Rule of Law in a State of Emergency
by Subrata Roy Chowdhury
by K.K. Venugopal
Cite as : (1992) 2 SCC (Jour) 1
Pinter Publishers, London £ 37.50
St. Martin's Press, New York, US $ 45.00
Mr Subrata Roy Chowdhury needs no introduction to the Indian Bar. He has distinguished himself as a practitioner both in the Supreme Court of India and in the Calcutta High Court. Less well known to members of the Indian Bar who are more often involved only in the municipal law issues is his role as a public international law scholar. "Rule of Law in a State of Emergency" is his third major book in the area of public international law.
Mr Roy Chowdhury is an activist in the area of international human rights law. As Professor Richard Lillich makes clear in the foreword to the book, the Paris Minimum Standards of Human Rights Norms in a State of Emergency adopted by the International Law Association in 1984 were originally Mr Roy Chowdhury's idea. He chaired the ILA sub-committee that drafted and revised the Paris Minimum Standards. In this book, Mr Roy Chowdhury builds on his work as Chairman of the sub-committee and expands on the Paris Minimum Standards by careful and painstaking analysis of state practice and the work of international monitoring bodies.
The Paris Minimum Standards are based on norms derived from international human rights covenants. They are intended to ensure that the rule of law is upheld even after a bona fide declaration of a state of emergency. The book follows the format of the ILA report on the Paris Minimum Standards and is divided into three sections. The first section of the book sets forth and analyzes the minimum standards that should be observed with respect to the declaration, duration and control of a national state of emergency. The second section deals with the general principles to be observed with respect to the suspension or limitation of the rights of the individual and the role of the legislature and the judiciary in ensuring the protection of such rights. The third section sets forth and describes the non-derogable rights and freedoms that may not be suspended or limited even during a state of emergency.
The overall scheme of the Paris Minimum Standards appears sensible enough on the surface; by setting forth readily identifiable standards for declaring or extending a state of emergency and for suspending individual rights and by specifying the "non-derogable" individual rights i.e. certain rights which may not be suspended, the Paris Minimum Standards seek to constrain and guide the discretionary power of the Government to declare and maintain a state of emergency and to take otherwise constitutionally impermissible actions.
However, there is perhaps a contradiction in this scheme. A Government usually declares a state of national emergency and assumes special powers including the right to suspend individual liberties due to the breakdown of the rule of law. Institutions such as national legislatures or the courts that are avowedly premised on the existence of the rule of law are ill-suited to be the guardians of democracy and individual rights in the event of the declaration of a state of emergency. If there is a genuine threat to the existence of the State, to the extent that the legislature and the judiciary are a part of the State, they are hardly likely to err on the side of respect for individual rights. See eg., Korematsu v. United States, 323 US 214 (1944) and Liversidge v. Anderson, LR (1942 AC 206). On the other hand, if a Government is either illegitimate or on the verge of losing its legitimacy and if it resorts to unconstitutional means to retain its grip on power, the courts are hardly in a position to exercise independent judgment, especially if the Government in power poses a threat to their very existence See A.D.M., Jabalpur v. Shivakant Shukla, (1976) 2 SCC 521.
As the author acknowledges, the fundamental issue is not really the absence of national constitutional norms that would permit the courts to regulate actions by Governments in the context of a state of emergency; the real issue is that the interpretation of such constitutional norms by the courts is open-ended and that both decisions, upholding extraordinary executive actions and those invalidating them may be justified. See Ex parte Miligan, 71 US (4 Wall) 2 (1866); Home Building & Assn. v. Blaisdell, 290 US 398 (1934); cf. United States v. Mcintosh, 283 US 605 (1931); also see Inland Revenue Commissioners v. Rossminster Ltd., LR (1980) AC 952; Khawaja v. Secretary of State, (1983) 1 All ER 765.
Complex institutional issues involving judicial legitimacy are often involved in such decisions. Courts can usually justify their acquiescence in patently unjust actions by the executive in the context of a state of emergency by citing a policy of deference to the political judgment of the executive. Such deference may be motivated by institutional reasons as varied as the fear of losing popular legitimacy or the fear of a threat to the existence of the judiciary. The courts are rarely strong enough to overcome these institutional weaknesses during a state of emergency.
International human rights monitoring bodies probably are not in a better position to be the guardians of democracy and individual rights. First, to the extent that the members of international human rights monitoring bodies are nominated by member Governments, the activities of these bodies are more likely to reflect the vagaries of international politics than deep principle. Second, the international law principle of non-interference in the domestic affairs of other nations is still considered important although it has been considerably eroded in the aftermath of the demise of the erstwhile Soviet Union and, therefore, adverse comment by international human right bodies is unlikely to result in adverse consequences for the international standing of Governments that violate international norms relating to a state of emergency. In fact, national judicial approval of the declaration of a state of emergency and actions taken while a state of emergency is in force may reduce the leverage of international monitoring bodies and may prevent them from closely scrutinizing a state of emergency.
The Paris Minimum Standards represent the beginning of an attempt to give international legitimacy to norms that will restrain Governments from undertaking constitutionally illegitimate actions on the ground of the existence of a state of emergency. To the extent that there are internal contradictions within the national political framework that will prevent such norms from being effectively enforced at the national level, the institutionalization of these norms at the international level is to be commended.
The issues discussed by Shri Roy Chowdhury in his book deserve great attention. The book should be of interest not only to Judges, lawyers and academics but also to every Indian citizen who wishes to understand the necessity of taking steps to strengthen Indian democracy.