Apex Court questions feasibility of examining declaration of 1975 Emergency

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On Monday, the Apex Court agreed to examine whether it would be feasible or desirable, after the passage of 45 years, if the declaration of Emergency in 1975 was unconstitutional or not.

A 3-Judge Bench of Justices Sanjay Kishan Kaul, Justice Dinesh Maheshwari & Justice Hrishikesh Roy issued notice to the Centre & sought its response on the plea filed by a 94-year-old woman for the proclamation of Emergency in 1975 to be declared as unconstitutional.

During the hearing, the bench raised questions about hearing the issue after the passage of 45 years.

The Bench said that “This plea arises from the passage of time. It is Mr Salve’s (senior advocate Harish Salve appearing for petitioner) submission that ‘prayer A’ survives & wrongs of history must be corrected. We asked Mr Salve whether the petitioner is seeking other reliefs too. Salve informs wrongs on the petitioner is not the main issue. We would be disinclined to reopen such aspects. After 45 years it may not be appropriate to reopen those issues”.

“We would, however, be not disinclined to see whether probing such a proclamation after such a long time would be feasible or not. We issue notice on prayer A. Senior counsel may restructure the petition. Leave to amend the petition by Dec 18,” the bench said in its order allowing the petitioner’s lawyer to amend the plea.

The plea filed by Veena Sarin, a 94-year-old widow, said she filed it for “restitution of a lifetime spent in utter misery & anguish on account of the atrocities” suffered by her, her deceased husband, & her family.

At the outset of the hearing, Salve contended that he was relying on the JC Shah commission report (inquiry appointed by the Government of India in 1977 to inquire into all the excesses committed in the Indian Emergency) the proclamation was a Constitutional abuse of power.

Justice Kaul hearing the case replied that “something has happened in the history… after 45 years to go into the issue…”

Salve argued, “perhaps it’s the right time. After 45 years you have reversed a judgment too. Abuse of power in history needs correction. What relief you give is another matter. Once this country must know fundamental rights were put in jackboot.”

There are certain things in history which we have to revisit & see if the correct thing was done, this is one such issue, Salve added.

He said that it was a gross abuse of power people were detained for 19 months.

Salveadded that “War crimes issues are still heard. Gender-sensitive matters are still heard. The rights of nascent democracy were abused for 19 months. History does not correct but repeats itself”.

During the hearing, Justice Kaul asked can we really say powers invoked under the constitution is illegal? Responding to the query, Salve said that the act was a “fraud on the Constitution”.

“Such an advanced Constitutional court needs to be addressed. We must have this decided by this court. I feel very strongly about this. This is not a matter of political debate. Didn’t we see what happened to prisoners during the emergency,” he said.

“Post world war, people are raising issues of holocaust now. For us, we say emergency & we are still there around … The petitioner is not a political person. A petitioner is just a person who has been wronged,” Salve said.

“We know what happened then. Home to home identification took place. The court must pronounce an order & say that the proclamation of emergency was incorrect,” he further argued.

The plea also sought a compensation of Rs 25 crores, which the court refused to entertain.

The plea said that the burial of the darkest chapter in Indian democracy is yet to provide respite to them, who it said suffered atrocities at the hands of the authorities during the emergency period.

Recounting the emergency, Sarin alleged that the then government authorities ceased the gold arts business of her husband in Karol Bagh & Connaught Place, which she said he had built with 25 years of hard work.

The petition said that “Declare that the proclamation of emergency vide notification dated June 25, 1975, was wholly unconstitutional & actions pursuant to the same are illegal & unjustifiable. The petitioner may kindly be compensated to the tune of Rs 25 crores to be recovered from the concerned authorities as having participated in the unconstitutional acts”.

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