Emergency is something which should not have happened, the Supreme Court on Monday said as it agreed to hear a plea of a 94-year-old woman seeking to declare as wholly unconstitutional the proclamation made in 1975 during the tenure of the then Indira Gandhi led Congress government.

The top court, which issued notice to the Centre said that it would also examine whether it is feasible or desirable to make a simpliciter declaration of the proclamation after a lapse of 45 years.

We are having difficulty. The emergency is something that should not have happened, a bench headed by Justice Sanjay Kishan Kaul observed while pondering over what relief it can grant after the passage of such a long time.

The bench also 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 persons, but with the passage of almost 45 years, it would not be appropriate to reopen all such issues.

It asked the petitioner to amend her petition by December 18 concerning the prayer of the declaration of the Emergency as unconstitutional.

Senior advocate Harish Salve, appearing for petitioner Veera Sarin, said that the Emergency was a fraud and the greatest assault on the Constitution as rights were suspended for months.

The Emergency was proclaimed minutes before midnight of June 25, 1975, by then President Fakhruddin Ali Ahmed at the recommendation of the then government led by Prime Minister Indira Gandhi. The proclamation was revoked in March 1977.

Salve said that it's an important matter of considerable importance and if the principles of abuse of constitutional power can apply to the removal of state governments, presidential proclamations, then the principle should also cover the issues of rights of citizens.

He said that they have relied on the Shah Commission report to prima facie say that the declaration of emergency was an abuse of power and if a situation like this ever arises, then a court can and will look into it.

Centre had appointed a commission of inquiry headed by former Chief Justice of India J C Shah in 1977 to inquire into all the excesses committed during the emergency.

Justice Kaul asked Salve can the court go into all the issues after the passage of so much time and will it be appropriate.

Salve said the petitioner had suffered during the emergency and the court should see how she was treated during that period.

In the world, war crimes are being punished, gender crimes are being punished and you can see people of 80-90 years being hauled up for their deeds. History cannot be allowed to repeat, he said, adding, for months, rights were suspended. It was a fraud on the Constitution.

This was the 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. We all know what happened in jails. Maybe we are too late for relief but someone must be told that what was done was wrong, Salve told the bench.

He said that certain things in history need to be revisited and see if correct things were done and this is one such issue.

He said that the matter is of considerable importance as the country had seen sheer abuse of power during the emergency.

During the hearing conducted through video-conferencing, the bench asked, “Can the court look into the matter which has happened 45 years earlier. What relief can be granted?”

We cannot keep digging into the matter. The persona is no more today, the bench observed.

Salve said that after the SR Bommai judgment in 1994, which dealt with issues pertaining to Article 356 of the Constitution which relates to provisions in case of failure of constitutional machinery in the state, a principle has been developed which can be applied for government formation or in violation of rights.

Court has passed the orders after 45 years. Abuse of power can be looked into and what relief can be granted is of another aspect, he said, adding the petitioner is seeking that the emergency be declared unconstitutional.

The bench asked Salve whether he is confining himself to the prayer for declaration of the emergency as unconstitutional.

The senior lawyer said that he feels very strongly on this issue and “if your lordships recall we were students at the time of the proclamation of emergency in 1975. This is why I am appearing in this matter.”

He said the petitioner is 94-year-old and she is happy but she wants that proclamation to be declared unconstitutional.

The plea has also sought compensation of Rs 25 crore from the authorities who had actively participated in the unconstitutional acts.

The petitioner has claimed in her plea that she and her husband were victims of the atrocities inflicted by the then government authorities and others during the period of emergency.

Sarin said that she and her husband, who had a flourishing business of Gold Arts in Delhi at that time, were compelled to leave the country during the emergency for fear of being thrown into jail for no justifiable reason, on the whims and wishes of the government authority, in a state where civil rights and liberties stood curbed.