Crisis Constitutionalism

Abstract Modern constitutions often contain ‘emergency’ provisions which confer upon the executive, the right to assume unfettered authority free of checks and balances, to respond to extra-constitutional crisis situations. Constitutional theorists, relying on the debate between Hans Kelsen and Carl Schmitt in the context of the Staatgerichtshof’s decision in Prussia contra Reich, have laid out two contrasting normative visions of these emergency powers. While some envisage emergencies as existing outside the constitutional order, to be resolved by sovereign dictators exercising constituent power, others argue that emergency provisions ought to be understood as within the constitutional structure. Recently, these emergency powers were used by the central government in India to abrogate the constitutionally mandated autonomous status of Jammu and Kashmir, thereby enacting a permanent constitutional change in response to a temporary extra-constitutional situation. Using these changes in Kashmir as an exemplar, this paper examines the normative position of such emergency provisions in Indian constitutionalism. By analyzing the Indian and Jammu and Kashmir constituent assembly debates, Kelsenian and Schmittian visions and comparatively considering the development of emergency jurisprudence in India and Pakistan, this paper argues that the Indian constitution has sought to constrain the exercise of such provisions through the courts by prescribing a democratic ‘constitutional morality’.