26 June 2021 marked the 46th anniversary of the first and only declaration of emergency in India. Fundamental rights were cast aside and wholesale amendments to a range of national laws were undertaken. Scholarly works around the emergency continue to be written aiming to fully document this exceptional period in post-independent history.
The members of the Constituent Assembly debated the Draft Constitution’s emergency provisions between August and October 1949. H.V. Kamath mounted the most vociferous attack on these emergency provisions. His interventions cited the constitutional architecture and experience of other countries.
Kamath accused the Drafting Committee of plagiarising UK’s Emergency Powers Act, 1920 in a ‘dishonest manner’. While discussing Article 359, he added that the provisions were ‘dangerous’ and since even the British government did not suspend the right to constitutional remedies during World War II, India should do better.
T.T Krishnamachari, Drafting Committee member, defended the inclusion of emergency provisions and invoked the historical context of the Emergency Powers Act, 1920. He argued that the provisions were meant to ensure ‘that all our efforts all these years spent in Constitution-making may not go in vain and those people who will be in power in the future would be adequately empowered to save the Constitution.’
During the discussions around Article 352, Kamath warned the Assembly about the German experience: Hitler used emergency provisions in the Weimar Constitution to establish a dictatorship. Kamath argued for strong safeguards against the misuse of emergency powers by the executive: ‘…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…’.
Around 25 years later, unfortunately, Kamath’s fear of an unchecked executive came true.