SC to examine plea against Emergency
NEW DELHI: The Supreme Court on Monday asked the Centre whether it was “feasible” or “desirable” to declare the 1975 Emergency rule proclaimed by then Prime Minister Indira Gandhi unconstitutional after a hiatus of 45 years.
The occasion for the bench to seek the Centre’s view came on a petition filed by a 94-year old widow, Veera Sarin, who demanded closure to the untold suffering and mental trauma suffered by her husband and her family on account of abuse of authority by officials following the proclamation.
She demanded a declaration that the imposition of Emergency was an unconstitutional act and sought Rs 25 crore in compensation for the wrongs committed against her family.
“We are not convinced that after 45 years we can go into something which happened in a particular period of time,” remarked the bench comprising justices SK Kaul, Dinesh Maheshwari and Hrishikesh Roy, being upfront about their first impression of the case.
Sarin’s husband HK Sarin had a flourishing arts and gems business in the Karol Bagh and Connaught Place areas of Delhi. Soon after Emergency was proclaimed in June 1975, raids were conducted at Sarin’s business premises for suspected violation of the Customs Act and all valuable goods, jewellery and artefacts there were confiscated.
The petitioner’s husband was detained under the Conservation of Foreign Exchange and
Prevention of Smuggling Activities Act (COFEPOSA). She alleges that he was hounded by the authorities, forcing him to move from the country, leaving all his moveable and immovable assets behind. Later, even the petitioner and her children went abroad but the family continued to suffer the ignominy of the arrest and criminal prosecution for three generations.
It was senior advocate Harish Salve, representing Sarin, who tried to persuaded the judges to change their mind.
“Wrongs of history should be set right or else they will repeat. Hitler is gone but even today, crimes committed during the Holocaust and the Second World War are being heard and persons who are 80 year old are being hauled up for their
actions…. It is too serious a matter to be left out. For 19 months our fundamental rights were kept under suspension. People of our generation could not do anything then. When these things happen in a democratic polity governed by Constitution, this court can certainly revisit the past and correct mistakes,” Salve argued.
The judges held extensive discussion between themselves, but found it hard to agree with Salve.
“The personas you have named have gone today. We would be disinclined to reopen on such aspects as there may have been wrongs done but with passage of 45 years, it may not be appropriate to reopen them…Consequences thereof would not be appropriate.”
The court noted that the actions of that era under challenge flowed from the Constitution. “Can we say powers of Constitution are illegal,” the bench remarked.
Salve said he was willing to forgo his prayer for compensation although he pointed out that the detention order against the petitioner’s husband was revoked by authorities in March 1977. The Delhi high court in December 2014 declared that the detention order was a nullity. But on a declaration against the Emergency, Salve stayed firm.
“This was an assault on our Constitution. Somebody has to be told what you did was unconstitutional. It is not too late as people of that generation are still around. This lady has no political agenda. She has suffered much and has come to Court to seek a final closure on this issue. She would be happy to get a declaration that the Emergency declared was wrong,” he argued
His persuasion paid off as the Court decided to issue notice to Centre, specifically the ministry of home affairs, to know whether such an order could be passed.
The bench said: “We would, however, not be disinclined to see whether such a declaration (by the court) is feasible or desirable after such passage of time and that’s what has persuaded us to issue notice,” the bench said.
Salve’s assisting counsel Neela Gokhale was allowed to amend the prayers of the petition and restructure it in the light of what the court observed. The petition will be heard next on December 18.