A 94 year old lady Vera Sarin has filed a petition in the Supreme Court asking it to declare the Emergency imposed in 1975 as unconstitutional and demanded a compensation of Rs. 25 crores for the distress she and her late husband underwent at the hands of the government. She claimed that she continued to be harassed for the cases the government against her businessman husband during the Emergency. The couple had fled abroad fearing arrest during the 20 month Emergency from June 1975 to March 1977. The Supreme Court has decided to hear her plea on the constitutionality of the declaration. Coming something after 45 odd years of declaration of Emergency, it is an interesting case. It does also raise quite a few pointers towards history.
It is interesting because a matter has come up after such a long lapse of time. There is without doubt that Emergency caused trouble to a common man or woman in many ways. It was a blot of Indian record of democracy where fundamental rights were suspended and a large number of people jailed. There were many who died in police custody or in police atrocities. There were people who were murdered by the goons of the Youth Congress. Many went unpunished. Shah Commission that went into the excesses of the Emergency came up with indictments but before anything could happen, the Janata government was voted out and Indira Gandhi returned to power in the midterm elections of 1980. There was little effort to follow up of securing justice for those who suffered in the Emergency. Those who suffered must get compensation is something that cannot be denied. The government of the day must be held accountable and be made to pay for the same.
Yet as one peruses the matter, interestingly, the Emergency proclamations of June 25, 1975 remain unchallenged in the judicial fora. As is well known, it arose of the Allahabad High Court judgment unseating Indira Gandhi for alleged corrupt practices during the 1971 elections from Rae Bareilly constituency. The Supreme Court during the Emergency set aside the High Court order. During the Emergency, the Congress brought in the 42nd Amendment which made the election of the Prime Minister the outside the purview of judicial scrutiny something overturned in the 44th Amendment. Yet, the 42nd Amendment despite it amending the Basic Structure was never challenged in the judiciary. What was however challenged was the detention of prisoners under MISA and other acts during Emergency. The question before the Supreme Court was whether fundamental rights existed during Emergency or they remain suspended. The ADM Jabalpur vs Shivkant Shukla case came to be popularly known as habeas corpus case. The Supreme Court ruled in favour of the government holding fundamental rights can be suspended during Emergency. The five judge bench voted 4-1 in favour of the government. Only Justice HR Khanna dissented. He paid a price for the same when he was superseded for Chief Justice of Supreme Court. He resigned shortly thereafter.
While the later judgments have overturned several grounds of the habeas corpus case judgment, the judgment per se still stands as a testimony to the pusillanimity of the Supreme Court. Therefore, there is a need for the Supreme Court to revisit the judgment and overturn it once for all. However, the current petition is little different in the sense it seeks to declare the proclamation itself unconstitutional. There would obviously be multiple views on treatment of the same. There would be a view and perhaps with strong arguments that the Supreme Court should not revisit the issue something that happened some 45 odd years ago. There might be a case of limitations being applied to the same. Yet there would be equally another argument that would favour the judiciary having a look at the proclamation. Since history has a tendency of repeating itself, the declaration being made unconstitutional would be a symbolic victory for the Indian democracy. The future governments would think twice of imposing such measures. Though safeguards have been incorporated through the 44th Amendment, they are hardly sufficient to stop the government of the day to go amok if it does command majority in both Houses of Parliament. There is nothing in law that prevents the governments from enacting similar measures when faced with severe resistance from within and without.
It was not that the country did not have Emergency at the time. The country was under Emergency on account of external aggression which had been imposed since 1962 Chinese invasion consequently followed by the 1965 War with Pakistan and then the 1971 Bangladesh War. The proclamation was still in force, something underlined by then senior ministers like Swaran Singh or IK Gujaral. Both found themselves out of the Cabinet for these indiscretions. Prime Minister Indira Gandhi ostensibly under the influence of West Bengal Chief Minister Siddartha Shankar Ray went ahead with imposing a fresh proclamation under Article 352 declaring Emergency on account of internal disturbances.
At this stage, it would be pertinent to have a look at the desirability or the feasibility of the Supreme Court revisiting the proclamation. While there is considerable merit in arguing it should not go through, there is equal merit in arguing it should go through. There are issues pertaining to Holocaust or even the Japanese occupation of Korea during World War II etc. that still have litigations around. There are issues that crop over the liabilities of the Axis in their atrocities during the War. In this context, the event of Emergency is far more recent. There are many young activists of those days who are still around. The Emergency era did create a lot of trauma to many a person. They need to have a closure. It cannot be that there is considerable time lapse that the issue cannot be adjudicated afresh. As mentioned earlier, it was sad event something that cannot be repeated. There were number of people who were sterilised and prevented from having children in the name of family planning. There are people whose houses were bull dozed for alleged beautification. To please the self-styled crown prince of the country, the excesses that were carried out by his henchmen need closure and justice. The Supreme Court decision to hear the legality of the case definitely merits a welcome.
Thoughts on Theory and Practice 