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Current Affairs

Plea against Emergency in Supreme Court

Date: 18 December 2020 Tags: Constitution

Issue

The Supreme Court has agreed to look into whether it should examine the constitutionality of the proclamation of national Emergency in 1975 by the then Indira Gandhi-led government.

 

Background

The issue came up before the court as an individual is seeking compensation for the loss she suffered due to the proclamation of emergency.

 

Details

  • 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 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. 

  • Emergency is considered as a dark period in India’s democracy as it initiated media censorship, suspension of civil liberties and attempts to fundamentally change the Constitution to suit the government.

Amendments during Emergency

  • 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 the provisions relating to Emergency itself was strengthened to prevent misuse by the executive.

Emergency provisions

  • National emergency could be declared on the basis of "external aggression or war" and "internal disturbance" in the whole of India or a part of its territory under Article 352.

  • But after 44th amendment act 1978, National Emergency can only be declared on grounds of "External aggression or war", also called as External Emergency & on the ground of "armed rebellion", also called as Internal Emergency.

  • The President can declare such an emergency only on the basis of a written request by the Cabinet headed by the Prime Minister.

  • Such a proclamation must be laid before both houses of Parliament and the state of emergency expires after one month unless approved within that time by both houses sitting and voting separately through a special majority.

  • During a national emergency, many Fundamental Rights of Indian citizens can be suspended. The six freedoms under Right to Freedom (Article 19) are automatically suspended.