The Law of Emergency Powers, 1st ed. 2020
Comparative Common Law Perspectives

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.

Chapter 1 – The Concept of Emergency Powers in History and Political Thought: Greek, Roman, and Indian paradigms

 

I.               Ideas Underlying the Concept of Emergency Powers

II.            The Greek Period

III.         The Roman Dictatorship

i.          Appointment of Dictators

ii.        Limitations of Time

iii.      Non-Derogable Areas

iv.      Other limitations

v.        Some additional effects of use of emergency powers

vi.      The decline of the dictatorship

IV.         Ancient and Medieval India

Chapter 2 – Martial Law: A Comparative Analysis of the USA, the UK, and India

 

I.               Introduction

II.            A Brief History of Martial Law

III.         Martial Law in the United States

i.          Military Law, Military Government and Martial Law

ii.        Absolute and Qualified Martial Law & Preventive and Punitive Martial Law

iii.      State of Insurrection and State of War

iv.      Historical Instances of Use of Force

v.        Is Martial Law Constitutional in USA?

vi.      Proclamation of Martial Law

a.       Identity of Proclaimer

b.      Nature and Content of Proclamations

c.       Necessity and Effect of Proclamations

vii.    Permissible consequences of Martial Law

a.       Exercise of powers in absence of trial of civilians by military tribunals

b.      Trials of civilians by military tribunals

viii.  Suspension of the writ of Habeas Corpus

a.       Martial Law and Suspension of Writ of Habeas Corpus differentiated

b.      Who may suspend the writ?

IV.         Martial Law in England

i.          Historical Evolution and Significant Instances of Use

ii.        Martial Law: Prerogative or Common Law?

iii.      Proclamations of Martial Law

V.           Martial Law in India

i.          Pre-Independence Judicial Opinion

ii.        Post-Independence Judicial Opinion

iii.      Can Martial Law be proclaimed under article 34?

An alternative view: Historical Analysis of article 34

Chapter 3 – Military Acting in Aid of Civilian Authority

 

I.               Introduction

II.            Use of Military in Situations not amounting to Martial Law in the United States

i.          The National Guard

ii.        Some instances of use of the military in aid of civil authority

iii.      Distinctions between martial law and use of military in aid of civil authority

iv.      Principles governing liability of Guardsmen and Higher Officers

a.       General Principles

b.      False arrest and imprisonment

c.       Use of excessive force

d.      Immunity, if any?

v.        Judicial review of actions of Guard in other situations

vi.      Use of force by the Federal Government: The Debs Principle

III.         Military Acting in Aid of Civil Authority in UK

i.          Distinction between martial law and military acting in aid of civil authority

ii.        Historical evolution and current status of the civil decision to deploy military

iii.      Judicial review and some other issues

IV.         India: No direct comparative jurisprudence exists though some principles are summarized

Chapter 4 – Judicial Independence and Economic Emergency with Special Focus on India

 

I.               Introduction

II.            Economic Emergency under the Indian Constitution

III.         Financial Independence of the Judiciary

i.          Judicial Salaries and Judicial Independence

ii.        Judicial Salaries and the Question of Independence in the United States

IV.         Financial Independence of Judiciary under the Indian Constitution

V.           Judicial Review of Reduction of Judicial Salaries during an Economic Emergency

i.          Colorable Exercise of Power

ii.        Fundamental Rights Violation

iii.      Judicial Review and Basic Structure Constitutionalism

Conclusion

Chapter 5 – Emergency Powers in India

 

I.               Historical overview of Emergency Powers in Pre-Indepenent India

i.          Pre-British India

ii.        Company Rule: 1600-1857

iii.      Direct British Rule Prior to First World War: 1858-1914

iv.      First World War: 1914-18

v.        Inter War Years: 1919-39

vi.      Second World War and Independence: 1939-47

 

II.            Emergency Powers in the Indian Constitution

i.          Introductory

ii.        Travaux Preparatories Relating to Constitutional Provisions

iii.      Changes in Emergency Provisions During and After 1975

iv.      Some legal aspects of Emergency Powers

a.       Proclamation of Emergency

b.      Effects of Emergency

v.        Post-Independence Emergencies

a.       War Emergencies

b.      The 1975 Peacetime Emergency

c.       Detentions

d.      The Press and Media

 

III.         President’s Rule: A Sui Generis Emergency Power

i.          Introductory

ii.        Constituent Assembly Debates Relating to Article 355, 356, and 357

iii.      Post-Independence Changes in Article 355, 356, and 357

iv.      Some legal aspects of President’s Rule in India

a.       Role and Status of President and Governor during an article 356 Proclamation

b.      Duration of Effects of Action under an article

·         356 Proclamation

·         Violation of Constitutional Provisions relating to Parliamentary scrutiny

c.       Legality of suspension of Assembly

d.      Judicial Review and Article 356

·         State of Rajasthan v. Union of India

·         S. R. Bommai v. Union of India

Post Bommai Development