4 Supreme Court Judges Discuss Emergency Powers in Democracies at a Book Launch hosted by Jindal Global Law School

New Delhi: Mr. Justice, N.V. Ramana, Judge, Supreme Court of India said that emergencies have a long-lasting impact on generations. He was speaking at the launch of the book The Law of Emergency Powers: Comparative Common Law Perspectives authored by Dr. Abhishek Manu Singhvi and Professor Khagesh Gautam and published by Springer in the presence of three other esteemed Supreme Court Justices: Hon’ble Mr. Justice Surya Kant, Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Dr. Justice D. Y. Chandrachud. This book has garnered a lot of attention and positive feedback in the world of law already, given its coverage of perhaps the largest population within the common law world, providing maximum representative diversity. This virtual book release event was representative of the same.

“The authors have turned a very complex and understudied area of law into a simple but comprehensive work. Questions such as what such a declaration connotes, when can it be legally proclaimed and what the permissible actions during an emergency are, it is these questions, amongst others that the book tries to address by doing a cross-jurisdictional study,” Hon’ble Mr. Justice N.V. Ramana said. He went on to say, “The book had its origin in the 1980s at the University of Cambridge, as part of Dr. Singhvi’s Doctorate programme under the renowned scholar of Administrative Law Professor William Wade. That Dr. Singhvi chose to study the suspension of due process as part of his research, was an inspired decision. The lack of scholarship in this area should not be confused with its relative importance. The book indicates the breadth of possible study relating to the concept of emergency powers. This puts into perspective the full extent of the labour of love undertaken in putting together this work. Delving into the domain of legal and political philosophy, the authors suggest that the phrase ‘emergency powers’ is ordinarily used in the context of a suspension of, or departure from legal normality in response to a political, economic, or social crisis. To this definition, recent events and the future might see the addition of environmental or natural crisis as well.”

Dr. Abhishek Manu Singhvi, Author and Senior Advocate, Supreme Court of India said, “The book rewinds over 30 years to the early 80s when I completed a 200,000-word thesis at Trinity College, University of Cambridge. I did my research on the obverse of (what fascinated me then) due process: namely the suspension of due process which is another name for emergency powers. It is a matter of some satisfaction that nearly 30 years after its writing, this book remains the first and only comprehensive and constitutional study of emergency powers in a comparative, common law perspective. It is also the first one which deals with the varied forms of emergency powers.”

“The year 2020 has been one of unprecedented situations and emergencies of significant magnitudes never witnessed before,” said Professor (Dr.) C. Raj Kumar, Founding Vice-Chancellor, O.P. Jindal Global University. He also said, “Therefore, during a time like this, the book is going to be the intellectual guidance the world around us would like to have. The book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of the 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. This book will have a tremendous impact on the way we evolve from the current crisis.” He also went on to quote stellar feedback on the book from stalwarts of the legal fraternity and leaders of legal academia from around the world, that commonly appreciated the timeliness of the intervention made by this book and the scale of global impact it will have on the future of the world of law and justice.

Other seminal speakers and legal luminaries of the Indian Supreme Court included Hon’ble Mr. Justice Surya Kant, Judge, Supreme Court of India, who said, “With the aid of a cross-jurisdictional and inter-disciplinary comparative analysis this book on the law of emergency powers holistically analyses emergency powers under the Constitutions of three democratic common law jurisdictions. The authors successfully aim at exploring the genesis of emergency powers philosophically in various civilisations, international instances of the armed forces aiding civil authorities and the permissibility of exercising martial law powers under the Indian Constitution. Tracing the use of emergency powers since the time of British rule and the two World Wars the authors explore Constituent Assembly debates and the contentious 42nd and 44th amendments to the Indian Constitution. They refer to the often misused provision of the imposition of the President’s Rule under Article 356 and the possible impact on judicial challenges on the invocation of a financial emergency under Article 360. The tendency of modern institutions to divide power as a check against despotism can indeed lead to paralysis. Therefore, most of the nations and Constitutions contain either written or implied emergency provisions which provide for an alternative framework for more decisive governance in such exceptional times. India has never imposed a nationwide emergency after 1975. Many would say that Article 352 is a matter of Constitutional history and not a live or active instrument. The focus, for Governments, has shifted to two big challenges: Domestic unrest and terrorism. Existing legislation and delegated powers are used to deal with these challenges. This is most visible in the times of the Coronavirus pandemic where no nation has abrogated the Constitution or invoked a formal stage of emergency.”

 

Speaking on the notable occasion, Hon’ble Mr. Justice Sanjay Kishan Kaul, Judge, Supreme Court of India, said, “Academic legal writing is an important aspect for jurisprudential development. This is an area we have been lacking for long. Emergency powers seek to widen the scope of the ordinary power of the government which might be insufficient in times of crisis. The legal regimes for emergencies are constitutional limits combined with statutory powers, are key to ascertaining whether the state of emergency will prove to be a threat to the constitutionalism or measure to restore stability and constitutional order. A difficult balance! It brings to the fore critical questions on the rule of law, the separation of power in the independence of the institutions. The test perhaps, of any legal system in any constitutional democracy, therefore, lies in the addressing the fundamental tension that exists between the basic premise of the government constrained by law in the perceived need for unfettered discretionary power to confer the state of emergency. The book studies emergency powers under three different jurisdictions: the US, UK and India. Together the three jurisdictions represent a variety of constitutional models, and cover perhaps the largest population in the common law systems. Unique political and legal solutions have shaped the exercise of emergency powers in each of these countries and the roles of the courts therein… the threat that looms large across the globe lies in the possibility of triggering emergency like situations in a de facto manner without actually taking aid of the emergency provisions explicitly. The pandemic has provided one such vantage point. The balance between attending to a pandemic of this magnitude and respecting the rule of law has been carefully maintained. Unprecedented situations like these also present before us unprecedented academic and practical questions to grapple with. This study placing emergency powers in the historical context is a sobering reminder of the many political, legal and philosophical issues. The long future will tell us how we have fared in these times.”

 

The erudite Hon’ble Dr. Justice D. Y. Chandrachud, Judge, Supreme Court of India, who was also present during the launch, said, “The timing for the release of this book is most opportune as just as last year, as many as 13 nations formally declared a national emergency where the Executive adopted exceptional powers to tackle the COVID-19 pandemic. So comparative study of emergency powers is the best resource for anybody seeking to contextualise their social citizenship in these exceptional times. I am deeply impressed by the depth and the breadth of this academic endeavour. History is replete with instances of civil liberties being the collateral damage of a national emergency. Fortunately, international jurisprudence has cultivated a deeper respect for human rights and civil liberties. The book weaves a fine thread across legal principles, state philosophy and political reality to provide a nuanced perspective to its readers. The comparative analysis on martial law and the arguments for sustaining independence of the Judiciary are thought provoking. A seminal contribution of the book to existing scholarship is reflected by its analysis of verdicts from the lens of not just the Constituent Assembly debates, but through its tracing of historical evolution of state power dating back to colonial times and the pre-colonial Indian sub-continent. The COVID-19 pandemic, one of the largest global disruptors in over a century, will probably be one of the deep influences on the scholars of today. Fervent and frequent lockdowns, restriction of movement, enhanced powers of the executive, were a pervasive phenomenon necessary to tailor a state infrastructure to battle a deadly virus. In the face of mortality, one couldn’t simply argue for their fundamental rights to travel freely. Even if an emergency in the constitutional sense was not declared in India, several executive and legislative actions were initiated to meet the extraordinary challenge of our times. The Judiciary as a counter-majoritarian institution, in times of such state crisis, has to adopt a much finer line of judicial review over Executive action that is dealing with medical novelties to preserve public health.”

 

As the eventful afternoon came to a conclusion, Co-Author of the book, Professor Khagesh Gautam, Associate Professor, Jindal Global Law School, O.P. Jindal Global University, thanked the legal luminaries for their notable speeches and words of support and encouragement, and reflected on the scale of the task and the academic challenges it presented. “Any study of emergency powers requires three things: It requires the approach of a naturalist, the discipline of a positivist and the disposition of a realist. The fact remains that the Courts can review emergency powers. In the Indian Constitution, emergency powers are specifically drafted and the Supreme Court of India knows that when it comes to Article 352, there are limits that can’t be crossed.” The vote of thanks for the virtual book launch was given by Ms. Nupoor Singh, Editor, Springer, the publisher of the book.

 

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