Emergency Power And Judicial Passivity: A Comparative Constitutional Study
- IJLLR Journal
- 2 minutes ago
- 2 min read
Rajina Pradhan, School of Law, Christ (Deemed To Be University)
ABSTRACT
This paper examines the exercise of emergency power in India and the historical passivity of judiciary has been discussed and the effect on constitutional governance and fundamental rights is also analysed. This study will critically look at the application of Articles 352, 356, and 360 with reference to the 1975 Emergency and more recent forms of an informal emergency, as exemplified by prolonged internet shutdowns, preventive detentions under the UAPA, and dissent restrictions. The research compares the judicial responses in India to those of the United States and Germany through a comparative constitutional approach, where the study focuses on the institutional design, review of proportionality, and protection of non- derogable rights. The current body of literature presents a number of gaps: theoretical literature covers the powers of emergency but usually does not consider judicial responsibility and its disproportionate impact on minorities and dissenters. Indian scholarship describes abuse of emergency powers in the 1975-77 period, but has little comparison or analysis of current tendencies. It has been concluded in this paper that the contemporary emergency-like measures are not disproportionately applied to the minority, and judicial responses are not necessarily consistent, hence the need to be more resilient with the institutional protection. The paper finds that, even though not announced as such, modern emergency practices still serve to make less privileged groups and political opponents disproportionately subject to emergency actions, with judicial reactions also being uneven and often deferential. It suggests that India should make its institutions more secure, such as a time-limited mandatory judicial review of emergency proclamations, new terms to ensure better checks on preventive detention, clear proportionality guidelines, and succinct expression of non-derogable rights, to prevent recurrence of the issue of executive overreach. In the absence of these reforms, India will keep on reliving a process of erosion of rights and executive hegemony during times of crisis.
Keywords: Emergency Powers, Judicial review, Constitutional crisis, Comparative Constitutional Law, Fundamental Rights, Preventive Detention, Internet Shutdown, Anti-Terror Legislation, Executive Overreach
