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Supreme Court Agrees to Examine Whether the Constitutionality of Declaration of 1975 Emergency Is Feasible After 45 Years

The Supreme Court agreed to hear the plea of a 94-year-old woman seeking to declare the proclamation as �wholly unconstitutional�, made in 1975 by the Congress government led by Indira Gandhi.

Introduction to emergency:

The framers of the Constitution thought that the Centre should have the uppermost power in the period of emergency. The proclamation of emergency disrupts the mechanism of the Constitution and muddles the rights of the people. An emergency shall be declared when:
  • There is a threat to the security of India
  • Breakdown of constitutional machinery in a State
  • There is a financial emergency.[1]

History of 1974 Emergency

The most controversial emergency which was declared in 1975 by Indira Gandhi, now opens the old pages of the book. Vera Sarin stated that her late husband H K Sarin lost his "flourishing business of gold arts, gems, artefacts etc. at Karol Bagh as well as at K G Marg, New Delhi" following the declaration of the Emergency. The Maintenance of Internal Security Act (MISA), was used as a weapon by the state to detain many young and innocent people. Indira Gandhi, for Indian National Congress had won the 1971 Lok Sabha elections against Raj Narain.

Though the triumph was challenged in the High Court of Allahabad by Raj Narain, claiming that Indira Gandhi has violated the code of conduct during elections and won the elections by offering bribe to the election officials. On the 12th June, the Allahabad High Court declared Indira Gandhi guilty of electoral malpractice and disqualified her from holding an elected office for six years.

On 24th June, the Supreme Court of India granted a conditional stay order on the judgement of Allahabad High Court. The order stated that Mrs Gandhi could remain Prime Minister for that period until her appeal was pending before the Supreme Court. Justice Iyer, in his judgement said "The judicial approach is to stay away from political thickets and new problems with institutionalised blinkers on, so long as the court methodology remains the same.

Arguments about political sentiment, political propriety and moral compulsion though relevant at other levels, fall beyond the conventional judicial orbit and the courts have to discriminately shift them while deciding. on the grant of stay pending an appeal. If national crises and democratic considerations, and not mere balance of convenience and interests of justice, were to be major inputs in the Judges exercise of discretion systematic changes and shifts in judicial attitude may perhaps be needed. But sitting in time-honoured forensic surroundings the Supreme Court is constrained to judge the issues before it by canons sanctified by the usage of this Court."[2]

Though Justice V Krishna Iyer rescued Mrs Gandhi as the Supreme Court allowed her to continue in her role as the Prime Minister. The Court allowed her to participate in proceedings of the House as Prime Minister. Then the tables turned, very smartly within two days of the order President Fakhruddin Ali Ahmed proclaimed the emergency, citing internal disturbances. It was a 21-month long emergency.

Here are the following four reasons:

  • Navnirman Andolan in Gujarat
  • The JP movement
  • The railways� protest
  • The Raj Narain verdict[3]

Today Vera Sarin claims that she and her husband were "victims of the atrocities inflicted by the then government authorities and others" during the period of emergency. Sarin and her husband business of Gold Arts in Delhi at that time and they were forced to leave the country under the fear of ending up into the jail with no justifiable reason, during the emergency period.

A bench headed by Justice Sanjay Kishan Kaul and comprising Justices Dinesh Maheshwari and Hrishikesh Roy said that the court would be disinclined to open all such aspects as there may be some wrongs done to the persons, but with the passage of almost 45 years, it would not be appropriate to open all such issues.

After the declaration of the Emergency, however, all the Sarins� 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", says the plea. Vera and H K Sarin were married in 1957, and he passed away in 2000.[4]

Sarin stated that "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". in December 2014, the Delhi High Court quashed the proceedings against the deceased husband of the petitioner, but the pleas states that the valuables worth crores of rupees are yet to be restituted.

Justice Kaul asked Harish Salve; who was fighting on behalf of the petitioner, that:
"can the court go into all the issues after the passage of so much time and will it be appropriate".

Salve said that, it is a greatest assault on our Constitution, this matter has to be decided by the Supreme Court. He contended that it was a sheer abuse of power during emergency. The bench asked "can the court look into the matter which has happened 45 years earlier. What relief can be granted?". Salve said that the S R Bommai judgement in 1994, which dealt with the issue pertaining to Article 356 of the Constitution of India, which states the provision of failure of constitutional machinery in state. The Court passed the orders after 45 years, hence now the Court can look into the matter today.[5]

  1. MP Jain, Indian constitutional Law 728 (8th edition)
  2. The
  3. The
  4. Times of India
  5. Times of India

    Award Winning Article Is Written By: Ms.Riddhi Sanjay Kapadni

    Awarded certificate of Excellence
    Authentication No: DE35542646226-20-1220

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