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Breaking: Supreme Court Agrees To Examine Whether Probing Constitutionality Of Declaration Of 1975 Emergency Is Feasible After 45 Years

Sanya Talwar
14 Dec 2020 8:38 AM GMT
Breaking: Supreme Court Agrees To Examine Whether Probing Constitutionality Of Declaration Of 1975 Emergency Is Feasible After 45 Years
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The Supreme Court on Monday agreed to examine whether a simplictor declaration that Emergency of 1975 was unconstitutional and that whether it would be feasible or desirable to probe this issue after a passage of 45 years.A bench of Justices Sanjay Kishan Kaul, Dinesh Maheshwari & Hrishikesh Roy issued notice on the petition by a 94 year old and granted leave to the petitioner to amend...

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The Supreme Court on Monday agreed to examine whether a simplictor declaration that Emergency of 1975 was unconstitutional and that whether it would be feasible or desirable to probe this issue after a passage of 45 years.

A bench of Justices Sanjay Kishan Kaul, Dinesh Maheshwari & Hrishikesh Roy issued notice on the petition by a 94 year old and granted leave to the petitioner to amend the petition on the aspect of the restricted issue.

The bench was hearing a plea filed by a 94 years-old widow, seeking for the Proclamation of Emergency in 1975 to be declared as unconstitutional and for a compensation to the tune of Rs. 25 crores from the authorities who have participated in the same.

"We have heard Salve on the subject matter with some trepidation, more so arising due to passage of time. It is his submission that the wrongs of history must be set right. 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 those issues. We would however be not disinclined to see whether a simpliciter declaration, something which is feasible or desirable after a passage of time and issue, restricted to that aspect. Learned Senior Counsel to give a better thought to the matter to restructure the petition. Leave granted to amend the petition by 18th of December and let notice be issued."

- Supreme Court

Senior Advocate Harish Salve appeared for the petitioner and submitted before the top court that the principles against abuse of constitutional power can apply to removal of state governments, presidential proclamations and that the principle should also cover the issues of rights of citizens. 

"The issue is so far-reaching, for 19 months, there was an abuse of power," Salve said on the emergency proclamation in 1975.

There are certain things [emergency proclamation in 1975] in history which we have to revisit and see if correct thing was done. This is one such issue, Salve said.

"This abuse of power was so enormous, it has scarred our country. Your lordships MUST declare that the emergency proclamation was wrong,"

- Senior Advocate Harish Salve tells Supreme Court

"But to go into this after 45 years?" Justice Kaul said.

"I feel very strongly on this issue. If your lordships recall we were students at the time of proclamation of emergency in 1975. This is why I am appearing in this matter," Salve said.

Story So Far:

"What kind of a plea is this?", noted the Supreme Court last week while adjourning the instant case.

A Bench headed by Justice Sanjay Kishan Kaul was presiding over the matter and was informed by Dr. Neela Gokhale, Advocate for the Petitioner, that the matter would be argued by Senior Advocate Harish Salve.

Gokhale then referred to an order passed by the Allahabad High Court in July 2020, which directed for payment of rents arrears of a property which belonged to the petitioner's husband, which was subjected to proceedings during Emergency.

Drawn by Advocate Dr. Neela Gokhale and filed by Advocate-on-Record Anannya Ghosh, the plea avers that "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 deceases husband and her family".

Relying on the 2017 judgment of KS Puttaswamy (Retd.) vs. Union of India which overruled the 5-Judge Bench decision in ADM Jabalpur v. Shivkant Shukla (1976), the plea states that the burial of the darkest chapter in Indian democracy is yet to provide respite to the Petitioner who suffered atrocities at the hands of the authorities during the Emergency period.

As victims of the Emergency, the petition recounts that the then government authorities, in their bid to plunder businesses and homes of victims, targeted the Petitioner and her husband with unjustifiable and arbitrary detention orders, and consequently led to them fleeing the country.

"His business was shut down, assets and valuables including immovable property was 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".

Referring to the judgment of the Delhi High Court passed in December 2014 which ultimately quashed the proceedings against the deceased husband of the Petitioner, the plea then conveys that valuables worth crores of rupees from the flourishing business of the husband, which were seized, are yet to be restituted.

Additionally, it was only vide order dated 28th July, 2020, that the High Court directed for payment of arrears of rent for one of the properties to the Petitioner and other legal heirs. However, it has been contended that other valuable movable properties have been siphoned away.

"Needless to say, that the valuable movable properties have been siphoned away and illegally appropriated by many government authorities and private persons during the time of emergency. Ironically, the Petitioner's son had the most unpleasant experience and was shocked to see few of the stolen pieces of his mother's jewellery up for sale in New Delhi".

At her advanced age, the Petitioner has sought for the fulfilment of a simple desire to achieve closure to her trauma and receive an acknowledgment of her suffice. In light of this, the instant plea has been filed before the Supreme Court.

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