The Union government should accept with good grace the Supreme Court’s judgment striking down sections 55 and 4 of the constitution (42nd) amendment act, 1976. It will be within its rights to appeal against the verdict to a full bench of the Supreme Court. But it will be well-advised not to do so. The chances are the full bench, too, will uphold the judgment. For there cannot be much doubt that the two sections are contrary to the spirit of the Constitution. They confer on Parliament the power to amend the Constitution in such a fashion as to destroy its essential or basic features or even its basic structure. In case a ruling party with the necessary two-thirds majority in Parliament decides to push through such an amendment, all that it has to do is to state in the proposed bill that it is intended to implement certain directive principles which were by design formulated in vague and general terms because they were no more than broad indications of long-term objectives. But the likely verdict of the full bench of the Supreme Court is only one reason why in our view the government should not go in appeal against the present judgment. There is another equally weighty reason for it not to do so. By accepting the judgment it can at one stroke set at rest all misgivings regarding its long-term intentions and create the climate of trust and confidence which is so essential to the proper functioning of a democracy. We do not give credence to the rumours that Mrs. Gandhi proposes to amend the Constitution after the forthcoming vidhan sabha elections in order to divest it of its liberal provisions and establish some kind of authoritarian rule. But such fears exist even among those sections of the community which have not been ill-disposed towards her in recent years. Mrs. Gandhi needs to remove these apprehensions in the interest of promoting a healthy political climate. The Supreme Court’s judgment gives her an excellent opportunity to make a beginning.
There is no reason to dispute the accuracy of a statement Mrs. Gandhi made before she returned to office last January. She said that in the summer of 1975 she was not even aware of the implications of the emergency provisions in the Constitution and that she was persuaded to invoke these by some of her aides who subsequently turned against her and accused her of having surrounded herself in that period with a caucus headed by Mr. Sanjay Gandhi. Similarly, there cannot be any doubt that these very men pushed her into measures like the supersession of three judges of the Supreme Court and incorporating into the Constitution provisions which have now been struck down. Some of them claimed to be radicals, although nothing in their record could have confirmed this claim. It is difficult to believe that they were planning to push through truly radical socio-economic changes or that they thought it necessary to arm the executive with extraordinary powers and thus to secure the enactment of the 42nd amendment with that end in view. But they did it and with disastrous results. It is possible that Mrs. Gandhi went along with them because she shared their objective of depriving the judiciary of the powers to review the actions of the executive which the Constitution confers on it. In view of the judgments of the Allahabad High Court and of the vacation judge of the Supreme Court in the election petition against her, she was perhaps distrustful of the judiciary. On top of it, the emergency created a strange atmosphere in which the long-term perspective was lost. All that is an old story. Mrs. Gandhi’s objective must now be very different – to bind the wounds inflicted on the Indian political system in the last six years and restore the atmosphere of trust, confidence and hope which distinguished India from most countries in Mr. Nehru’s days.
In the past some groups have sought to make out that the Constitution as it exists is a barrier to progress and change, and that the judiciary as it is constituted interprets the basic law of the land in a manner that favours vested interests. They have never been able to substantiate this view. If anything, it is the failure of the executive to frame and implement rational and viable policies that has stood in the path of the country’s development on the one hand and justice for the weaker sections of the community on the other. Bihar is a case in point. The landlords there have defied with impunity various land and other laws intended to improve the lot of the Harijans and the tribals. They have resorted to prolonged litigation. But they have not depended on the court to protect their interests. They have had the support of politicians and bureaucrats and they have felt free to hire armed thugs to beat up ‘recalcitrant’ landless labourers trying to enforce their rights under the law.