Musings On The Constitution-XXVI Narasimhan Vijayaraghavan
Musings On The Constitution-XXVI
Hari Vishnu Kamath
Hari Vishnu Kamath was just 39 years old when he became a member of the Constituent Assembly. He had sacrificed his personal career in taking up the assignment. Born on 13th July,1907 at Mangalore, Karnataka, , he studied in Presidency College, Madras. Took higher studies at London School of Economics .Mind you he joined Indian Civil Service in 1930 and resigned in 1938 to join the freedom movement. He was imprisoned several times before Independence and tragically after Independence too in 1956, 1962, 1965, 1974 and 1975. He likes to call himself a ‘social worker and freelance journalist’. He was slated to go places in Civil Service when he quit. He was a keen sportsman with interests in Hiking, gardening and cookery. (Some talent, this).
He gave up on a promising career as he plunged headlong into freedom struggle. He was not a constitutional expert. He was not a trained lawyer. He says,
“I took it up as a Rishi would go to the mountains to self-introspect. Mine was not a metaphysical study. I had to read up the history and Constitutions of the world. Not merely read them by the words, but contextualise them to the culture, ethos and moorings of those States. And then understand as I lived in mine. I felt a huge personal obligation. Together, we were trying not to print a Book but literally capture the Soul of India not for now, but the past, now and for ever. It was a terrifying responsibility. I approached it with utmost prayer and reverence with belief in the God I believed in”.
Lucky me and you, for I did not have pen a word obliterating the beauty of his vision. Picking up again, from where he left of on his peroration on the sanctity of individual’s liberty in a democratic polity,
“In some cases and on some occasions, the loss of liberty is worse than the loss of life. I for one would claim that liberty is even more precious than life, and the most serious emergency should not enable the State to unjustly deprive the individual of his liberty. That is a great principle and that should be the lodestar or the Pole-star of our Constitution. The right to a writ of habeas corpus is a sacred right in which is enshrined the liberty of the individual : it gives him the right of appeal to the ,Supreme Judiciary. This article before us today destroys this right of the individual.
We want peace and order so that the State will be safe during an emergency. But what sort of peace are your going to have at this rate? What to have at this rate? What sort of security or stability are you going to leave ? The State will be preserved I But it may be that the peace that you thus visualise will be the peace of the grave, the void of the desert. If that is the peace the Drafting Committee’s wise men have in mind, I would rather die than live in such a peaceful situation.
In our passion for making the Centre strong, we are misinterpreting it as the strength of the executive. If we want a strong executive, let us also have a strong legislature and a strong judiciary. I have pleaded that it is not the executive alone that makes the State. ‘We have the Parliament and the Judiciary which, together with the executive, make the State. All my pleadings have fallen on deaf ears. I sometimes tell myself, “O Judgment, thou art fled to brutish beasts, And Men have lost their reason”. Have we come to that stage ? I hope not. I hope, for the good of India, for the good of our fellow men and women who have just emerged from the darkness of slavery into the light of freedom, we shall do something for their happiness and not merely be content with strengthening the hands of a group) of people, a tiny coterie or caucus in power. That is not the idea which the Father of the Nation had in mind. As the House. well knows he was all for decentraliasation, and not for strengthening the Centre at all. lie was for a decentralised State and for giving power to self-sufficient units.
We are discussing the provisions for an emergency. I therefore grant that the Centre should have certain powers. All I plead is that there should be adequate safeguards, judicial safeguards and parliamentary safeguards. None of these safeguards is here in the Draft article. But this re-hashed article has come before the House for consideration and for approval. I believe it will be approved in due course. I have closely followed the provision for emergency powers in the Emergency Powers Act, 1920 of the United Kingdom. It Provides that Parliament must be summoned within five days. Secondly, the decree will expire at the end of seven days unless earlier approved by Parliament. On the same lines I have sought in my amendment No. 4 to provide that any order made under clause (1) of the article shall, before the expiration of fifteen days-India is a vast country of distances compared to England.
So for seven days I have put in fifteen days be placed before Parliament for approval. If you mean business and if you mean to secure to individuals their liberty, and not merely the safety of the State and the security of the men in power, fifteen days would be adequate time to summon Parliament. I have also provided further on the same lines as the Emergency Powers Act of England that this order suspending the fundamental rights shall expire at the end of one week unless it has been approved earlier by resolutions of Parliament. This is a wise safeguard which I hope the House will consider in all earnestness.
My last amendment- I am not going to speak on my remaining amendments- is No.6 of the Second Week. There I do not object to power being conferred on the President subject to Parliamentary regulation and control. Therefore the last amendment of mine is to the effect that the right to move the Supreme Court or the High Court for a writ of habeas corpus by appropriate proceedings shall not be suspended except by an Act of Parliament.
During the last world war, the British Government here were indulging in the express forms of repressing for the preservation of their Empire. Mr. Churchill went to the length of saying, “I have not become Prime Minister to preside over the liquidation of the British Empire,” which shows that even Mr. Churchill feared at one time that the Empire was in danger and that it might be liquidated. Though they were thus engaged in a life and death struggle, the British Government did not suspend the right to move the courts for a writ of habeas corpus. The famous case of Talpade of Bombay is a case in point. This case came up to the….
(Author is a practising advocate in the Madras High Court)