Musings On The Constitution-XXIV
HV Kamath addressing members of Young Men’s Hindu Association, 1952
The same is true, in fact, more true as C Rajagopalachari put it that Hari Vishnu Kamath, was a rebel with a golden heart imbued with moral values. A good friend R.Sankaranarayanan, Senior Advocate recalls a meeting he had with an ageing H V Kamath, in a godforsaken T Nagar Hotel, in Chennai, during the internal Emergency times. He describes him as a tall, gangling man with a long flowing kurta down to his knees and with both arms almost always tucked into his pocket. He had come to address a meeting to protest draconian moves of Madam Indira Gandhi. H V Kamath, alluded to particular reminiscences on the provision relating to proclamation of Internal Emergency in India .In particular, on the preventive detention laws and suppression of fundamental rights. Here is the exchange between H V Kamath and R Sankaranarayanan.
RS: “Sir, What happened during the Constituent Assembly debates on this provision?”
HVK: “What happened, nothing much. The father supported the draconian measure and Babasaheb agreed to put in the Constitution. And chacha Nehru’s dear daughter latched on to it. You see, I was one among many who strongly opposed suppression of rights of the individual in the Assembly. We were silenced as the majority felt that it was preposterous to think that a democrat like Jawaharlal Nehru would use such a provision. The need for such a provision was there they said. But resort to it would be farfetched as Nehru was a dyed in the wool democrat. I did not give up. I said, “Nehru may be one. But, where is the guarantee that every other Prime Minister following him would be one. I was drowned out by the members as they were convinced that what Ambedkar and Nehru propose, even God does not dispose in this Assembly. Now, we are paying the price when Nehru’s own daughter is seen to be tucking into the tool”.
RS : What do you think about the future India as I am a college student with dreams about the nation.”
HVK, “Feel free to dream. India is a democracy, no doubt. But please understand, if the rupee is devalued it can be revalued as Madam Indira showed us. However, if moral values are devalued, as they have, can we ever revalue them? That is my dark prognosis. If you can keep yourself away from the all pervading degradation in moral values, you can keep your head above water. God Bless. India.”.
I just did the digging into what HVK said in the Assembly and came up with this prescient and sterling speech of 20th Aug, 1949 vintage. I would urge the readers to bear with me as it is worth its weight in gold as it has a fascinating story to tell, which I can never match. Read on.
“The other day the Prime Minister, I believe while addressing some public meeting referred to the frequent conflict between the liberty of the individual and the security of the State. Yes, I agree that the State should be secure so that the individual may have life, liberty and happiness. But the liberty of the individual is not a thing to be trifled with at the mere behest or arbitrary fiat of the executive. It was the great American thinker Thoreau who said: "At a time when men and women are unjustly imprisoned, the place for the just man and woman is also in prison." If this article as moved by Dr. Ambedkar were passed today can we say with any degree of assurance, that the liberty of men and women in this country would be worth a moments purchase and would not be trampled under foot without a moment's notice? Sir, I do not want to alarm the House and sing a jeremiad, but I fear that such a situation is likely to arise if this article be passed today. As an autocratic negation of liberty this article takes the palm over all other constitutions of the world. Article 279 which we have already passed provides that as long as an emergency proclamation is in force the guarantees of individual freedom as set forth in article 13 will be automatically suspended throughout the Union; and now article 280 denies to the citizen the right of access to courts of law for making complaints about the violation of not only the rights of individual freedom but all other fundamental rights during the period of emergency. A general authorisation of this kind for restricting individual freedom has no parallel anywhere else.
The Drafting Committee took time to prepare a new Draft and they have tried to put up a rehash of the article. I find that the language of this article compares unfavourably with that of the Emergency Powers Act (DORA) passed in England in 1920 which the Drafting Committee have plagiarised in a dishonest fashion. Clause (3) of the proposed Draft reproduces the first part of one of the clauses of that Act, but the second and vital portion of that clause has been conveniently and dishonestly dispensed with. I do not know why this subterfuge has been resorted to. The relevant clause of that Emergency Powers Act reads thus :
If Parliament is then separated by such adjournment or prorogation as do not expire. within five days, a proclamation shall be issued for the meeting of Parliament within five days, and Parliament shall accordingly meet ‘and sit upon a day appointed by that proclamation and shall continue to ;it and act in like manner as if it had stood adjourned or prorogued that day.”
And the further safeguard is this “Any regulations so made under the Act shall not continue to be is force after the expiration of seven days from the time when they are so laid unless a Resolution is passed by both Houses providing for the continuance thereof.”
This vital portion of the Emergency Powers Act of England is absent from our, Draft article.Then I come to the Weimar Constitution whose provision came very near to, this clause but which was still very mild. as compared to this. In clause 48 of $he Weimar Constitution occurs this provision:
(2) If Public safety and order in the German Reich is materially disturbed or endangered the National President may take the necessary measures to restore public safety and order and, if necessary, to intervene by force of arms. To this end he may temporarily suspend, in whole or in part, the fundamental rights established in articles 114 (personal liberty) 115 (inviolability of dwelling, 117 (secrecy of postal, telegraphic and telephonic communications),
118.(freedom of speech and press), 123 (right of peaceable assembly). 124 (freedom of association), and 153 (guarantees of property rights).”
But even to this there were safeguards. The next clause was to the effect that the President must immediately inform the Reichstag of all measures adopted by authority of this article and that these measures shall be revoked at the demand of the Reichstag. This was the safeguard of the…
(Author is practising advocate in the Madras High Court)