Crisis Constitutionalism

2.1 Emergencies and the Indian Constitution

The Indian Constitution proves no exception to this trend. Part XVIII of the Constitution sets out the emergency provisions.^[40] Article 352 allows the President to proclaim a national emergency in cases where the security of India is threatened by external aggression or internal armed rebellions,^[41] upon written communication from the Union Cabinet.^[42] Most fundamental rights and remedial enforcement of these rights by courts are suspended during such emergencies.^[43] The President also has the power to declare a second type of emergency, namely a financial emergency, although the scope of the unitary concentration and exercise of executive and legislative authority is comparatively limited under financial emergencies.^[44]

In this chapter of the Constitution, undergirded by the language of extraordinariness, transience and necessity, also exists the provision for a third type of emergency, ‘President’s Rule’.^[45] Upon receipt of a report from the Governor of a state (the Governor being a nominal figurehead, appointed by the President),^[46] the President, being convinced of the breakdown of constitutional machinery in a state, can declare an emergency situation, dissolving the state government and legislature, with the central government assuming any and all functions of state authority.^[47] As compared to the national emergency powers, the Constitution builds in numerous safeguards against the misuse of President’s Rule. Most of these safeguards involve limitations on the time period of Presidents Rule. Such proclamations are only valid for two months, unless extended by parliamentary approval which is also capped at six months.^[48] An upper cap of three years is placed on the extension of President’s Rule but it’s only possible to extend it beyond a year by a Parliamentary resolution which is only valid upon certification by the election commission affirming the ‘difficulties’ in holding state legislative assembly elections.^[49] Moreover, at no point is the President or the executive branch allowed to exercise judicial authority (specifically any authority vested with the High Courts).^[50]

But given that Article 356 (President’s Rule) deals with a breakdown of constitutional machinery within states, rectifiable through the political process, its position in this part of the Constitution, dealing with emergencies of a grave but temporary nature, is perplexing. The language of this article is a relic of India’s colonial past, borrowed from Article 93 of the Government of India Act, 1935. However, in the Government of India Act, the provision was included in Part III of the Act, which detailed the role and powers of the Governor^[51] and not within the emergency provisions.^[52] It is unclear what motivated the drafting committee to include these provisions in the Constitution.^[53]

When introducing this provision, Dr. Ambedkar made generic references to the need for a provision that enabled some remedial mechanisms in case of the breakdown of constitutional machinery. Recognizing the nature of the federal constitution which provided for provincial^[54] autonomy and plenary authority of the province to maintain peace, order and good government, he proposed these articles as a way of grounding these federal powers in the Constitution, thereby preventing ‘wanton, arbitrary and unauthorised’ exercise of central power. Referencing the American^[55] and Australian Constitutions, he argued that this draft only conferred upon the Union, an additional duty, namely to maintain the Constitution in the provinces.^[56] Other supporters arguing in favour of this provision turned to examples of France and Newfoundland to explain the need for central supervision and governance.^[57] Krishnaswami Ayyar and K. Santhanam, emphasizing the fundamental nature of these provisions, argued that they were the bulwark of provincial autonomy because the Union was primarily obligated to maintain the Constitution, including its federal structure.^[58] Illustrating the possible use of this provision, Santhanam explained how the financial breakdown in one province (the United Provinces, the largest at the time) would affect the entire country and hence it would be essential for the central authorities to step in.^[59] It is on the debates of future economic planning that the purpose of the framers appears transparent. Recognizing the fragile and divided nature of the new republic, they attempted to endow the central government with broad authority, which trumped the federal governance structure, when required.

The criticism was fierce. The key concerns of the objectors fall broadly into two separate but interrelated categories. First, they saw these emergency powers as challenges to the federal structure the Constitution aimed to set out. Second, they saw this provision as a vitiation of the political character of democracy that was being aspired to.^[60] Pandit Kunzru challenged this draft, arguing that if the purpose of this article was to prevent situations where misgovernment in states led to situations which endanger public peace, then the national emergency powers were sufficient and this clause was superfluous.^[61] Further, he argued that the provisions of the Government of India Act, 1935 were structured to protect British political interests by ensuring systems, which allowed the British Government to deny any authority or power to the people of India. Since the Constitution was concretizing a new relationship, where the government was responsible not to an electorate five thousand miles away, but to the Indian people, the Constitution must prevent the development of an antagonistic relationship between the central government and the people. He went on to say that irrespective of the differences between the people and the central government on administrative or fiscal concerns, the federal structure of governance made the people and their elected provincial representatives responsible for the governance of a province. The Constitution could not concretize disagreement on such policy as grounds for central interference.^[62] Other members of the constituent assembly also voiced similar grievances, arising from a distrust of such overarching executive powers, often referencing the draconian use of similar provisions under British governance. Biswanath Das and H.V. Kamath, referring to the aforementioned provision of the Government of India Act, 1935 and the British Emergency Powers Act, 1920,^[63] accused the drafting committee of dishonestly plagiarising from these acts by dispensing with the safeguards built into those laws.

Seeing this article as an attempt to stretch the ‘long arm of the union government’, Prof. Shibban Lal Saxena reminded the assembly that it had chosen a federal and not unitary structure and this article ran contrary to those aspirations by prescribing legislative and executive powers to the centre, exercisable at its discretion.^[64] Others contended that the transfer of legislative and executive powers to the centre, would let it legislate on matters in the state list contradicted the principles of the federal structure of government. Focusing on fiscal federalism, Biswanath Das highlighted the possibility of misuse due the multiparty system that was emerging. Since the multiparty system envisaged different central and provincial governments and emergency powers authorised the centre to restrict funding and grants and change economic policy, he questioned the possibility of misuse of these powers.^[65] Naziruddin Ahmed provided a consequential view. He argued that such an encroachment, would rob the provinces and their legislatures of the right to debate and dissent. In such an oppressive atmosphere, provincial grievances not being heard would lead to ridicule and contempt of the central government, which would lead to increased flouting of central norms and the need for repeated usage of these provisions, thereby constituting a vicious circle.^[66]

H.V. Kamath also questioned the latitude given to the executive in defining internal disturbances and constitutional governance. Explaining the vagueness of the terms and the contradiction in the constitutional structure, he argued that these articles gave the executive branch at the centre great scope to whittle down provincial authority.^[67] Describing these as excessive powers, H.V. Kamath quipped, ‘Will my friend prescribe a surgical operation for a mere cold or catarrh?’^[68] Pandit Kunzru while questioning Dr. Ambedkar homed in on the scope of powers granted to the executive. Asking whether the central government could interfere in provincial affairs to ensure ‘good government’ or only if there was misgovernment, which endangered the peace, he was attempting to understand the scope of these powers.^[69] The responses from Dr. Ambedkar reflect a clear vision of restraint on central power as he argued that ‘good government’ or the lack of it was not for the central government to determine. In his explanation, the scope of applicability of these provisions was restricted to situations when governments or legislatures of provinces did not act in accordance with the provisions of the Constitution, considered as a whole, the de facto and de jure meaning of which he considered everyone to be familiar with.^[70] However, he did recognize the possibility of misuse, expressing his hope that these provisions remained ‘a dead letter’.^[71]

These debates surrounding the adoption of Article 356 clearly reflect its underlying political morality. For the framers of the Indian Constitution, the key fear lay in a government that by exercise of these powers would no longer be accountable to a democratic polity. Based on their experience under British Rule, they recognized the dangers of the concentration of power in the hands of an executive which could take arbitrary decisions, beneficial only to itself, with no system of checks and balances. However, they recognized the federal concerns at play here. Given that the newly formed state of India would be faced with threats of external aggression by virtue of an antagonistic neighbouring state and internal disturbances due to the highly heterogeneous, multicultural nature of the Indian polity, there was a need for a stronger central government.^[72] The challenge, for them, lay in finding a balance, which recognized exceptional measures in deserving situations but not at the cost of the democratic character of the newly formed country. Therefore they clearly articulated a vision of emergencies as being framed within the constitutional order. Rejecting notions of partisan politics, they emphasized the limited applicability of these provisions as a means to return extraordinary situations back to a state of constitutional normalcy. Underlying this vision is a political philosophy of democratic accountability of the executive, strengthened through the principles of federalism. The concern for democratic accountability through regional governments, displayed by the central or federal framing authority is further substantiated when we look to the constituent assembly debates of a provincial or regional framing body, the Jammu and Kashmir Constituent Assembly.

2.2 Governor’s Rule in Jammu and Kashmir

The erstwhile state of Jammu and Kashmir has historically occupied an ‘exceptional’ position in the Indian Constitution. A princely state during colonial governance, Jammu and Kashmir chose not to completely integrate with India, instead acceding to it on limited terms with the central government’s scope of powers restricted to only defence, external affairs and communication. It was also exceptional, in that it was a Muslim majority state in a Hindu majority country. The constitutional relationship between India and Jammu and Kashmir was concretized through Article 370 of the Constitution of India, 1950.^[73] Broadly described as asymmetrical federalism, Jammu and Kashmir was the only state within India to have its own constitution, flag and heterarchical legal system, thereby maintaining significant autonomy, not afforded to other states in India. Not all sections of the Indian Constitution were applicable to Jammu and Kashmir, with a presidential order extending certain articles of the Indian Constitution onto Jammu and Kashmir, thereby cementing its special status.

In 1952, the representatives from Jammu and Kashmir met central government representatives to voice their concerns and further concretize the relationship between the Union and the state, the results of which were cemented in the Delhi Agreement, 1952.^[74] When the proposals of the Delhi Agreement were debated in the constituent assembly of Jammu and Kashmir, including the national emergency provisions, Ghulam Rasool argued passionately for imposing restraints on the exercise of federal power at the cost of regional autonomy. He accepted the President as the political leader but argued for restrictions on the powers of political leaders.^[75] He further argued that by virtue of the 7th Schedule of the Indian Constitution, the federal government already had exclusive control over defence powers and hence such emergency powers were unnecessary. He went on to highlight the scope of discretion that such malleably phrased powers offered arguing that they allowed the President a broad scope of discretion in the imposition of emergency powers.^[76] Other challenges came in the form of preserving state sovereignty and ultimately an agreement was reached amongst the members of the constituent assembly, that the provisions of the Delhi Agreement would be upheld in a limited fashion.^[77] Upon adoption of the Delhi Agreement by the constituent assembly of Jammu and Kashmir, the President of India passed the Constitutional (Application to Jammu and Kashmir) Order, 1954,^[78] which enabled selected provisions of the Constitution of India, 1950 to be applicable to Jammu and Kashmir with modifications.^[79] This constitutional order made applicable, the emergency provisions of Indian Constitution to Jammu and Kashmir with one notable addition. To Article 352 was added a clause that allowed for emergencies to be declared on grounds of internal disturbance only at the request or with the concurrence of the state government.^[80] Additionally, all provisions relating to President’s rule (namely Article 356, 357, 358) were declared to not be applicable to Jammu and Kashmir.^[81]

While President’s Rule through Article 356 was not made applicable to Jammu and Kashmir, the Constitution of Jammu and Kashmir, 1956, contained a similar provision. Article 92 allowed for the head of the government (called the Sadar-e-Riyasat) to implement executive rule in cases of constitutional breakdown of machinery. The debate on this Article was extremely limited, with only a minor amendment suggested, which required for any proclamations to be put before the legislative assembly when it convened.^[82] The possible explanation for this lies in the nature of the role of the ‘Sadar-e-Riyasat’. After the monarchy was abolished in Kashmir, the office of the Sadar-e-Riyasat was created, paralleling the office of the Governor in other states with one key difference. The Sadar-e-Riyasat was to be recognized by the President on advice of the Legislative Assembly and was to act on advice of the Council of Ministers of the State, thereby being democratically selected and accountable.^[83] Since the executive authority capable of issuing an emergency order was a role to be occupied by a democratically selected individual, the state retained a form of democratic autonomy.

Article 370(1) allowed the President to issue constitutional orders, which vary the applicability of the Constitution of India to Jammu and Kashmir, with the concurrence of the state government. In later years, through such an order, the Basic Order of 1954 was amended to include the applicability of Article 356 to Jammu and Kashmir where the breakdown in constitutional machinery also included references to the Constitution of Jammu and Kashmir.^[84] Finally, by a similar executive proclamation which amended Article 367 of the Indian Constitution, the role of a democratically elected Sadar-e-Riyasat was changed to a federally appointed Governor.^[85] Upholding the constitutional validity of this amendment in a highly controversial judgement,^[86] the Supreme Court held that while the Governor was federally appointed and not elected, by dint of being a head of state, the Governor was the successor to the Sadar-e-Riyasat, thereby dismissing challenges which considered this move to be a fundamental change in the character of the government (from democratic to non-democratic) through the use of a backdoor proviso.^[87]

With all of these changes in mind, the operation of executive power in emergencies in Jammu and Kashmir differed from the rest of India.^[88] As per Article 92 of the Constitution of Jammu and Kashmir, the Governor could issue a proclamation of emergency with the assent of the President of India which was valid for six months. The difference with the rest of Indian states arose from the fact that during Governor’s rule in Jammu and Kashmir, all legislative, fiscal and adminstrative powers were concentrated in the Governor (who is an appointee of the federal government),^[89] whereas under Article 356 such powers are assumed by Parliament for all other Indian States. Article 92 of the Constitution of Jammu and Kashmir also allowed for President’s Rule under Article 356 of the Indian Constitution to be imposed after the six months of Governor’s rule had elapsed. As per a report by the Jammu and Kashmir State Autonomy Committee, instead of seeking Parliamentary approval or constitutional amendments^[90] for extensions of Presidents Rule, from 1990 to 1996, the President has simply issued executive proclamations under Article 370 which have extended president’s rule.^[91] Noorani explains how during President’s Rule, through presidential proclamations and consent of the Governor, the President has altered the applicability of provisions of the Indian Constitution to Kashmir.^[92] Recognizing the misuse of President’s rule as an erosion of federal autonomy, the legislature of Jammu and Kashmir has repeatedly issued calls for the removal of the applicability of Article 356.^[93]

Read compositely, the debates in both the constituent assemblies articulate a clear vision of the political philosophy of the framers, drawn very much from the political reality of their times. The critical concerns raised in both the constituent assembly debates are responding to the nature of autocratic governance each faced. The drafters of the Kashmiri constitution were responding to their history of monarchical rule, imposed by a dynasty they viewed as outsiders.^[94] Therefore, they constructed a delicate federal balance between India and Jammu and Kashmir, which centred on Jammu and Kashmir retaining its identity and autonomy. Key here was an empowered federal government to deal problems of a national character which was still held democratically accountable to the people through regional government.

A similar challenge was confronted by a different nation, not so long before the framing of these two constitutions. And the framers of these constitutions were aware of this. The framing of the Indian Constitution, in particular, was a great exercise in comparative constitutional study and the constituent assembly debates reflect the attention paid by the framers to other constitutions. H.V. Kamath^[95] ended his speech opposing the emergency provisions, by comparing the emergency provisions contemplated under this chapter to Article 48 of the Weimar Constitution. Highlighting how the Weimar Constitution, by giving extensive powers to the executive had contributed to the rise of ‘Herr Hitler’, he declared these draft emergency powers to be more drastic than those in the Weimar Constitution.^[96] Emphasizing his concern about the lack of provisions protecting individual liberty and the freedom and powers of the constituent units, he warned the assembly stating, ‘unfortunately, we who profess to build a Sovereign Democratic Republic in India have no use for such safeguards. We trust the executive implicitly. God grant that our trust be justified.’^[97]

These concerns seem all too abstract. Therefore, this next section turns to use of Article 48 of the Weimar Constitution in 1932 and the debate between Hans Kelsen and Carl Schmitt, which culminated with Prussia contra Reich. The situation in Prussia in 1932 bears a remarkable resemblance to the situation in Kashmir in 2019. In each case, the central government claimed public disturbance to use emergency powers to do away with the democratically elected representatives of the people, subsequently making permanent changes to the social and political life of these provinces. Therefore, by looking to the Prussian situation and the Schmitt-Kelsen debate, we can keenly grasp the political principles which motivated the framers and form the base of the Indian constitutional morality with regard to the use of emergency powers.

3.1 Judicial Review

The first question the Staatsgerichtshof was faced with, was whether it had the jurisdiction to adjudicate such a case. Arguing for the Reich, Schmitt was convinced that the court did not have the jurisdiction. Schmitt^[109] began by arguing that constitutional law is the enabling legislation of constituent power and constituent power (that is constitution making power) cannot be expanded or eliminated because it was exercised once. Characterizing this power as political will, he argues that this power remains and runs alongside the constitution. Therefore, all genuine constitutional conflicts and gaps in the constitution can only be resolved by acts of the constituent power itself. He goes on to argue that such a power is unified and indivisible and therefore cannot coordinate any additional authority (be that legislative, executive or judicial). Instead, for him, it is the base or foundation for all other powers, separated as they may be.^[110]

Following from this, he develops his theory of the positive concept of the constitution as a fundamental form of social and political ordering that derives legitimacy from the decisions made by the exercise of constituent power.^[111] If the foundation of a constitution is the people’s political will and it is constructed as an expression on their self-chosen political identity and order, it follows that any legitimate interpretation of such principles must be provided by that power itself and not by a separate authority, which is the court. The authoritative determination of the content of constitutional law can only be done by constitutional legislation and not by adjudication.^[112] Comparing the Staatsgerichtshof with the American Supreme Court,^[113] Schmitt allowed for judicial review of a legislative act that violated constitutional norms in so far as the violation was obvious, but in situations where a broader question of the violation of constitutional spirt or integrity was brought, he believed judicial review would be a usurpation of constituent power.^[114] In his closing speech before the court in Leipzig, he made a similar argument, arguing that the Prussian government did not have standing to bring this issue before the court. Further, he argued that the question before the court, regarding the validity of the decree, was an inherently political question. For such a question, the guardian of the constitution was the president, and the court did not have the power to exercise judicial review.^[115]

Kelsen on the other hand, known for his extensive argumentation for a dedicated constitutional court,^[116] rejected this argument by Schmitt. In keeping with his Pure Theory of Law,^[117] he endorsed a theory of legal hierarchy, where the creation of law is a process of enactment of norms, which are authorized by higher-level legal norms. Judicial decisions, to him, are essentially enactments (enforcement) of norms, which are authorized by the statute applied. This statute derives its legality from higher-level constitutional norms, which determine the proper method and lay down limitations on the production of such law.^[118] Any such enactment of norms, always has a political character (discretion), as the conditions/method for determining validity in the higher-level constitutional norms, themselves leave a wide variety of choices. The degree of discretion may vary with regard to particular bodies, but in essence, there remains no qualitative difference between the acts of a judge or a legislator. As a legislator applies higher-level constitutional norms in enacting statutes, so to a judge applies statutes in enacting norms as decisions for each case.^[119] Building from this, he argues that it is undoubted that the actions of lower level authorities (including the legislature, judiciary and executive) should be subject to review as a guarantee for legality. Constructed similarly, higher-level legislation and executive action (decrees of emergency as was the case here) should also be subject to judicial review to offer a guarantee of compliance with constitutional norms. Without such guarantees of constitutional legality, the constitution could not be constructed as the highest-level norm.^[120]

The Court rejected Schmitt’s theory. Agreeing with the Prussian government, it claimed jurisdiction to adjudicate the issues brought before it, thereby proclaiming itself the guardian of the constitution. Interpreting Article 48(1) and (2) as relating to separate legal situations, the court held that to satisfy the burden of Article 48(1), the Reich had to show that the Prussian government had not been fulfilling the duties imposed upon it by federal and constitutional mandate, to the best of its capabilities. Considering this to be a legal and factual question, the court claimed that this was within its power of review and rejected the Reich’s claims under Article 48(1).^[121]

3.2 Executive (Sovereign) Power

In what is perhaps the most (in)famous line in contemporary political theory, Schmitt declared ‘Sovereign is he who decides on the exception.’^[122] To clarify, it is not that those who make decisions in the state of exceptions (emergencies) are sovereign, rather those who can declare a state of exception are considered sovereign. Drawing from this, he argued that the President enjoyed complete sovereingty and his actions were beyond the scope of the court's judicial review.

But even on a bare reading this seems to contradict his defence of constituent power in denying judicial review. Schmitt, anticipating this challenge, set out to characterize a history of dictatorship.^[123] Drawing from the Roman state of exception discussed above, he argued that in modern constitutional history, dictatorship has been fused with popular sovereignty, thereby relating dictatorship through sovereignty to democracy. Discussing the use of exceptional powers from commissarial dictatorships to the French Revolution, he argued that a sovereign dictator was one who attempted to create a new constitutional order, but in the name of the people.^[124] For him, sovereign dictatorships could only exist when sovereign decisions on exceptional situations were taken in the name of the people. In this vein, he characterized the constituent assembly which drafted the Weimar Constitution as the ‘sovereign dictator’ emphasizing how in the period between the abrogation of the previous constitution and the adoption of the Weimar Constitution, this assembly acted as the sole constitutional magistrate of the political unity and sole representative of the state.^[125]

Schmitt also drew a link between emergencies and the political. According to him, the political was prior to the law and its central concern was the distinction between friend and enemy. The function of the sovereign then was to make that distinction. Given the existential nature of this distinction, it revealed itself in emergencies and he who acted decisively in drawing this distinction was the only one who could be sovereign, which for him was the executive.^[126] He grounded his specific challenge before the Staatsgerichtshof in this broader theoretical backdrop, which he had previously explained with Erwin Jacobi, at a debate in Jena.^[127] Interpreting the Weimar Constitution, he argued that the President was the guardian of the constitution. Arguing that the Constitution put the President in a neutral position (removed from party politics-the friend enemy characterization), he was the only one who should assume power so as to preserve orderly government and return the situation to normalcy.^[128] He went on to state that since the Constitution was silent as to whether the Land government failed to fulfil its responsibilities to the Constitution when it adopted differing policies from the federal government, the scope of interpretation was left to the President, in his neutral capacity, by looking at the Constitution holistically. Since here, the discontent of political parties^[129] had led to a breakdown of national unity, it was for the Reich and President to impose Article 48 to bring compliance and order.^[130] The logical conclusion to this, he argued was that the decree and all actions under it were constitutional as only the President had the power to decide if a state of emergency existed and if so, then Article 48 allowed him to derogate from rule of law provisions of the Constitution, if necessary, to save the Constitution itself.

Kelsen strongly rejected the notion of a sovereign dictator and emphasized that the best form of a state was parliamentary democracy.^[131] For Kelsen, democracy was a process of political compromise that aimed to accommodate different social groups, on the premise of equality. The aim of this compromise was to maximize the freedom of all groups under coercive control, or the law of the state. He saw parliamentarism as a system of procedural rules, which formalized a division of labour while ensuring a distribution of ‘voice’ between all groups.^[132] Constitutions, through processes of special majority and entrenchment, protected the minority’s interests against impositions of majority will.^[133] From this vision of democratic politics,^[134] he rejected Schmitt’s conception of unified political will that is expressed in constituent choices. Terming this conception as fiction, he argued that since there is no authentic, unified political will, and attempts to construct one and place it beyond the constitutional system (which for him was grounded in compromise), were a smokescreen for empowering one group (through the organ of state - the executive) over others. Therefore, a theory characterizing the president as neutral and hence endowed with extra constitutional power was nothing more than an implicit authoritarian ideology.^[135] Focusing on the parliamentary system instituted by the Weimar constitution, he argued that a correct interpretation would have to side with democracy over autocracy. He concluded by stating that Schmitt’s conception of constitutional guardianship can only lead to a transcendent state unbound.^[136]

For their part, the Staatsgerichtshof decided to interpret subsections (1) and (2) of Article 48 separately, judging the validity of the decree of July 20 for each subsection separately. When looking exclusively to Article 48(2), they held that the decree of July 20 had been issued at a time of a manifest breakdown of order and threats to public safety (they articulated their concerns of Germany being on the brink of civil war). Therefore they reasoned that the President was entitled to take the measures he had, as the constitutional order itself was threatened. Where they most blatantly bought into Schmitt’s argument was when considering the question of the scope of presidential discretion. The Prussian government had contended that many of von Papen’s orders post the decree of July 20 including federal control over state police, were beyond his scope of authority and discretion. Rejecting this contention, the court claimed that once a decree under Article 48(2) was valid, a review of the scope of powers given to the commissioner was beyond their jurisdiction and within the purview of the President.^[137]

3.3 Federalism

Finally, the court was called upon to adjudicate whether the actions of the President and Chancellor vitiated the federal character of the Weimar Constitution. Schmitt sought to ground his argument before the court in a broader context. He articulated his vision of federalism by drawing a distinction between a bundestaat (federal state), staatenbund (confederation) and bund (federation).^[138] But even in his ideal bund, he points out antimonies within federalism which can only be resolved through substantial homogeneity of all federation members.^[139] Looking to the Weimar Constitution, he argued that it guaranteed homogeneity as the foundation of a constitutional democracy. Arguing that the constitution mentioned Germans (and not Prussians, Bavarians or Swabians), he saw a political unity, and not a plurality which would characterize it as a bund. Discussing Lander (state) autonomy, he argued that by virtue of the unitary nature of the constitution and Article 48, the President was exercising his competencies in the protection of the autonomy of the Land. To him, the exercise of such powers did not have the goal of eliminating the Land, much to the contrary, they were protecting Prussia against the dangers that threatened it. Essentially, he based his argument in the destructive nature of party politics, arguing that the party and the government cannot claim to represent the Land. As per the power vested in the President by the Constitution, only he could act to protect the autonomy of the Land (which for him was now divorced from the state government).^[140]

The Staatsgerichtshof, in their analysis of the validity of the decree and subsequent actions under Article 48(1), seemed to agree with Schmitt’s view of the unitary character of the Weimar Constitution. While they assumed the authority of review, they looked into specific statements made by members of the Prussian government and found that public statements, which contained differing political views from the federal government, could be constructed as the Land’s breach of duty of fidelity to the constitution.^[141] Ultimately however, seeking to fashion a compromise, they rejected his argument and held that Article 48(1) had not been violated. This was an inherently contradictory stance, since they upheld the validity of the impugned action, that is the appointment of von Papen as the Commissioner of Prussia, under one section of Article 48 as a measure of restoring public safety and yet declared it invalid under another section as it contravened federal principles. In recognition of some version of federal autonomy, the Court declared an upper limit upon executive power. Holding that the decree of July 20 could not infringe the Constitution, they rejected the characterization of von Papen as the government of Prussia, holding that constitutionally recognized democratic procedures guaranteed an elected Land government.^[142] Therefore, they limited the powers of von Papen (as the commissioner) with respect to the appointment of representatives to bodies which were constituted of representative members of the Lands (Reichsrat & Reichstag).^[143] In essence, while holding to a unitary view of the state, which prioritized federal executive supremacy in times of crisis, they also acknowledged the political principles of federalism and restricted changes of a permanent character without representation, albeit imperfectly.

For Kelsen, within his hierarchical norms structure, federalism was a method of legal ordering. Any authority that federal units derived ultimately were to be traced back to a higher-norm legal system and as such there were no consideration of separate legal identities (or sovereignty).^[144] However, read with his theories of democracy, the value of federalism lay in providing democratic accountability to an electorate. In critiquing the President’s decree, he argued that by concentrating both the Reich’s and Prussia’s executive power in the hands of the commissioner, the decree had violated the principle of accountability.^[145] Kelsen also recognized the inherently contradictory nature of the views of the court. He argued that the court’s distinction between the need for preservation of certain discretionary powers of a minister of the Land with respect to certain affairs of the Land and not others, which rested on a distinction between powers necessary for the preservation of the independence of the Land was vacuous. He argued that in so far as the administration of the Land is in control of the officials appointed by the President, the Land could not exercise these powers. He went on to call the decision of the court to require co-operation between governments of the Land and the Reich, a Damocles Sword for it bound the Land government to the wishes of the President due to the Court’s interpretation of Article 48(1).^[146]

In many discussions, the key difference between Schmitt and Kelsen is characterized as a debate between positivism and anti-positivism. That is not the contention I’m making here. In characterizing Kelsen as framing everything within the bounds of legality and Schmitt as exploring the political ideology of law, the central tension between Schmitt and Kelsen is erased. Instead, the contrasting views set forth in this debate prove that the distinction lay in their conceptualizations of the nature of a just state. Schmitt saw substantive social homogeneity as the basis of true democracy, which is operationalized through a sovereign dictator. Kelsen on the other hand framed democracy as a compromise between different social identities. From this base, a constitution and the courts served the role of providing a framework for accommodating social difference while protecting these competing identities. In context of the totalizing nature of emergency powers, what role are then the courts to serve? The Kelsen versus Schmitt debate shows that thinking of emergencies as beyond constitutional order inevitably leads us to a situation where executive power takes a totalitarian turn. Instead, the project of the courts has to be to understand emergencies as within a constitutional order and formulate standards and norms, which uphold the essential morality of the constitutions they serve. The Staatsgerichtshof’s decision reflects a tension (and failure) in their ability to frame a standard, which while providing the requisite leeway to the executive, would retain the ‘basic structure’ of the Weimar Constitution.

The assemblies framing the Indian and Jammu and Kashmir constitutions were confronted with a similar puzzle, that is, framing a standard which while providing the requisite leeway to the executive, would retain the political morality embodied in the constitutions. Considering their debates in context of the Kelsen-Schmitt debate, helps us understand the political principles they were committed too. Like Kelsen, the constituent assembly debates reflect a commitment to a pluralistic vision of democracy protected by procedural rules, judicial review and federalism as a check against authoritarian or majoritarian actions by the central government. It is these political principles, that the assemblies espoused, which are the base of constitutional morality. The next sections turn to how courts in India and Pakistan have interpreted emergency provisions in their respective constitutions. It highlights how Indian courts, when contrasted with Pakistani courts, have sought to uphold and develop this democratic constitutional morality.

4.1 Judicial Review

Contrary to what Dr. Ambedkar hoped for, Article 356 has been applied over a hundred times by the President.^[168] It was first employed in June 1951 to Punjab, to defuse internal differences within the ruling Congress Party. However, the earliest example of the egregious abuse came in 1959, when the President imposed central rule in Kerala.^[169] The ruling government in Kerala, the communist party (the first party apart from the Congress to win a provincial election) enacted economic policy which ran afoul of national economic agenda of Jawaharlal Nehru. These deep divides over land reform and caste politics culminated in clashes between the Congress workers in Kerala and the state government officials, leading to police action.^[170] After a planned march threatened to destabilize state governance, Nehru instructed the Governor to ask for an imposition of Presidents Rule, thereby acting on the fears raised in the Constituent Assembly Debates.^[171] While in this case, the question never reached the Supreme Court as re-elections were held within six months, judicial review and the justiciability of President’s Rule has been questioned multiple times in the Supreme Court.

Initially, the courts refused to review the constitutionality of such proclamations claiming that it was beyond their jurisdiction and that the Constitution granted such review powers to Parliament and not the judiciary.^[172] However, by the 1970’s, Nehru’s exercise of President’s Rule in Kerala had been perversely twisted. With the Emergency^[173] and the Janata Dal coming to power, a pattern of use of Article 356 had been established, where the central government routinely used it to dismiss state governments formed by rival political parties, under the illusory justification of loss of public trust/confidence. This practice came to a full boil in 1977, when nine states were put under President’s Rule. The resulting case, led the court to emphatically reject the political question characterization, with Justice Bhagwati emphasizing the court’s authority to enquire into whether constitutionally mandated limits on executive power under Article 356 had been observed.^[174] The Madhya Pradesh High Court took the cue, explicitly rejecting the contention of the Union that Presidential Proclamations were beyond judicial review, irrespective of constitutionally mandated procedures having been followed in their issuance.^[175] This question was finally settled authoritatively by the Supreme Court in S.R Bommai v. Union of India,^[176] where it upheld judicial review of such proclamations on grounds of the ‘basic structure’ doctrine. The question before the Indian courts then moved on to the scope of judicial review.

In a fashion that Schmitt would have approved, the Indian courts initially eschewed the political principles of accountability espoused by the framers in lieu of an expansive interpretation of the political question doctrine. Eventually however, recognizing the principle of accountability, they shifted to reviewing all emergency proclamations for a guarantee of constitutional legitimacy, a role that the framers and Kelsen believed the courts ought to serve. The Pakistani courts have attempted to follow suit, although in a rather limited sense.

In Pakistan, the responses to the question of judicial review have varied and in large part derived from abstract theoretical constructs. In State v. Dosso and Another, the Pakistani Supreme Court held that a military government could, by fiat, abrogate a valid constitution if they exercised requisite force and established a legal order that was largely followed. In such a situation, judges did not have any power of judicial review to protect fundamental rights guaranteed under the abrogated Constitution.^[177] Upholding the restriction in the 1973 Constitution, the Court has held that it cannot question the proclamation of an emergency or any laws passed during that time.^[178] However, in recent times, the Court has asserted some power of judicial review, albeit cautiously. In Pir Sabir Shah v. Federation of Pakistan,^[179] when reviewing emergency proclamations, the Court found a power of judicial review by stating that the bar on judicial review would not cover proclamations made without appropriate jurisdiction. The Court found its power through Islamic law and the ‘constitutional spirit’, which it held to be above ‘man-made constitutional mandates’.^[180] In Farooq Leghari v. Federation of Pakistan,^[181] despite the constitution explicitly prohibiting judicial review, the Court framed a narrow scope of judicial review, looking at the circumstances surrounding the proclamation, albeit ultimately finding sufficient justification for the exercise of emergency powers.^[182] This standard was authoritatively upheld, when the court proclaimed that although the jurisdiction of the courts is ousted by Article 236(2), they retain an inherent power of judicial review to review the ‘circumstances surrounding the proclamation’.^[183]

4.2 Executive (Sovereign) Power

Indian courts have also reviewed the scope of executive power in emergency situations, albeit deferentially. In Rao Birinder Singh,^[184] the Supreme Court of India, noted that the power to issue emergency proclamations flowed from the Constitution and declined to review the proclamations themselves. In State of Rajasthan,^[185] while upholding the right to review, the court declined to set a substantive test of review, deferring to the executive’s satisfaction that the conditions for an emergency were met. Different Justices articulated different reasons for the Court’s refusal to articulate a substantive test ranging from mutability of circumstances to the court’s inability to review substantive facts and the inherent subjective nature of such tests.^[186] However, they did lay down a threshold test, holding that the satisfaction of the President could be challenged if the facts of the situation made it evident that the intention of the President was absurd, perverse, malafide or based on wholly extraneous and irrelevant grounds.^[187] In essence, they set forth a rational basis/nexus test where only wholly unreasonable grounds would be reviewed and held unconstitutional. If at all you were wondering, using the same test, they found the imposition of President’s Rule in those facts justified, as they thought that the situation after the emergency was so politically charged that the court could not conclusively find malafide intent. In an argument strikingly similar to Schmitt, Justice Beg held that in such politically charged situations, the judiciary must defer to the executive.^[188]

However, in A.K. Roy v. Union of India,^[189] Justice Chandrachud explicitly rejected this notion, albeit cautiously. Recognizing that popular discourse had led to Justice Beg’s view being construed as the refrain that courts ought not to enter into the ‘political thicket’, he emphasized that the 44th amendment to the Constitution, left no doubt that judicial review was not ‘totally’ excluded when questioning the President’s subjective satisfaction.^[190] Following Justice Chandrachud, the High Court’s took the baton further. With regards to the dissolution of the Madhya Pradesh Assembly in 1992, the High Court looked into the underlying reasons for the President invoking Article 356 and found that two letters mentioning some riots and looting were not substantial enough to adequately justify action under Article 356.^[191] In S.R. Bommai, the Supreme Court proclaimed that the legal fiction of the constitutional machinery failing arose in specified circumstances, the existence of which could be objectively determined.^[192] The judgement itself recognized the divergence in the views of the Justices on justiciability.^[193] Constructing the reasoning of the different judgements by the various justices harmoniously, a majority opinion which articulates a standard of review emerges. Put succinctly, the Court refused to look into the subjective satisfaction of the President, however it expanded the scope of review to inquire into the material basis for the President’s satisfaction which was measured by a standard of relevance of evidence and reasonableness of conclusions drawn from evidence.^[194] Clarifying this, the Court held that while they could not review the advice given by the Union Cabinet to the President, they could scrutinize the underlying material, basis which the advice had been given.^[195]

With this increased evidence of the willingness to exercise active judicial review and a higher legal standard of review,^[196] political parties hesitated to invoke Article 356 wantonly. The final embellishment of this standard of review came in Rameshwar Prasad v. Union of India^[197] where applying the standard of review to the dissolution of the Bihar assembly on grounds of horse trading, the court clarified what the objective material and standard of review meant. In a judgement close to the composite vision of the framers, the court rejected the construction of maladministration or corruption as being indicative of the breakdown of constitutional majority (arguing that such matters ought to be left to the will of the people) and restricted the scope of scenarios under which such executive authority could be exercised.^[198] Through this espousal of democratic principles as a check to arbitrary executive action, the court espoused the underlying democratic principles inherent in Indian constitutional morality.

The Pakistani judiciary has on the other hand, has played a somewhat deferential role to the military and central executive authority, especially in emergencies.^[199] In Bhutto v. Chief of Army Staff,^[200] upholding the military coup d’etat by General Zia-ul-Haq, the court resorted to the common law doctrine of necessity, justifying the actions taken by the military, but carved out for itself, the power of judicial review. However, the defining moment came in Zafar Ali Shah v. Pervez Musharraf,^[201] where validating the actions taken by Musharraf, the Court adopted a distinctly Schmittian view. Finding that constitutional machinery had broken down and no solution could be found within the constitution itself, they held that the Army had acted in the name of the people to restore order. They went on to authorize the army to act extra-constitutionally (constitutional deviation) to restore the country to normalcy.^[202] Despite a period in which, under the guidance of Chief Justice Iftikar Chaudhry, the Pakistani Supreme Court began to subject actions under emergency rule to strict scrutiny standards;^[203] in 2007, the Court validated a second declaration of emergency by President Musharraf on the grounds of necessity, which remains the legal standard today.^[204]

4.3 Federalism

In State of Rajasthan, Justice Beg went on to make another argument. Discussing Dicey’s musings on federalism, he held that while the Indian union was federal, aspirations to state sovereignty had to be sacrificed at the altar of national integrity and development. He placed the burden of defending this federal vision on the people, stating that they were ultimate arbiters of the legitimacy of central action.^[205] Yet Indian courts have frequently been called upon to examine the uneasy relationship between emergencies and federalism. In Sunderlal Patwa, the High Court pushed back against the Supreme Court’s pronouncement, upholding a vision of co-operative federalism by arguing that the judiciary was obligated to hold the constitutional functionaries to the vision of the founding fathers.^[206]

The Supreme Court gave proper consideration to Article 356 as a challenge to federalism in S.R. Bommai.^[207] Here, the Court held that any construction of Article 356 had to be done in a manner as to uphold the basic structure. For the Court, scrutiny of the underlying material and judicial review of the proclamations must show that the emergency proclamations help preserve the fabric of the federal structure.^[208] Remember that Article 356(1)(b) vests the power of legislation with the Parliament during President’s Rule. In Nishi Kanta Mondal v. State of West Bengal,^[209] the Supreme Court held that the validity of any legislation passed by the Parliament in such cases was not co-terminus with the period of President’s Rule. Therefore, upon a proclamation withdrawing President’s Rule, the legislation passed would still be valid although it could be repealed, varied or re-enacted as is by the new legislature. This judgement emphasizes the hybrid nature of legislation passed under such conditions, while still leaving the last word to the state legislature. As for Ambedkar, the chief mark of federalism, for the Court lay in the partition of the legislative and executive authority between the Centre and the units by the Constitution.^[210] All of this is to say that in context of emergency powers, the Indian courts, liked Kelsen, have looked to federalism to serve democratic purposes.

In Pakistan initially, the courts did not place a heavy burden of review on central actions. When a provincial legislative assembly was dissolved on alleged grounds of defections and an impasse, the court held that such situations qualified as constitutional emergencies.^[211] However, around the time of the coup by General Musharraf, courts had begun to try to find a balance between federal units and the central authority. Understanding federalism as Ambedkar did, the Supreme Court of Pakistan held that even in emergencies while the federal government could assume executive powers, legislative powers remained beyond their scope.^[212] Referring to Dicey again, the Court tried to articulate the balance it found by stating that while the Pakistani Constitution articulated a unitary vision where the provinces must yield to the central prerogatives in the interest of unity, such prerogatives cannot be exercised in a way that destroys the autonomy of the ‘federating units’.^[213] Yet this was prior to the eighteenth amendment, which is considered a constitutional revolution that restructured executive authority and the relationship between units and the federal government. While emergency rule has been instituted many times since, there have been no legal challenges because of popular demands for such emergency rule. We can only wait to see what role federalims plays in the emergency jurisprudence of the Pakistani courts.^[214]

Taking stock of this comparative perspective, we can see some similarities and some divergences between India and Pakistan. Functionally, the courts in India and Pakistan have largely deferred to executive fiat by exercising a limited scope of judicial review. Whether they draw their powers from arguments of constitutional structure or from an overarching natural (Islamic) law, they have limited their scope of review to examining the factual situations that precede emergencies. They have adopted a similar standard of relevance and reasonableness in reviewing the material that led to the President’s decision to impose emergencies. But that is where the similarities end.

The opinions of the Indian Courts reflect a vision of a constitutional morality which is heavily grounded in understanding exercise of powers under constitutional provisions as within the democratic structure that the Constitution aimed to set out. The underlying concerns in the opinions of the courts in India subscribe to the Kelsenian commitment to pluralistic democracy, espoused in the constituent assembly debates as well. Within this conception of democracy, they have attempted to perform their role by regulating the exercise of executive authority within the constraints set forth in the Constitution. In performing this role, they have tried to articulate standards which also pay due attention to the fears expressed in the constituent assembly debates. Therefore, this composite construction of constitutional morality in India reflects a vision similar to the ideal type vision of the framers. Emergencies, while extra-ordinary by nature are not thought of as extra constitutional. Additionally, the actions of the central executive during emergencies are evaluated through judicial review. These various cases bring to the fore the two elements which enrich our understanding of Indian constitutional morality. First, by emphasizing separation of powers and restrictions, the courts have sought to prevent arbitrary and unchecked exercises of executive power, and second, by emphasizing federalism as a basic structure, the courts have tried to protect the democratic sovereignty of the people.

On the other hand, the Pakistani Courts have in their attempt to navigate the political reality of a militarized executive and relatively powerless judiciary, have often capitulated to the military. To provide express grounding to their opinions, they have explicitly relied on Schmittian concepts of constituent power being expressed through sovereign dictatorship. This has led them to ground their decisions in theories outside of the Constitution, which in turn has led them to revert to extra-constitutional theories to re-assert essential powers, like judicial review. With the enactment of the eighteenth amendment, it remains to be seen, where they go from here.^[215]

5.1 On Constitutional Adjudication

Setting aside the actions of the Central Government following the order, how would this order stand up in court? In S.R. Bommai, the Supreme Court of India clearly articulated its standard of review. They held that the Governor could not impose emergency rule arbitrarily and that any such decision was to be based on objective material.^[223] The Court would therefore look to the material underlying the reasons for the decision of the Governor and review them for relevance and reasonableness. In Rameshwar Prasad, the Court looked into similar substantive grounds as mentioned in the Governor’s communique in the case of Jammu and Kashmir and found that maladministration and reasons of corruption would not constitute a breakdown of constitutional machinery.^[224] Further, the Court has also found that in such cases, there is no scope for subjective satisfaction of the Governor. Holding that there is a principle of democracy that animates the Constitution, the Court has stated that the objective test for such measures in cases of coalition governments and majorities in the house should be conducted on the floor of the house and that the Governor has no scope for exercise of subjective standards of review.^[225] In this case, it is evident that the Governor exercised his prerogative in a subjective (partisan) manner, deeming the situation untenable. Given that various parties had staked their claims to form a government, prior Supreme Court decisions required the Governor in his constitutional role, to call for a floor test instead of exercising executive prerogative. Further, no evidence regarding additional threats to the security of Jammu and Kashmir was produced and if challenged in Court, the burden would rest with the Governor to show material constituting credible threats. By the standards of existing constitutional review then, the prorogation of the Jammu and Kashmir legislative assembly is unconstitutional and ought to be overturned in the Supreme Court.^[226]

5.2 On Constitutional Morality

However, this is not where the chicanery ended. Under the cover of this perceived emergency, the central government enacted permanent changes to the constitutional structure of Jammu and Kashmir and its relationship with India. Under Article 370(1)(d) of the Constitution of India, the President (through executive orders) could apply provisions of the Indian Constitution to Jammu and Kashmir, with concurrence of the State Government. During an emergency (under Article 92 of the Jammu and Kashmir Constitution or Article 356 of the Constitution of India), since the replacement of the Sardar-e-Riyasat with the Governor, this effectively only required the assent of the Governor.^[227] Crucially, Article 370(3) allowed the President to issue orders which would amend parts of Article 370 itself, with a proviso^[228] that required a recommendation of the Constituent Assembly of Jammu and Kashmir.

On August 5, 2019, the President issued a constitutional order under Article 370(1) with the concurrence of the state government (which due to emergency rule was the Governor) which superseded the Presidential Order of 1954 and made all provisions of the Constitution of India applicable to Jammu and Kashmir.^[229] Additionally, it modified Article 367 in its application to Jammu and Kashmir to state that all references to the Constituent Assembly were to be constructed as references to the Legislative Assembly. This was followed by a Statutory Resolution in the Rajya Sabha which recommended the abrogation of Article 370 by the President.^[230] Given that Jammu and Kashmir was under President’s Rule at the time, as per Article 356(1)(b), the powers of the legislative assembly of the state vested with the Parliament of India. As such, a resolution by the Rajya Sabha qualified as a recommendation by the legislative assembly of the state. In receipt of this resolution, exercising his authority under Article 370(3) of the Constitution of India, the President issued another Constitutional Order which declared Article 370 to be inoperative.^[231] This was swiftly followed be a reorganization bill which divided Jammu and Kashmir into the union territories of Jammu & Kashmir and Ladakh, thereby not only permanently altering the nature of Jammu and Kashmir’s relationship with India but also downgrading its status and autonomy.^[232]

The legal challenges to this process have been wide and varied.^[233] But fundamentally, even if the courts decide that these orders meet procedural requirements of legality, they enact an indirect constitutional fraud. As I have argued, it is clear that the founders were committed to a Kelsenian vision of parliamentary democratic politics. Based on this commitment to democratic politics, they framed a Constitution which was meant to provide a normative and procedural structure to order the relationship between the state and the people. At the core of this project, was an unfettered construction of ‘the will of the people’ which was protected through special federal arrangements. At the heart of the federal system is a vision of local governance and subsidiarity dedicated to preserving representative democracy. Additionally, when the debates are read in consonance with the principles that the Court has developed, it is clear that President’s Rule is characterized as of a temporary nature. The implicit constitutional morality here is expressed in the form of two distinctive limitations on executive power.

First, that the nature of this power is not to impose unilateral centrally directed governance (which in this case engenders an artificially created sense of homogeneity or social unity)^[234] rather to be used sparingly to restore constitutional governance. The construction of the principle of federalism as within the basic structure is a reflection of this morality. Previously, the Court held that secularism was within the basic structure of the Constitution of India and therefore an exercise of emergency powers to protect that aspect of our basic structure was legitimate.^[235] Similarly, constructing federalism within the basic structure of the Constitution leads to the argument that the use of temporary emergency powers to permanently alter the federal character of India is in fact a violation of the basic structure and antithetical to preserving pluralism.

The second limitation is the centrality of ‘constituent power’ or people’s will. The orders in their current form reflect a Schmittian vision. The parallels between the situation here and the situation leading to the decree of 1932 are inescapable.^[236] The federal government, in pursuit of its agendas, engineered a situation by which it gained complete control over a region. Through the legal orders passed during an emergency (and by destroying the autonomy and identity of the people of the region),^[237] the federal government is acting as a sovereign dictator attempting to achieve substantial homogeneity.^[238] If we extend the argument made by the Pakistani Supreme Court in Zafar Ali Shah, then the exercise of constituent power can be found within the expression of satisfaction by large chunks of the Indian mainland majority.^[239] Within the structure of the Indian Constitution though, specifically re Kashmir, there is an express repudiation of this notion. Any changes which alter the fundamental character of the relationship of the people with the organizational machinery of the state must emanate from an exercise of people’s will through democratic process.^[240] As such, these orders and their effects clearly run afoul of Indian constitutional morality.

Of course, the repudiation of this constitutional morality is only visible in the indirect ‘effects’ of the emergency powers exercised. The Indian Supreme Court has historically refrained from evaluating the effects of emergency declarations, although they now do hold fundamental rights sacrosanct. Hence, while such an argument can be directly applied vis-à-vis the legality or legitimacy of the constitutional orders which abrogated the autonomous status of Jammu and Kashmir, to use such an argument when considering the legality of the emergency declarations which precede the constitutional orders would require modifications to the current standards.

6.1 From New Neighbours^[242]

From 2005 to 2015, Mahindra Rajapaksa, governed Sri Lanka, in an increasingly authoritarian manner.^[243] In response to the declining democracy and on a platform of good governance, a loosely stitched coalition government of the United National Party (UNP) and Sri Lanka Freedom Party (SLFP) came to power in the 2015 elections.^[244] The secretary general of the SLFP, Maithripala Sirisena assumed the role of President while the leader of the UNP, Ranil Wickremesinghe was appointed Prime Minister. By 2018 however, the alliance had gone sour due to an economic downturn, cases of bribery and corruption and an assassination attempt on the President. Then in October, 2018, via a televised event, the President swore in Mahindra Rajapaksa as the new Prime Minister while Wickremesinghe was away from the capital, but still officially prime minister, all while the parliament was not in session.^[245] Amid calls to reconvene parliament for a floor test, the President issued a proclamation dissolving parliament.^[246] This notification was challenged in the Supreme Court, which decided in favour of the petitioners and struck down the proclamation by the President.^[247]

While the case revolved around checks and balances instituted by different articles of the Constitution,^[248] the court expressed an underlying philosophy for its decision. Declaring the President to be a creature of the constitution, and expressing its authority of judicial review as guardian of that constitution, the court rejected any claims to the President occupying a ‘species of inherent unrestricted omnipotent power which is akin to royal prerogative power held by a monarch.’ Simultaneously rejecting Schmitt and embracing Kelsen, the court went on to state that the grundnorm of the constitution was the sovereignty of the people, which was to be expressed both through the parliament and the inalienable right of every citizen to invoke the fundamental rights jurisdiction of the Supreme Court.^[249] This principle of popular sovereignty exercised through all branches of government was reinforced in the Court of Appeals judgement which restrained Rajapaksa from acting as Prime Minister, due to two no confidence motions passed against him in Parliament, until a final determination was made.^[250]

6.2 From Old Mentors (Masters)

Simulatenously in a farther land, upon counsel from Boris Johnson, the Queen issued an Order in Council in August 2019 to prorogue Parliament for an extended period of five weeks,^[251] from September 10, 2019.^[252] This decision generated extended controversy, as it was argued that the purpose of this prorogation was to restrict Parliament from debating Brexit, thereby enabling the conservative Government to finalize a no-deal Brexit.^[253] Two distinct lawsuits challenging this prorogation order, one in Scottish Court^[254] and one in English Courts,^[255] were eventually heard in a joint appeal by the UK Supreme Court.

In a historic decision,^[256] the Supreme Court invalidated the decision of prorogation ruling both on questions of justiciability and on executive prerogative in the exercise of the proroguing power. Distinguishing between review of ‘exercises of prerogative power within lawful limits’ (political questions) and a review of the scope of ‘lawful limits of power and whether they have been exceeded’ (legal questions with political impact), the court invalidated the decision to prorogue Parliament.^[257] The Court did so by using an ‘effects test’.^[258] To get to this test, the court relied on the principles of parliamentary sovereignty and accountability of the executive. Based on these two principles, the court created an effects test as a standard of judicial review for parliamentary prorogations. Essentially, it held that if the effect of a prorogation is to deny Parliament the ability to perform its constitutional functions, such a prorogation would be unconstitutional, save for a reasonable justification.^[259] It is essential to distinguish this from a ‘purpose’ test.^[260] The Court did not look to the purpose or the rationale of the executive branch behind the prorogation. Instead, they focused on the impact. With this standard of review in mind, the court held that the effect of such an unusually lengthy prorogation was to stymy the ability of the Parliament to exercise its constitutional functions and that the government had offered no justifications for this measure as reasonable for the stated objective of securing the Queen’s speech and a new legislative session and agenda.

The ‘effects test’ articulated here offers a new form of constitutional adjudication. However, India does not adhere to a model of parliamentary supremacy, instead relying on constitutional supremacy. This is where the rationale underlying the Sri Lankan decision becomes important. Because India adheres to a model of constitutional sovereignty, any application of such a test has to be underpinned by Indian constitutional morality, a form of which was articulated by the Sri Lankan Supreme Court.^[261] In reviewing the effects of the prorogation of the Jammu and Kashmir Legislative Assembly and the imposition of President’s Rule, the Indian Supreme Court must look to the effects of this prorogation. As I have shown, the effect has been a constitutional fraud, which undermines the democratic principles animating the Indian Constitution. Given that the permanent status of a constituent unit has been altered, without the consent of the state or its people, this test offers the Court a means to judicial decision making which would help safeguard the rights of the Kashmiri people and the federal structure of the Indian Constitution.^[262]

This paper has argued for a historically informed reading of the underlying constitutional morality of the emergency provisions in the Indian Constitution. By referring to the debate between Hans Kelsen and Carl Schmitt over the exercise of executive jurisdiction through similar provisions, I have articulated the two different constitutional moralities, which underpin the application of emergency powers. Understanding these differing visions help us ground the constitutional visions articulated by the Pakistani and Indian Courts on the exercise of emergency powers. All of this provides the background for a substantial challenge against the use of emergency provisions to subvert democratic processes in Jammu and Kashmir. Finally, by turning to cases of the prorogation of parliament, the paper articulates an additional judicial standard, which can assist the Supreme Court of India in operationalizing constitutional morality when examining the emergency and subsequent orders as applicable to Jammu and Kashmir.