Emergency Powers and the Courts in India and Pakistan

Abstract

It is the basic premise of this study that a national Emergency can never justify the complete abrogation of constitutional government, and that the test of constitutionalism is ultimately the extent to which constitutional limitations effectively curtail the abuse of governmental power, even in times of national crisis. The concept of constitutionalism does not necessarily require that the power to enforce such limitations necessarily vest in a judicial forum. However, it is regarded as a basic feature of the Constitutions of India and Pakistan that the judiciary has the inherent power to interpret the Constitution and, in doing so, to limit the exercise of political power by the other organs of the state.The objective of this study is to examine the reaction of the Courts in India and Pakistan when they have been confronted with the issues posed by the declaration of a national Emergency, and its constitutionally predefined legal consequences. How have the courts discharged their function as constitutional courts in times of national crisis? What doctrines have they brought into play in order to determine the scope of emergency power? In both India and Pakistan, the superior courts have consistently affirmed their inherent power to interpret the Constitution, and to thus define the scope of governmental powers. Have the Courts succeeded in adapting these doctrines in controlling the abuse of power by the Executive in times of national Emergency? It is not the purpose of this study to undertake an exhaustive examination of the legal aspects of emergency powers, in its various manifestations in India and Pakistan, but only in so far as these impact on the constitutional rights of individuals.