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Plea in SC against Emergency: Why is the petitioner seeking relief now?

45 years after Emergency, why has 94-year old Veera Sarin moved the Supreme Court seeking relief? What has the apex court said in response to her petition?

Written by Apurva Vishwanath , Edited by Explained Desk | New Delhi | Updated: December 18, 2020 9:54:06 am
Article 32 and Supreme CourtThe Supreme Court of India. (Express Photo)

The Supreme Court agreed to look into whether it should examine the constitutionality of the proclamation of national Emergency in 1975 by the then Indira Gandhi-led Congress government. The issue came up before the court as 94-year old Veera Sarin is seeking compensation for the loss she suffered due to the proclamation of emergency.

What is the Supreme Court looking into?

A three-judge bench of the Supreme Court headed by justice Sanjay Kishan Kaul, rather reluctantly agreed to examine if the court could examine whether the proclamation of Emergency was constitutional. The court was hesitant to take up the issue as 45 years have passed since the declaration of Emergency and examining such an issue on merits now could be a cumbersome process.  

“If history is not corrected, then it will repeat itself,” senior advocate Harish Salve, appearing for Sarin, argued. The court then asked Sarin’s lawyers to amend her plea. 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 then Prime Minister Indira Gandhi as null and void. Following the court decision, Gandhi moved the Supreme Court and a vacation bench of justice Krishna Iyer stayed the high court’s decision allowing Gandhi to remain as PM while limiting her right to vote in the parliament till the appeal was decided. Following an opposition rally for the resignation of Indira Gandhi, she made a decision to impose a national Emergency which would give the central government sweeping powers.

On June 25, 1975 then President Fakhruddin Ali Ahmed relying on Article 352 of the Constitution declared a national Emergency in the country. The notification of the proclamation of Emergency was published in the official gazette on June 26, 1975 when it took effect.

In 1975, the President could impose Emergency if satisfied with the “persistence of a grave threat to the security of the whole of India or a territory of India, either by war, external aggression or internal disturbances.”📣 Follow Express Explained on Telegram

Veera Sarin

What happened after the proclamation of Emergency?

From media censorship, suspension of civil liberties and attempts to fundamentally change the Constitution to suit the government, the Emergency is reckoned as a dark period in India’s democracy. The 38th- 42nd Constitutional amendments were passed during the Emergency which led to a tussle between the executive and the judiciary that would have a lasting impact on the Parliament’s power to amend the Constitution. Many of these changes were either overturned by courts or were reversed in the 44th Constitutional amendment in 1978 which was brought in after the Janata government was voted to power.

Through the 38th Constitutional Amendment, Mrs Gandhi sought to expand the power of the President and barred judicial review of the proclamation of Emergency by the President or any ordinance issued by the President even if it infringed upon the fundamental rights guaranteed under the Constitution.

The 39th amendment was intended to nullify the effect of the Allahabad High Court ruling that declared Gandhi’s election as null and void. The amendment placed any dispute to the election to the office of the Prime Minister, President beyond the scope of judicial review.

The 40th amendment placed crucial land reforms in the Ninth schedule, beyond the scope of judicial review.

The 41st Amendment said no criminal proceedings “whatsoever” could lie against a President, Prime Minister, or Governor for acts before or during their terms of office.

In the 42nd amendment, the Parliament expanded its powers to amend the Constitution, even its ‘basic structure’ and curtail any fundamental rights.

Through the 43rd and 44th amendments, many of the amendments made during the Emergency were withdrawn and Article 352- the provisions relating to Emergency itself was strengthened to prevent misuse by the executive.

Why is the petitioner seeking relief 45 years after the Emergency?

Sarin has claimed in her plea that a number of her immovable properties were illegally occupied for their activities during the Emergency. She also states in her plea that she won her long legal battle in the Delhi High Court for control of the properties owned by her late husband in July this year. Additionally, the Delhi High Court also ordered that rent be paid to Sarin as compensation for 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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