Plea seeks 1975 Emergency proclamation be held unconstitutional, SC issues notice to Centre

A 94-year-old has filed the petition, citing her personal experience of her family's rights being infringed upon. Supreme Court says prima facie, it doesn't see any merit in case.

File image of former Prime Minister Indira Gandhi | Commons

New Delhi: The Supreme Court Monday agreed to examine whether a “simpliciter declaration” can be issued to hold as unconstitutional the 1975 proclamation of Emergency by the Indira Gandhi government.

A bench led by Justice Sanjay Kishan Kaul issued notice to the central government on a petition filed by Dehradun-based 94-year-old Veran Sarin, but said it would not entertain her request for Rs 25 crore compensation.

The court had on 8 December verbally said that it did not “prima facie” see any merit in the plea, as it questioned the logic behind filing it after so many years.

On Monday, Sarin’s lawyer, senior advocate Harish Salve, urged the court to examine the issue raised in the petition to “correct history”. He narrated his personal experiences during the arguments in a bid to convince the bench to take up the case.

“If history is not corrected, it repeats itself. Please examine the issue,” Salve said.

Stressing on the need for the matter to be heard, he added the case is a matter of constitutional debate, one that requires the court to lay down principles and deliver a message that no matter “how high you are, you will be held accountable”.

When Salve agreed with the court’s suggestion to amend the petition and exclude the compensation request, the bench, in its order, said, “We would be disinclined to open all such aspects as there may have been wrongs done to persons. With the passage of almost 45 years, it would not be appropriate to re-open those issues.”

It further added: “We would, however, not be disinclined to see whether a simpliciter declaration, something which is feasible or desirable, after a passage of time and issue, restricted to that aspect, can be done.”

‘Left country for fear of being thrown into jail’

In her petition, filed through advocates Neela Gokhale and Anannya Ghosh, Sarin assailed the emergency proclamation as unconstitutional. She described at length the troubles her family faced post the declaration.

According to her petition, Sarin’s husband and she were compelled to leave the country for fear of being thrown into jail “in pursuance of the unjustifiable and arbitrary detention orders issued against the petitioner’s husband”.

She submitted that her late husband was “framed” under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 and Smugglers and Foreign Exchange Manipulators Act, 1976.

Before the emergency was imposed, Sarin claimed her husband had a flourishing business of gold arts, gems and artefacts at Karol Bagh as well as at KG Marg, New Delhi. Their immovable properties were seized and their custody was taken over by the government.

Sarin’s litigation to get back possession of her properties ended in July this year, after the Delhi High Court directed the government to pay arrears of rent for the property at KG Marg to Sarin at a specified monthly rate since 1999. She and her legal heirs will continue to receive rent.

‘Today, even war-crimes are considered & 90-year-olds hauled up’

At the outset of the Monday hearing, the bench expressed reluctance to hear Sarin’s plea, though it agreed that “the emergency was an abuse and something happened which ought not to have happened”.

Justice Kaul felt the court cannot be “digging on these issues, as persons involved in the decision-making process and others are gone”.

But Salve refused to relent and insisted for a hearing. He said today, even war-crimes are considered and 90-year-olds are hauled up for crimes. “In nascent stage of our democracy, rights were suspended for 19 months. People were in detention for months together under MISA (anti-detention law),” Salve argued.

The senior counsel went on to talk about his experiences during the emergency and how “strongly he felt about it”.

“If your lordships recall, we were students at the time of proclamation of emergency. We were angry our friends were put in jail during the emergency. Your lordships know about it. This is too important a matter,” he submitted.

Salve said the abuse of power was so enormous that it has scarred the country. “You must declare that the emergency proclamation was wrong,” he argued.