The Law of Emergency Powers

1. Front Matter

   Pages i-xxxviii

   PDF

2. The Concept of Emergency Powers in History and Political Thought: Greek, Roman and Indian Paradigms

   • Abhishek Singhvi, Khagesh Gautam

   Pages 1-20

3. Martial Law: A Comparative Analysis of USA, UK and India

   • Abhishek Singhvi, Khagesh Gautam

   Pages 21-94

4. Military Acting in Aid of Civilian Authority

   • Abhishek Singhvi, Khagesh Gautam

   Pages 95-124

5. Judicial Independence and Economic Emergency in India

   • Abhishek Singhvi, Khagesh Gautam

   Pages 125-174

6. Emergency Powers in India

   • Abhishek Singhvi, Khagesh Gautam

   Pages 175-297

7. Back Matter

   Pages 299-304

   PDF

This book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of very few comparative studies on three jurisdictions and arguably the first one to explore in detail various emergency powers, statutory and common law, constitutional and statutory law, martial law and military acting-in-aid of civil authority, wartime and peacetime invocations, and several related and vital themes like judicial review of emergency powers (existence, scope and degree). The three jurisdictions compared here are: the pure implied common law model (employed by the UK), implied constitutional model (employed by the USA) and the explicit constitutional model (employed by India). The book’s content has important implications, as these three jurisdictions collectively cover the largest population within the common law world, and also provide maximum representative diversity. The book covers the various positions on external emergencies as opposed to internal emergencies, economic/financial emergencies, and emergent inroads being made into state autonomy by the central or federal governments, through use of powers like Article 356 of the Indian Constitution.

By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Specific sub-chapters address questions like – what is the true meaning of ‘martial law’; who can invoke ‘martial law’; when can it be invoked and suspended; what happens when the military is called in to aid civilian authorities; can martial law be deemed to exist or coexist when this happens; what are the limits on state powers when an economic emergency is declared; and, above all, can, and if so, when and how should courts judicially review emergency powers? These and several other questions are asked and answered in this study. Though several checks and constraints have been devised regarding the scope and extent of ‘emergency powers,’ these powers are still prone to misuse, as all vast powers are. A study of the legal propositions on this subject, especially from a comparative perspective, is valuable for any body politic that aspires to practice democracy, while also allowing constitutionally controlled aberrations to protect that democracy.

• Emergency Provisions
• Constitutional Study
• Democracy
• Constitutional Orders
• Emergency Legislation

“Discerning readers will find the book’s combination of academic rigour, practical insight and considerable forthrightness worthy of commendation.” (The Commonwealth Lawyer, Vol. 31 (1), April, 2021)

“Two particular challenges have faced those who, in the course of millennia, have sought to organise the good life in society. A human society is constructed on the basis of its collective consciousness but also on the basis of a constantly evolving legal system. Who is to have the last word on the interpretation and application of the law? How can a legal system respond to events that may challenge its very existence? In conventional modern discourse, these have come to be called the problem of the independence of the judiciary and the problem of emergency powers. It may be that these two problems have never before been present as acutely and as widely as they are in our present troubled world. It is a rare thing to be able to respond to them with high scholarship and historical erudition, but also with a lively sense of the profound practical consequences of the answers that you offer. This book could not be needed more, or more urgently, than it is at the present time.”

- Professor Philip Allott, Professor Emeritus of International Public Law, Cambridge University, UK; Fellow, British Academy

“This work by Dr. Abhishek Manu Sanghvi and Professor Khagesh Gautam, inspired and supported every way by Vice Chancellor Professor C. Raj Kumar, offers a provocative treatise on emergency powers in the Constitution of India. It bristles with comprehensive historical narratives and contemporary insights and helps us better understand the location and the vocation of authoritarian power to sustain as well as destroy the letter and the spirit of a living constitutionalism. The analysis at every phase is analytically cogent and juristically conscientious. The treatise also shows how the power of analysis can deflate varied forms of populist authoritarianism. There is no doubt that this only full-length treatise on Indian emergency power and process will be hailed and held as a contemporary classic on constitutionalism.”

- Professor(Dr). Upendra Baxi, Professor of Law, Jindal Global Law School, O.P. Jindal Global University, Sonipat, India; Emeritus Professor of Law,University of Warwick, Coventry, U.K.; Former Vice Chancellor, University of Delhi, India

“In the ‘Law of Emergency Powers’, Dr. Abhishek Manu Singhvi and Professor Khagesh Gautam, provide a timely and rigorous comparative analysis of emergency law in India, the United States, and the United Kingdom. In response to COVID-19, governments around the world have used their powers to declare emergency and abrogate civil liberties and human rights. This book engages with important questions that will be asked for many decades after the pandemic ends—when is it appropriate for governments to utilize their emergency powers, how can we determine if the government has overstepped its powers, and who determines when the extraordinary circumstances have changed? Anyone who cares about these questions should read this book.”

- Professor Sital Kalantry, Clinical Professor of Law & Faculty Director, Cornell India Law Center, Cornell Law School, USA

“This work provides the first comprehensive analysis, supported by rigorous research and intellectual discipline,of concepts in emergency law that have not been addressed in this manner before in India. Many questions, heretofore unanswered and urgently needing an answer, have been addressed and in my opinion have been laid to rest in this work of unparalleled scholarship.”

- Justice R.C. Lahoti, former Chief Justice of India

“Emergency provisions in any democratic constitution is antithesis to constitutionally guaranteed rights and institutional checks and balances but they are necessary in times of extraordinary urgent situations and public emergencies. The problem arises when emergency provisions are used not as a reasonable response to genuine emergencies but to concentrate power in the hands of an individual. The edifice of this book—The Law of Emergency Powers—rests on the work prepared as PhD thesis by Dr. Abhishek Manu Singhvi few decades back. The most interesting aspect of this book is that a comparative study of Emergency Powers has been carried out of three democracies, one of which has no written constitution (U.K.), the other mentions Emergency Provisions in Part XVIII of the world’s longest constitution (India). The discussion on the topics such as ‘Can Martial Law be Proclaimed Under Article 34’ and ‘President’s Rule: A Sui Generis Emergency Power’ is thought provoking. Everyone serious about the emergency provisions prevalent in India and U.S.A—the two biggest democracies in the world—and U.K. needs to read this book.”

- Justice R.M. Lodha, Former Chief Justice of India

“In 2020, the comparative law of emergency powers in India, the U.S. and the U.K. conjures thoughts of the crackdown in Kashmir, enhanced interrogations in Guantánamo, and police arrests under the Emergency Coronavirus Bill. This book is not about those burning issues of the day. It is rather a brilliantly written and deeply scholarly legal history of the doctrine of emergency powers, starting with ancient India and Greece and focusing on judicial independence and preservation of legislative powers in the three countries, drawing primarily on events up to the mid-1980s, when the work was first drafted as Dr. Singhvi’s Ph.D. thesis at Cambridge University. He and his co-author, Prof. Gautam have provided essential reading for anyone interested in emergency powers in common law jurisdictions. Hopefully a subsequent volume will address the international law and contemporary dimensions of this critical issue of law and governance.”

- Professor (Dr.) Stephen P. Marks, François-Xavier Bagnoud Professor of Health and Human Rights, Harvard University, Cambridge, U.S.A.; Member, Committee on Human Rights in Times of Emergency, International Law Association

“Singhvi and Gautam provide an indispensable service with the publication of this book. The first of its kind, ‘The Law of Emergency Powers’ presents a foundational analysis of a critical topic for any country’s legal system. However, the authors’ comparison of the British, Indian and American common law systems’ approach to emergency powers is a triumph both in deep legal investigation of each country’s particular approach, as well as broad description of important common challenges these regimes and many others face. The authors further situate this analysis in the context of international humanitarian law, and thereby help draw lessons from these 2 common law systems that all countries should learn.”

- Professor (Dr.) Nathaniel Persily, James B. McClatchy Professor of Law, Stanford Law School, Stanford University, USA

“‘Amidst the Clash of Arms Laws are Silent’ despite Lord Atkin’s exhortation to the contrary. Emergency powers of the state are just another attribute of sovereignty. In this brilliant work ‘Law of Emergency Powers’, Dr. Abhishek Manu Singhvi who commands a large practice in Constitutional and Public Law litigation in India and his scholarly co-author Khagesh Gautam dig into the depths of ‘Constitution’s Dark-Matter’ to trace emergency powers and the legal limits of the concept. Courts have defined the over lapping boundaries of Law and Order, Public Order and Security of states. In search of the legal limits of the State’s authority. English Common Law grew in ‘rugged isolation’ from the systems across the British channel, greatly influenced the Liberal American Constitutional tradition. The way the other jurisdiction, including India, dealt with the issue is equally fascinating. This work examines and lights up larger issues which have democratic and civilisational implications. Great reading.”

- Justice M.N. Venkatachaliah, Former Chief Justice of India

In this timely and importantbook, Abhishek Singhvi and Khagesh Gautam trace the history and contemporary uses of one of the most consequential – and controversial – actions that can be taken by any government: to declare a state of emergency. With all of the analytical rigor and theoretical sophistication that one would expect from a book written by one of India’s leading advocates and an equally distinguished scholar, the authors catalogue and dissect the justifications that have been offered for this extraordinary suspension of the normal rules of governance from ancient Greece to the Indian Constitution. At a time in which governments of all stripes are increasingly resorting to “emergency” measures to combat everything from terrorism, to mass migration, to global pandemics, this thoughtful and balanced assessment should be required reading by all those who care about the future of democracy.“

- Professor David B. Wilkins, Lester Kissel Professor of Law, Vice Dean for Global Initiatives on the Legal Profession & Faculty Director of the Center on the Legal Profession, Harvard Law School, Harvard University, USA

• Supreme Court of India, New Delhi, India

  Abhishek Singhvi

• Jindal Global Law School, O. P. Jindal Global University, Sonipat, India

  Khagesh Gautam

Abhishek Manu Singhvi is an eminent jurist, senior third-term parliamentarian, visible media personality, well-known columnist, author, thinker and commentator. He was the youngest designated Senior Advocate, Supreme Court of India (at age 34); the youngest Additional Solicitor General of India (at 37); and is a former elected Vice President, Supreme Court Bar Association (at 39). He is a former Chairman of the Parliamentary Committee of Law, one of the seniormost national spokespersons of the Congress Party & former Chairman of the AICC Law and Human Rights Department. He has been a member of the Indian Supreme Court, where he created and administered bilateral legal forums, including the Indo-British, Indo-US, Indo-Canadian and Indo-Israel forums. After obtaining his B.A. (Economics) degree from St. Stephen’s College, New Delhi, Dr. Singhvi went on to complete his Masters and PhD at Trinity College, Cambridge, UK. He also taught at St. John’s College, Cambridge, and joined abrief summer program at Harvard, USA. He has lectured to student/faculty groups and general audiences at Stanford, Harvard, Yale, Boston, MIT and George Washington Universities, as well as NGOs and think-tanks. He was a visiting Trumbull Lecturer at Yale University, USA, in 2011 and is currently an Honorary Adjunct Professor at O.P. Jindal Global University.

Khagesh Gautam is an Associate Professor of Law and Assistant Dean (Research and Publications) at Jindal Global Law School, O.P. Jindal Global University, Sonipat, India. He received his LL.M. from Columbia Law School, where he graduated as a Stone Scholar. He teaches core courses on Constitutional Law and Evidence and elective courses on Comparative Constitutional Law and Forensic Evidence. He has also taught at the China University of Political Science and Law, Changping, Beijing, and at William S. Richardson School of Law, University of Hawaii, USA. He is also a member of the Editorial Board of the Africa Journal of Comparative Constitutional Law. His work has been published in e.g. the Columbia Journal of Asian Law, Indiana International and Comparative Law Review, Southwestern Journal of International Law, Boston University International Law Journal, Vienna Journal on International Constitutional Law, Journal of Comparative Law, International Tax Journal, and Economic and Political Weekly.        

Policies and ethics