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 government.

Q.Discuss how the imposition of National Emergency under Art. 352 of the Constitution seek to change India’s federal character.

What is the issue?

• A 94-year old lady is seeking compensation for the loss she suffered due to the proclamation of emergency.
• Petitioner has claimed that a number of her immovable properties were illegally occupied for their activities during the Emergency.
• A bench of the Supreme Court has 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.

What is a National Emergency?

• A national emergency can 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.
• Such an emergency was declared in India in 1962 war (China war), 1971 war (Pakistan war), and 1975 internal disturbance (declared by Indira Gandhi).
• But after the 44th amendment act 1978 added the provision for 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.

The 1975 Emergency

• On June 12, 1975, the Allahabad High Court had declared the election of then PM Indira Gandhi as null and void.
• Following the court decision, Gandhi moved the Supreme Court and stayed the high court’s decision allowing her 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.

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 remembered 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 gave the Parliament a 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.

Series of Amendments

• Through the 38th Constitutional Amendment, Gandhi sought to expand the power of the President and barred judicial review of the proclamation of Emergency.
• 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.

The 44^th Amendment

• Through the 43rd and 44th amendments, many of the amendments made during the Emergency were withdrawn.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

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