The Supreme Court on Monday agreed to examine whether it can look into the legality and constitutional validity of the 1975 Emergency declared by then Prime Minister Indira Gandhi. "We are inclined to see whether a simpliciter declaration on Emergency is feasible or desirable after the passage of time," the bench comprising Justices Sanjay Kisan Kaul, Dinesh Maheswari and Hrishikesh Roy said issuing notice to the Centre.
"We would, however, be not disinclined to see whether probing such a proclamation after such a long time would be feasible or not," the three-judge bench said restricting the scope of the petition.
The top court's decision came on a plea filed by 94-year-old Veera Sarin who sought a declaration of the Emergency as unconstitutional. Sarin also sought compensation to the tune of Rs. 25 crores, which was denied by the court.
Constitutional Rights were under jackboots during Emergency: Salve to SC
"Her life was laid to waste, she wants closure," senior advocate Harish Salve said pressing his client Sarin's cause.
Justice Sanjay Kisan Kaul, he was leading the three-judge bench, pointed out that something happened in history wondered whether to revisit the issue after 45 years. To which Salve argued: "Perhaps it's the right time. It is important to show if the situation arises again, the court will look into it."
"After 45 years you have reversed a judgment which had left us in a pickled situation. Abuse of power in history needs correction. What relief you give is another matter. The country must know, that once constitutional and fundamental rights were put under jackboots," he added. "There are certain things in history which we have to revisit and see if the correct thing was done. This is one such issue," Salve said. "The
"We are finding it difficult to go into this. The Emergency was an abuse, and ought not to have happened," Justice Kaul observed. "There were detentions under COFEPOSA etc. We can't keep digging on these issues, personas are gone today, Justice Kaul added.
"She wants a declaration that the emergency was unconstitutional," Salve said. "People were in detention for months together under MISA. Someone must be held responsible" Salve rebutted.
"[Adolf] Hitler is gone today. But war-crimes issues are considered. 80-90-year olds are hauled up," Salve said giving examples. "In the nascent stage of our democracy, rights were suspended for 19 months. If history is not corrected, it repeats itself," Salve said pleading his cause.
"What will this take us to?" Justice Kaul asked to understand the scope of the case. "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 said in response.
"Our generation wants closure. This is why I am appearing in this matter. I feel very strongly on this issue. It is not a matter of political debate. This court has done remarkable work in reigning in abuse of power," Salve said. "If your lordships recall we were students at the time of Emergency. This is too important a matter. Our generation is still around," Salve said. "We are angry, our friends were put in jail during the emergency...," Salve added.
"This abuse of power was so enormous; it has scarred our country. Your lordships MUST declare that the emergency proclamation was wrong," he argued.
Seeking Closure and acknowledgement of suffering: Sarin to SC
In her plea, Sarin submitted that she and her husband were compelled to leave the country fearing persecution, "in pursuance of unjustifiable and arbitrary detention orders issued against the Petitioner's husband."
Sarin added that her deceased husband was "framed" under provisions of the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 (COFEPOSA) and Smugglers and Foreign Exchange Manipulators (Forfeiture of Property) Act, 1976 (SAFEMA). Before Emergency, her husband was successful and had a flourishing business of gold arts, gems, artefacts etc. in the national capital.
"Their immovable property came to be seized, the movable property consisting of artefacts, gems, carpets, paintings, tusks, statues, ivory worth crores of rupees were also seized and there has been no restitution of the same till date," Sarin's plea read.
In December 2014 and July 2020, the Delhi High Court granted Sarin relief and directed payment of rent arrears—from 1999—for her New Delhi properties. The High Court also dropped SAFEMA proceedings initiated against her husband on the grounds that it lacked jurisdiction and was therefore nullified.
"The Petitioner at her advanced age has a simple desire to seek a closure to her trauma and an acknowledgement to her suffering and hence, is filing the present petition," the plea read.