Whether the Emergency of 1975 imposed by the Indira Gandhi-led Congress government can be declared "wholly unconstitutional" after so many years will be examined by the Supreme Court, which today asked the centre to respond to a petition filed by a 94-year-old woman.
A bench headed by Justice Sanjay Kishan Kaul said it would examine whether it would be "feasible or desirable" for it to go into the validity of the proclamation of Emergency after a lapse of 45 years.
"We are inclined to see whether a simpliciter declaration on Emergency is feasible or desirable after passage of time," the judges said.
The petitioner, Veera Sarin, wants the court to declare the Emergency unconstitutional, saying she and her husband were forced to leave the country and their properties were snatched. According to her, they had a thriving Gold Arts business in Delhi at the time and were compelled to leave the country for fear of being thrown into jail for no justifiable reason, on the "whims and wishes of government authority in a state where civil rights and liberties stood curbed."
Ms Sarin says her property was seized and her husband later "succumbed to the pressure and died". Claiming that she was "shunned by her relatives and friends", Ms Sarin says in the petition she wants "closure to the trauma of her lifetime, which still resonates in her mind".
The Supreme Court was initially reluctant to take up the petition.
"We are having difficulty. Emergency is something which should not have happened," the judges noted.
Justice Kaul told senior lawyer Harish Salve, representing the petitioner, "Something happened in history 45 years ago. But to go into this issue now? We are finding it difficult to entertain this plea."
Justice Kaul added, "What is not to happen, happened. We can't keep digging on these issues, the persons are gone today".
Harish Salve argued that abuse of power needs correction and even war crimes were still heard after several years.
"Certain things in history had to be revisited if correction has to be done and the Emergency is one such issue," Mr Salve said.
"War crimes are still heard. A nascent democracy's rights was abused for 19 months. This was a greatest assault on our Constitution. This is a matter which people of our generation will have to look into. This needs to be decided by the Supreme Court. This is not a political debate. The petitioner is not a political person but affected by the Emergency. The court must declare that the Emergency was illegal," he emphasised.
Former Prime Minister Indira Gandhi imposed the Emergency in 1975, days after the Allahabad High Court found Indira Gandhi guilty of electoral malpractices and disbarred her as a parliamentarian for six years. Constitutional rights and civil liberties were suspended, the media was severely restricted and many opposition leaders were jailed during the period that last till 1977.
The court said: "This plea arises from the passage of time. Mr Salve for the petitioner says that prayer survives, and wrongs of history must be corrected. We would be disinclined to reopen such aspects. After 45 years it may not be appropriate to reopen those issues. We would be however be not disinclined to see whether such a simpliciter declaration, something which is feasible or desirable after passage of time and issue. Issue notice. Petitioner to amend the petition."
Ms Sarin had also asked for Rs 25 crore as compensation. After she said she would not press for the money, the court asked her to restructure her petition.