Springer The Law of Emergency Powers: Comparative Common Law Perspectives

This book presents a comprehensive legal and constitutional study of emergency powers from a comparative common law perspective. It is one of very few comparative studies on three jurisdictions and arguably the first one to explore in detail various emergency powers, statutory and common law, constitutional and statutory law, martial law and military acting-in-aid of civil authority, wartime and peacetime invocations, and several related and vital themes like judicial review of emergency powers (existence, scope and degree). The three jurisdictions compared here are: the pure implied common law model (employed by the UK), implied constitutional model (employed by the USA) and the explicit constitutional model (employed by India). The book’s content has important implications, as these three jurisdictions collectively cover the largest population within the common law world, and also provide maximum representative diversity. The book covers the various positions on external emergencies as opposed to internal emergencies, economic/financial emergencies, and emergent inroads being made into state autonomy by the central or federal governments, through use of powers like Article 356 of the Indian Constitution. By providing a detailed examination of the law and practice of emergency powers, the book shares a wealth of valuable insights. Specific sub-chapters address questions like – what is the true meaning of ‘martial law’; who can invoke ‘martial law’; when can it be invoked and suspended; what happens when the military is called in to aid civilian authorities; can martial law be deemed to exist or coexist when this happens; what are the limits on state powers when an economic emergency is declared; and, above all, can, and if so, when and how should courts judicially review emergency powers? These and several other questions are asked and answered in this study. Though several checks and constraints have been devised regarding the scope and extent of ‘emergency powers,’ these powers are still prone to misuse, as all vast powers are. A study of the legal propositions on this subject, especially from a comparative perspective, is valuable for any body politic that aspires to practice democracy, while also allowing constitutionally controlled aberrations to protect that democracy. Review “Discerning readers will find the book’s combination of academic rigour, practical insight and considerable forthrightness worthy of commendation.” (The Commonwealth Lawyer, Vol. 31 (1), April, 2021) Review “Two particular challenges have faced those who, in the course of millennia, have sought to organise the good life in society. A human society is constructed on the basis of its collective consciousness but also on the basis of a constantly evolving legal system. Who is to have the last word on the interpretation and application of the law? How can a legal system respond to events that may challenge its very existence? In conventional modern discourse, these have come to be called the problem of the independence of the judiciary and the problem of emergency powers. It may be that these two problems have never before been present as acutely and as widely as they are in our present troubled world. It is a rare thing to be able to respond to them with high scholarship and historical erudition, but also with a lively sense of the profound practical consequences of the answers that you offer. This book could not be needed more, or more urgently, than it is at the present time.” - Professor Philip Allott, Professor Emeritus of International Public Law, Cambridge University, UK; Fellow, British Academy “This work by Dr. Abhishek Manu Sanghvi and Professor Khagesh Gautam, inspired and supported every way by Vice Chancellor Professor C. Raj Kumar, offers a provocative treatise on emergency powers in the Constitution of India. It bristles with comprehensive historical narratives and contemporary insigh