Four Supreme Court Judges to Release Book “The Law of Emergency Powers” Published by Springer

New Delhi: Hon’ble Mr. Justice, N.V. Ramanna, Judge, Supreme Court of India along with three leading judges of the Supreme Court of India: Hon’ble Mr. Justice Surya Kant, Hon’ble Mr. Justice Sanjay Kishan Kaul and Hon’ble Dr. Justice D. Y. Chandrachud will release the notable publication The Law of Emergency Powers: Comparative Common Law Perspectives authored by Dr. Abhishek Singhvi and Prof. Khagesh Gautam and published by Springer on 23 January, 2021.

 

The 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.

 

Professor (Dr.) C. Raj Kumar, Founding Vice Chancellor, O.P. Jindal Global University, said, “The scholarship and wisdom of this book is essential in understanding the application of the law regarding the interpretation of emergency powers, their application and the impact on Constitutionalism. The deep and rigorous analysis of emergency power in India and the comparison with the US and UK systems will provide insight and is an essential reading for all who want to understand the complexity of emergency powers and their application in the leading democracies of the world.”

 

Reflecting on his experience at the Supreme Court Bar, Dr. Abhishek Manu Singhvi, Senior Advocate, Supreme Court of India said, “This work is the result of many years of hard work and patience. The work you see here today was originally prepared as my doctoral dissertation in Cambridge in 1985. The Supreme Court of India is not said the most powerful Supreme Court in the civilized world for no reason. Our Court is the only apex court in the common law world that has declared proclamations of emergency to be unconstitutional. It is not an easy thing to do. When examined in a comparative perspective, we can learn much about the manner in which a constitutional power ought to be exercised and the manner in which it is actually exercised. The wealth of citations and references in this work, and the discussion and treatment of specific issues, I hope, would be found useful by all the members of the Bench and the Bar.”

 

Highlighting some of the aspects of this work, Professor Khagesh Gautam, Associate Professor, Jindal Global Law School said, “Study of emergency powers in India is limited usually to article 356 of the Constitution. This work takes a more comprehensive approach. Not only does this work provide a comprehensive discussion of articles 352 and 356, it finally fills the gap by providing a detailed treatment of article 360 which is perhaps one of the most academically ignored provision of our Constitution. The effectiveness of the Supreme Court’s landmark 9-judge bench decision in Bommai has been demonstrated. The discussion of US law on martial law, and UK law on military acting-in-aid of civilian authority has particular significance for us in India.” Drawing attention to the comparative nature of this book, Prof. Gautam said, “Our friends in South Korea might find this work useful as South Korean Constitution expressly allows a proclamation of ‘martial law’. That is not surprising though, since it was drafted mostly by American lawyers.”

 

By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Rarely in the history of Indian legal scholarship has the question of jurisprudential basis of any given constitutional power been examined with the depth that such questions require. In this book investigates such questions in the context of emergency powers as judicially understood in India, USA, and UK. This book makes some outstanding contributions that future emergency powers scholars in India will be thankful for. The historical analysis of article 34 of the Indian Constitution, careful balancing of constitutional powers in the event of an economic emergency, the ‘post-Bommai’ discussion that shows just how effective the Supreme Court’s historic 9-judge bench decision in the famous S. R. Bommai case, and other such interesting sub-parts of this book offer deep insight into the law and history of emergency powers in India. A detailed study of martial law, its imposition, and judicial review in India, US, and UK might be found particularly useful by Korean legal and constitutional scholars since the text of South Korean constitution allows imposition of ‘martial law’. 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.

 

The book has earned wide praise from leading legal luminaries and academics across the world. “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,” said Professor (Dr.) Nathaniel Persily, James B. McClatchy Professor of Law, Stanford Law School, Stanford University, USA. 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 noted that “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.”

 

Dr. 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 senior most national spokespersons of the Congress Party & former Chairman of the AICC Law and Human Rights Department.

 

Professor Khagesh Gautam is an Associate Professor of Law 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 Constitutional Law, Criminal Procedure, and 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, and currently pursing doctoral work at an advanced stage at Maurer School of Law, Indiana University, Bloomington.

 

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