CONSTITUTIONALITY OF 1975 EMERGENCY CHALLENGED IN SC AFTER 45 YRS

In 2020, India completed 45 years from the National Emergency of 1975. It was the third national emergency declared in the nation. Indira Gandhi, the then Prime Minister was declared guilty of electoral malpractices and was barred to participate in any election from 12th June 1975  till the next 6 years and the Congress party was given 20 days-time to find a replacement. Indira Gandhi challenged this judgement in the Supreme Court. However, the Court on 24th June 1975 reiterated the same and held that till the stay period, Indira Gandhi had the powers of a PM. At around 9:30 p.m., on 25th June 1975, the proposal for proclamation of Emergency was sent to President Fakhruddin Ali Ahmed and Indira Gandhi acting as the prime minister invoked Article 352 of the Constitution and announced a National Emergency due to ‘Internal disturbance’. The press, media, movies and any other kind of art was censored and all other fundamental rights were suspended. After 45 years of this national emergency, a woman named Vera Sarin filed a petition before the Apex Court to declare the emergency of 1975 as ‘unconstitutional’. She states that she and her family were the victims of the excesses of that ‘grave and dark period of our nation’s history’. She stated the miserable living condition of her family due to exploitation by government administrators. Vera Sarin’s husband had a business of gold arts, gems, artefacts etc. and was booked under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1947 (COFEPOSA) and the Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act of 1976 (SAFEMA). The case was dismissed by Delhi High Court in the year 2014. However, he was thrashed with numerous other cases, threatened by police and their family property was raided repeatedly. The petition stated, “Even as on date, the movable properties including jewellery, artefacts, figurines, paintings, sculptures, and other valuables have still not been reinstituted to her family. The petitioner is entitled to be compensated for the acts, deeds and things done under the authority of the government,” thus the petitioner has claimed compensation of Rupees Twenty-five crore. The petition was filed relying on the judgment of KS Puttaswamy (Retd.) vs. Union of India which overruled the ruling given in ADM Jabalpur case. During the period of emergency, the state is empowered to suspend the Fundamental Rights guaranteed under Article 19 of the Constitution, the power to suspend the operation of these fundamental rights is vested not only in Parliament but also in the Union Executive and even in subordinate authority. However, Article 21 which talks about right to life and personal liberty cannot be suspended in any case. In the case Maneka Gandhi v. Union of India, the Supreme Court held that the expression “life” does not merely connote animal existence or a continued drudgery through life, the expression “life” has a much wider meaning. It is, therefore, claimed that the petitioners were deprived of that “life” due to the actions taken against them during and as a result of the National Emergency of 1975. The maintainability of the petition was questioned in the Supreme Court before Justice Kaul whereby he gave a further date for hearing the matter on Monday i.e., 14th December 2020. The petitioners will be represented by Adv. Harish Salve.

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