Beware the despot

Articles of Faith

There are decades where nothing happens; and there are weeks where decades happen” -- Vladimir Ilyich Lenin.

The locked-down, the sheltered-in-place, the out-of-a-job, facing-starvation-and-economic-collapse, anxious masses of the world are certainly living through a time where every week feels like a decade and seems to never end. To say these are extraordinary times is an understatement.

The COVID-19 outbreak may make one think that constitutional principles and the rule of law are distant concepts with no application, and necessity is the only thing that matters.

Not so. The Constitution is not only meant for ‘normal’ times, it also prescribes what the State must do to preserve the constitutional order when that order is itself under threat, and it cannot be a “whatever works” approach. This is why the Constitution has a whole part on ‘Emergency Provisions’, which provides emergency powers to be invoked by the Union government.

An emergency power is one that is invoked to defend the political order itself from an existential threat and dates back to the Roman republic, which invoked it in times of war or famine to hand over powers from the Senate to a Dictator. The Constitution provides for three different kinds of emergency powers and when they may be invoked.

One has been used and misused most frequently (Article 356, allowing the imposition of President’s Rule in states); one has been invoked only three times in the past, misused just once and never invoked again (Article 352, allowing the imposition of an Emergency to combat an external threat or internal rebellion) and one has never been invoked yet (Article 360, allowing imposition of a ‘financial emergency’).

They are all different from each other and should be seen as species of the larger genus of ‘emergency powers.’ Whereas the Union government has the power to suspend the enforcement of certain fundamental rights when it imposes an emergency under Article 352, it has no such power when it imposes President’s Rule or a Financial Emergency.

In no instance is the emergency power unlimited in time or exercised on the pure whim of the Union government. The proclamations in each case have to be for specific reasons and for specific time limits as prescribed in the respective articles. A declaration of Emergency is not the suspension of the rule of law or the Constitution itself -- a point that the Supreme Court regrettably failed to appreciate in its controversial judgement in ADM Jabalpur vs Shiv Kant Shukla (1976) during the 1975-77 Emergency.

But the Constitution itself is not exhaustive on the types of emergency powers that governments can exercise. The Disaster Management Act, 2005, in fact, gives the Union government emergency powers in the context of a ‘disaster’ -- defined in the law as a mishap which causes losses of life and property in a manner that is beyond the capability of the community in that area to cope with. The colonial era Epidemics Act, 1897, also gives state governments the powers to make regulations at a time when “ordinary laws” are insufficient for the purposes of tackling a dangerous disease. Both these laws have been used to put in place the present lockdown across the country.

Does that mean the powers of the Union and state governments under these laws are unlimited? Absolutely not.

The exercise of emergency powers are not meant to introduce despotism in the name of “protecting the people.” Unfortunately, not all would-be despots, from the local policeman to Adolf Hitler, get the memo. Even as the COVID-19 crisis unfolds, wannabe despots across the world from Viktor Orban to Rodrigo Duterte are seeing an opportunity to grab more power for themselves in the name of “dealing with the crisis.”

These are warning signals against placing too much trust in our governments and why the rule of law and constitutional government cannot be traded for safety. In as much as an emergency may require the temporary suspension of regular laws and systems, it cannot be the excuse to slide into tyranny. Not even when the nation is under threat.

In times like these, remember the words of Justice HR Khanna, the sole dissenting judge in ADM Jabalpur:

“If it could be the boast of a great English Judge...that the air of England is too pure for a slave to breathe, cannot we also say with justifiable pride that this sacred land shall not suffer eclipse of the rule of law and that the Constitution and the laws of India do not permit life and liberty to be at the mercy of absolute power of the Executive...”