The Social Contract & Constitutional Law Explained: Why told, it's We the People of India?
We, the People of India: The Social Contract and Constitutional Law Explained
Sr. Partner, Lex Loci Associates
A Legal and Philosophical Brainstorm on Social Contracts and Constitutional Law: Why, We, the People of India?
Every August 15th, we remember not just the lowering of one flag and the raising of another, but the moment a people declared themselves free. Yet, the true soul of our independence found its home not in a battlefield or parade ground, but in a carefully chosen sentence at the front of our Constitution:
“We, the People of India, having solemnly resolved…”
This Preamble is often called the heartbeat of our Constitution — a pledge from the people to themselves. But if the Constitution is sometimes described as a social contract, could this Preamble also be treated as a legal contract enforceable in court? Let’s explore why the answer is far more nuanced.
The Preamble: A Declaration, Not a Contract
Historical ContextThe Preamble was not drafted first — it was written after the rest of the Constitution, drawing from ideals debated in the Constituent Assembly between 1946–1949. It was inspired by the U.S. Constitution, the Irish Constitution, and the Objective Resolution proposed by Jawaharlal Nehru.
This phrase is not an administrative note — it is a claim of sovereignty, declaring that ultimate power flows from the citizens. But in law, this is not the same as naming parties to a contract.
The Concept of a Social Contract in Political Philosophy
From Hobbes to Rousseau
Thomas Hobbes saw the social contract as the surrender of some freedoms to a sovereign for security.
John Locke emphasized the protection of natural rights.
Jean-Jacques Rousseau spoke of the general will as the basis of legitimate government.
The Indian Constitution as a Modern Social Contract
India’s Constitution reflects this heritage — the people agreed (metaphorically) to govern themselves through elected representatives, accepting the supremacy of constitutional law. Yet, unlike a legal contract, this “agreement” is political and moral, not enforceable through damages or specific performance.
Legal Contracts under the Indian Contract Act, 1872
Essential ElementsUnder Section 10, a valid contract needs:
- Offer and acceptance
- Lawful consideration
- Capacity of parties
- Free consent
- Lawful object
- Intention to create legal relations
Why the Preamble Is Not a Legal Contract
- No Offer, Acceptance, or Consideration: The Preamble is a proclamation, not a negotiation.
- Collective Authorship: “We, the People” refers to the entire nation — not identifiable legal persons.
- Different Purpose: Constitutional law creates public obligations, not private obligations enforceable between parties.
Kesavananda Bharati Case and the Preamble
In 1973, the Supreme Court held that the Preamble is part of the Constitution and reflects its basic structure — which cannot be destroyed by amendment.
Justice K.K. Mathew’s dissent argued that the Preamble should not be used to limit Parliament’s amending power.
The “Legal Fiction” of Adoption
The Court noted that although the Preamble was formally adopted later, it is deemed to have come into effect with the rest of the Constitution — a classic example of legal fiction.
Constitutional Law vs. Contract Law: A Comparative Analysis
| Feature | Legal Contract | Social Contract |
|---|---|---|
| Parties | Identifiable legal persons | The People (collective entity) |
| Offer & Acceptance | Required | Not applicable |
| Consideration | Required exchange of value | Not required |
| Enforcement | Remedies to injured party | Striking down unconstitutional acts |
| Flexibility | Mutual consent | Amendment process |
| Scope | Private rights & duties | Public governance |
The Role of Legal Fiction in Constitutional Interpretation
Deemed Adoption: By legal fiction, the Preamble’s effect is aligned with the Constitution’s enforcement date.Sovereignty as a Presumption: The idea that the Constitution “emanates from the people” is a conclusive assumption.
FAQs: Common Misconceptions About Social Contracts
Q1: Can a citizen sue the government for “breach of the Preamble”?
A: No — it is not enforceable in itself.
Q2: Is the Constitution a contract under the Indian Contract Act?
A: No — the term “social contract” is metaphorical.
Q3: Did the Supreme Court call “We, the People” a legal fiction?
A: Yes, in the sense of deemed commencement.
Q4: Does the Preamble limit Parliament’s power?
A: Yes, per Kesavananda Bharati majority.
Q5: Is the Preamble amendable?
A: Yes, if changes don’t violate basic structure.
Q6: Is “We, the People” just political?
A: It’s political and symbolic of sovereignty.
To sum up: Between Law and Philosophy
The Preamble straddles two worlds — the philosophical dream of a free people and the legal framework that gives that dream structure. While not a contract under the Indian Contract Act, it is the highest form of collective agreement we can imagine — one that transcends enforceability and instead shapes the moral compass of a nation.
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But our Independence struggle was toppled by the divisionists by dividing the Nation and We the people lost its grandure and we the people through written there left to sway as fractional identity. The gainers are not yet satisfied and carryout their trecherous plans on the Suffered lot by all means. The social contract is still valued by theejority and are being enslaved to the atrocies of remaining few seoerationalists and are encouraged for their mandates by the ruled fractional parties including congress since independance.
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