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.

SC Issues Notice to Centre- PIL Seeking Rescue of Indian Gulf Workers

There are hundreds of workers from Tamil Nadu stranded in Gulf countries due to the lockdown adding to the thousands of workers stranded prior to that because of being deceived by travel agents and lack of passports. The consequence is forced labor, slavery, sex trafficking and death. Hence, a PIL under Article 32 of the Indian Constitution was filed by President of Gulf Telangana Welfare and Cultural Association- Pathkuri Basanth Reddy. The PIL is seeking rescue of such workers and pleading to bring back the corpses to the families of the victims. The condition of the workers is in clear violation of basic human rights under UDHR and Article 21 of the Indian Constitution since right to live with dignity and decent burial are both facets of right to life. Thus, the Supreme Court issued notice to the Central and State Government along with the Central Bureau Investigation to respond to the same. 

This situation is largely because of the fact that India as well as the Gulf Countries have not ratified important conventions like Freedom of Association and Protection of the Right to Organize Convention, 1948 and Right to organize and Collective bargaining Convention, 1949. Further, these countries are failing to adhere to ILO’s Declaration on Fundamental Principles and Rights at Work. These conventions and declarations give the workers various rights, namely the right to freedom of association, collective bargaining and all forms of elimination of forced or compulsory labor. Consequently, the migrant workers are unable to form unions or oppose any unfair labor practices.

The pandemic has exacerbated their situation as they remain most susceptible to health risks. Closely situated houses and unhealthy living conditions make the necessity of social distancing impossible to achieve. Limited access to preventive medical care, lack of awareness and legal protection adds to their miseries. Thus, the plea urges courts to set out immediate directions, problem redressal forums, and provide legal aid and assistance to the victims. It further urges the embassies in the two regions to collectively strive for the welfare of the workmen stranded in their territories.

MADHYA PRADESH HC’S ORDER RESTRAINING PHYSICAL POLL, STAYED BY SC

Bihar State Elections are the first election in the country and the biggest one globally since the pandemic, the first phase of the elections will begin from 28th October, 2020. Several changes and guidelines to maintain norms of social distancing have been observed by the Election Commission keeping in mind safety of the voters and poll officials. The voting timings have been extended. An hour towards the end is reserved for Covid positive patients so that they are not deprived from participating in the democratic process. 

According to the Election Commission of India, 7 lakh hand sanitizers, 46 lakh masks, 6 lakh PPE kits, 6.7 lakh face shields and 23 lakh pairs of hand gloves have been arranged for the polls. Postal ballot facility has also been made available wherever required on request. Campaigns will also be restricted. Door to door campaigning is permissible but maximum 4 people can accompany the candidate. Apart from these large halls, thermal screening, compulsory masks throughout the process are other protocols in place.

Political campaigns have begun in Madhya Pradesh. Subsequently, a PIL had been filed in the High Court of Madhya Pradesh highlighting that physical campaigning by political parties was causing increase in the spread of COVID-19. In addition, the PIL also stated that nobody from the public is taking any action against these political parties. After hearing this PIL, the Gwalior bench of Madhya Pradesh High Court passed an order restraining any physical gathering for poll campaign amid the pandemic. 

The High Court’s order stated that the political parties will have to get permission from the district magistrate and if the parties want to hold any kind of physical gathering, a certificate from the poll panel will be required establishing that virtual campaign was not possible under any circumstances. Furthermore, the political parties will have to deposit money for procuring masks and sanitizers for the people taking part in the campaign. In its order, the High Court had also directed the District Magistrates of Datia and Gwalior to assure that FIRs are registered against former Chief Minister Kamal Nath and Union Minister Narendra Singh Tomar for alleged violation of COVID-19 norms during election campaigns.

Three pleas were filed against the HC’s order by Election Commission of India, by BJP leader Pradyuman Singh Tomar and Munna Lal Goyal and heard by Justices A M Khanwilkar, Dinesh Maheshwari and Sanjiv Khanna. The primary grounds of the same being, violation of “right to conduct elections” and disregarding the guidelines made by ECI. On 26th October, 2020 SC while staying the order of Madhya Pradesh HC, declined to decide or elaborate upon the contentions or merits of the case raised by the appellants. 

Further, it directed the Election Commission of India to take cognizance of issues raised in the petition before the High Court and list it within six weeks. The rationale behind the non-interference was adherence to Part XV, Article 324, 329 of the Constitution which bar judicial interference in the electoral process and fixate the duty on ECI. Hence SC’s order restored the electoral process, however the ECI can take further actions in determining the validity of issues raised.

Writ petition can’t be filed against a judicial order of hc-supreme court

The Apex Court in a recent judgement-  “Neelam Manmohan Attavar vs Manmohan Attavar (D) Thr LRs” reinstated a crucial point of law. 

It held that a writ petition under Article 226 of the Indian Constitution is not maintainable to challenge a judicial order or any order which has been passed by the High Court in exercise of its judicial powers. 

The decision was laid by a two judge bench consisting Justice DY Chandrachud and Justice KM Joseph in exercise of power of the Supreme Court to transfer cases under Article 139A.

The petitioner in the present case filed a writ petition under Article 226 in order to challenge a judgment dated 31 July 2018 delivered by a Single Judge of the Karnataka High Court under its criminal revisional jurisdiction. The petitioner prayed through the petition that the said judgement may be declared void/disabled/recalled and a fresh hearing be instituted before a higher/full bench. 

The petitioner based her submissions on the grounds that the order had not been written by the Judge of the HC and that while disposing the criminal revision the court had exercised its jurisdiction in a manner inconsistent with the provisions of Section 397 of the Code of Criminal Procedure 1973. Further, she challenged the findings of the court; deeming them to be erroneous. 

The respondent claimed that the litigant is not without any remedies since she can approach the court through Letters Patent Appeal or by way of a review or through article 136.

The court ruled in favour of the Respondent and disallowed the Writ Petition on grounds of maintainability. 

But SC left open the rights and remedies available to the petitioner by way of a Special Leave Petition under Article 136 of the Constitution to assail the judgment of the Single Judge bench. 

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