimate object of each provision of Indian constitution seems to secure to Indian citizens: justice, liberty, equality and fraternity and to assure the dignity of individual and unity and integrity of the nation. Every Act, rule, law and by-laws made by parliament or any state legislature should be heading towards constituting India into a “SOCIALIST, SECULAR, DEMOCRATIC”.
The significance of these ideals can be understood by analyzing the earliest draft of preamble with the present one.
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 representative, enact, adopt and give to ourselves this constitution”. (Shiva Rao’s Framing of India’s constitution-A study- p.127).
It seems that the framers’ colonial experience and the partition of British India into India and Pakistan, played a vital role in the modification of the earliest draft of the preamble. They witnessed the erosion of ideals like ‘fraternity’ during partition. So, they changed the preamble. One of the crucial points which is to be observed from the transition of the preamble is that the constitution would end up as non-living black letter without preamble.
The preamble makes the constitution a living document. The government derives legislative power from the constitution after making a promise enshrined in the preamble as constitutional ideals. The government’s duty is to fulfil these promises after assuming power. If the government deviates from fulfilling these promises, then it would “morally” lose its authority given by “We, The people”.
The Citizenship (Amendment) Act, 2019 amended the Citizenship Act, 1956 by which religion was made a criterion for acquiring citizenship for the first time after enactment of the constitution. The Muslim refugees were not included in the list of those community which would acquire citizenship. The Citizenship (Amendment) Act, 2019 would hardly go successfully through the parameters of constitutional ideals enshrined in the preamble if it is evaluated in the light of preamble of the constitution of India.
The CAA is not consistent with the communal harmony of the Indian society. Muslim community felt betrayal by the enactment of the CAA, 2019.
The constitutional ideals such as fraternity were kept at bay while implementing such an act which does not take in to account the community to which the constitution of India does not segregate from others. The legislative intent of the legislature drafting such as a bill forgot to read the constitution of India in harmony with Preamble.
The farmers’ agitation across India against new farm laws which introduces contract farming and other provisions which affect farmers interest is to be looked through constitutional ideals when one seeks to check its constitutionality. Although, it is settled by the apex court that when there is a question of the constitutionality of any law, one has to incline towards holding it as constitutional.
However, the problem arises is not of its test of constitutionality but legislative intent. The legislature hardly acknowledges the fact that many farmers in India don’t own a big piece of land which produces many tones of crops. Many farmers own small piece of land and they produce for their family, not for selling. So, these farmers are not going to trade their produce into other states for money. The idea of contract farming, prima facie, has an implicit error which would serve no better purpose than to reduce the price of crops. The preamble carries a constitutional ideal like socialist which the state is required to uphold through its policy and law.
The U.P. government in last year published the name of the protesters in the newspaper and it took to seize their property for causing destruction to public properties.
A protest is not a crime but it is a Gandhian virtue.
The whole freedom movement against the British East India company was carried by protesting by Gandhi and other freedom fighters. The UP government seems to forget the Indian national movement. The trinity of the ideals: equality, liberty and fraternity were the result of the French revolution in which there were many protests against the monarch by the people.
The idea of protest rests at the heart of ideal trinity: equality, liberty and fraternity.
The framers consciously added the trinity to keep reminding to “WE, The People” across the ages that the people should not sacrifice their ideal trinity. The U.P. Government breached many times its constitutional promises made to the people. The protesters’ right to privacy was breached which is part of the right to life and liberty.