Apparently Mr. Bhupesh Gupta (CPI) and some other opposition MPs have learnt nothing from their experience during the emergency. Else they would not propound so persistently and enthusiastically the view that Parliament’s powers to amend the Constitution are unlimited and that the Supreme Court has no right to restrict them. Even before the emergency they should have known that in reality Parliament is a euphemism for the ruling party, when the latter has the necessary two-thirds majority in both Houses, and that to ask for unlimited powers for Parliament is to arm the executive with the right to do what it likes. Even the ideological prejudices of the Marxists among them should not have blinded them to the obvious fact that they could not continue to enjoy the rights guaranteed to them and other citizens under the Constitution if it was open to the government of the day virtually to scrap the fundamental rights on the pretext of subordinating them to the vaguely worded directive principles.
The inclusion of the right to property among the fundamental rights undoubtedly clouded the larger issue of individual freedom. Even so, the more perspicacious among the leftists and so-called progressives should have had the foresight to realize that it is necessary to put restraints on the powers of the executive backed by a docile majority in Parliament and that one fairly effective way to do it is to uphold the independence of the judiciary and its right to review legislative enactments, including amendments to the Constitution. The imprisonment of some of them under the Preventive Detention Act should have alerted them, on the one hand, to the importance of the fundamental rights and the judiciary which alone can enforce these rights and, on the other, to the limitation of Parliament as a protector of the rights of dissident citizens. However, before the emergency one could understand the innocence of men like Mr. Bhupesh Gupta. After that it passes comprehension.
Several issues have got mixed up so thoroughly that it has become extremely difficult to separate them. This difficulty is compounded by the pervasive tendency among us to discuss practical issues as if they were absolute categories. But it is necessary to separate issues in order that they can be discussed dispassionately. It is, for example, possible to accept that in June 1975 it was necessary to proclaim the emergency without conceding the legitimacy of subsequent enactments like the 42nd amendment to the Constitution and the Prevention of the Publication of Objectionable Matters Act. These would have institutionalized the emergency and so made permanent what was initially conceived as a temporary measure. Similarly, it is possible to acknowledge the need to limit the right to property in respect of land and other means of production without agreeing that it is necessary to nullify it altogether.
One can even accept the need for a measure like MISA to deal with an extraordinary situation without conceding that in 1975 and 1976 the government was justified in barring courts from reviewing all detentions under the Act, however mala fide and unrelated to the security requirements of the state. Such uneasy compromises are not unknown in democracies. In fact they are the essence of democracy. Authoritarian individuals and regimes look for absolute principles and final solutions. Democracies do not invent conflicts between individual rights and social good. They deal with them pragmatically as and when they arise. Only dictators and would-be dictators manufacture such dichotomies and they end up both destroying individual liberty and suppressing society. All dictatorships bear witness to that. And once the process gets entrenched it becomes difficult to reverse it.
A section of the post-Mao Chinese leadership realised the havoc the lack of any kind of legal safeguards for the individual had played and it tried to fill the dangerous lacuna. It wrote certain rights into the Constitution and allowed the citizens the freedom to express their viewpoints in the form of posters which they could put up on a certain wall in Beijing which came to be known for that reason as Democracy Wall. But it has had to go back on even these limited reforms because it has come to fear that it might be overwhelmed by popular discontent on the one hand and the manipulations of the entrenched Maoist supporters of the ‘Gang of Four’ on the other.