The Emergency, the Present and the Resonance of H.V. Kamath's Ideas

Recalling the 50th  year of Emergency on June 25, 2025, Ravi Nair, a human rights activist and the executive director of the South Asia Human Rights Documentation Centre (SAHRDC),  wrote a thought-provoking piece in the Supreme Court Observer regarding civil liberties and the Supreme Court.

I was entirely fascinated by the fact that Ravi Nair, a Malayali, was born on the island of Madagascar to a bureaucrat father and a homemaker mother and ended up in the same jail as a freedom fighter and member of the Constituent Assembly, which shaped the Constitution of India.

Ravi was arrested during the Emergency in 1975 and incarcerated in Tihar Jail, where he encountered H.V. Kamath. Kamath, who hailed from coastal Karnataka in Mangalore, relinquished a prestigious career in the Indian Civil Service to join the Indian National Congress and later the Forward Bloc. He was a prominent figure in the Constituent Assembly and served as a Member of Parliament in the provincial legislature from 1950 to 1952, as well as in the first and third Lok Sabhas, prior to the infamous Emergency declared by Indira Gandhi. It was indeed a historical fortuity that Kamath, a seasoned freedom fighter, and Ravi, a young socialist activist, crossed paths in Tihar Jail, undoubtedly not the best environment for socialisation.

It is ironic that life in jails remained marginally better than in torture camps, sterilisation camps, or for those destined to live under the scanner of beauty notions of the beast and his packs. As Ravi Nair noted, the news of the Supreme Court's decision in ADM Jabalpur v. Shivkant Shukla, in which the court spinelessly endorsed the government’s arguments and, in a single stroke, reaffirmed that the right to petition the court for violations of fundamental rights – including the right to life – could be suspended during an emergency, reached Ward 13 on a “muggy Wednesday.” The Supreme Court made the decision on April 28, 1976, but it took some time for the news to reach the jail. Despite Justice H.R. Khanna's courageous dissent, the decision provided little hope. In that context, H.V. Kamath elucidated the implications of the ruling to his fellow inmates.

Kamath was indeed the right person for the task. As a member of the Constituent Assembly, he stood out among a select few, including K.T. Shah and Hriday Nath Kunzru, who completely opposed Emergency provisions. He recognised the significant potential for misuse of this provision and the paradox it posed for a newly independent country emerging from colonial oppression, as it risked embedding such a draconian measure in its own constitution. He expressed his discontent with the new draft presented by Ambedkar, labelling it a mere rehash of the old draft of the same article. The following words of Kamath reveal his profound concern for human rights: 

“The Constitution has been founded – at any rate, we the founding fathers here have tried to found the Constitution – on what I would call the ‘Grand Affirmation’ of fundamental rights. We have tried to build on that edifice of democracy, but I find surmounting that edifice is the arch of the “Grand Negation”. First, the grand affirmation, then that edifice, at any rate that façade of democracy, and surmounting that edifice or façade is the great negation of Part XI, the notorious negation of Part XI; and article 280 is, to my mind, the keystone of this arch of autocratic reaction." 

Articles 275, 278, and 279 of the Draft Constitution would eventually become Articles 352, 356, and 358 of the Constitution.

While moving an amendment to clause (1) of the Article, which stipulates that the president shall proclaim an emergency “acting upon the advice of his Council of Ministers” rather than on his own volition, Kamath remarked :

“I have ransacked most of the constitutions, and I find no parallel to this chapter of emergency provisions in any of the other constitutions of democratic countries in the world. The closest approximation, to my mind, is reached in the Weimar Constitution of the Third Reich, which was destroyed by Hitler taking advantage of the very same provisions contained in that constitution. The Weimar Constitution of the Third Republic exists no longer, and that has been replaced by the Bonn Constitution. But those emergency provisions pale into insignificance when compared with the emergency provisions in this chapter of our Constitution.” 

It is worth noting that Kamath's amendments were rejected outright.

Kamath refused to share the hope and optimism of Dr Ambedkar or B.M. Gupte that the emergency provisions would likely remain a dead letter, implying that it would not be necessary to use these provisions or activate them. Kamath remarked that perhaps the Prime Minister and other ministers are honourable men who would never misuse it. “But a constitution is not meant for Dr Ambedkar, Pandit Nehru, or Sardar Patel; the constitution is meant not only for this generation, but we are building it for other generations to come”, although he had not anticipated such a situation arising from Nehru’s own daughter, Indira Gandhi.

Kamath’s concern remained a wild cry, not resonating with the end result as the emergency provisions, incorporated in the draft constitution, were adopted by the Assembly on August 20, 1949.  Kamath expressed his exasperation in the end, saying , “This is a day of sorrow and shame. May God help the Indian people.” 

Gods and goddesses did not assist the Indian people as Kamath had hoped. The Emergency was declared during the 25th year of the Indian Republic's silver jubilee. The Emergency provisions included the suspension of all fundamental rights, such as the right to free speech and expression, the right to form associations, the right to assemble, and the right to move freely across India. The right to constitutional remedies was also suspended. This situation proved to be disastrous for democracy, as the national emergency was enforced for the first time from June 25, 1975, to March 21, 1977.

Ravi Nair’s article examines the surveillance nature of today’s state, focusing on the status of human rights and the legal implications of Supreme Court decisions concerning human rights violations since the emergency. It seeks to understand the underlying causes rather than merely addressing the symptoms, thereby clarifying our current position regarding judicial interventions. However, without delving into the present state of affairs, which would undoubtedly be deeply unpleasant, I would like to pay tribute to the foresight of individuals like Kamath; we owe them our gratitude for their anticipation and concerns.

E. K. Santha teaches at Sikkim Manipal University, Sikkim and is the author of Democracy in Sikkim: An Untold Chronicle.

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