45 years on, SC to examine whether to declare Emergency 'unconstitutional'

Satya Prakash
Tribune News Service
New Delhi, December 14

More than 45 years after thousands of people were jailed across India under an Emergency imposed by the Indira Gandhi-government on the grounds of 'internal disturbance', the Supreme Court on Monday decided to examine if the June 26, 1975 proclamation can be declared unconstitutional.

However, a Bench headed by Justice Sanjay Kishan Kaul said, "We would be disinclined to open all such aspects as there may have been wrongs done to persons but with the passage of almost 45 years, it would not be appropriate to re-open all those issues."

But the Bench said it was not disinclined to see if a simpliciter declaration -- "something which is feasible or desirable after a passage of time and issue, restricted to that aspect" -- could be issued.

It asked the petitioner to amend her petition and put all facts on record by December 18.

The top court issued notice to the Centre asking it to respond to a petition filed by Veena Sarin - a 94-year-old woman - who urged it to declare the Emergency unconstitutional and grant her a compensation of Rs 25 crores after senior advocate Harish Salve, representing the petitioner, said he felt very strongly about the issue.

"If history is not corrected, it repeats itself. Please examine this issue," contended Salve who passionately argued the matter to persuade the top court to consider it.

"This is a matter of constitutional debate and principles must be laid down on fraud upon the Constitution, that no matter how high you are, you will be held accountable," Salve argued.

"I feel very strongly on this issue. If your lordships recall we were students at the time of the proclamation of emergency in 1975. This is why I am appearing in this matter...This is too important a matter. Our generation is still around," he submitted.

Pointing out that people were in detention for months together under the Maintenance of Internal Security Act (MISA), Salve said the petitioner wanted a declaration that the emergency was unconstitutional.

"We are finding it difficult to go into this. The emergency was an abuse and something happened which ought not to have happened... We can't keep digging on these issues, persona's are gone today," Justice Kaul observed during the hearing.

But Salve pointed out that "Today, even war-crime issues are considered and 90-year-olds are hauled up for crimes. In nascent stage of our democracy, rights were suspended for 19 months," he said urging the top court to consider the issue.

Salve said the 94-year-old woman was not a political person. "We are angry... our friends were put in jail during the Emergency. The abuse of power was so enormous, it has scarred our country. Your lordships must declare that the Emergency proclamation was wrong," Salve submitted.

Petitioner Veena Sarin has submitted that her petition was “a genuine desire to bring about an end to the undemocratic nightmare, infamously known as ‘the emergency’ and to seek “a peaceful closure, that can be brought only by an acknowledgement and declaration by the highest court of justice of the country in which citizens repose the highest level of confidence and faith, that the said incident was unconstitutional.”

She relied on the 2017 judgment in KS Puttaswamy case which overruled the top court’s infamous decision in ADM Jabalpur versus Shivkant Shukla (1976).

She said, "the present petition is a plea for justice and restitution of a lifetime spent in utter misery and anguish on account of the atrocities suffered by the petitioner, her deceased husband and her family".

Recounting her agony, she said in their bid to plunder businesses and homes of victims, the government authorities had targeted her and her husband with unjustifiable and arbitrary detention orders which forced them to flee India.

"His business was shut down, assets and valuables including immovable property were seized and appropriated. The Petitioner's husband succumbed to the pressure and died. Since then the Petitioner has been single-handedly facing all proceedings initiated against her husband during the Emergency period, which were arbitrarily pursued, she submitted.

Sarin said the compensation money should be recovered from the authorities who have participated in misuse of powers during the Emergency.