December 17, 2020 8:43:30 pm
The Supreme Court of India. (Photo Express)
The Supreme Court agreed to study whether it should examine the constitutionality of the proclamation of National Emergency in 1975 by the then congressional government headed by Indira Gandhi. The matter came up in court when 94-year-old Veera Sarin seeks compensation for the loss she suffered due to the emergency proclamation.
What is the Supreme Court investigating?
A bench of three Supreme Court judges, chaired by Justice Sanjay Kishan Kaul, reluctantly agreed to examine whether the court could examine whether the Emergency proclamation was constitutional. The court was reluctant to address the issue as 45 years have passed since the emergency declaration and examining such an issue on the merits now could be a cumbersome process. 📣 Follow Express explained on Telegram
“If history is not corrected, then it will repeat itself,” argued lead defender Harish Salve, who appeared for Sarin. The court then asked Sarin’s lawyers to amend their statement. It will be heard again on December 18.
What was the emergency?
On June 12, 1975, the Allahabad High Court had declared the election of the then Prime Minister Indira Gandhi null and void. Following the court’s decision, Gandhi moved to the Supreme Court and Krishna Iyer stayed the higher court’s decision, allowing Gandhi to remain prime minister while limiting his right to vote in parliament until the appeal was decided. After an opposition rally for the resignation of Indira Gandhi, he made the decision to impose a national emergency that would grant broad powers to the central government.
On June 25, 1975, then-President Fakhruddin Ali Ahmed, based on article 352 of the Constitution, declared a national emergency in the country. The notification of the Emergency proclamation was published in the Official Gazette on June 26, 1975 when it came into effect.
In 1975, the president could impose an emergency if he was satisfied with the “persistence of a serious threat to the security of the whole of India or of a territory of India, whether by war, external aggression or internal unrest.”
What happened after the proclamation of Emergency?
From the censorship of the media, the suspension of civil liberties, and attempts to fundamentally change the Constitution to suit the government, the Emergency is seen as a dark period in India’s democracy. Constitutional amendments 38 to 42 were passed during the emergency, sparking a dispute between the executive and the judiciary that would have a lasting impact on the power of Parliament to amend the Constitution. Many of these changes were overturned by the courts or reversed in the 44th constitutional amendment of 1978, which was introduced after the Janata government was elected to power.
Through the 38th Constitutional Amendment, Ms. Gandhi sought to expand the power of the President and prohibited judicial review of the proclamation of Emergency by the President or any ordinance issued by the President, even if it infringed on fundamental rights guaranteed by the Constitution.
The 39th amendment was intended to nullify the effect of the Allahabad High Court ruling that declared Gandhi’s election null and void. The amendment places any dispute to the election of the office of Prime Minister, President, beyond the scope of judicial review.
The 40th Amendment placed crucial land reforms on the Ninth Calendar, beyond the scope of judicial review.
The 41st Amendment said that no criminal proceedings “of any kind” could be brought against a president, prime minister or governor for acts before or during his term.
In the 42nd amendment, Parliament expanded its powers to amend the Constitution, including its “basic structure,” and to restrict fundamental rights.
Through amendments 43 and 44, many of the amendments made during the Emergency were withdrawn and Article 352- the provisions relating to the Emergency itself were strengthened to prevent misuse by the executive.
Why does the petitioner seek help 45 years after the emergency?
Sarin has claimed in his plea that several of his real estate properties were illegally occupied for his activities during the Emergency. She also states in her guilty plea that she won her lengthy legal battle in the Delhi High Court for control of her late husband’s properties in July this year. Furthermore, the Delhi High Court also ordered a rent to be paid to Sarin as compensation for the illegal occupation of the property.
That order, five months ago, led Sarin to file a plea claiming damages for the alleged harassment suffered by the imposition of the Emergency.
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