A COMPARATIVE STUDY OF THE PREMABLES TO THE INDIAN,

AMERICAN AND CANADIAN CONSTITUTIONS

Submitted By:

Nidhi Tewari

(LL.M. 2015-2016)

Gujarat National Law University

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 INTRODUCTION
A Constitution is considered to be the grund norm, from which the other laws flow. It is the
primary law and every other legislation has to be in consonance with the provisions of the
Constitution. Because of this very reason, the interpretation of Constitution becomes all the
more important.

While interpreting the Constitution, or any other statute for that matter, various aids for
construction, both external and internal, are considered. One of the most crucial internal aids
for construction is the Preamble. According to Black’s Law Dictionary, 4th Edition, a preamble
is – a clause at the beginning of a constitution or statute explanatory of the reasons for its
enactment and the object sought to be accomplished. A Preamble is not just an introduction to
the main document, but also a reflection of the aims and aspirations of the framers of the
constitution. Other nations can refer to the preamble and understand the intent and purpose of
the constitution and goals and wishes of the people of that nation.

In the contemporary era, most of the civil and common law countries have a written
constitution. Comparative public law, especially in relation to constitutional law, has gained
significance owing to two reasons: first, to curb loopholes and shortcomings in one’s own
system and second, to contribute to amalgamation of legal systems.

To understand a legal system, the knowledge of the form, principles and purposes of the
government is vital. The study of the entire constitution can often be lengthy and hence, to
cope up with this issue, the study of preamble can be adhered to. A comparative study will help
enumerate the purposes of various governments and the similarities and differences between
the various characteristics of the government will be highlighted.

The United States of America has been the pioneer of democracy in the world. The
Constitution of United States of America came into force in 1798. The Canadian Constitution is
one of the oldest working constitutions of the world. The constitution of Canada was brought
into existence by The Constitution Act, 1867 (originally known as The British North America
Act, 1867). The legal system of both these countries is thought to be one of the strongest ones
and other budding democracies look up to them.

Both, Canada and USA have the federal form of government and the same has been adopted by
India through the 1950 Constitution. It is often said that the preamble to the Indian

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Constitution is a key to the minds of the makers. Time and again, the importance of the
Preamble has been reaffirmed and whenever there has been a conflict between two or more
provisions, the judiciary has resorted to the preamble.

As already discussed, the preamble gives an insight of what the constitution has to offer, it
would be interesting to compare the preambles of Indian, Canadian and American constitution.
The comparison will not be based on the variation on terminologies and expressions inculcated
in the text, but also on the status of the preamble. Another facet that shall be emphasized on is
how far as the provisions of the constitution in consistence with the preamble and to what
extent the content of the preamble has been justified. It will also be pertinent to note how the
judiciary has interpreted the preamble in the three federations.

The preamble states what the supreme goals of a state are. The interpretational value of a
preamble, too, is elevated. Due to such reasons, the study of preamble is crucial to understand
the system of public law, hence, a comparative analysis of preambles of three strong federations
and democratic nations i.e. The United States of America, Canada and The Republic of India
will have a high academic weightage. The following project is an attempt to make a comparison
of various dimensions and nodes of the three, above mentioned, preambles.

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 BACKGROUND AND PURPOSE OF STUDY
The Preamble of any constitution reflects the source of power of the government of that nation
and also the desires of the people of that nation. These factors are sufficient enough to emphasise
on the importance of the preamble. However, further elaboration of the same shall help to lay
down the background of this study.

From Plato’s Laws through common law and until modern legal systems, preambles to
constitutions have played an important role in law and policymaking. In many countries, the
preamble has been used, increasingly, to constitutionalize un-enumerated rights. A global survey
of the function of preambles shows a growing trend toward its having greater binding force—
either independently, as a substantive source of rights, or combined with other constitutional
provisions, or as a guide for constitutional interpretation. The courts rely, more and more, on
preambles as sources of law. While in some countries this development is not new and dates back
several decades, in others it is a recent development.1

As already mentioned, most of the democratic countries have a written constitution and the
introduction to the constitution is the preamble. Quite often, the introduction bears the formal
heading “the preamble”, but there are instances where some other terminology, for example,
foreword, may be used. Conversely, the identification is based on the content and not the
vocabulary used.

There are certain nations, which have deviated from the use of a formal preamble in their
constitutions, but there are introductory articles, which, more or less, have the same function.
Owing to this observation, it can be said that inclusion of a preamble in the constitution is a
common trend amongst the nations, especially the new, emerging democracies.

According to Hans Kelsen 2 , the preamble doesn’t require a specific location, but a specific
content. This content can be classified broadly under the following bearings:

1. The Source of authority, i.e., from where does the government derive its power
2. Nature of the state
3. The objectives the state seeks to achieve
4. Particulars of adoption

1 Live Orgad, ‘The Preamble in Constitutional Interpretation’ (Constitutional Law, 2010)

<http://icon.oxfordjournals.org/content/8/4/714.full.pdf+html> accessed 25 September 2015
2 Hans Kelsen, ‘The Preamble of the Charter—a Critical Analysis’ 8(2) J. Pol. 134 (1946)

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 Additionally, certain preambles also refer to the supreme power. For example, the Canadian
preamble contains the expression “the supremacy of God”, which is rather peculiar in nature.

The same shall be dealt with in detail in the later part of this project and an attempt will be made
to discern how far has the expression been justice through the actions of the legislative.

The preamble has several functions. To begin with, it has an educational purpose: it is one of the
most significant sections of the constitution that is mentioned in educational and public arenas.
Unlike the constitution—usually a very long document including complex provisions—the
preamble is relatively short and is written in a more accessible language. Next, the preamble has
an explanatory purpose: it serves to specify the reasons for the constitution’s enactment, its
raison d’être and eternal ideals. In addition, the preamble has a formative purpose: it constitutes a
political resource for the consolidation of national identity and serves as a national “calling card.”
The preamble has a legal purpose as well. This section sketches a three-part typology of
preambles: a ceremonial preamble, an interpretive preamble, and a substantive preamble.3

The reason why a comparative study of preambles is important is that the original intent behind
preambles are still a topic of debate and discussion and is studied with great curiosity.

Plato suggested that preambles should persuade citizens to obey important laws by speaking to
their hearts and minds through both reason and poetry. Various political uses of preambles are
examined and it can be concluded that contemporary preambles often seek to establish legitimacy
by providing a narrative of the origins and purposes of the legislation. 4

A study of preambles may provide insight towards building a general theory of legislation and in
particular the fundamental issues of the purposes and audiences of legislation. In the pursuit of
multiple purposes, legislation speaks to multiple audiences. The most idealistic purpose of
legislation is to provide guidance to citizens about their rights and duties.5

The status of preamble has been affirmed in the best possible manner by Plato and it may be
quoted, “And I must further proceed to observe, that to all his laws, and to each separately, the
legislator should prefix a preamble; he should remember how great will be the difference between
them, according as they have, or have not, such preambles, as in the case already given.”6

3 ibid 1
4 Kent Roach, ‘The uses of Preamble in legislation’ <http://www.lawjournal.mcgill.ca/userfiles/other/8178207-47.1.Roach.pdf>
accessed 19 August 2015
5 ibid 4
6 Plato, ‘Plato-The complete works’, <http://www.cakravartin.com/wordpress/wp-content/uploads/2008/08/plato-complete-

works.pdf > accessed 19 August 2015

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The need and weightage of a preamble has been emphasized on and because of the gravity of its
importance a thorough study of preambles has been taken up. Also, a comparative study of
preambles will help reveal their structural properties and will aid in analyzing and determining the
goals of the nation as a whole. Hence, the project.

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 PREAMBLE TO THE INDIAN CONSTITUTION: AN OVERVIEW
Prior to making a comparative study, it will be pertinent to revise the key features and status
of the preamble to the Indian constitution, with reference to specific provisions in the
constitution, landmark judgements and recent judgements.

The Preamble to Indian constitution is based on “Objective Resolution” of Nehru. Jawaharlal

Nehru introduced an objective resolution on December 13, 1947 and it was adopted by
Constituent assembly on 22 January 1947. The drafting committee of the assembly in
formulating the Preamble in the light of “Objective Resolution” felt that the Preamble should
be restricted to defining the essential features of the new state and its basic socio-political
objectives and that the other matters dealt with Resolution could be more appropriately
provided for in the substantive parts of the Constitution. The ultimate aim of the makers of
the Constitution was to have a welfare state and an egalitarian society projecting the aims and
aspirations of the people of India who sacrificed everything for the attainment of country’s
freedom. 7 Chief Jusitce Subba Rao in Golak Nath v. State of Punjab 8 had held that “The
preamble to an Act sets out the main objectives which the legislation is intended to achieve”.

Unlike the Constitution of Australia, Canada or U.S.A., the constitution of India has an
elaborate preamble. The purpose of the preamble is to clarify who has made the constitution,
what is its source, what is the ultimate sanction behind it, what is the nature of the polity,
which is sought to be established by the constitution.9

Keeping the four components of a preamble in mind, the first step it to discern the specific
elements of the preamble.

THE SOURCE OF AUTHORITY: The opening line of the Indian preamble is ‘We the
people of India’, and hence, it is no herculean task to establish the source from which the
government derives its power. It is said that the people made the constitution. The reason
behind the notion is the opening statement of the preamble. In this respect, the comments of
Prof. Wheare will be interesting to note. He observed the following: “In India, ‘the people’
enact the Constitution ‘in our Constituent Assembly’, but that Assembly was composed of
representatives elected by a minority of people of India and the Constitution itself was never
submitted to the people directly. Is it not unreal in any case to speak of ‘the people’ enacting a

7 Arti Goyal, ‘Preamble to the Indian Constitution’ (Lawctopus , 6 September 2014)

<http://www.lawctopus.com/academike/Preamble-Constitution> accessed 2 October 2015
8 1967 SCR (2) 762

9 ibid 7
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 Constitution ‘in’ or ‘through’ a constituent assembly? It is seldom indeed that the people are
asked even to approve a Constitution ostensibly enacted in their name. Moreover, once a
Constitution is enacted, even when it has been submitted to the people for approval, it binds
thereafter not only its institutions, which it establishes, but also the people itself. They may
amend the Constitution, if at all, only by the methods which the Constitution itself
provides.”10 The same question was raised in the case of Kesavanad Bharti v. State of Kerala
and the contention, which was raised, was that Constituent Assembly was elected on a very
narrow franchise, and the constitution was not submitted to the people for ratification.
However, it is not necessary to enter into this controversy, for the Indian Independence Act,
1947, undoubtedly gave legal authority to the Constituent Assembly of India to frame a
Constitution for India. The question whether the authority of the Constitution is derived from
the Indian Independence Act, 1947, or whether the authority is derived from the People, as
recited in the preamble, is purely academic.11

It is to be noted that the Constituent Assemble, which framed the Constitution, was not
directly elected by the people, nor was the draft of the Constitution subjected to the votes of
the people, yet the Constituent Assemble was fairly representative of all sections of the people.
Thus, the source of the Constitution is the people themselves from whom the Constitution
receives the ultimate sanction. In Union of India v. Madangopal12, the Supreme Court of India
referred to the words “the people of India” in the preamble for recognizing the power of the
Indian Legislature to enact laws. It was affirmed that the Constitution is founded on the
authority of the people, in whom the ultimate sovereignty lies.

NATURE OF THE STATE: The Indian preamble has inculcated specific terms to
determine the nature of the state. The terms which have been used are: Sovereign, socialist,
secular, democratic and republic. Each term shall be discussed separately for a better
understanding.

Sovereign: India is neither a dependency nor a dominion of any other nation but an
independent state. There is no authority above it, and it is free to conduct its own internal and
external affairs. Being a Sovereign state, India can either acquire a foreign territory or cede a

10 Wheare, Modern Constitutions (Oxford University Press 1966) 89-90

11 H.M. Seervai, Constitutional Law of India – A Critical Commentary (4th Ed. vol. 1 Universal Law Publishing Co. Ltd. 2004) 278-279
12 AIR 1954 SC 15

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 part of its territory in favour of a foreign state In Synthetics and Chemical Ltd. V. State of
U.P.13, the Court said that India is sovereign because the Constitution does not recognize the
supremacy of any other country over India. The effect of this sovereignty is that the State has
the power to legislate on any subject in conformity with the provisions of the Constitution.
The same was reaffirmed in Janardan Singh v. State of Bihar.14

Socialist: India follows democratic socialism (not Communistic Socialism), as it holds faith in
the mixed economy, where both public and private sectors co-exist side by side. Social
equality: No discrimination on the grounds of caste, colour, creed, sex, religion, or language.
Everyone has equal status and opportunities. Economic equality: The government will
endeavor to make the distribution of wealth more equal and provide a decent standard of
living for all. The term “socialist”, initially, wasn’t a part of the preamble, but was added
later.15 Supporting this amendment, the Supreme Court, in the case of Excel Wear v. Union
of India16, has observed that the addition of the word Socialist enable the courts to lean more
in favour of Nationalism and State ownership of the industry. But as private ownership is
recognized, their interest must also be protected. Again, in the case of D.S. Nakara v. Union
of India17, the Supreme Court observed that the basic frame-work of socialism is to provide a
decent standard of life to the working people and especially prove security from cradle to
grave. In G.B. Pant University of Agriculture and Technology v. State of U.P.18, the Supreme
Court said that democratic Socialism is a means to end poverty, ignorance, disease, inequality
of opportunity. This Socialist concept ought to be implemented in the true spirit of the
Constitution. D.S. Nakara was again reaffirmed in the case of A.N. Sachdeva (Dead) by Lrs. &
Ors. V. Maharshi Dayanand19

Secular: Indian Constitution provides same status and support to all religions of the nation.
Citizens have complete freedom to follow any religion, and there is no official religion. The
term “secular” was inserted in the preamble by the 42nd Amendment20. In S.R. Bommai v.
Union of India 21 , a nine-judges bench of Supreme Court observed that the concept of
secularism was much embedded in our constitutional philosophy. It was held that secularism is
the basic structure of the Indian Constitution.

13 AIR 1990 SC 1927

14 CR. APP (DB) No.358 of 2008
15 42nd Amendment Act, 1976
16 AIR 1979 SC 25
17 AIR 1983 SC 130
18 AIR 2000 SC 2695

19 Supreme Court CIVIL APPEAL NO(s). 626-627 OF 2008

20 ibid 11
21 AIR 1994 SC 1918

9
 In Aruna Roy v. Union of India22, the court has said that secularism has a positive meaning,
i.e. having an understanding and respect towards other religions.

Democratic: The first part of the preamble “We, the people of India” and, its last part “give
to ourselves this Constitution” clearly indicate the democratic spirit involved even in the
Constitution. In India, the supreme power will be possessed by the people i.e., The people of
India elect their governments at all levels (Union, State and local) by a system of universal
adult franchise; popularly known as "one man one vote". Democracy may be direct or indirect.
In a direct democracy, the legal and political authority vests in the people. In the indirect
democracy, the people elect their representatives, who carry on the administration of the
government directly. This is also known as representative democracy. Our Constitution
provides for a representative democracy. In Union of India v. Association for Democratic
Reforms23, the Supreme Court observed that a successful democracy posits an aware citizenry.
Democracy cannot survive without free and fair election and without free and fairly informed
citizens.

Republic: The term republic is an antonym to monarchy. A Republic means a form of

government in which the head of the state is elected. The constitution provides that India will
have an elected head called the President. The post of the President Of India will not be
hereditary. All public offices will be opened to every citizen without any discrimination.

THE OBJECTIVES OF THE CONSTITUTION: The Indian preamble lays down four
objectives: justice, liberty, equality and fraternity.

Justice: In three spheres - social, political and economic. Various rights conferred under Part
III and the Directive Principles of State Policy under Part IV affirm the aspiration of all round
justice, as laid down in the preamble. The attainment of common good of individuals is the
essence of justice.

1. Social justice means the abolition of all sorts of inequities which may result from
inequalities of wealth, opportunity, status, race, religion, sex, descent residence and the
like.
2. Political justice means the absence of any unreasonable or arbitrary distinction among men
in political matters. The constitution has adopted the system of adult suffrage. Every
citizen of India who has attained the age of eighteen years is entitled to vote.

22 AIR 2003 SC 3176

23 AIR 2002 SC 2112
10
3. Economic justice means justice from the standpoint of economic force. It aims at
establishing economic democracy and a welfare state, e.g. equal pay for equal work.

Liberty: Of thought, expression, belief, faith and worship. Democracy cannot be established
unless certain minimal rights, which are essential for a free and civilized existence, are assured
to every member of the community. The liberties enshrined through the various rights under
Part III are not absolute, but are subjected to reasonable restrictions. These liberties are
justiciable in nature.

Equality: Preamble speaks about ‘Equality of status and opportunity’. It is secured to the
people of India by abolishing all distinctions and discriminations by the state, between citizens
and citizen on the ground of religion, race, caste, sex, place of birth or any of them. Articles
14-18 of the Constitution speak about the right to equality as a fundamental right. The idea of
equality is to ensure equal treatment to equals and unequal treatment to those who are
unequal.

Fraternity: Fraternity means a spirit of common brotherhood amongst all sections of the
people. It is a feeling that they are all citizens of the same soil, the same mother. It becomes all
the more essential in a country like India, composed of so many races, religions, languages and
culture. According to H.M. Seervai, there is no express provision in the Constitution, which
reflects ‘Fraternity’ as an object. Despite of that there are certain provisions which generate
this spirit of common brotherhood, viz, right to move freely, right to reside and settle in any
part of India, right to carry on any occupation, trade or business.

Particulars of adoption: In its final paragraph, the Preamble specifies the important
historical fact that the Constitution was adopted on 26 November, 1949. It was on this day
that the Constitution received the signatures of the President of the Constituent Assembly and
was declared passed.

The Preamble of the Indian Constitution has been a subject of judicial interpretation a
number of times. And without discussing the two very important questions addressed by the
court, the discussion of the Indian preamble will remain incomplete.

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 The first question is – whether or not the Preamble is a part of the Constitution ?

To attain the answer of this question, two very important cases will be of aid:

Re Berubari Case:24 Berubari case was the Presidential Reference Under Art. 143(1) of the
Constitution of India on the implementation of the Indo-Pak agreement relating to Berubari
union and exchange of enclaves which come up for consideration by a bench consisting of
eight judges headed by B.P.Sinha, C.J. Justice Gajendragadkar delivered the unanimous

opinion of the court. Quoting story, the eminent Constitutional jurist, the court held that the
Preamble to the Constitution containing the declaration made by the people of India in
exercise of their sovereign will, no doubt is “a key to open the minds of framers of the
Constitution” which may show the general purposes for which they made the several
provisions in the Constitution but nevertheless the Preamble is not a part of the Constitution.

Berubari case was relied on in Golaknath case [3], Wanchoo, J. said- 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 limitationson the bar to amend the Constitution contained in Article
368.

However, the same question was brought up before the court again in the case of Kesavnanda
Bharti 25. The writ petition was heard by a bench of 13 judges, who reached the following
conclusion:

i) That the Preamble to the Constitution of India is a part of the Constitution;

ii) That the Preamble is not a source of power or a source of limitations or prohibitions;
iii) The Preamble has a significant role to play in the interpretation of statutes and also in
the interpretation of provisions of the Constitution.

Therefore, Kesavanada Bharti settles that the Preamble is a part of the Constitution. The same
has been reaffirmed in the case of Sudarshan Rajput v. U.P. State Road Transport Corp.26

24 Re Berubari Union and Exchange of Enclaves v. Unknown AIR 1960 SC 845

25 Kesavananda Bharti v. State of Kerala (1973) 4 SCC 225
26CIVIL APPEAL NOS. 10353-10354 OF 2014 (Arising out of SLP(C) NOS. 31173-31174 OF 2010 before the
Supreme Court
12
 The second question is whether or not the preamble can be amended?

The issue was raised in the case of Kesavananda Bharti 27, where the Court held that the
preamble can be amended, but the basic feature of the preamble cannot be amended. The
court observed the following: "The edifice of our constitution is based upon the basic element
in the Preamble. If any of these elements are removed the structure will not survive and it will
not be the same constitution and will not be able to maintain its identity."

Therefore, the Parliament has the power to amend the Preamble, but that power is not
absolute and is a subject to the check of basic structure.

The above chapter, therefore, gives a comprehensive overview of the features of the Indian
Preamble. The consequent chapters shall deal with the preambles of USA and Canadian
Constitutions to arrange the features according to the classification of content and compare
them with the Indian Preamble in those respective aspects.

27 ibid 20
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 PREAMBLE TO THE AMERICAN CONSTITUTION: AN
OVERVIEW

One of the greatest contributions of the United States to the world is the U.S. Constitution,
and, perhaps, the most influential section of the U.S. Constitution is its preamble. It is,
therefore, particularly interesting to trace its origins and legal status. The current preamble is
different from the original introduced in 1787 at the Philadelphia Convention.

The Constitution of the United States of America is the supreme law, which came into force
in the year 1789. The preamble to the US Constitution is an introductory, succinct statement
of the principles at work. The preamble does not assign any power to the government, but
sets out the origin, scope and purpose of the Constitution. When the preamble was adopted
The literature of the Preamble reads as follows:

We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic
Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to
ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.

The Courts do not interpret the Preamble to confer any rights or powers not granted
specifically in the Constitution and hence, the usage of the Preamble is limited.

The arrangement of the contents of American Preamble, according to the various elements,
can be done in the following manner:

THE SOURCE OF AUTHORITY: The original preamble did not include the famous
phrase “We the people of the United States” but, rather, designated the states as the source of
authority. The 1789 Constitution uses the phrase ‘we the people’. They clearly established that
America was to be a nation defined and formed by its people - not a monarch - not a dictator
- the people. “We the People” includes all the citizens of the Untied States of America. The
importance of this phrase is shows that it was just the framers of the Constitution of the
legislators who were giving powers to the government. Instead, the government gets all of its
powers from all of the Citizens of the United States of America.

To emphasize the importance of “We the People” in the Preamble of the Constitution, one
should examine the Preamble of the Articles of Confederation. In the Articles
of Confederation, the Preamble bears no such phrase, and instead moves quickly into the

14
 content of the Articles with barely any such opening ideas. “We the People” is conspicuously
absent from the Preamble of the Articles. The Constitution, on the other hand, by opening up
with “We the People” immediately affirms that the Constitution is of the people, for the
people, and by the people of the United States. This interpretation, which arises most strongly
from the presence of “We the People” in the Preamble, effectively leads to an understanding
of the Constitution as affecting the people directly and not through regulations imposed on
the States. In other words, those words define that the interaction between the Constitution
and the citizens of the United States is direct and immediate, meaning that the Constitution,
and the government it creates, supersedes any State government. The words “We the People”
in the Preamble are often considered the strongest links between the Constitution and the
Declaration of Independence, in that the Declaration of Independence was written from the
perspective of the people, not of specific individuals or of government. In beginning the
Preamble of the Constitution with “We the People,” the Constitution is immediately
emphasizing the significance of the people and is also ensuring an understanding that the
people are the ones giving power to the Government. This is also a critical element to the
American Constitution, in that the power of the Government mandated by the Constitution
comes not from God or from itself, but from “We the People.”28

THE NATURE OF THE STATE: The relevant phrase in the text of the preamble is
‘perfect union’. Therefore, the preamble ascertains that USA is a union of states. The
Preamble's reference to the "United States of America" has been interpreted over the years to
explain the nature of the governmental entity that the Constitution created. While each state
was originally recognized as sovereign unto itself, the Supreme Court held that the "United
States of America" consists of only one sovereign nation with respect to foreign affairs and
international relations; the individual states may not conduct foreign relations. 29 Hence, the
phrase ‘union’ is justified as USA is looked upon as one single entity. The phrase ‘perfect
union’ has been preceded by the phrase ‘to form a more’, which shows the shift from the
Articles of Confederation to the Constitution. In this transition, the "Union" was made "more
perfect" by the creation of a federal government with enough power to act directly upon
citizens, rather than a government with narrowly limited power that could act on citizens (e.g.,
by imposing taxes) only indirectly through the states.30 Although the Preamble speaks of

28Importance of We the People (LAWS) <http://Constitution.laws.com/we-the-people> accessed 7 October 2015

29 Chae Chan Ping v. United States, 130 U.S. 581, 604, 606 (1889)
30 Lane Cnty. v. Oregon, 74 U.S. (7 Wall.) 71, 76 (1869)

15
 perfecting the "Union," and the country is called the "United States of America," the Supreme
Court has interpreted the institution created as a government over the people, not an
agreement between the States.31

OBJECTIVES OF THE STATE:

1. To form a more perfect union: The words, not just define the nature, but also give one of
the objectives of the State. The aspiration was that a more perfect union be formed, which is
simply a better and stronger one than had preexisted the Constitution.

2. To establish justice: In the second stated objective, to "establish Justice," the key word is
"establish," clearly implying that justice, unlike union, was previously nonexistent. On the face
of it, that implication seems hyperbolic, for the American states and local governments had
functioning court systems with independent judges, and trial by jury was the norm. But
Gouverneur Morris chose the word carefully and meant what he wrote; he and many other
Framers thought that the states had run amok and had trampled individual liberties in a variety
of ways. The solution was twofold: the establishment of an independent Supreme Court and
the provision for a federal judiciary superior to those of the states; and outright prohibition of
egregious state practices.32

3. To insure domestic tranquility: It means to maintain law and order (tranquility) within
the country (domestic). In this context, the preamble is though of in terms of the duties and
purpose of the government, which can be enumerated as following: to form a country that is
better than other countries in existence and a true union of the states (a federal government
instead of a confederation of states);

(i) to establish a just society;

(ii) to maintain a peaceful/lawful/orderly society;
(iii) to protect itself against hostile enemies;
(iv) to promote the general welfare of its people; and
(v) to main a free society for its people (present and future) so that the people will reap the
benefits.

Legal Tender Cases, 79 U.S. (12 Wall.) 457, 545 (1871)

31

Forrest McDonald, ‘Preamble’ (The Heritage Guide to the Constitution)

32

<http://www.heritage.org/Constitution#!/articles/0/essays/1/Preamble> accessed 7 October 2015

16
 4. To provide for Common defense: It means that the government will have the power to
form whatever is needed (Army, Navy, Air Force, Marines, Coast Guard, etc.) to protect
Americans from foreign enemies. it signifies one of the reasons that the individual states are
banding together in a union: to provide an effective, unified military force to protect all of the
states together. The expression was included as The weakness of the thirteen states under the
Articles of Confederation, before the Constitution, convinced the Founders that the nation
needed a stronger government, including a stronger military. The Founders were careful to
grant the federal government only the few, limited powers that were necessary for it to carry
out its aims. Under the Constitution, most powers are reserved to the states, or to the people.
America’s Founders believed that peace through strength is preferable—militarily, financially,
and morally—to allowing war to come through weakness.33

5. To promote general welfare: Providing for the welfare of the general public is a basic goal
of government. The Founding Fathers said in the preamble that one reason for establishing
the Constitution was to “promote the general welfare.” What they meant was that the
Constitution and powers granted to the federal government were not to favor special interest
groups or particular classes of people. There were to be no privileged individuals or groups in
society. Neither minorities nor the majority was to be favored. Rather, the Constitution would
promote the “general welfare” by ensuring a free society where free, self-responsible
individuals - rich and poor, bankers and shopkeepers, employers and employees, farmers and
blacksmiths - would enjoy “life, liberty, and the pursuit of happiness,” rights expressed in the
Declaration of Independence.34 The preamble to the U.S. Constitution cites promotion of the
general welfare as a primary reason for the creation of the Constitution. Promotion of the
general welfare is also a stated purpose in state constitutions and statutes. The concept
sparked controversy only as a result of its inclusion in the body of the U.S. Constitution. The
first clause of Article I, Section 8, reads, "The Congress shall have Power to lay and collect
Taxes, Imposts and Excises, to pay the Debts and provide for the common Defence and
general Welfare States." This clause, called the General Welfare Clause or the Spending Power
Clause, does not grant Congress the power to legislate for the general welfare of the country;
that is a power reserved to the through the Tenth Amendment. Rather, it merely
allows Congress to spend federal money for the general welfare.

33 Mackenzie Eaglen, ‘Why Provide for Common defense (The Heritage Foundation, 19 January
2011)<http://www.heritage.org/research/reports/2011/01/why-provide-for-the-common-defense> accessed 5 October 2015
34 General Welfare, ‘Law and Liberty’ <http://lawandliberty.org/genwel.htm> accessed 7 October 2015

17
 The principle underlying this distinction -- the limitation of federal power -- eventually
inspired important disagreement over the meaning of the clause.35

6. To secure the Blessings of Liberty to ourselves and our Posterity: In broad terms the
securing of liberty is a function of the whole Constitution, for the Constitution makes possible
the establishment of a government of laws, and liberty without law is meaningless. Special
provisions, however, in Article I, Sections 9 and 10, and Article III were designed to prevent
specific dangers to liberty about which history had warned the Framers. Those in Section 9
were drawn from the example of English history: the prohibitions against suspending the writ
of habeas corpus, against bills of attainder and ex post facto laws, and against granting titles of
nobility. In addition, Article III, Section 2, guaranteed trial by jury in criminal cases, and
Section 3 defined treason extremely narrowly and prohibited corruption of the blood. These
protections of liberty are of individual liberty, not of the states' liberty as under the Articles of
Confederation.36

PARTICULARS OF ADOPTION: The Preamble remains silent on its adoption and does
not specify any date. It is a general notion that the preamble was adopted on the same day the
Constitution came into force, i.e. in 1789.

There is no exceptional feature of the American Preamble. Because of its limited features, the
Courts have not used the Preamble for the purpose of interpreting the provisions of the
Constitution. After a thorough analysis of the American Preamble, the Canadian Preamble will
be analysed in the next chapter.

35 James Follow, ‘America’s misunderstood mission: Promoting the general welfare’ (Daily Ko,s 2 November 2014)
<http://www.dailykos.com/story/2014/11/02/1340978/-America-s-Misunderstood-Mission-Promoting-the-general-Welfare>
accessed 7 October 2015
36 ibid 29

18
 PREAMBLE TO THE CANADIAN CONSTITUTION: AN
OVERVIEW AND COMPARISON WITH THE INDIAN PREAMBLE

The Constitution of Canada is the supreme law in Canada; the country's constitution is an
amalgamation of codified acts and uncodifiedtraditions and conventions. It is one of the
oldest working constitutions in the world, with a basis in the Magna Carta.37 In 1982, the
Queen and the Right Honourable Pierre Trudeau, Prime Minister, signed the Constitution
Act, 1982, which includes the British North America Act, 1867 and the Canadian Charter of
Rights and Freedoms.

The Preamble to the 1867 Act reads as follows:

WHEREAS the Provinces of Canada, Nova Scotia, and New Brunswick have expressed their Desire to be
federally united into One Dominion under the Crown of the United Kingdom of Great Britain and Ireland,
with a Constitution similar in Principle to that of the United Kingdom

And whereas such a Union would conduce to the Welfare of the Provinces and promote the Interests of the
British Empire

And whereas on the Establishment of the Union by Authority of Parliament it is expedient, not only that the
Constitution of the Legislative Authority in the Dominion be provided for, but also that the Nature of the
Executive Government therein be declared

And whereas it is expedient that Provision be made for the eventual Admission into the Union of other Parts
of British North America.

The Preamble to the Canadian Charter of Rights and Freedoms is also the preamble to the
Constitution Act, 1982 and reads as following:

Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law

37Nathan Tilridge, Canada's Constitutional Monarchy: An Introduction to Our Form of Government, (Dundurn Press, 2010) 54

19
Referring to both the preambles, the elements can be deduced as following:

THE SOURCE OF AUTHORITY: The BNA, 1867, reflects the position of Canada as a
Constitutional monarchy. Through this Act, the federal Dominion of Canada was formed and
the free British colonies became the four provinces of the new dominion. The BNA was an
Act of the Parliament of the United Kingdom and hence, it is no surprise that the preamble
does not contain any terms to specify the source of power of the Constitution. However, by
adhering to the history, it can be ascertained that the source of the constitution is not the
people. Again, the BNA vested the power and authority of the Executive Government in the
Queen. Presently, Queen Elizabeth II is the Canadian Monarch (since 6 February, 1952). The
Parliament consists of the Queen, the Senate and the House of Commons. The Senate is
similar to the upper house of the Parliament and the members of the House of Commons are
democratically elected. Therefore, even though the preamble is silent about the source of
authority, the power of the government is derived from the people.

THE NATURE OF THE STATE: The words used in the Preamble (BNA, 1867), show
that Canada is a Federal Dominion. Canada is a Federal State as there is a division of powers
between the federal government and the provincial governments, both, recognized by the
Constitution. This was about the first half of the expression, the second half states that
Canada is a dominion. It is a dominion owing to the reason that it is nominally under the
crown. The Queen, still, is a part of the Parliament. The Executive Government and Authority
of and over Canada is hereby declared to continue and be vested in the Queen.

OBJECTIVES OF THE STATE:

1. Welfare of the provinces: The British North America Act, 1867, can be interpreted as
giving the provinces primary jurisdiction over social welfare. According to Section 92 of
the Act, the legislature in each province could exclusively make laws in relation to such
matters as - public reformatory (subsection 6) - hospitals, asylums, charities and
eleemosynary institutions (subsection 7); - municipal institutions in the province
(subsection 8); - property and civil rights (subsection 13); - matters of a local and private
nature (subsection 16). The Act did not impose any obligations to provide welfare services
upon either the Dominion or the provinces, but simply allocated, with less precision than

20
 its framers had hoped to achieve, the various spheres of jurisdiction, any subsequent
action being permissive, not mandatory.38

2. Promotion of the interest of British Empire: When the BNA, 1867, was passed,
Canada remained a dominion of the Crown. The Act, itself, was passed by the British
Parliament and therefore, it comes as no surprise that the words ‘promotion of the interest
of British Empire’ were added in the preamble and the same was looked upon as the
objective of the Canadian Constitution. The provision for the vesting of the executive
powers in the Queen (i.e. Section 9) can be seen as a reflection of the scheme for
promoting welfare of the British Empire.

PARTICULARS OF ADOPTION: Alike the American Preamble, the Preamble to both

the Constitution Acts of Canada are silent on the date of adoption.

OTHER SIGNIFICANT COMPONENTS:

1. Legislative and Executive Authority: The preamble states that the Constitution
shall provide for the establishment of the Legislative Authority and shall also declare
the nature of the Executive government. The preamble, thus, points towards Chapters
II, III and IV of the BNA, 1867, which lay down provisions regarding the Union,
Executive Power and Legislative Power.
2. Eventual Admission in the Union: The preamble also states that the Constitution
shall make provisions of entering new provinces in the union subsequent to the
passing of this Act. The same objective has been aimed to be achieved in the
provisions found under Chapter XI of the Act.
3. Supremacy of God: This is a rather peculiar feature of the Preamble of the
Constitution Act, 1982. The inclusion of the expression ‘supremacy of God’ has
always been debatable. In this context, the following points can be put forth - The
basic problem with the God-clause is that it runs into an impossible dilemma, given
the actual content of the Charter itself. More specifically, what it claims is either
meaningless (and therefore worthless), or it has real meaning, in which case it strikes a
blow against the very principles that the Charter is in place to protect (in which case it
is pernicious). If the claim that Canada is founded on " recognition of the supremacy
of God" has any meaning, then it is both fair and reasonable to ask what exactly is the
understanding of "God" in this context?

38Angela W. Djao, ‘Constitutional Dilemma and Social Welfare Policy in Canada’ (The Journal of Sociology and Social Welfare December
2014)< http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=1620&context=jssw> accessed 16 October 2015
21
 The difficulties here seem obvious. Some, seeing the threat of an unacceptable
erosion of basic Canadian values (e.g. freedom of religion), may try to squeeze-in a
more "open-minded" reading, and suggest that any and all "God(s)" will do nicely for
this purpose. Clearly, however, if this reading was accepted then the supposed
"foundations" of our basic values would crack and fragment into a thousand
(incoherent) pieces. Foundations like this would wash away like sand. The
fundamental fact that defenders of the God-clause must face is that Canada includes
many people who believe in God but not a Christian God, and many others who do
not believe in any "God", and yet all these people share the same core values that are
identified and specified in the body of the Charter itself: freedom, equality, and the
democratic rule of law.39 The most crucial objection raised against this expression is
that the Canadian Charter of Rights and freedoms guarantees the freedom of
conscience and religion. And this included the freedom to be an atheist. In such a case,
the supremacy of God clause cannot be justified.

4. Rule of Law: ‘The ‘rule of law’ is mentioned in the preamble to the Constitution Act,
1982. It refers to no one single idea, but to a cluster of ideas. The concept of ‘rule of
law’ emerged as an important constitutional principle in the case
of Roncarelli v.Duplessis. 40 The Supreme Court concluded that Quebec Premier
Maurice Duplessis, could not unlawfully strip Mr. Roncarelli of his restaurant liquor
licence without the proper legal authority. The Court ruled that Premier Duplessis
exceeded his statutory authority when he revoked Roncarelli’s licence solely on the
ground that he was a Jehovah’s Witness. According to Frank Scott, the McGill
constitutional law professor who represented Mr. Roncarelli before the Supreme
Court, the case stands for the proposition that “no public officer has any power
beyond what the law confers upon him” or, more plainly, “that all are equal before the
law”. The Supreme Court in the Reference re Secession of Quebec41 identified the
‘rule of law’ as one of the “underlying principles” upon which Canada’s Constitution is
founded. The ‘rule of law’, according to the Court, guarantees the supremacy of law
over persons and government, and that the exercise of public power requires a source
in some legal rule.

39 Paul Russel, ‘‘The Supremacy of God’ does not belong in the Constitution’ (The Globe & Mail, June 11, 1999,)
<http://faculty.cbu.ca/rkeshen/Canadian%20Political%20Values/God%20in%20the%20Constitution.pdf> accessed 8 October
2015
40 [1959] S.C.R. 121

41 ([1998] 2 S.C.R. 217)

22
 At its most basic level, the Court wrote, the rule of law provides a shield for
individuals from “arbitrary state action” - this is the role it performed in the Roncarelli
case. The Court went even further, suggesting that the ‘rule of law’, as a foundational
principle of constitutional law, “may in certain circumstances give rise to substantive
legal obligations”. This suggests that a principle implicit in Canada’s constitutional
order can override otherwise constitutionally valid acts of Parliament or the
legislatures - a troubling idea for a constitutional democracy. 42

Having analysed the contents of the Preambles of India, USA and Canada, a
comparison shall be drawn amongst the three in the next chapter.

42‘Rule of Law’ (The Centre for Constitutional Law Studies) <http://ualawccsprod.srv.ualberta.ca/ccs/index.php/pr/540-rule-of-law>

accessed 8 October 2015
23
 A COMPARATIVE ANALYSIS OF THE PREAMBLES OF THE
CONSTITUTIONS OF INDIA, USA AND CANADA

The previous three chapters dealt with the components and significance of the Preambles of
India, USA and Canada. Based on the understanding developed through the study, a
comparative analysis of the three Preambles can be made. The comparison will be in the same
manner as the study, i.e. based upon the following four elements:

1. The source of authority

2. The nature of the State
3. Objectives the State seeks to achieve
4. Particulars of adoption

THE SOURCE OF AUTHORITY: The Indian and the American Preambles have,
specifically, included the words ‘we the people’. The presence of these three words makes it
very clear that the government derives its powers from the people of the country. In both the
countries, ‘we the people’ refers to the citizens, who have political rights vested in them. In
the Canadian Preamble, no such express mention has been made. The House of Commons is
democratically elected, but the Queen, still, occupies a position in the Parliament. Also, the
usage of term ‘we the people’ is highly important, as it shows that the people made the
Constitution. Whereas, the British Parliament passed the Canadian Constitution (BNA, 1867) ,
hence, the omission of the expression doesn’t come as a surprise.

THE NATURE OF THE STATE: The Preamble of India has very beautifully defined the
nature of the State by incorporating the terms –sovereign, socialist, secular, democratic and
republic. The provisions of the Constitution have justified every term. In the similar context,
the only relevant term in the American Preamble is ‘union’. It is a well known fact that USA is
a secular, democratic and federal state, but none of the terms have been incorporated in the
Preamble. Similarly, the Canadian Preamble only inculcates the terms ‘federal’ and ‘dominion’.
And hence, while on one hand the Indian Preamble paints a very clear picture of the nature of
the state, it is difficult (and to a certain extent impossible) to decipher the same by going
through the American and the Canadian Preambles.

24
 OBJECTIVES THE STATES SEEK TO ACHIEVE: All three counties are known to be
welfare states. Indian and American Preambles, very specifically, lay down the broad
objectives, which the State shall seek to achieve. The Indian Preamble talks about achieving
justice in social, political and economic spheres; liberty of thought, expression, belief, faith and
worship; equality of status and opportunity and fraternity. The Preamble of USA state that the
state shall strive to form a more perfect union; to establish justice; to unsure domestic
tranquillity; to provide for common defense; to promote general welfare and to secure the
blessings of liberty to themselves and their posterity. However, the Canadian Preamble is very
different in this context. The influence of British Parliament reflects through the objectives
enlisted, i.e. welfare of the provinces and promotion of the interest of British Empire.

PARTICULARS OF ADOPTION: It is only the Indian Preamble, amongst the three,

which specifies the date of adoption of the Constitution. The other two Preambles, i.e. the
American and the Canadian Preamble are silent in this respect.

OTHER FACTORS:

1. Preamble a part of the Constitution: In USA and Canada, the question of Preamble
being a part of the Constitution or not has never been raised. It is, thus, a common
assumption that Preambles there are considered to be a part of the Constitution, which
acts as an introduction to it. In India, the position is now settled after the ruling given
under Kesavanada Bharati43. However, prior to that the position was debated upon.

2. Use of Preamble in interpreting the Constitution: In India, the interpretational value

of Preamble is very high. It is thought to be the spirit of the constitution and carries
various components, which are said to be the basic structures of the Constitution. Hence,
time and again, the Courts have resorted to the Preamble, while interpreting various
provisions of the Constitution. The nature of the American Preamble is very limited,
because of this very reason, the Courts have never used it as a decisive factor in any case.
The same is the case with the Canadian Preamble. The courts have not applied the
preamble in any judicial interpretation.

43 ibid 23
25
3. Rule of Law: It is only the Canadian Preamble (The Constitution Act, 1982), which has
embedded the words ‘rule of law’ specifically. Both, the Indian and American Preambles
have no mention of the rule of law or principles of natural justice. However, the same can
be ascertained by going through the objectives of the state. There is no specific mention,
but the notion can be traced through the spirit of letters.

4. Supremacy of God: Again, it is the Canadian Preamble, which has the usage of the words
‘supremacy of God’. Even in Canada, the expression has been a subject of debate time and
again. The American Preamble is absolutely silent in this context and the Indian Preamble,
specifically, recognizes India as a sovereign and secular state.

Based on the understanding of the contents of the three Preambles, the above comparison
has been drawn.

26
 CONCLUSION

Constitution is the supreme law of the nation. Most of the democratic nations, in the
contemporary world, have a written Constitution. The importance of a Constitution is
such that if any law is in contravention with any of its provisions, it will be struck down.
As the Constitution, often, can be a lengthy document (For eg. The Indian Constitution),
the Preamble can be referred to in order to understand the basic structure of the
Constitution and the State. Thus, study of a preamble hold a vital significance in study of
Constitutional Law, and the same has been emphasized upon by a number of scholars,
philosophers and academicians.

There is no specific format of a Preamble and its framing depends entirely on the makers
of the Constitution. However, there are certain common elements and common patterns
that are, usually, replicated in the various Preambles. These are in relation to the source of
authority or the source from which the government derives its powers, the nature of the
state, the objectives the state seeks to achieve and particulars of the adoption. If all these
elements are present in the Preamble, then a reference made to it will be able to serve the
purpose of providing an understanding of the State and the Constitutional law of the
State.

Keeping the same in mind, three major Preambles (Indian, American and Canadian) were
studied and analysed. From the understanding so gained, an overview of the features of
each has been laid down.

The study of Comparative Public Law is crucial, primarily, because of two reasons – 1. We
understand the shortcoming in our system, 2. We can refer to the other systems to
understand how they dealt with those issues and try to implement the same in our system.
Constitutional law forms the core of public law and hence, study of different
Constitutions will ensure a better understanding of the functioning of various States. As
already stated, comparing Constitutions provision by provision can be a tedious and time-
consuming task. To counter this, a comparative study of the Preambles can be adhered to.

In this project, a comparative study of the Preambles of Indian, American and Canadian
Constitutions was undertaken. The study showed how different the three states are from
each other, even though, superficially, the nature may appear to be the same.

27
The comparison, majorly, was made on the four, above-mentioned, elements. The
differences, majorly, arise out of the time and conditions under which the Constitution
was enacted. For eg., the Canadian Constitution was enacted by the British Parliament,
and hence, one of the objectives listed in the preamble is promotion of the interest of
British Empire. The Indian Constitution was passed just after India attained
independence, and therefore, the word ‘sovereign’ finds a specific mention in the nature of
the State. When an analysis is made, the historical background and the interpretation of
the terms used are also adhered to, which in turn, gives a better insight and understanding
of the public system of that State.

To sum up, it can be put forth that the comparative study of the Preambles is of high
academic value as the history, background, nature of the state, its aims and aspirations, the
source of its power and what the state wants to offer to its citizens, can be easily
understood. Based on the comparison made between the three Preambles, a conclusion
can be drawn that the Indian Preamble is a finely crafted piece of constitutional
framework. Even though the Indian Constitution is relatively new, it expresses the wishes
of the people in a more defined and structured manner. Also, amongst the three, it is only
the Indian preamble, which has high interpretational value. The newly developing
democracies, which have not come up with a written Constitution yet, can take inspiration
from these three Preambles when they think about drafting a Constitution.

28
 BIBLIOGRAPHY

BOOKS:

 Wheare, Modern Constitutions (Oxford University Press 1966)

 H.M. Seervai, Constitutional Law of India – A Critical Commentary (4th Ed. vol. 1 Universal Law
Publishing Co. Ltd. 2004)

 D.D. Basu, Introduction to the Constitution of India (12th Ed. Lexis Nexis 2010)

JOURNALS AND ARTICLES:

 Live Orgad, ‘The Preamble in Constitutional Interpretation’ (Constitutional Law, 2010)

<http://icon.oxfordjournals.org/content/8/4/714.full.pdf+html> accessed 25 September 2015

 Hans Kelsen, ‘The Preamble of the Charter—a Critical Analysis’ 8(2) J. Pol. 134 (1946)

 Kent Roach, ‘The uses of Preamble in legislation’

<http://www.lawjournal.mcgill.ca/userfiles/other/8178207-47.1.Roach.pdf> accessed 19 August
2015

 Plato, ‘Plato-The complete works’, <http://www.cakravartin.com/wordpress/wp-

content/uploads/2008/08/plato-complete-works.pdf > accessed 19 August 2015

 Arti Goyal, ‘Preamble to the Indian Constitution’ (Lawctopus , 6 September 2014)

<http://www.lawctopus.com/academike/Preamble-Constitution> accessed 2 October 2015

 Importance of We the People (LAWS) <http://Constitution.laws.com/we-the-people> accessed 7

October 2015

 Forrest McDonald, ‘Preamble’ (The Heritage Guide to the Constitution)

<http://www.heritage.org/Constitution#!/articles/0/essays/1/Preamble> accessed 7 October 2015

 Mackenzie Eaglen, ‘Why Provide for Common defense (The Heritage Foundation, 19 January
2011)<http://www.heritage.org/research/reports/2011/01/why-provide-for-the-common-defense>
accessed 5 October 2015

 General Welfare, ‘Law and Liberty’ <http://lawandliberty.org/genwel.htm> accessed 7 October 2015

 James Follow, ‘America’s misunderstood mission: Promoting the general welfare’ (Daily Ko,s 2
November 2014) <http://www.dailykos.com/story/2014/11/02/1340978/-America-s-
Misunderstood-Mission-Promoting-the-general-Welfare> accessed 7 October 2015

29
 Nathan Tilridge, Canada's Constitutional Monarchy: An Introduction to Our Form of Government,
(Dundurn Press, 2010) 54

 Angela W. Djao, ‘Constitutional Dilemma and Social Welfare Policy in Canada’ (The Journal of Sociology
and Social Welfare December 2014)
<http://scholarworks.wmich.edu/cgi/viewcontent.cgi?article=1620&context=jssw> accessed 16
October 2015

 Paul Russel, ‘‘The Supremacy of God’ does not belong in the Constitution’ (The Globe & Mail, June
11, 1999,)
<http://faculty.cbu.ca/rkeshen/Canadian%20Political%20Values/God%20in%20the%20Constitutio
n.pdf> accessed 8 October 2015

 ‘Rule of Law’ (The Centre for Constitutional Law Studies)

<http://ualawccsprod.srv.ualberta.ca/ccs/index.php/pr/540-rule-of-law> accessed 8 October 2015

30