Review of the contribution of H.V. Kamath in the drafting of the Indian Constitution

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Introduction

It is well known that the Constitution of India is the lengthiest constitution of the whole world (146,385 words). The institution responsible for drafting the constitution of India i.e., the constituent assembly consisted of 389 members (299 after partition of India) took 2 years 11 months, and 18 days to form it.

By taking such a significant period of time in Indian history the assembly ensured that even the slightest aspect of the provisions was taken utmost care of in the most elaborated manner. The members of the assembly played an indispensable role by putting their best possible efforts to make the Constitution as it is today.

Hari Vishnu Kamath is among those honorary names whom the people of this country will associate with every time they talk about the constitution.

In this assignment, we shall be evaluating the contribution of H V Kamath by deeply researching and deriving his arguments, proposals, interferences, and various instances in the constitutional debates that have played a primary role in shaping and introducing the angle of secularism not only to the preamble but gradually to the constitution as well.

Diving into the relevant volumes of constitutional debates will not only enlighten us about his own views about provisions and amendments but also how other founding fathers of the constitution reacted to him

Background

Born on 13 July 1907 in Mangalore, Karnataka; Hari Vishnu Kamath completed his early education from Canara High School and Government College until he left to pursue further studies at Presidency College, Madras. He pursued his higher education from London School of Economics, University College London, and the School of Oriental Studies[1].

H V Kamath began his career as social worker and a freelance journalist.  Having cleared the Indian Civil Service exam in 1930, he served under the British Government in multiple capacities: as Assistant Commissioner (1931 -1932), Additional District Judge (1934 -35), Under Secretary (1936), and Additional District Magistrate (1937-38).

He resigned from the service in 1938 to join the freedom struggle. Previously associated with the Congress, he joined the ‘Forward Bloc’- a leftist nationalist political party led by Netaji Subash Chandra Bose – as its General Secretary. He faced multiple imprisonments between 1940 to 1945 for his involvement in the freedom struggle.

Kamath was elected to the constituent assembly from the Central Provinces and Berar on a Congress Party Ticket. After 1950, Kamath fell out of congress and joined the Praja Socialist Party under the banner of which he participated in India’s first general elections where he lost by a margin of 174 votes.

After challenging the credibility of the elections in the Supreme Court, he successfully secured a fresh election, making his way to the Lok Sabha. He went on to win 2 more terms (1955-1957, 1962-67).

Hari Vishnu Kamath has also represented India at international Forums that including the World Government Conference in London (1952), Conference of Socialist International in Israel (1960) and the United Nations General Assembly Session (1977).

Being someone making frequent, lengthy, captivating interventions in the constitutional debates, he ensured he along with is attention-grabbing proposals were noticed and given heed to, which further ended up being highly significant amendments and provisions in the Constitution[2].

What is secularism?

In order to understand the contribution of H.V. Kamath to the drafting of the constitution in the dimension of secularism we need to first understand what secularism actually means and what form of secularism is prevalent in India.

There are numerous elements of secularism that prevails all over the world. Secularism means:

  1. Separation of religious institutions and state institutions in a public sphere where religion may participate[3].

This is a society where there is neither the interference of religious institution or religious ideologies in the affairs of the state nor vice versa. No individual with a particular religious identity experience any form of advantages or disadvantages in a secular state.

  1. Freedom to practice, profess and propagate one’s desired religion without harming anyone.

Secularism ensures that citizens enjoy their absolute right to freely profess religious and other beliefs and that there is no infringement of these rights by anybody including the state under any possible circumstance.

  1. Equal treatment of all religions by the state.

One of the primary provisions of secularism or better to say a directive for secularism for the state is to treat all the existing religions in a territory equally. This means that all the policies are structured in such a manner that it applies and serves people of all religions equally without any stereotypes or discrimination.

A state should also refuse to identify itself with a particular religion and also refuse to favour any religion which might be closely associated with it or which exists as a majority in the state. When it comes to treatment of religions equally, there exists two further dimensions of secularism:

Positive secularism

A kind of secularism where the state promotes every religion in its territory to practice and profess its rituals and ceremonies in every sphere of public life without favouring any particular religion. Here the state acts as an enabler role in the exercise of fundamental rights and religious freedoms of all communities. Here the constitution proves to be more powerful than religion.

Negative secularism

A kind of secularism where the state prohibits any religion in its territory to practice and profess its rituals and ceremonies in any sphere of public life without favouring any particular religion. Here the state acts as a disabler role in the exercise of fundamental rights and religious freedoms of all communities. Here according to the state nobody can display the religious identity in any public sphere. In a country that follows negative secularism, people observe a strict civil code among themselves.

Form of secularism in India

India follows the positive dimension of secularism. Being a country of incredible diversity, India is a land that has allowed every culture, belief and practice to bloom and acquire a distinct identity since ages. During independence our founding fathers realised that this nature of India cannot be ignored and hence paved the way for positive secularism to be deeply embedded in our society.

Constitutional provisions reflecting secularism

  1. Article 25: Guarantees freedom of conscience, the freedom to profess, practice, and propagate the religion to all citizens [ subject to public order, health and morality]. This enables the state to legislate regulations and restrictions any financial, economic, political, and other secular activity incorporated with any religious practice.
  2. Article 26: It gives the citizens the right to form and maintain institutions for religious and charitable intent, the right to manage its own affairs in the matter of religion, the right to acquire the immovable and movable property, the right to administer such property according to the law.
  3. Article 27: There can be no taxes, the proceeds of which are directly used for the promotion or propagation of any particular religion.
  4. Article 28: No religious instruction shall be provided in any educational institution wholly maintained out of state funds.

Hari Vishnu Kamath in constitutional debates

“TO MY MIND, A SECULAR STATE IS NEITHER A GODLESS STATE, NOR A IRRELIGIOUS STATE, NOR AN ANTI-RELIGIOUS STATE.”- H. V KAMATH

HERE WE ARE NOT INDIVIDUALS. HERE WE ARE, CITIZENS, OF INDIA AND THERE IS MUCH DIFFERENCE BETWEEN THE TWO. RELIGION WAS A VOICE OF OUR ANCIENT CIVILISATION AND THE PREAMBLE, A DOCUMENT OF PEOPLE OF INDIA, BY TAKING GOD’S NAME ONLY REFLECTED THE SPIRIT AND THE WILL OF THE INDIAN PEOPLE.”- H. V KAMATH

It can be referred from his mentioned quotes that Hari Vishnu Kamath was deeply adherent of his belief of the existence of God. He believed that the existence of God can be reflected from the very beginning of our human civilisation and the belief has been inherited to us by our ancestors.

In the constitutional debates he repeatedly mentioned how US constitution makers believed in basing the foundational pacts of the US democratic republic ‘in the name of God.’ He did not care much about the existence of religious differences among people, rather he stressed on the fact that the belief of secularism is inherent in our existence. According to him, whether one believes in God or not, secularism was deeply embedded in ‘Bharat’.

October 17, 1949

When the debate regarding the structure and the composition of the preamble continued, dissent and acrimonious arguments took over the atmosphere of the assembly when the inclusion of the concept of secularism in our preamble was being discussed. An expected line of differences was displayed between the founding fathers of our constitution that was almost invisible during the previous three years of the constitutional drafting.

On that day H.V Kamath proposed of moving an amendment to begin the preamble ‘By the name of God’. Other founding fathers i.e., Shiban Lal Saxena and Pandit Govind Malaviya also proposed to move similar amendments. I have been very much pained to see the attitude of some of our friends regarding the introduction of the holy name of God and the Father of the Nation at the beginning of our Constitution.

While they have a right to have their say, other people also have a full right to have their say. This country has always prided on its discoveries in the realm of the spirit and we are now afraid even to put in God’s name at the commencement of our Constitution. I am one of those who think that we have produced a great piece of work by preparing this Constitution.

There may be some defects in it. But I am sure we have done some very great things. It is only meet and proper that the name of God and the name of the Father of the Nation should be put at the beginning of our Constitution. I have therefore been very much pained to feel that some members merely at the mention of the name of God or the Father of the Nation feel that something is sought to be forced upon somebody.

If they feel that way, they are at liberty to have their opinion, but why force others who feel intensely in the matter to eliminate God’s name? I greatly regret the attitude of my friends. I hope they will reconsider it. This Constitution will probably build our country on a new pattern and on the basis of the ideals set by the Father of the Nation. It is therefore meet and proper that we should humble ourselves before God and pay homage to the Father of the Nation by incorporating their names in the very beginning of the Constitution”, said Shiban Lal Saxena.

Pandit Kunzru opposed the notion by objecting that the amendment displayed a narrow and a separatist view. In his reply pandit Malaviya said that beginning the preamble with the name of God does not prove to be anti- secular, as long as it was implicit that no particular religion is sanctified through this phrase. It was pointed out in the assembly that even the Irish constitution begins with the name of the almighty.[4]

Although, respected Shiban Lal Saxena and Pt. Govind Malaviya later refused to put forth the amendment in the course of debates in the assembly, H V Kamath chose not to change his stance.[5] It was when Dr Rajendra Prasad opposed him stating that this amendment was not in consonance with the basic structure of the constitution that advocated for religious freedom, that he quoted,

‘HERE WE ARE NOT INDIVIDUAL. HERE WE ARE CITIZENS OF INDIA AND THERE IS MUCH DIFFERENCE BETWEEN THE TWO. RELIGION WAS A VOICE OF OUR ANCIENT CIVILISATION AND THE PREAMBLE, A DOCUMENT OF PEOPLE OF INDIA, BY TAKING GOD’S NAME ONLY REFLECTED THE SPIRIT AND THE WILL OF THE INDIAN PEOPLE.’

Opposed to Kamath’s amendment continued to insist that religion was a matter of individual choice and in this matter the collective will should not be imposed. Another interesting objection was raised by Purnima Banerji who said that references to God should not be put into the constitution since that would make the sacred depend on the vagaries of democratic voting. She requested Kamath “not to put us to the embarrassment of having to vote upon god”.

Kamath’s amendment was defeated by 68-41 but neither did the assembly accept the suggestion from the other side to include the word secular in the preamble. According to Mr Kamath, the word “secular” was intricately linked to India’s National leaders and the incorporation of this word into the preamble would help in boosting the morale of the minorities thereby helping them feeling empowered. This would prevent the minorities feel alienated in the new country.

March 24, 1947

This is what Ambedkar wrote in a Memorandum on the Rights of States and Minorities, dated March 24, 1947, which he submitted to the Sub-Committee on Fundamental Rights set up by the Constituent Assembly’s Advisory Committee on Fundamental Rights, Minorities, etc.: “Unfortunately for the minorities in India, Indian nationalism has developed a new doctrine which may be called the Divine Right of the Majority to rule the minorities according to the wishes of the majority.

Any claim for the sharing of power by the minority is called communalism, while the monopolising of the whole power by the majority is called nationalism. Guided by such political philosophy the majority is not prepared to allow the minorities to share political power, nor is it willing to respect any convention made in that behalf as is evident from their repudiation.[6]

June 10, 1947

Sardar Vallabhbhai Patel in the constitutional assembly “I do not think it will be possible to consider Hindustan as a Hindu state with Hinduism as the state religion. We must not forget that there are other minorities whose protection is our primary responsibility.

The state must exist for all, irrespective of caste or creed.” If a Hindu state was excluded, what other state had Patel in mind but a secular one? (Durga Das; Sardar Patel’s Correspondence; Volume 4; page 56.)”

December 3, 1948

On December 3, 1948, Professor K.T. Shah moved this amendment. “The state in India being secular shall have no concern with any religion, creed or profession of faith; and shall observe an attitude of absolute neutrality in all matters relating to the religion of any class of its citizens or other persons in the Union.”

He acknowledged that “We have proclaimed it time and again that the State in India is secular”. Members agreed with that. There was no need to state the obvious. The amendment got nowhere. (Constituent Assembly Debates; Volume 7, page 815).[7]

December 7, 1948

On the same day, Lokanath Misra also said: “We have declared the state to be a secular state” (ibid). On December 6, H.V. Kamath said: “We have certainly declared that India would be a secular state” (ibid, page 825).

He was followed by Pandit Lakshmi Kanta Maitra, who said:

“By secular state, as I understand it, is meant that the state is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the state will receive any state patronage whatsoever. The state is not going to establish, patronise or endow any particular religion to the exclusion of or in preference to others and that no citizen in the state will have any preferential treatment or will be discriminated against simply on the ground that he professed a particular form of religion. In other words, in the affairs of the state the possessing of any particular religion will not be taken into consideration at all” (ibid, page 831).

On December 7, 1948, M. Ananthasayanam Ayyangar, later Speaker of the Lok Sabha, acknowledged: “We are pledged to make the state a secular one” (ibid, page 881)

Taking the term ‘secularism’ for granted members of the constitutional assembly debates proved that they saw no urgent need for its explicit mention either in the preamble or in the constitution itself.

Some of them thought it was too obvious in the culture of the nation to showcase it in the document for others due to the misconception of what it meant or better to say what Mr Kamath meant, as an imposition on the citizens of the country to worship God.[8]

42nd Amendment to the Constitution

The 42nd (Amendment) Act was noteworthy since it formalised the from before the status. It eliminated all uncertainty and left no room for debate. In such a case, it is unnecessary to argue whether the Preamble of the Constitution fits inside the definition of “the provisions of this Constitution.

The Preamble is crucial to interpreting the pertinent Constitutional clauses. The answer is clear-cut thanks to the 42nd (Amendment) Act. It is entirely irrelevant in the context, that what a party may be allowed to go to the public seeking a majority for a drastic amendment of the Constitution or its substitution by another Constitution.

We don’t understand how to modify the Constitution to do deal with secularism from the foundation of the document. We do not really know how the constitution may be substituted for a new one; all that we need to know is that the Constitution doesn’t allow for such a thing, that is, that it does not allow for the Constitution’s demise.[9]

The 42nd Amendment enabled the President to disqualify representatives of state legislatures in deliberation with the Election Commission. Even before to the Amendment, the Governor of the State held this power.

Article 105 was modified to enable each House of Parliament, its members, and committees to “evolve” their “powers, privileges, and immunities” on a “case-by-case” basis. Article 194 was amended to grant State Legislatures, their members, and committee members the same rights as Clause 21.

Two new provisions 4A and 26A were inserted into article 366 of the Constitution, which defined the meanings of the terms “Central Law” and “State Law” by inserting two new clauses 4A and 26A into article 366 of the Constitution, which defined the concept of the terms “Central Law” and “State Law.”

It amended articles 31, 31C, 39, 55, 74, 77, 81, 82, 83, 100, 102, 103, 105, 118, 145, 150, 166, 170, 172, 189, 191, 192, 194, 208, 217, 225, 226, 227, 228, 311, 312, 330, 352, 353, 356, 357, 358, 359, 366, 368 and 371F.

It inserted articles 31D, 32A, 39A, 43A, 48A, 131A, 139A, 144A, 226A, 228A and 257A and parts 4A and 14A. It also amended Schedule 7.

The words “SOVEREIGN DEMOCRATIC REPUBLIC” have been altered with “SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC,” and the words “unity of the Nation” have been replaced with “unity and integrity of the Nation.”

Article 31C’s scope was enlarged to cover all of the Constitution’s directive principles. Earlier, Article 31C only protected laws which gave effect to the directive principles of State policy specified in articles 39(b) and 39(c) (c).

New directives were added by new articles 39A, 43A, and 48A, which, respectively, provide for equality under the law and free legal assistance to economically backward classes, worker participation in production management, environmental conservation and improvement, and the restoration of wildlife and natural resources.

Article 31D now allows for the formulation of parliamentary legislation to deter or prohibit anti-national actions and anti-national associations. Besides that, it was mentioned that article 31D will not be considered void on the grounds that it deprives or restricts any of the fundamental rights granted by articles 14, 19, and 31.

In any writ deliberations under article 32, the Supreme Court will not have authority to make a decision about the constitutionality of a state law, according to new article 32A.

Part IVA, containing article 51A, was incorporated to provide lists of citizens’ fundamental duties. Article 74(1) was changed to require the President to act on the recommendation of the Council of Ministers. Articles 77 and 166, which deal with the Union government and state governments, have been amended to state that no court or other authority will be able to compel the creation of any regulations issued for the conduct of government business.

Article 102(1)(a) was amended to state that a person will be disqualified if he holds any profit-making office under the Government of India or the Government of any State that is announced by Parliamentary law to disqualify offices that vest in Parliament rather than the State Legislature.

It amended Articles 83 and 172 to extend the term of the Lok Sabha and each Legislative Assembly from five to six years during an emergency. It authorised the Union Government to install armed forces personnel in any state to cope up with a “serious situation of law and order.” It limited the Supreme Court’s and High Court’s jurisdiction over writs and judicial review.

In terms of constitutional amendment, the 42nd CAA established the supremacy of Parliament. Article 368 has been amended to state that no constitutional amendment will be challenged in court for any reason. It moved subjects from the State List to the Concurrent List, including forests, education, weights and measures, and the protection of wild animals and birds.

In the Concurrent List, a new entry 20A, “Population control and family management,” has been added.

The reasons why the amendment in the preamble was proposed and enacted through 42nd amendment act is that to be intact, the constitution must grow. The Constitution must be amended to address the challenges that have arisen in achieving the goal of socioeconomic upheaval, which would end poverty, ignorance, disease, and inequality of opportunity, among other things.

To amend the Constitution to expressly state the noble ideals of socialism, secularism, and national integrity, to broaden the directive principles and give them precedence over those fundamental rights that have been allowed to nullify socioeconomic reforms aimed at implementing the directive principles.

The entire system of secularism in India improved markedly. The terms “Sovereign Democratic Republic” were altered to “Sovereign, Democratic Republic” by the 42nd Constitutional Amendment Act (1976). Republic of Socialism, Secularism, and Democracy. The expression was first used when the Constitution included the concept of “secularism.”

Having a say in the motion for the Lok Sabha’s discussion of the Bill on October 25, 1976 H.R. Gokhale, the Minister of Law, Justice, and Corporate Affairs, defended the inclusion of the words “Socialism and Secularism” by referencing a Congress Resolution passed in Karachi in 1931, in which Pandit Nehru stated that their subsequent goal was to bring about a socioeconomic revolution in the nation: “The objective which we had always in opinion, namely socialism and secularism, which we had tried to implement, will be more and more emphasised.” In the Preamble, Sardar Swaran Singh said, “……” to support the inclusion of the idea.

However, I believe that the word “secular” today is now a component of our Indian languages. On November 2, 1976, the Lok Sabha passed the Bill after seven days of debate. The Rajya Sabha embraced the 42nd Amendment as enacted by the Lok Sabha two days later, on November 4, 1976, and after six days of discussion, passed it on November 11, 1976.

In general, members of both Houses supported the Preamble’s inclusion of the phrase “secularism.” As a result of the Indian polity’s rejection of theocracy and the state church in the post-Independence constitutional era and adoption of equality of all religions as the state policy, the term “secular” had no bearing on how the Constitution and legislation should be interpreted.

While the 42nd Amendment included the nebulous term “secularism,” Articles 25 to 30 of the constitution, which deal with the freedom of religion and the freedom to conduct religious affairs, are clearer. In the Indian constitution, the principles of a secular state are clearly embodied, and the requirements are being effectively carried out. However, the conditions following independence have repeatedly presented a problem for India’s secularism. India, a still-traditional civilization, is home to many customs that owe some of their origin to the various religions practised there. India has a rich traditional heritage, yet it has managed to keep its political system secular.[10]

H.V.Kamath’s stance on secularism

The word ‘secularism’, when newly introduced to the constituent assembly wasn’t easily accepted by the members and mainly due to misconceptions about the term itself.

Secularism meant the gradual weakening the bonds of religion and their replacement with nationalism. It meant that the state must not recognise religion as a public institution. It was not just a question of religious liberty but the establishment of rule of the state.

As Radhakrishnan’s speech on the Objective’s Resolution on Dec 13, 1946 asserted that “nationalism, not religion is the basis of modern life… the days of religious state are over. These are the days of nationalism”.

The second position on secularism contrary to the first was that no association between the state and the religion should be granted. Not as this would paralyse the state but because it would invalidate the religion.

The third position or the equal respect theory of secularism. Beginning with religious liberty, held that in society like India where religion was an indispensable part of people lives this principle entailed not that states stay away from all religions equally but respect all religions alike. This later became the face of Indian secularism

Lakshmi Kant Maitra and H.V Kamath claimed that ‘’ Indian state should not disavow India’s lofty religions and spiritual concepts and ideals. The west was in a crisis because of dominance of materialism, and it was looking towards India for regeneration of spiritual values.

The Indian state should refrain from following sectarianism and rather encouraging spiritual training to promote peace and harmony among religious groups and communities,

He supported imparting spiritual instruction to the citizens by the state. According to him, the deeper import of religion – the eternal values of the spirit …could be imparted by the state without violating the principle of contradiction between this article on religious instruction and the subsequent one on the cultural and educational rights of minorities.

Criticisms and opposition to H.V. Kamath’s view on secularism

Mr H.V. Kamath’s view on secularism was subject to a significant number of oppositions and criticisms by numerous members of constituent assembly. Amongst the members was a person named A.T. Pillai who opposed to Mr. Kamath’s and was of the view that the inclusion of the word secular in the preamble would be equivalent to suppression of individual’s right to freedom of faith.

According to him, by incorporating this word, the citizens were being coerced to follow a particular ideology of not favouring any religion which they might not wish to do.

One of the members of the assembly stated that as they all were the part of the history which witnessed the struggle for separation of religion and state and later on seen the state getting democratized. He also said that a state in which its core values include a free and democratic system. How can it even think of representing a religious majority at the cost of rights and liberties of minority.

As H.V. Kamath repeatedly mentioned US and the Irish constitution as an example of how they started the drafting of the constitution on a secular note members of the constitutional debates put up a fair argument stating how different was their demography and the religious diversity as compared to India. This also signified how complex and difficult was the association of the matter of religion and God with the state.

Once Rohini Kumar. Choudhary objected to Kamath’s amendment to start the preamble of the constitution “in the name of god” by questioning “May I move an amendment to that of Shri Kamath that, instead of ‘in the name of the god’ would he be pleased to accept ‘in the name of Goddess’ (laughter).

Replying to her Mr Kamath said, “in the first part of it, the future with reference to governance of the country the words used are ‘her future Governance’, her being apt for motherland. That being so we should say ‘her’ and not ‘its’ citizens in the preamble. I would leave this however to the drafting committee”.

The amendment proposed in the preamble by H.V. Kamath ‘in the name of God, we, the people of India, having solemnly resolved to constitute India into a sovereign, democratic, republic, and to secure to all her citizens’.

Views of other stalwarts on secularism

Pandit Jawaharlal Nehru

Pandit Jawaharlal Nehru was one of those members of constitutional assembly who strongly supported the proposition of including the world ‘secularism’ in the preamble. According to the former Prime Minister, there existed four tenets of secularism:

Firstly, he believed in the equal respect theory i.e., equal love and respect towards all religion and providing equal opportunities to all the citizens to practice, profess any religion of choice.

Secondly, he believed neutrality in the matters of the religion in a country as he drafted the Karachi congress resolution 1931 ‘state shall observe neutrality in the matters relating to religion, where, the state should not associate itself with any religion for the matter.’

Thirdly, he believed in the non-interference of one religion with affairs of another. And fourthly, he believed in the existence of secularism in every dimension of political sphere where an individual is never subjected to social inequalities due to religious sanctions.[11]

Mahatma Gandhi

Gandhiji was someone who was deeply influenced by ancient Hindu texts like the Bhagawada Gita, Vedas and Upanishads and religious personalities like Aurobindo during the growing phase in his life. He like H.V. Kamath believed that religion was deeply embedded in lives of people of India.

According to him, the true aim of education was to produce individuals who took responsibility of society spreading the learning of dharma. Though he believed in religious education and preaching the learnings of religious texts, he deeply condemned communalism in not only educational institution but every possible public sphere.

He advocated inclusiveness of all religions in the society where people from different culture, faiths, communities, beliefs coexist in harmony. Gandhiji was primarily a nationalist who often said that, ‘We are first Indians, and then Hindus, Muslims, Christians etc.’

B.R. Ambedkar

It was a little surprising to observe from the constitutional debates that there existed some silence and opposition for Mr. Ambedkar’s side while including the word secularism in our preamble. He argued in the assembly major secular constitutions in the world did not showcase their secular credentials in their respective preambles.

According to him, India had recently come out of a horror experience, that is the trauma of partition with intense sectarian bloodbath and was crucial to prevent such incident in the future. Hence, at that point of time Mr. Ambedkar was more devotes towards inclusion of the word ‘socialist’.

He argued that there was no specific need of mentioning secularism in the preamble that already consisted of words like equality, fraternity etc.[12]

Sardar Vallabbhai Patel

Sardar Patel was someone who respected minorities and was primarily a nationalist. He opposed Hindu communalism just as staunchly as he condemned the Muslim League. According to him, both the Muslim communalists and R.S.S workers belong to the same category and hence, tried to treat them in an even hand.

Sardar’s attitude to minorities vacillated from touchiness (about betrayal of faith or factionalism among colleagues) to generosity. Sometimes, especially in the 1920s, Patel sounded self-critical in critical in dealing with the fears and need of the minorities.

A famous quote in this respect came in Bharuch in 1921 which urged Hindus to join the Khilafat movement, ‘Hindu Muslim unity is yet like a tender plant. We have to nurture it extremely carefully over a long period; for our hearts are not as clean as they should be.’

Patel, despite his dislike some nationalist Muslim leaders, was not keen to to deprive any minorities of the few constitutional safeguards they wanted to protect themselves against ‘majoritarianism’.

In the constitutional assembly Patel was the chairman was the Chairman of the advisory committee. He pacified fears of the minorities with the constitutional safeguards instead of creating anxieties among them.

He even got the Constitution to guarantee to minorities the right to conserve their ‘distinct language, script or culture’ and establish and administer educational institutions of their choice under Article (s) 29 and 30.[13]

The situation of secularism in the present scenario

In Indira vs Rajnarayana 1975 AIR, SC 2299[14] case hon’ble Supreme court of India, explaining the basic feature of secularism, held that ‘the state shall no religion of its own and all persons of the country shall be equally entitled to freedom of religion and have the right to free profess, practice and propagate the religion of their choice.

In the S.R. Bommai vs Union of India case[15], the Hon’ble Supreme court while upholding the dismissal of four state governments ruled by BJP, on the ground of religious conduct, held that “secular not only meant that the state should have no religion of its own and should be neutral to different religious groups, but that political party which sought to capture the power, the religious would capture the power, the religious would come to a secondary or less favourable position

So, far we have studied about H.V. Kamath’s stand about secularism, his impact of his contributions in making of the constitution of India. He had his own vision regarding secular Indian society in future.

Now the question to be thought about is that whether our current society is functioning keeping secularism as a fundamental value in accordance with Kamath’s thought about it. If we talk about H.V. Kamath, he himself was a believer of God. He always supported basic core message of secularism that everyone should be free to profess belief they want to and state should not favour or discriminate against any particular religion.

According to him and his contemporary political leaders, secularism is not for forcing any individual to not follow any ideology and making them feeling isolated /cut off. In fact, secularism was essential to bring equality in nation having masses following diverse ideology and having conflicting faiths on every point.

During the debate on inclusion of word secular in the preamble through 42nd constitutional amendment in the parliament Sardar Swaran Singh justified the inclusion of the concept in the Preamble by saying that the goal that we have always had in mind, namely socialism and secularism, will be more and more implemented, and will be more accurately and correctly reflected in a fundamental part of our Constitution, namely the Preamble “…… But secular is now a word that I believe has entered our Indian languages and nowadays as we can see core values that secularism embrace in it is getting depleted day by day.

It is nothing which happens suddenly or by any external force or agent. It is a result of pre-planned manipulative steps of some sections of society which are using secularism just as a tool for aggravating and inciting the frustration in the people’s mind, to create a wall of difference between common people just to serve their own self-interests.

Political leaders which are supposed to act as an enabler of secularism in the society uniting and promoting an emotion of coherence and harmony among citizens. But the blindness due running behind convincing a vote bank has resulted into them behaving irresponsibly

Nowadays announcements are made by the leaders to make immortal, fragile monuments of a particular religion by bulldozing already present shrine at that place that shows how bad the state is, wherein open challenges are thrown by one faction to the other. Law and order implementing authority responsible for taking the initiative of interfering and channelising them in a lawful direction either by consulting or taking strict action against this if needed, they are just witnessing it happening as a disabled silent spectator.

Laws which are the means of establishing equality and order in society are also legislated, amended or interpreted in the pursuance of fulfilling some ulterior motives. Recently we can see how government authorities are violating the provision of The Places of Worship Act, 1991 by trying to change the nature of some worship places which are not permitted.

It is not only limited to Political field but also visible with the common people especially the younger generations from whose secularism are fading.  Now it is the time when we have to actively ponder upon this critical matter before it gets more serious and becomes incurable.

There is a need of putting a full stop on statements which are made in-vigilantly and the perpetrators of the same need to be punished on a serious note.

Secularism is today practised as an option because it is not imposed on us by the constitution.  The thing which we can do is to add more substantiveness to our constitution or law-making process not by forcefully imposing it, but making it compulsory for the policy makers to take secularism into account by formulating policies and for authorities while governing the masses.

From the perspective of secularism Indian policy making might seem a little paradoxical. On one hand we support secularism on paper but on the other we end up creating policies like reservations for parts of the population based on religious criteria.

For example, granting special reservation for Lingayat Brahmins, demands by tribal groups in the north-eastern states to grant them special status just based on religion, demands Gurjar sect in Rajasthan. This shows that how people today are using religion as a tool to establish their supremacy. Instances like this proves a gradual weakening of the heart and soul of the constitution today.

Pt. Jawaharlal Nehu himself supported secularism in the secularism it in the constitutional assembly that having reservations based on religion or sects contradicts the entire basis of secularism in a country

Other contributions to constitutional drafting

Kamath charged the Drafting Committee with ‘dishonestly’ copying the Emergency Powers Act, 1920 of the UK. Regarding Article 359, he stated that the clauses were “hazardous” and that India ought to act more responsibly given that even the British government did not restrict the right to constitutional remedies during World War II.

T.T. Krishnamachari, a member of the Drafting Committee, supported the inclusion of emergency powers by referencing the background of the Emergency Powers Act, 1920. The clauses, according to him, were put in place to make sure that “all our efforts all these years spent in Constitution-making may not go in waste and that those who will be in power in the future would be appropriately equipped to defend the Constitution.”

Kamath cautioned the Assembly about the German experiences during the discussions surrounding Article 352: Hitler used the emergency powers in the Weimar Constitution to impose a dictatorship.

In his defence of strict measures to prevent the executive branch from abusing its emergency powers, Kamath said: “Unfortunately, we who profess to construct a Sovereign Democratic Republic in India have no use for such precautions.” We have complete faith in the executive. God willing, may our faith be established.

Ananthasayyam Ayyangar suggested changing “India” to “Bharat” in the Draft Article at the constituent assembly session while it was being written. Ambedkar then proposed an amendment that stated, “Bharat, or India, shall be a Union of States.” This amendment was the subject of heated discussion in the Assembly.

H.V. Kamath proposed two alternatives to Ambedkar’s amendment: the first changed the Article’s language to read “Bharat or, in the English language, India,” and the second substituted the term “Hind” for “Bharat.”

Kamath never suggested doing rid of “India” completely; instead, he intended to give “Bharat” more prominence while still using “India” as the English name for the nation, similar to how the Irish Constitution does.

H. V. Kamath said “India, that is, Bharat,” according to the House-approved draught, is written. India, that is Bharat, is stated in the updated text that was presented to the House. That, in my opinion, was not the House’s intention when we approved Article 1. That is, India was the intended phrase. Bharat.

For this reason, the phrase was interpolated and two commas were added. I do not mean to say, “India is Bharat.” When it comes to the intended meaning, this is incorrect English. I believe the original was flawless, and the Drafting Committee’s decision to alter the wording was wholly incorrect.

India is a foreign word originated from the Greek language, according to Seth Govind Das. Das did bring up this point in his address, but he did so simply to promote giving the Hindi word “Bharat” primacy; he never argued for the removal of “India” from the Article.

In the end, Ambedkar’s amendment was approved to become Article 1 of the Constitution of India, 1950, whereas Kamath withdrew his amendment. These discussions demonstrate that “India” was not supposed to suffer because “Bharat” was included in Article 1 of the Constitution.

We have indeed learned about H.V. Kamath’s views on secularism and the influence of his work on the Indian Constitution. He expressed his own ideas about how a futuristic, secular India would look. The question that needs to be considered is whether or not our current society maintains secularism as a fundamental virtue in line with Kamath’s understanding of it.

When it comes to H.V. Kamath, he was a person of faith. He has always backed secularism’s fundamental tenets, including the freedom for all individuals to proclaim whatever beliefs they choose and the prohibition against favouring or discriminate against any one religion. He and his contemporaneous political leaders contend that secularism is not just about segregating or cutting off people from society through requiring them to reject all ideologies.

In reality, secularism was critical to achieving equality in a time when the majority of people adhered to conflicting philosophies and held conflicting religious beliefs across every issue.

However, as we can see presently, secularism’s fundamental beliefs are disappearing faster than ever. Nothing happens suddenly or as a result of an outside force or act. It is the outcome of pre-planned, deceptive actions taken by a certain group of persons who use secularism as a tool to incite and aggravate people’s discontent with one another in order to further their own selfish interests.

Political leaders are dedicated to keeping society united and fostering a sense of cohesion and harmony among its members in order to facilitate secularism. For the sake of the Project will produce Karna Vote Bank, they are likewise acting recklessly.

It is a sign of how bad the situation is when open challenges are thrown from one faction to the other when leaders today announce plans to build immortal, fragile monuments of a certain religion by demolishing an existing shrine. They should take the initiative to intervene and set them on the right path by offering advice or, if necessary, taking strict action against this; instead, they are just watching it happen as a helpless spectator.

Laws that are employed to create equality and order in society are also passed, changed, or understood in order to further some Desired outcomes. Recent events demonstrate how government officials are trying to change some worship locations’ characteristics in a way that is against the law.

It is not just limited to the political sphere; it is also affecting the public at large, particularly the younger generation, whose views on secularism are fading. Now is the moment to actively consider this important issue before it worsens and becomes irreversible.

Views expressed carelessly must be stopped, and everybody needs to be made aware of the repercussions that will follow if they act in a way that is contrary to it (the secular spirit of society).

As it was just mentioned in the preamble of the constitution, we as a nation adhere to secularism as a moral necessity. However, it is more of a choice and morally followed ideal. Giving it more substance in our constitution or law-making process is something we can accomplish, but not by imposing it forcibly on citizens.

Instead, we may force authorities to work compulsorily with it in mind for every function, including law-making and benefit transfers in public social welfare.[16]

Conclusion

We began this project with the discussion about the background and historical facts about who H.V Kamath was and stating about his contributions in the Indian constitution, continuing with description of secularism and stating the forms of secularism in India.

We discussed about the constitutional debates where H.V Kamath mentioned why the word “secular” is important to be mentioned in the preamble to which many political leaders went against his proposal for amendment and only a few supported his argument. Including H.V. Kamath and other stalwarts we divulged into their stances and views on secularism.

To this we added criticisms to H.V. Kamath views to understand why the inclusion of the term was not acceptable at the that period of time during drafting the Constitution. We analysed in-depth the provision of the forty second amendment of the Indian constitution to look at how the concept evolved during a period of time in Indian post-colonial history and also discussed the relevance of values proposed by Kamath in during the debates.

We also mentioned some other contributions of H.V Kamath towards drafting the constitution to highlight the fact that secularism is just one of the hundred roles he played in the same.

 

References:

[1]“Constitution Of India’ (Constitutionofindia.net, 2022) <https://www.constitutionofindia.net/constituent_assembly_members/h_v__kamath> accessed 13 October 2022.”

[2] “Vikram Doctor, ‘HV Kamath: The Contrarian Who Became Legendary for His Antics and Interjections’ (The Economic Times, 2022) <https://m.economictimes.com/news/politics-and-nation/hv-kamath-the-contrarian-who-became-legendary-for-his-antics-and-interjections/articleshow/73615398.cms> accessed 14 October 2022”.

[3] ‘’What is secularism? ‘<’https://www.secularism.org.uk/what-is-secularism.html> accessed 20 September 2022

[4] “Shefali Jha, ‘Web Login Service’ (Shibbolethsp.jstor.org, 2022) <https://shibbolethsp.jstor.org/start?entityID=https%3A%2F%2Fidp.nluo.ac.in%2Fidp%2Fshibboleth&dest=https://www.jstor.org/stable/4412419&site=jstor> accessed 14 October 2022.

[5] https://www.constitutionofindia.net/constitution_assembly_debates/volume/10/1949-10-17”

[6] “https://www.constitutionofindia.net/constitution_assembly_debates/volume/10/1949-10-17”

[7] “’Constitution Of India’ (Constitutionofindia.net, 2022) <https://www.constitutionofindia.net/constitution_assembly_debates/volume/7/1948-12-03> accessed 14 October 2022.”

[8]“ ‘Constitution Of India’ (Constitutionofindia.net, 2022) <https://www.constitutionofindia.net/constitution_assembly_debates/volume/10/1949-10-17> accessed 14 October 2022.”

[9] “’THE CONSTITUTION (FORTY-SECOND AMENDMENT) ACT, 1976|Legislative Department | Ministry Of Law And Justice | GOI’ (Legislative.gov.in, 2022) <https://legislative.gov.in/constitution-forty-second-amendment-act-1976> accessed 14 October 2022.”

[10] “Rajkumar Singh (Arjps.org, 2022) <http://arjps.org/archive/articles/eng/02_2016/Singh.pdf> accessed 14 October 2022.”

[11] “’Constitution And Secularism’ (Heinonline, 2022) <https://heinonline.org/HOL/Page?collection=journals&handle=hein.journals/nlsind6&id=67&men_tab=srchresults#> accessed 28 September 2022.”

[12] “’Constitution Of India’ (Constitutionofindia.net, 2022) <https://www.constitutionofindia.net/constituent_assembly_members/h_v__kamath> accessed 13 October 2022.”

[13] “Vivek Gumaste, ‘Sardar Patel, Jawaharlal Nehru Viewed Secularism Differently’ (Hindustan Times, 2022) <https://www.hindustantimes.com/india/sardar-patel-jawaharlal-nehru-viewed-secularism-differently/story-c5hdgQExH7cveikNFSPdXL.html> accessed 14 October 2022.”

[14] “Indira Nehru Gandhi v. Raj Narain, 1975 Supp SCC 1”

[15]“ S.R. Bommai v. Union of India, 1989 SCC OnLine Kar 253”

[16]“ ‘Constitution Of India’ (Constitutionofindia.net, 2022) <https://www.constitutionofindia.net/constitution_assembly_debates/volume/11/1949-11-19> accessed 17 October 2022.”

 

This article has been authored by Digvijay Khatai and Naveen Singh, students at National Law University, Odisha.



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