Supreme Court Changes Stance, Agrees to Consider the Constitutionality of the National Emergency of 1975

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EXCERPT: A Full Bench of the Supreme Court headed by Justice Sanjay Kishan Kaul re-considered its decision to admit a petition that challenges the constitutional validity of the notification for National Emergency imposed by Indira Gandhi in 1975. The Petitioner, 94-year-old Veera Sarin, filed a petition under Article 32 of the Constitution seeking Rs. 25 crores as compensation for trauma and harassment faced by her husband and her family due to the declaration of Emergency.

The Court agreed to examine whether the National Emergency of 1975 was a fraud on the Constitution as contended by the Petitioner. It issued notice to the Centre and its authorities. The case is likely to be listed in the last week of January 2021.

A Full Bench of the Supreme Court headed by Justice Sanjay Kishan Kaul re-considered its decision to admit a petition that challenges the constitutional validity of the notification for National Emergency imposed by Indira Gandhi in 1975. The Petitioner, 94-year-old Veera Sarin, filed a petition under Article 32 of the Constitution seeking Rs. 25 crores as compensation for trauma and harassment faced by her husband and her family due to the declaration of Emergency.

Background to the case

During the year 1957-1973, the Petitioner husband had a flourishing business of Gold Arts in Karol Bagh, Delhi. During the early sixties, he opened his business in Akash Deep, Connaught Place. He was exporting diamonds and fine gems and had a flourishing business.

During the period 1974-1976, raids were conducted at the Petitioner’s husband’s business premises on suspicion of violations of the Customs Act. Late Shri Sarin was subsequently exonerated of any violations of the Customs Act. 

The authorities issued an order under the Conservation of Foreign Exchange and Prevention of Smuggling Activities Act, 1974 for the detention of the Petitioner’s husband. Further notices were issued to her husband demanding his source of income and how he acquired his various properties. 

The authorities got a warrant for his arrest. Petitioner’s husband had to leave the country, leaving behind him his business, all his movable and immovable assets.

Police officers in civilian clothes kept surveillance on the Petitioner and at many times barged into her home at any time of the day or night.

Different agencies of the government entered her home and threatening her with death threats. They sat in her house until she gave them a few pieces of jewellery left in the house, as all other artefacts were already illegally confiscated by the authorities. Ultimately, the Petitioner was compelled to leave her country of birth with her children and take refuge in other countries.

Petitioner’s husband passed away in 2000. Even after, she received notices for declaration of her property as being illegally acquired. In 2014, the Delhi High Court held that the detention orders were passed without jurisdiction. Further, in 2020, the High Court ordered the authorities to pay the arrears of property rent to the Petitioner.

The National Emergency of 1975

On June 25, 1975, the President of India proclaimed an Emergency under Article 352 of the Constitution. Article 358 of the Constitution suspends the freedoms guaranteed under Article 19 of the Constitution. It restricts the State’s power to make any law or take any executive action or make any law. All these rights and powers were to remain suspended till the withdrawal of the Emergency.

After the declaration of Emergency, the President of India issued an order under Article 359 of the Constitution on June 27, 1975. It further suspended citizens’ right to move to Court for the enforcement of fundamental rights conferred by Article 14, 21 and 22 of the Constitution.

J.C Shah Commission of Inquiry 

In consideration of the indiscriminate and unauthorized power of arrest and issue of detention orders being issued and effected on innocent persons, the Central Government appointed a Commission of Inquiry. This Commission was set up under the Chairmanship of Shri. J.C. Shah, Retd. Chief Justice of the Supreme Court of India. It was responsible for enquiring into several aspects of allegations of abuse of authority, excesses, and malpractices committed, and actions taken unauthorizedly in the wake of the Emergency. 

After a comprehensive inquiry, the Commission submitted its report in 1978. The Commission concluded that dishonesty and falsehood had become almost a way of official life during the emergency period. It was found that it was not a legally permissible emergency that could have been declared according to the law in force. The conclusive remarks in Clause XIII of the Third Final Report of Shah Commission of Enquiry declared in detail the various aspects that indicate that the entire event was a travesty of justice and a fraud on India’s Constitution.

Petitioner’s grievances

The Petitioner and her family were victims of the atrocities inflicted by the government authorities after the declaration of a National Emergency. She and her husband were compelled to leave the country for no justifiable reason in fear of being thrown into jail. The petition states that the government authorities acted arbitrarily on their whims and wishes at a time when civil rights and liberties stood suspended. 

The legal proceedings against her husband that began in 1975 were decided by the Delhi High Court in 2014. The Court held that the proceedings initiated against her husband were null and devoid of any jurisdiction. Even after the judgment, her immovable properties that were forcefully confiscated, were not released. The Delhi High Court in 2020 partially compensated her for the illegal possession of her property.

Article 352 before the 44th Constitutional Amendment was vague and arbitrary. It was modified in order to make it more transparent and increase the accountability of any ruling government during a national emergency. 

Currently, only the President can proclaim an emergency after confirmation of the crisis, presented in written form by the Prime Minister and the cabinet. Unlike 1975, it is no longer possible today for the Prime Minister to unilaterally decide on the proclamation of an emergency without any written explanation and transparency.

The detention order passed against the Petitioner’s husband was revoked on the date of the lifting of Emergency, i.e., in 1977. However, the consequences of the same are suffered by the Petitioner and her family to date in the form of loss of love and affection, loss of livelihood, ongoing litigations, illegal attachment of properties, etc.

The J. C. Shah Commission Report stated that there was no other reason for declaring Emergency except the white paper and the statement of the Prime Minister. The said Commission stated that the said two pieces of evidence were neither sufficient nor satisfactory for proclaiming Emergency.

Supreme Court’s Observations

Initially, on 7th December 2020, the Court questioned the feasibility of questioning the Emergency, lifted 43 years ago.

However, on 14th December 2020 decided to examine the cause and issue an appropriate notice to the Centre.

The Bench heard Senior Advocate Harish Salve, who stated that issues of war criminals are heard long after the conclusion of the war. He stated that as opposed to a political debate on this issue, the Court requires to examine whether the National Emergency of 1975 was a fraud on the Constitution.

Court’s Decision

The Court issued notice to the Centre and its authorities. The case is likely to be listed in the last week of January 2021.


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