Musings On The Constitution-XXV Narasimhan Vijayaraghavan Hari Vishnu Kamath HVK- Hari Vishnu Kamath was a god fearing man. He repeatedly highlighted the fact that the founders of the US Constitution thoughtfully ensured that the foundational fact for the existence of

Musings On The Constitution-XXV
Narasimhan Vijayaraghavan

Hari Vishnu Kamath
HVK- Hari Vishnu Kamath was a god fearing man. He repeatedly highlighted the fact that the founders of the US Constitution thoughtfully ensured that the foundational fact for the existence of the nation and as a democratic Republic was ‘in the name of god’. While he said Constitution would always be premised on a secular premise the Dharma that our cultural ethos oozed with for centuries was in the name of Almighty. No matter the religious difference, secularism as the credo was inherent in our being. It was not as if God was antithetical to the precept and practice of secularism. Believer or non-believer, secularism was umbilically tied with Bharat.
Before we get back on track with the famous speech of HVK in opposition to the Internal Emergency provision and the powers that it vested in the Executive, let us digress to a colourful interlude in the Making Of The Constitution- on this godly aspect from HVK, ‘who was for sure not a gadfly’ said Rajaji.

On 17th October, 1949, the Constituent Assembly took up the Preamble of the Draft Constitution for discussion– based on the Objectives Resolution introduced by Nehru on 13th December, 1946 and passed by the Assembly on 22nd January, 1947.
Members seem to have anticipated that an amendment related to ‘god’ would be moved by H.V. Kamath. Purnima Banerji seemed quite perturbed by this and appealed to Kamath to not move his amendment – Kamath did not oblige. He proposed that the preamble begin with the words ‘In the name of God’. Members opposed the amendment in two ways.

First, members felt that Kamath’s amendments put the Assembly in a position of ‘embarrassment of having to vote upon god’. Thirumala Rao said:
“This is a thing of such vital importance and affects the life of the whole nation, that it should not be subjected to the vote of a House of three hundred people whether India wants God or not.”
Second, members like Kunzru, felt that Kamath’s amendment forced belief in god on Indians:
“…but I do not see why in a matter that vitally concerns every man individually, the collective view should be forced on anybody. Such a course of action is inconsistent with the Preamble which promises liberty to thought, expression, belief, faith and worship to everyone. How can we deal with this question in a narrow spirit? We invoke the name of God, but I make bold to say that while we do so, we are showing a narrow, sectarian spirit, which is contrary to the spirit of the Constitution and which we should try to forget at this time when we have reached the end of a very important stage of our nation building process
After moving his amendment, Kamath went even further and adopted religious idioms in his speech and said:
‘let us consecrate this Constitution by a Solemn dedication to God in the spirit of the Gita’
-and recited a few lines of the scripture. He then told members:
‘Whatever our shortcomings, whatever the defects and errors of this Constitution let us pray that God will give us strength, courage and wisdom’

There were some members who supported the amendment. Shibban Lal Saxena came to Kamath’s defence and argued that there were other constitutions that like the Irish one which mentioned god in its preamble. He tried to turn Saxena’s coercion argument on its head and said ‘…but why force others who feel intensely in the matter to eliminate God’s name?’
In the end the President of the Assembly put the Kamath’s amendment to vote. A division of votes was demanded. 141 members voted against Kamath’s amendment and 68 voted in favour.
Defeated, Kamath remarked: ‘This, Sir, is a black day in our annals. God save India.’

And with the Covid-19 Pandemic impact to boot, God alone can save India from its present predicament. But gone astray in search of God, for while, in our Constitution, let us get back to more mundane things as freedom of individual vs the State power, the perennial debate between the liberals vs conservatives. . Here was HVK, a conservative with a liberal heart, mind and soul or a liberal with a conservative heart, mind and soul. What fine characters the Constituent Assembly possessed of. The self same institution which is our Parliament today and do we have men and women of such calibre? Sigh!
To continue with the brilliant exposition of HVK on the rights of an individual vis a vis the powers of the State….
“This was the safeguard of the German Constitution. Under the American Constitution the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion the- public safety may require it. But even here the suspension can be authorised only by the Congress whose decision can be tested by the Supreme Court as to whether the conditions under which such suspension would be justified did exist or not. That is so far as the American Constitution is concerned. So also in the Italian Constitution there are similar safeguards.

But, unfortunately, we who profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.It has been suggested that in a time of emergency the State has got to be preserved. By all means preserve the State;

Under the American Constitution the privilege of the writ of habeas corpus shall not be suspended unless when in case of rebellion the- public safety may require it. But even here the suspension can be authorised only by the Congress whose decision can be tested by the Supreme Court as to whether the conditions under which such suspension would be justified did exist or not. That is so far as the American Constitution is concerned. So also in the Italian Constitution there are similar safeguards. But, unfortunately, we who Profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified. But if our executive demands our trust, why should not the executive trust the judiciary, why should it not repose confidence in Parliament? Is our judiciary, bereft of all wisdom, integrity and conscience that the executive should snap their fingers at them? This is a most disgraceful state of affairs. I do not see how we can build up an egalitarian or democratic State on such a foundation.

It has been suggested that in a time of emergency the State has got to be preserved. By all means preserve the State; but not at the unjust sacrifice of the liberty of the individual. In some cases and on some occasions, the loss of liberty is worse……”
(Author is practising advocate in the Madras High Court)

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