Topic: An inquiry into the justifications for declaring a State of

Emergency

Raghuveer Singh Meena

B.A. LL.B. (Hons.) Student, National Law School of India University, Bangalore, India
raghuveersinghmeena@nls.ac.in
raghu22041993@gmail.com

Abstract
The aim of this research paper is to study the justification of a state for declaration of
emergency power and violation of human rights during that period. This paper is focussing
on rule of law during emergency time. The scope of this paper is to study the Exercise of
emergency power in general context at international level to analyse the state of human rights
during its declaration period. The limitation of this paper is to study the exercise of
emergency power in theory and practice to analyse position of human rights and rule of law
during that particular period. The questions which will be answered in the paper will be
following ones:
1) How should balance be maintained between emergency declaration and individual
liberty?
2) What are the justifications of a Democracy for proclamation of emergency?
3) How can emergency power be checked as it can be used to abuse human rights?

Introduction
The protection and promotion of human rights are important for the development of world
public order and of an equitable national order. Human rights instruments both at the
universal as well as at the regional levels contain numerous core rights considered
inalienable. These core rights are guaranteed by e very society through its Constitution, no

matter whether it is written or not.1 The state has the obligation under both conventional and
customary law to protect these rights. It is the duty of the states to uphold human rights of all
citizens irrespective of religion, race and ethnicity. If the basic rights are protected without
discrimination by the state organs, there cannot be any violation of human rights. 2
Violations of most human rights on a large scale are quite common during a state of
emergency and during such situation, it must be remembered that under international law
there will be certain limitations and conditions for proclamation and suspension of human
rights to deal with situation. First, the emergency must be such that it threatens the life of the
nation, second, the emergency must be officially proclaimed, third, the derogatory measures
are only those which are only those which are strictly required by the exigencies of the
situation, fourth, such measures must be in conformity with other international obligations,
fifth, the measures are non-discriminatory, and finally certain most basic human rights are not
suspended even in case of a very serious emergency situation.3
As society advances and civilisation progresses, it is possible to expand this list of nonderogable rights with a view to ensure that most of the recognised human rights are respected
even during extraordinary situations so that the State authorities may be obliged to adopt
measures necessary to preserve the statehood without compromising basic rights and liberties
of the people. This will also ensure that constitutional mechanisms are not misused by the
authorities for political purposes at the cost of human dignity.4

Historical Development
Carl Schmitt presents the state of exception through the figure of dictatorship. He
distinguishes between a commissarial dictatorship, which has the aim of defending or

Liora Lazarus et al, SECURITY AND HUMAN RIGHTS, 45, (2007).

Id, at 72.
3
Amiya Rao et al, Emergency: What it meant, 39(27) MAINSTREAM 30, 30 (2001).
4
Id.
2

restoring the existing constitution; and sovereign dictatorship, which aims at creating a state
of affairs in which it becomes possible to impose a new constitution. An example of the
former is classical republican Rome, while an example of the latter is communism.5
Schmitt explores the state of exception through two fundamental elements of law: norm and
decision. The norm is supsended or annuled to reveal the decision. The state of exception is
presented as a theory of sovereignty, since the sovereign is he who can decide on the state of
exception and anchor it in the juridical order.6
He also says that the state of exception is the opening of a space in which norm and
application reveal their separation; between the norm and its application there no internal
nexus that allows us to derive on from the other. This marks a threshold in which there is a
force of law without the law.7
Thus in classical republican Rome the Senate identifies a state of emergency, decides upon a
state of exception, suspends the administration of justice and the public law, and decrees that
the consuls (or those who act in their place) are to take whatever measures they considered
necessary to ensure the survival of the state.8
This situation indicates that state of exception cannot be interpreted through the paradigm of
dictatorship. What we have is unlimited power being invested from the suspension of the
laws that restrict the consuls/magistrates actions like with Hitler and Mussolini. Hitler was a
legitimate Chancellor of the Reich, whilst Mussolini was a legally invested head of
government. But characterizes both their regimes is the suspension of the existing
constitution and created beside the legal constitution a second structure anchored in the state
of exception.9
1. So the state of exception is not a dictatorship as understood by Schmitt. It is:
a space devoid of law in which all legal determinations are deactivated,
2. This space devoid of law seems to be so essential to the juridical order that the state of
exception as the suspension of law is grounded in the juridical order,

Lazarus, supra note 1, at 84.

B. N. Kripal, SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA, 136,
(2004).
7
Id, at 140.
8
Janak Raj Jai, EMERGENCY EXCESS A DAYLIGHT ROBBERY OF HUMAN RIGHTS AND J.P. THE SAVIOUR, 208,
(1996).
9
Id, at 210.
6

3. The crucial problem connected to suspension is that the acts committed during the
suspension seem to be situated in a non-place with respect to the law,
The essential task of a theory of exception is not to clarify whether it has a juridical relation
but to define the meaning, place and modes of its relation to the law.10 The resort to
emergency powers at both the national and international level has been so extensive and
penetrating that the exercise of these powers and the complex questions that arise in that
connection now play a critical role in discussion about the rule of law, legitimacy and
legality.11
How to allow government to act responsibly? i.e. with sufficient vigour to meet the nations
challenges, but without intruding on protected liberties? How to balance security and
liberty? These questions are as ancient as the Roman republic.
Authoritarian regimes are not faced with terrible choices that violent emergencies present to
democracies. For the formers only significant parameters by which to evaluate the states
response to the violence are efficiency, allocation of resources, and the political and perhaps
physical survival of the regime. No real tension exists, nor can one exist, between liberty and
security, because security is everything and liberty does not count for much.12 Such
authoritarian regimes are motivated by reason of state arguments that are reminiscent of those
put forward by political realists. For democracies, the story and calculus are different.
To what extent can violations of liberal democratic values be justified in the name of the
survival of the democratic, constitutional order itself, and if they can be so justified, to what
extent can a democratic, constitutional government defend the state without transforming
itself into an authoritarian regime?13
The difficulty of defining emergency in advance was clearly captured by Alexander Hamilton
when he wrote that it is impossible to foresee or to define the extent and variety of national
exigencies, and the correspondent extent and variety of the means which may be necessary to
satisfy them. The circumstances that endanger the safety of nations are infinite.14

10

Kripal, supra note 6, at 138.

Dillon, Global Governance, Liberal Peace and Complex emergency, 25(01) ALTERNATIVES 117, 135, (2000).
12
Id, at 138.
13
Kripal, supra note 6, at 140.
14
Dillon, supra note 11, at 128.
11

Violent crises pose the greatest and most sustained danger to constitutional freedoms and
principles. In such times, the temptation to disregard constitutional freedoms is at its zenith,
while the effectiveness of traditional checks and balances is at its nadir.15
Thus there exists a tension of tragic dimensions between democratic values and responses to
violent emergencies. Democratic nations faced with serious crises by way of terrorist threats
or fundamental political challenges must maintain and protect life, the liberties necessary to a
vibrant democracy, and the unity of the society, the loss of which can turn a healthy and
diverse nation into a seriously divided and violent one. At the same time, exigencies and
acute crises directly challenges the most fundamental concepts of a constitutional
democracy.16
Consider the notion that a government must be of limited powers, a government of laws, not
of men or women. Crises tend to result in the expansion of governmental powers, the
concentration of powers in the hands of the executive, and the associated contraction of
individual freedoms and liberties.17 Enhanced and newly created powers are asserted by the
government as necessary to meet the challenge to the community. Concepts such as
separation of powers and federalism are likely to be among the first casualties when a nation
needs to respond to a national emergency. The executive branch assumes a leading role in
countering the crises, with the other two branches pushed aside (whether of their own volition
or not).18
The increase in governmental powers leads to a contraction of traditional individual rights,
freedoms and liberties. The governments ability to act swiftly, secretly, and decisively
against a threat to the life of nation becomes superior to the ordinary principles of limitation
on governmental powers and individual rights. Such expansions and concentrations of powers
are not unique to times of crises, but rather as part of the modernization of society and the
need for governmental involvement in an ever-growing number of areas of human activity, it
can hardly be denied that such phenomena have been accelerated tremendously during
emergencies.19

15

Ambrose Pinto, 25 years of Emergency: We have failed the constitution, 38(32), MAINSTREAM 9, 11, (2000).
Id.
17
Linda Kemp Keith et al, Are constitutional state of emergency clauses effective? An empirical exploration,
26(04) HUMAN RIGHTS QUARTERLY 1070, 1080, (2004).
18
Id, at 1085.
19
Dillon, supra note 11, at 130.
16

The existence of restrictions and limitations on governmental powers is a fundamental

attribute of democratic regimes. The ideals of democracy, individual rights, legitimacy,
accountability and the rule of law suggest that even in times of acute danger, government is
limited, both formally and substantively, in the range of activities that it may pursue and
powers that it may exercise to protect the state. However, grave violent emergencies
challenge this organising principle.20
In extreme cases, the reason of state and what Bruce Ackerman calls the existential
rationale may call for the exercise of imaginative discretion and practically unlimited
powers by the government in order to protect the nation. The question then arises as to what
extent, if any, violations of fundamental democratic values can be justifies in the name of the
survival of the democratic, constitutional order itself, and if they can be justified, to what
extent a democratic, constitutional government can defend the state without transforming
itself into an authoritarian regime.21
An emergency is a state of affairs unexpectedly arising and urgently demanding immediate
action. An emergency power is ordinarily equated with war power. The most important
aspect is that when emergency should be declared? Emergency should be declared only when
there will be conditions of war which means public emergency must be tantamount to war or
as analogous to circumstances of war22 and Public emergency existed only when the
constitutional order of the state had completely broke down or when the different branches of
government could no longer function23

Emergency Powers and Human Rights

The definition of Public emergency as defined under the European commission of human
rights is,

20

Venkat Iyer, STATES OF EMERGENCY: THE INDIAN EXPERIENCE, 321 (2000).

Id.
22
Lawless v. Ireland, 1 Eur. Ct HR 56 (1960-61).
23
Lawless case, 1 Eur. Ct HR 56 (1960-61).
21

a situation of exceptional and imminent danger or crisis affecting the general

public, as distinct from particular groups, and constituting a threat to the organised life of
the community which composes the state in question.24
However, International Law Association (ILA) adopted another definition of public
emergency. Their Paris Minimum Standards of Human rights norms in a state of emergency
(Paris Standard) prescribe the following:25
(a) The existence of public emergency which threatens the life of the nation, and which is
officially proclaimed, will justify the declaration of a state of emergency.
(b) The expression public emergency means an exceptional situation of crisis or public
danger, actual or imminent, which affects the whole population or the whole
population of area to which the declaration applies and constitutes a threat to the
organised life of the community of which the state is composed.
Yet another definition was suggested by a group of international law experts who convened
in 1984 in Siracusa, Italy, to formulate a list of seventy six principles concerning the
limitation and derogation provisions in the ICCPR.26
A state party may take measures derogating from its obligations under the international
covenant on civil and political rights pursuant to derogation measures only when faced with a
situation of exceptional and actual or imminent danger which threatens the life of the nation.
A threat to the life of the nation is one that: affects the whole of the population and either the
whole or part of the territorial integrity of the state or the basic functioning of institutions
indispensable to ensure and protect the rights recognised in the covenant,27 Internal conflict
and unrest that do not constitute a grave and imminent threat to the life of the nation cannot
justify derogation under Article 4 of ICCPR, and Economic difficulties per se cannot justify
derogation measure.28
In Greece v. United Kingdom29, four characteristics of public emergency were declared
named as Emergency must be actual or imminent, its effects must involve the whole nation,

24

Lawless case, 1 Eur. Ct HR 56 (1960-61).

Iyer, supra note 20, at 325.
26
Oren Gross et al, LAWS IN TIMES OF CRISIS: EMERGENCY POWERS IN THEORY AND PRACTICE, 365 (2006).
27
Id, at 379.
28
Gross, supra note 26, at 220.
29
Greece v. United Kingdom, 2 Y.B. Eur. Conv. on H.R. 174 (1960).
25

the continuance of the organised life of the community must be threatened and the crisis and
danger must be exceptional.
A state of emergency is not deemed to justify a deviation from normal legal system. The
ordinary legal system is presumed to provide the necessary answers to any crisis without the
need to resort to extraordinary governmental powers. We acknowledge here that the term
ordinary may have multiple meanings and a lack of new powers does not mean that the
coercive power of the state is necessarily limited.30
At the idealistic end of the spectrum, we find attempts to restrain state abuse of power in the
counter terrorism context by appealing to the importance of human rights and legality, and
thus to a substantive conception of the rule of law. This approach seeks to prevent the abuse
of state power by maintaining as far as possible substantive legal norms and otherwise
insisting on judicial supervision of any deviation from those norms.31 At the pragmatic end of
the spectrum, we find acceptance of the inevitability of abuse of power and the inability of
the law to contain them, we also find efforts to restrain state power by non-judicial means,
namely political checks. Neither approach is wholly satisfactory.32
In times of crises, ordinary legal principles stressing the importance of fundamental rights,
due process and judicial supervision of legislative and executive and judicial supervision of
legislative and executive power come under strain. Recent example in the UK of the judiciary
standing upto the executive in times of crises, such as the declaration of incompatibility by
the House of Lords in respect of the detention of non-citizens, and the use of evidence
obtained under torture in the Belmarsh Case.33
In the US, Australian, and Canadian constitution, there is no specific treatment of
emergencies and emergent conditions. Despite substantial suspension of civil liberties, the
constitutionality of the War Measures Act (Canada) was never reviewed by the courts. 34

30

Mark Neocleous, The problem with Normality: Taking exception to permanent emergency, 31(02)
ALTERNATIVES 191, 200 (2006).
31
Id.
32
Umesh Kadam, Protection of Human rights during emergency situations: international standards and the
Constitution of India, 41(04) INDIAN JOURNAL OF INTERNATIONAL LAW 601, 618, (2001).
33
A and others v Secretary of State for the Home Department [2004] UKHL 56 is a UK human rights case heard
before the House of Lords. It held that the indefinite detention of foreign prisoners in Belmarsh without trial
under the section 23 of the Anti-terrorism, Crime and Security Act 2001 was incompatible with the European
Convention on Human Rights.
34
Gross, supra note 26, at 397.

Violation of most basic human rights on a large scale are quite common during a state of
emergency-when those in power who are confronted by internal or external forces which
pose a potential threat to their authority to rule. This happens in a country which otherwise
has strong commitment to democratic values of justice, liberty and freedom. It is generally
acknowledged that to deal with the extraordinary situation effectively, it may be necessary to
suspend certain human rights guarantees.35
Sometimes to deal with the extraordinary circumstances state has to go outside the prescribed
constitutional limitation of using powers during these extreme circumstances. If they are used
to protect the state and people then I dont think that it should be said as unlawful or
unconstitutional. And it should be left to the public, for whom the actor used extra measures
to contain the extraordinary situation, to decide whether they want to hold him accountable
for his actions.36
Sometimes there might be the case that state has to use certain measure which is prohibited
completely such as torture. Another problem is that legal institutions cannot prevent the abuse
of power by executive or some other state actor. Sometimes during crises, emergency powers
do more harm to the state then what has already been inflicted. Most important thing is that
we must not rely completely on law to prevent the abuse of power and must equally invest in
political strategies to resolve or at least mitigate the underlying cause of the conflict. 37
There are certain non-derogable rights such as Right to Life, Prohibition of torture and cruel,
inhuman or degrading treatment or punishment, Prohibition of Slavery and Servitude, Nonimprisonment on ground of inability to fulfil a contractual obligation etc. these are regarded
as most basic at all times, and hence, no derogation from them is permitted even during a
serious emergency situation. They are expected to afford minimum protection to the people.
It is obvious that if greater protection is to be afforded to the people, more and more rights
must be treated as non-derogable.38

35

Victor V Ramaraj, Between Idealism and Pragmatism: Legal and Political Constraints on State Power in
Times of Crisis 185, 191, (2007) (Book: Benjamin J Goold et al, SECURITY AND HUMAN RIGHTS).
36
Id, at 195.
37
Balraj Puri, After thoughts on the emergency debate, 35(33) ECONOMIC AND POLITICAL WEEKLY 2913, 2913,
(2000).
38
Gross, supra note 26, at 145.

Law and Emergency Declaration

While every constitution strives to be imaginative and provides for measures to tackle
extraordinary situations of an emergent nature, a state of emergency is clearly definable and
distinct, making available an enormous reservoir of prerogative and discretionary power.39
In case of India, constitutional makers considered the discretionary power to be given to the
president and the governors. They naturally decided in favour of all functions of the
president, including those under emergencies being exercised only on the advice of the
council of ministers. Governor has only power to recommend to president to declare
emergency in state.40
First national emergency in India was declared in 1962 when the Chinese attacked North East
Frontier Area. At that time emergency was declared on the ground that the security of the
India was threatened by war and external aggression. This was the obvious reason for the
proclamation of emergency throughout the country and the cause behind 1971 emergency
was also war.
An emergency also impinges upon the fundamental rights of citizens. The earliest landmark
case under the emergency provisions was the Makhan Singh case41. In this the presidential
order under article 359 provided that the right of any person to move any court for the
enforcement of right conferred by articles 14, 21 and 22 of the constitution would remain
suspended if such person had been deprived of any such right under the Defence of India Act,
1962 or any rule or order promulgated under it.
In this case Mr. Setalvads prophetic argument that during the operation of the presidential
order, the executive may abuse its powers and citizens would have no remedy was strangely
termed as essentially political and its impact on the constitutional question was at best
indirect.42
Gajendragadkar J hastened to add that it may be permissible to observe that in a democratic
state, the effective safeguard against abuse of executive powers whether in peace or in

39

Manoj Kumar Sinha, Respect of Human rights in time of state emergency: International and National
perspective, 47(02) INDIAN JOURNAL OF INTERNATIONAL LAW 225, 230, (2007).
40
Id, at 231.
41
Makhan Singh v. State of Punjab, AIR 1964 SC 381.
42
Makhan Singh case, AIR 1964 SC 381.

emergency, is ultimately to be found in the existence of enlightened, vigilant and vocal public
opinion.43
The experience of state of emergency in different parts of the world establishes that in most
of the countries the writ of the habeas corpus is not available during the period of emergency.
Instances of forced disappearances, extra judicial executions custodial deaths, inordinate
preventive detention are also common. Since the writ of habeas corpus is not available the
people are left with no effective remedy against oppressive regimes.44
But here the most debated emergency declaration was in 1975. It was internal disturbance.
During the emergency of 1975, the torture in police custody leading to the death of Rajan, an
engineering student in Kerala, is a classic example of the extent to which Article 359 could
be misused. Other instances of violation of human rights were45:
1. The disappearance of Manecks friend, Avinash, who was politically active, seems to
be Rohinton Mistrys way of bringing out similar disappearances which took place during
the emergency, when political opposition was not tolerated, and the existing regime
suspended the right to habeas corpus.
2. The removal of the slum shacks (without adequate rehabilitation) under the
beautification programme that rendered the poor of the city homeless is also reflective of
a violation of human rights of the residents of that slum.
3. The rounding up of the pavement dwellers and their conscription into the work camps,
where the working and living conditions were described as being appalling, too puts forth
a clear example of the lack of respect for human rights.
4.

The forced vasectomy, followed by the castration of Omprakash on the orders of the

Thakur clearly shows a caste-based violation of the rights of the individual.

Sub article (5) of article 359 was deleted only because of its unjust and arbitrary nature
because under this clause presidents satisfaction was held to be final and all courts were
barred from reviewing the same. As it could be misused it was deleted by 44th amendment.46

43

Makhan Singh case, AIR 1964 SC 381.

Makhan Singh case, AIR 1964 SC 381.
45
Rohinton Mistry, A FINE BALANCE, (1st edn., 1997).
46
Rohit Raj, Defining Contours of Press Freedom in backdrop of Emergency in 1975, 42(10) ALL INDIA
REPORTER, 155-160 (2008).
44

Governor has not been given the right of declaring emergency on his own because then there
would be no bar on his power of proclaiming emergency and hence it was said that he has to
recommend it to the president and he will decide whether the report is satisfactory or not.47
In ADM Jabalpur v. Shivakant Shukla48, a large number of people were detained during the
emergency declared on 25th June 1975 on the ground of internal disturbance. Khanna J, in
what must be considered to be brave, courageous, conscientious dissent, took the view that
even in the absence of Article 21 of the constitution the state has no power to deprive a
person of his life or liberty without the authority of law. He said that when we talk of rule of
law, then even in the absence of Article 21 the state has no power to deprive a person of his
life and liberty without the authority of the law.
The rule of law was a concept meant to be the benchmark of balancing individual liberty and
public order which again was to be ensured by independent courts. Without the sanctity of
life and liberty, the distinction between a lawless society and one government by laws would
cease to have any meaning.49
Other judges were far from the concern for the rights of individuals whereas Khanna did a
great job. He also talked about the case of Fabregas v. Mostyn50 where the governor acting by
virtue of Letters patent, under the great seal, is accountable only to God and His conscience,
that he is absolutely despotic, and can spoil, plunder and affect his majestys subjects both in
their liberty and property, with impunity, is a doctrine that cannot be maintained.
The presidential order should be so construed not to warrant arbitrary arrests or bar rights to
an effective remedy by competent national tribunal for acts violating basic right or personal
liberty granted by law.51
Unbridled and unrestricted power was placed in the hands of the executive. The scales were
literally rendered vertical in favour of the states authority vis--vis individual liberties. This
position lasted till 1977, when the proclamation was revoked. Habeas Corpus case may have
no more than historical value today, it nevertheless serves as a reminder of the blatant abuse

47

A.D.M. Jabalpur v. Shivkant Shukla, (1976) 2 SCC 521.

A.D.M. Jabalpur, (1976) 2 SCC 521.
49
A.D.M. Jabalpur, (1976) 2 SCC 521.
50
A.D.M. Jabalpur, (1976) 2 SCC 521. The second case was that of Fabrigas v. Mostyn, an action for false
imprisonment by a native of Minorca against the late governor of that island, removed by writ of error from the
common pleas, where the plaintiff had obtained a verdict, to the king's bench
51
A.D.M. Jabalpur, (1976) 2 SCC 521.
48

of power that took place during the emergency of 1975 and the inability of the Supreme
Court to deal with it effectively.52
By 44th amendment, internal disturbance was replaced by armed rebellion because 1975
emergency was declared with this reason. Internal disturbance has a wide scope than armed
rebellion. Any procedure providing for detention during the emergency will now have to
stand the tests of non-arbitrariness, reasonableness and must contain the basic principles of
natural justice for it to be valid.53
Hopefully, having learnt several lessons from the emergency of 1975 and the atrocities
committed on the pretext of preserving the security of the nation, a greater commitment will
be seen from all the organs of the state towards ensuring the basic ideals of democracy.
Nevertheless, only time can tell conclusively.
In S. R. Bomai & others v. Union of India & others54, it was regarding Article 356. In this
case it was said that it is not necessary that when president will be satisfied with the
recommendation of governor, the president rule should be declared but first an alternative
solution must be found out to avoid this extreme situation of president rule. It is very
important to have balance between increased powers of state to deal with the situation and at
the same time ensuring that some of the basic rights of people remain intact.
The Indian experience relating to fundamental rights during the proclamation of an
emergency over last 50 yrs. represents the process of the Indian politico legal machinery
maturing. This process of maturation has witnessed the transformation of a system from one
with close to no regard for basic human liberties are held inalienable and supreme. This
process is but a representation of an increasing political consciousness both among the
legislature and the judiciary. The process, it may be added is far from complete. It however is
undoubtedly a step towards the progressive evolution of the Indian Constitutional
Machinery.55

52

Gopal Subramanium, Emergency Provisions under the Indian Constitution, 141, (2004) (Book: Collection of
Articles, SUPREME BUT NOT INFALLIBLE: ESSAYS IN HONOUR OF THE SUPREME COURT OF INDIA).
53
Subramanium, supra note 51, at 145.
54
S. R. Bomai & others v. Union of India & others, AIR 1994 SC 1918.
55
Bomai case, AIR 1994 SC 1918.

Conclusion
This research paper focuses our attention on the use of legal and political means for
preserving the rule of law during the declaration of emergency for having extraordinary
circumstances. And legal principles might not be enough to deal with this. But dispensing
with rule of law ideals entirely, in favour of more pragmatic political checks, may well have
the perverse effect of undermining prospects of peaceful long term resolutions of crises,
particularly in an already fragile social and political context.56 What is needed is a broad,
multifaceted approach, one that acknowledges the rule of law in times of crises as an
important institutional aspirations, but at the same time recognises the limits of the law and
for the need of the political measures to address the underlying causes of the violence and to
help preserve legality and the rule of law in the long term.57
To conclude, the efficacy of the arrangements will be shown by the outcome. Emergent
situations need effective governance. It is a moot point whether such a result flows from the
detailed enunciation of checks and balances (which would indeed lead to lapses and
omissions) or whether it would be preferable to leave much unsaid and relegate the situation
to statesmanly handling and the sane judgement of the nation. In the ultimate analysis, nation
speaks and acts with one voice during crises and emergencies.58
Although the Indian Constitutional system is based on a strong commitment to democratic
values including human rights, yet there have been serious threats to this commitment on
certain occasions.59 The process of ensuring legal guarantees for human rights protection
during state of emergency requires a collaborative effort on the part of the three wings:
legislature, executive and judiciary. Merely legislating human rights is not enough. The
experience of execution of preventive detention and anti-terrorism laws in India during the
recent past has been severely criticised, for e.g. AFSPA (Armed Forces Special Power Act) in
North-east and northern areas of India.60

56

Gross, supra note 26, at 211.

Meera Srivastava, CONSTITUTIONAL CRISIS IN THE STATES IN INDIA, 118 (1980).
58
Id.
59
Srivastava, supra note 56, at 124.
60
Srivastava, supra note 56, at 143.
57

It is universally acknowledged that human rights issues are no more confined to the domestic
reserve of a state. These are the issues of universal concern and hence competence of
international agencies to deal with these must be acknowledged.61

61

Srivastava, supra note 56, at 189.

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AND

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BUT

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Online Resources
1. http://www.jstor.org.
2. http://www.westlaw.org.
3. http://www.epw.com.
4. http://www.ssrn.com.