The Antinomy of Emergency and Its Repetitions in India

I. Introduction

This article deals with a fundamental antinomy of emergency laws, and the repetitions of this antinomy, in the legal history of India. Emergency powers are prevalent in laws across the world. ¹ In some jurisdictions, such powers are inscribed within a constitutional text, as in India, while in others the powers are either spread across various statutes or developed through convention. ² Even when the limits and the scope of emergency powers are strictly circumscribed (to the extent that this is possible), the anomie of the exception, to borrow from the Schmittian-Agambenian tradition, always seems to exceed the rational ordering and regimentation of the written text. ³ A fine case in point is that of the Armed Forces Special Powers Act (AFSPA) of 1958, which enables the government to declare certain areas as “disturbed” and appropriate what in essence are emergency powers, including curtailment of rights and freedoms, outside the operative framework of the constitution. ⁴ Another example, one more recent, is the use of “emergency powers” in section 16 of the Information Technology Rules, 2021, to block and ban documentaries. ⁵ The normative and structural justification for such measures is situated in the argument that the fundamental rights of the Constitution are not absolute but explicitly subject to enumerated restrictions, and measures like the ones above fall within the legislative purview of such restrictions. What becomes evident in such measures, therefore, is that the effect of an emergency, insofar as the overarching powers of the state are concerned, is not necessarily limited to the provisions in the chapter on emergency. Emergency powers, with all their implications, are now splintered, variegated, and distributed across various legislations and regulations. As opposed to the earlier binary perception of law and exception, as distinct and mutually exclusive, emergency powers are now diffused and embedded within a range of legislations and administrative regulations, comprising what Hussain has termed as an “administrative legality,” which blurs any distinction between “norm and exception, ordinary regulations and exceptional powers.” ⁶ The exception is no more a zone of non-law, but configured by too much law, a “hyperlegalism.” ⁷

What such disparate instances demonstrate is not only that a strict distinction between a state of normality and a state of exception is fictitious but also that there exists a persisting tension between a rule of law that is written and structured in text, and emergency powers that always already exceed and conflict with the expectation of the written law. ⁸ This article will provide a genealogical history of this conflict and will attempt to delineate the sources of the current, and continuing, crises of emergency and exception in India through this historical assessment. This article will demonstrate how a constitutive tension between the sovereign decision on the state of exception and the norm structured by the rule of law has not just animated legal discourse in the colonial period in India, as exhaustively demonstrated by Hussain, but has also affected the making of the Indian Constitution, exacerbated by the crisis of partition. This antinomy, on closer inspection, is antinomic merely in form and appearance, for the exception, although understood as outside, and against, the norm, is also lodged deep within it. This understanding is not recent and has provoked much scholarship in law, ranging from Rossiter’s extensive analytical study on constitutional dictatorships to Agamben’s provocative work on the state of exception. ⁹ The state of exception, at least in the case of India, very much precedes and structures the form and substance of the norm. The law already encapsulates the exception within itself, in the structure of an outside-contained-within, like an intrapsychic crypt, despite modernist and formalist presumptions of law and norm as being antithetical to the exception. ¹⁰ The rule of law comes into being, at least in the context of India, by virtue of a preceding operation of a state of exception, in the form of the partition. The exception is already written into the law in its founding moment, but a façade of dichotomy is presented to fulfill and satiate the formalist account of law as autonomous. This article will delineate, in the context of India, how a constitutive state of exception structured the exception as the norm and encoded it within the rule of law. ¹¹

The written constitution is considered to be a matter of status, “an indispensable symbol,” a “sign” of “independence and political maturity.” ¹² For, as Zurcher has highlighted, the rapid proliferation of written constitutions after the Second World War was paradoxical: “[f]or at precisely the time when faith in written constitutions appeared to have reached its nadir, the world witnessed an outpouring of such documents that is without parallel. Not even the periods of the most violent revolutionary upheaval, like those of 1789, 1850, or 1919, witnessed a greater number of efforts to reduce the basic concepts of national polity to written form.” ¹³ With great states of exception, it appears, comes a great desire to inscribe the norm in a written text. There is, however, a greater desire driving the circumscription of the exception through, and within, the written text, as if the norm can regulate the exception. In the case of India, the founding moment was already a cataclysmic emergency, an originary violence par excellence, embodied in the chaotic and bloody event that was the partition. The emergency provisions in the Constitution have a direct link to the experience of this inaugural violence, which remains undertheorized in constitutional theory and underexamined in legal history and historiography. ¹⁴ But despite the discursive repression of this historical link, it surfaces at an unexpected and displaced site: in the image that adorns the frontispiece to Part XVIII of the Constitution, which contains the emergency provisions.

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Figure 1.

Image adorning Part XVIII, representing Gandhi being received at Noakhali (retrieved from the Library of Congress; in the public domain).

This image is part of the original ratified copies of the Indian Constitution and is one of over twenty-two overlooked figures that are present in the original copies. In an annexure to the Constitution, which contains a tabulation of descriptions, the artist provides the following description for the image that adorns the opening of Part XVIII: “Bapuji the Peace-Maker—his tour in the riot-affected areas of Noakhali.” It is well known that Gandhi experienced the grand independence of the country on August 15th, 1947, not at the august gathering at the Red Fort in New Delhi, but in riot-torn Noakhali, which experienced some of the most horrendous violence during the partition riots of 1946. Gandhi can be seen here being received in Noakhali, and the image in this parchment obliquely draws our attention back to an originary violence, an exemplary state of exception, and provides an imaginal, although overlooked, genealogy of exceptionalism and emergency in the constitution. Gandhi is being received here by a Hindu woman who adorns his forehead, presumably with a dot of vermillion, from a plate that contains a lamp. Behind her, we see crouched and genuflecting figures, beside a fence that separates them from visibly Muslim men (with their caps, checkered dhotis, and beards). The fence has been laid, and the partition is seemingly complete, but the image contains no traces of the violence that constituted the separation. There are no burnt houses or charred bodies, neither blood-filled streets nor heaps of corpses. The image, like the text, is idyllic and aspires to sanitize and normalize the exception by couching it under the normality of the rule of law. What is desired with the written text is a normalization of the exception, and as Kasibhatla has argued, “. . .the written constitution is a technology of governance that is especially effective at normalizing the exception.” ¹⁵ However, as this article will attempt to demonstrate, there is only an appearance, and not an effective performance, of normalizing the exception in written constitutions.

II. The Tenebrous Origins of Emergency

Part XVIII lays down, among other things, how an emergency ought to be proclaimed, the effects of such a proclamation, and how the union government may take control of provincial governments if there is a “failure of constitutional machinery in states.” The phraseology of “failure” and “machinery” is particularly intriguing for its signification of the constitution as a formalistic and structural enterprise, a neatly working machine that requires a reset button that can repair errors as and when they arise. ¹⁶ In metaphorizing the constitution as a machine, and inscribing it as such in the written text, an implexity or further discrete layer can be traced, an internal exclusion that has haunted the constitutional history of India. ¹⁷ If the constitution is a machine, the provision on its breakdown is not a reset button that returns the constitution to its default factory settings, but a self-destruct button—producing plentiful traces on the text post facto—that is linked to the text’s origin. ¹⁸ Every usage of the button inevitably alters, not just temporarily halts, the constitution. Traces of the alteration latch themselves onto the history of the text, which, in pedagogic copies of the Indian Constitution, take the form of footnotes indicating substitutions of words through historical amendments. That the Indian Constitution contains such an interior force that encapsulates the exception as an autoimmune or self-inoculating condition within the normative framework of the law becomes even more evident in the Constituent Assembly debates. ¹⁹ The debates on the emergency provisions are quite ironic and even uncanny. What are postulated and debated as hypothetical scenarios and fears are almost exactly representative of how things unfurled in the vicissitudes of the country’s history.

Article 275 of the Draft Constitution was the predecessor of Article 352 of the Indian Constitution as it now stands. While Article 352 provides three instances of threat where a national emergency can be proclaimed, namely war, external aggression, and armed rebellion, draft Article 275 contained the more expansive term “internal disturbance” in place of “armed rebellion.” ²⁰ “Armed rebellion” was substituted for “internal disturbance” through the forty-fourth amendment by the Janata Party coalition government after the abuse of the category by Indira Gandhi’s government. The debates on Article 275 in the Constituent Assembly were veritably charged, if not evidently polemical. H. V. Kamath led the attack on the draft article, and although Kamath has remained, in the main, an underrecognized figure in constitutional law, his critique of the overarching powers that the Indian Constitution accords to the Union Government during a state of emergency is striking for its prescience. ²¹ Notably, Kamath compared the emergency provisions in the Draft Constitution to those of the Weimar Constitution and Hitler’s use of the constitutional framework to upend the constitution from within:

The closest approximation, to my mind, is reached in the Weimar Constitution of the Third Reich which was destroyed by Hitler taking advantage of the very same provisions contained in that constitution. . . But those emergency provisions pale into insignificance when compared with the emergency provisions in this chapter of our Constitution. . . The chapter as it proceeds to its grand finale annuls to a very large extent even the fundamental rights conferred by part III of the Constitution. ²²

What Kamath in essence highlights is the autoimmune functionality of the emergency provisions, capable of upending and disassembling the constitutional framework from within, as was very much the case with the Weimar Constitution and Hitler’s legal appropriation of power. ²³ Kamath, however, was not alone in this admonishment of the provisions. Along with H. V. Kamath and K. T. Shah, a few others, an unusual minority group, joined the charge against the provisions. If one reads this part of the debates closely, one can discern a clear echo of the partition and related fears of secession and fissiparous tendencies in the references to the contemporaneous dangers that fueled the provisions. Such references were invoked by those in support as well as those against the provisions and were voiced over multiple days and in relation to multiple provisions of the emergency chapter. Arguably, the emergency debates were more antagonistic than agonistic, and contained some of the most dramatically charged moments in the Constituent Assembly, with Kamath even lamenting on the last day of these debates, when the provisions were accepted by the Assembly, that “[t]his is a day of sorrow and shame. May god help the Indian people.” ²⁴

Invocations of the present situation and references to danger looming in the country were abundant in the debates on emergencies. Professor Shibban Lal Saxena argued that the Assembly has always been “fighting for a strong Centre” and that draft Article 275 gave exactly that, a strong and overarching authority to the central government. He exhorted the members to support the provision given that “any person who takes the present position of the country into account cannot oppose this article.” ²⁵ He was not alone in drawing attention to a seemingly imminent state of exception. In buttressing an argument made earlier by Kamath, that the President must not have the prerogative to issue a proclamation of emergency in anticipation of an event, Tajmal Hussain appreciated this contention “because there is a danger in issuing a proclamation when there is an apprehension that the country is in danger. For instance, even now, Sir, I tell you that the country may be considered to be in danger. It may be invaded by some foreign power. We hear that the country is internally in danger. . . [but] this is not sufficient reason for him to issue a proclamation. . .” ²⁶ More directly, Jagat Narain drew the attention of the members to contemporaneous events: “. . .Those who are watching the situation in the country, especially at the present time, after we have achieved independence, will agree that there is greater need in our country for emergency powers now than at any other time. . ..” ²⁷ The model and protype of the exception that was being circumscribed within the text was taken from the events that were unfolding simultaneously outside the Assembly. The exception preceded and structured the norm, as it were. T. T. Krishnamachari, a member of B. R. Ambedkar’s drafting committee, asked “. . .why should we, with all that experience before us, omit to put in explicit terms such safeguards in the Constitution that will protect the Constitution in times of grave danger?” ²⁸ B. H. Zaidi similarly referred to the constant dangers to the Center, and expressed particular anxiety about the events staring at them “in the face”:

. . .What has been the trouble in our country in the past? Have we or have we not suffered from fissiparous tendencies? Have the various units not tried to break away from the Centre again and again? The greatest danger, as I dimly look into the future, may be, not that the Centre will interfere too much, but that the units may resent the guidance of the Centre. . . I think, Sir, that the provision is sound, healthy and necessary in the light of our historic past and in the light of the tendencies that are staring us in the face. . . ²⁹

B. M. Gupta too evoked a keen sense of precarity and contemporary uncertainty when he noted that, “. . .I cannot help but observe that if it were possible, we should not disfigure our Constitution with such a provision. That was our desire, but we cannot have it our own way. Unfortunately, the circumstances in the country are such; we are living in times which may perhaps prove critical to our infant democracy. . .” ³⁰

Such a string of references—to present dangers, living in times of precarity, concomitant violence, and uncertainty—saturated the debates on the emergency. What underlies these fears and elicitations of dangers, in addition to the typical political, economic, and social hurdles that often encumber a new nation, is the anxiety to preclude the repetition of an excruciatingly dreadful originary violence. Constitutional historiography has mainly focused on the role of the past and of history in the drafting of the constitution but has neglected the substantial role of a contemporaneous present—the “now-present” moment, as Edmund Husserl would frame it—on the proceedings of the Constituent Assembly. ³¹ In the defense of the provisions, especially with regard to the provision on the failure of constitutional machinery in the states, as enshrined in Article 356 which follows an enabling Article 355, Ambedkar resorted to a comparative precedent for such overarching powers. He argued that

. . .it is not our Constitution alone which is going to create this duty and obligation. Similar clauses appear in the American Constitution. They also occur in the Australian Constitution, where the constitution, in express terms, provides that it shall be the duty of the Central Government to protect the units or the States from external aggression or internal commotion. All that we propose to do is to add one more clause to the principle enunciated in the American and Australian Constitutions, namely, that it shall also be the duty of the Union to maintain the Constitution in the provinces as enacted by this law. . . ³²

The reliance on the Union government to maintain the constitution and revive the machinery upon failure, the additional factor introduced in the Indian Constitution without comparative precedent, not only creates an intermittently unitary and hierarchical federal structure but also betrays a sense of distrust in the states. ³³ A distrust that is explained by constant references in the Assembly to fissiparous and secessionist potentialities, especially given the vicissitudes of recent and contemporaneous events surrounding the partition. ³⁴ There is one crucial difference, however, in the framework that Ambedkar envisaged for the Indian Constitution’s provision on the failure of constitutional machinery. The Guarantee Clause of the US Constitution lays down the US government’s duty to protect the states against foreign invasion and internal disturbance, rendered there as “domestic violence,” but the US federal government can intervene in an internal situation only “upon request by the state” as opposed to the Indian Constitution’s provision where the Union of India can unilaterally take over the state’s right to deal with the situation by itself. ³⁵ Similarly, section 119 of the Australian Commonwealth Constitution permits the Union to intervene in domestic violence only if the executive head of the state petitions for it. The framework in the Indian Constitution, as envisaged in the reset button, allows the Union to enter into the domain of the state and appropriate its governance even when the state might have a diametrically opposing view of the situation. ³⁶ The Indian Constitution is peculiar in lodging within itself the ways in which its principles and promises can be taken apart, or in other words, lodging a power with the Union to disassemble errant and mischievous state governments, embodying a status of in loco parentis.

III. Aporia in the Colonial Laboratory

Such a conflict, a supposed antinomy, between the rule of law, as embodied in constitutional “machinery” and judicial review, and the sovereign prerogative to decide on, and declare, a state of emergency is not recent but has a long history that touches the core of the relationship between law and the political. As Nasser Hussain has exhaustively demonstrated, this tension emerges from the heart of the English common law, which was particularly intensified and exacerbated in the legality of the colony. ³⁷ The English common law in India, as Hussain has shown, developed with conflicting impulses. On the one hand, the British in India set up a strong institutional structure for the judiciary, while on the other hand they “equally insisted that certain ‘acts of state’ would be beyond judicial inquiry.” ³⁸ Using Lord Mansfield’s well-known decisions in Campbell v. Hall ³⁹ (which laid down the nature, extent, and scope of the Crown’s authority in British colonies) and Mostyn v. Fabrigas ⁴⁰ (which extended the jurisdiction of metropolitan Courts to the colonies), Hussain argues that not only were the colonies repeating the persisting tension, but they became exemplary grounds where this irresolvable contradiction—between the sovereign prerogative, exemplified by the Crown-in-Parliament, and the rule of law, championed by the judiciary—was unambiguously revealed at the heart of the common law. Edmund Burke believed that this play of the tension in the colony, in its extreme manifestation, is but reflective of the worst potentiality of English constitutional law back home. Burke was certain that “every means effectual to preserve India from oppression is a guard to preserve the British Constitution from its worst corruption.” ⁴¹ The colonial ground became an effective, albeit violent, laboratory to test the methods to deal with the aporetic condition. The primary bone of contention between the judges espousing the rule of law and colonial administrators invoking sovereign discretion centered on the thorny issue of the writ of habeas corpus, a struggle that would return to haunt the Constituent Assembly much later.

The writ of habeas corpus has, historically, been the greatest rival of emergency powers. A state of emergency is typically marked with the suspension of this writ. ⁴² It has been noted that “most of the habeas corpus cases challenging executive power arise in times of war and emergency, and conversely, the most significant block of cases interpreting emergency powers are the habeas corpus cases.” ⁴³ Habeas corpus was transformed by Lord Coke and his followers in the seventeenth century from its origin as a prerogative writ of the King to apprehend the body of the jurors, as the habeas corpus joratorum, to how we understand it today as the protection of the subject against the absolute power and discretion of the sovereign. In the earlier rendition, the writ was used to compel the attendance of jurors and detain subjects in jail. Through the constitutional struggles of the seventeenth century, it underwent a metamorphosis from the high prerogative writ of the King to “the great engine for defeating the King’s own orders.” ⁴⁴ In contrast to this (provisionally) triumphant and emancipatory history of the writ in England, it had a “peculiarly regressive history” in colonial India. ⁴⁵ Introduced, “in an almost incidental manner,” by the Crown Court of Calcutta, and subsequently expanded and adopted into the jurisdictions of the three High Courts established by the Indian High Courts Act, 1861, the power of the writ waned significantly in the colony, “almost to the point of nonexistence,” through a series of legislations and judicial decisions. ⁴⁶

The Regulating Act of 1773 produced two, often conflicting, institutions of authority in Bengal: the Governor-General in Council of the East India Company, on the one hand, and the Supreme Court on the other. Without a clear circumscription of their respective limits, both institutions were “in the position to supply laws as needed,” and, indicatively, some of the earliest jurisprudential disputes between the Council and Court revolved around the questions of sovereign prerogative and habeas corpus. ⁴⁷ Sir Elijah Impey, the first Chief Justice of the newly created Supreme Court, issued the very first writ of habeas corpus in India, in 1775, in favor of a revenue collector, Kemaluddin Khan, who was apprehended by the Company over late payments. ⁴⁸ Despite the Company’s protest that Khan’s release would vitiate its “active coercive authority,” Justice Impey ordered Khan’s release on the ground that the “justices must oversee the use of the Company’s powers.” ⁴⁹ The conflict between the Council and the Court intensified considerably in subsequent cases, and led to the Governor-General in Council petitioning the Parliament of England to restrain the Court’s power to check the Council. ⁵⁰ A substantive legislation came in the form of the Act of 21 Geo. III, passed in 1781, which exempted the Governor-General and the members of his Council, jointly and severally, from the jurisdiction of the Supreme Court, for acts done in their official capacity. This, however, did not entirely eradicate the Court’s zeal to check the claim of sovereign discretion of the Governor-General in Council, and crucial cases of habeas corpus continued to pit the Courts and Council at loggerheads well into the nineteenth century. ⁵¹

With the establishment of the three High Courts in Calcutta, Madras, and Bombay, the conflict between the rule of law and sovereign discretion was further intensified. The Indian High Courts Act of 1861 enlarged the scope of habeas corpus, but another act was passed by parliament six days earlier, the Indian Councils Act of 1861, which gave the Governor-General in Council substantially larger legislative powers, including some over the Court. The simultaneous elevation of judicial powers as well as sovereign discretion did little to mitigate the intensity of the battle. The conflict evolved in a sustained manner throughout this period. The High Courts continued to issue writs of habeas corpus and developed a jurisprudence of liberty, ⁵² albeit these cases were not explicitly against the powers of the Governor-General in Council. The jurisprudence of liberty that the Courts tried to develop in other contexts faced its greatest test when the Council was eventually involved yet again. In In the Matter of Ameer Khan (1870), the Court noted that Regulation III was ultra vires given that “[n]o colonial legislature can pass an Act repugnant to section 29 of the Magna Carta” and that “a nominee has less powers than an elective assembly, and an elective assembly has no powers to pass laws repugnant to fundamental principles or to the laws on which allegiance depends.” ⁵³ If this appears as a victory for habeas corpus, it might very well have been so, except for a familiar trojan horse sneaked in by Justice Norman in the latter part of his decision. It was asserted that it is well entrenched in common law that the writ of habeas corpus can be suspended during a state of emergency and that such an understanding has been upheld by the Courts even back home in the metropole. Furthermore, the conditions in the colony, it was stressed, amounted to an extended period of emergency, a permanent state of exception, necessitating an extended suspension of the writ for the effective functioning of the state. In essence, it would appear, Norman was not so much a norm-man, extending a state of exception to upend the promise and norm of a rule of law. However, Hussain brings to our attention that Norman did follow the norm indeed, if the norm is properly understood in context. As opposed to viewing this as a failure of habeas corpus in India, Hussain notes, in the context of seventeenth-century English law, that:

this decision, with its particular form of reasoning, far from being an abrogation of the rule of law, is actually its logical completion. . . In fact, the very first so-called Habeas Corpus Suspension Act of 1688 follows in less than a decade after the statutory confirmation of the right. To the extent that habeas is a protection from state power, the situation of emergency that allows for the suspension of that protection is deeply written into the logic of a rule of law. ⁵⁴

The aporetic contradiction between the rule of law and the sovereign decision on the exception, which has altered and affected each other historically, was not resolved in the colonial laboratory but was sustained and exacerbated in the development of law in British India. ⁵⁵ The latter part of the nineteenth century witnessed the increasing withering of habeas corpus through codification, with occasional protestations from the judiciary. ⁵⁶ This to-and-fro tussle, however, has always plagued modern law, and even medieval forms of rule, as Peter Fitzpatrick has argued. ⁵⁷ Franz Neumann too diagnoses the conflict as “irreconcilable” and one which is permeated with “insoluble contradictions,” given that the “highest might and highest right cannot be at one and the same time realized in a common sphere.” ⁵⁸ It was an emergency that defused the presumed potency of the rule of law in colonial India, insofar as habeas corpus was concerned, which has ironically returned as a repetition not only in the Constituent Assembly but also in the vicissitudes of the country’s postcolonial history. ⁵⁹

IV. Eternal Recurrence of the Same

In the debates of the Constituent Assembly, habeas corpus was used as a bludgeon to try and wreck the overarching powers of the emergency provisions in the Draft Constitution. The schism arose in the Assembly when draft Articles 279 and 280 were debated. Draft Article 279, a predecessor of Article 358, enabled the “State” to suspend the fundamental rights guaranteed under Article 19 (which was contained in Draft Article 13) during a state of emergency, ⁶⁰ and Draft Article 280, corresponding to the present Article 359, effectively suspended a citizen’s right to move any court for breach of any of the fundamental rights contained in Part III of the Constitution. ⁶¹ H. V. Kamath and Shibban Lal Saxena joined ranks to assert that the entirety of the “State,” defined broadly as per Article 12, ⁶² should not be permitted to wield such exorbitant powers, especially during a state of emergency, and that if the fundamental rights were to be eclipsed, it should be the sole prerogative of the Parliament. ⁶³ Another strand of argument, and one in which P. S. Deshmukh partook, was that Draft Article 13 already contained elaborate reasonable restrictions in a separate clause that amply enabled the State to make laws abridging the fundamental rights during an emergency, making the need for Draft Article 279 superfluous and excessive. This second argument received no adequate engagement, much less a justification, in Ambedkar’s response, when he claimed, with regard to the first argument, that if the Parliament as well as the entirety of the State are entitled to reasonably restrict rights even during times of normality and peace, then the State should not be robbed of that prerogative during a state of emergency, especially when the need for it was greater during the latter. ⁶⁴ The provision in the emergency chapter, however, imposes no limitation on the “State” as to the reasonableness of the restriction (unlike the restrictive clauses in Draft Article 13), and an order by the “State” could effectively suspend the rights under Draft Article 13 in toto. This could have been a response offered by Ambedkar, but he does not say as much, and the silence perhaps implies a discomfort with this excess. An excessive power perhaps incorporated to bolster the State’s power during future situations of crises, justified by a contemporaneous, extreme, model of exception. In this sense, the anxiety that fuels the excessive inscription is arguably an internal acting-out of current trauma onto the surface of the text.

The debates on Draft Article 280 renewed the familiar conflict between the rule of law and judicial review, on the one hand, and the sovereign discretion to decide in a state of emergency, on the other, which had animated much of the tension between the Courts and the Governor-in-Council during the colonial period. It was Kamath, yet again, who led the resistance against this provision by claiming that he has

. . .studied the major constitutions of the world though not as carefully as Dr. Ambedkar might have done, but to my regret I have not come across any such wide and sweeping provision in any of the other constitutions. . .I am sorry to say that though Dr. Ambedkar and others of his way of thinking proudly claim that they have borrowed so much from the U.K. and the U.S.A. [but] some of the safeguards obtaining there have not been incorporated in our Constitution. ⁶⁵

In joining the confrontation, Shibban Lal Saxena argued that the provision as envisaged for the Constitution is far more draconian than the British governance in India:

. . .When I read this article, I was transported back to the glorious revolution of 1942, when India waged her war of independence and we were thrown into dungeons on charges which were fantastic such as waging war against the King, etc. Even then the British Government did not suspend the power of the High Courts to issue writs of habeas corpus which is guaranteed by Section 491 of Criminal Procedure Code. I remember numerous detenus sent applications under the habeas corpus section and they had to go to a High Court and were heard there. But in this free India we are providing for the suspension of this most fundamental article and section 491 of the Criminal Procedure Code will not have any effect if the article is adopted. . . ⁶⁶

When the draft article was reintroduced in the Assembly after a fortnight by Ambedkar, with some revisions—including an addition that gave effect to Kamath’s earlier amendment that an order suspending the right to move the courts should be laid before both the houses of the Parliament as soon as possible—Kamath moved a bunch of amendments to the new draft. One of the amendments contained a particularly relevant non-obstante clause: “Notwithstanding anything contained in this article, the right to move the Supreme Court or a High Court by appropriate proceedings for a writ of habeas corpus, and all such proceedings pending in any court shall not be suspended except by an Act of Parliament,” ⁶⁷ thereby renewing the conflict between emergency and the suspension of habeas corpus, eloquently dramatized with Kamath’s dramatic reference to Shakespeare’s Julius Caesar: “. . .I sometimes tell myself, ‘O Judgment, thou art fled to brutish beasts, And Men have lost their reason’. Have we come to that stage? I hope not. . ..” ⁶⁸ Ambedkar argued against Kamath’s motion apropos vesting the power to suspend habeas corpus exclusively in the hands of the parliament by noting, through a reference to Edward Corwin, ⁶⁹ that in the American Model, the Congress is vested with the right to suspend habeas corpus, but the President too was given such a power ad interim. He dismissed the resistance in the assembly—“[m]y friends shake their heads”—by noting that he was merely following the American precedent and proposed nothing novel. ⁷⁰ This particular American inspiration is pointedly relevant for the implexity of the partition, which forms the alternative genealogy of the Constitution, given that the ad interim power of the US President to suspend the Writ was first accorded to President Abraham Lincoln during the American Civil War, after much ado and controversy, by virtue of the Habeas Corpus Suspension Act, 1863, which was subsequently revoked by President Andrew Johnson in 1865, and legislatively undone by the 1867 Habeas Corpus Act. By according this extraordinary power to the President of India—albeit on the condition that such an order be laid before the Parliament, without clarity as to what happens if the Parliament votes down the order—this sovereign prerogative to suspend the writ, modeled on an ad interim Civil War prerogative, which is considered to have lost its force, ⁷¹ partly due to the 1867 Act, was arguably perceived as palatable and necessary in India by virtue of the concomitant civil war that was taking place outside the Assembly. It was the originary state of exception in India, the partition, which preceded the norm and provided the sovereign with the power to suspend the writ on the grounds of emergency, similar to the retrospective accordance of the prerogative to Lincoln during the Civil War, creating a peculiar afterlife of Justice Norman’s decision in the postcolony of India. In other words, the exceptional prerogative arrogated by President Lincoln during the American Civil War, which has since been discontinued, was encoded as part of the normative prescription of emergency powers within the Indian Constitution, motivated and impelled by the experience of a contemporaneous civil war that provided a prototypical state of exception for the makers of the Indian Constitution.

V. Concluding Note: Repetition, Displacement, Dynamography

The conflict between the rule of law and the sovereign prerogative to decide on the state of exception, and to be untethered during one, has a peculiarly long and tedious history in India, as adumbrated. The conflict, when writing the Constitution of India, was repeated and exacerbated. Nasser Hussain is almost entirely accurate when he claims that, “the problem of emergency, both as an interpretive question in the law and as an administrative practice, does not disappear with the end of colonialism. . . [but] the problem intensifies, as postcolonial states inherit the institutional and constitutional framework of the colonial state, and as the courts confront a precedent of emergency jurisprudence within new conditions of state legitimacy.” ⁷² The problem, however, did undergo a watershed during the partition, which provided an absolutely unexpected protype of exception. As witnessed in the debates in the Constituent Assembly, the partition and its contemporaneity were not just present, weighing on the minds of the members of the Assembly, but deeply impacted and provoked their work on the emergency provisions and furnished them with the originary prototypical template of what an exception in the extreme looks and feels like. Validating Nietzsche’s claim that history burns itself into the memories of posterity, it is the scorch marks of partition that are emblazoned, all too visually, on the very page that contains the provisions on emergency. The traumatic mark of the partition on the emergency provisions of the Indian Constitution is visible, quite viscerally and directly, in the image that adorns the frontispiece of Part XVIII (Figure 1). The image draws our eye and impels our attention to the history of the original exception that gave birth to the Indian Constitution. The image, however, dynamographically, depicts a sanitized reference to the originary violence, for although the imaginal reference is to Noakhali, there is no representation or indication of the partition violence in this idyllic portrayal of Gandhi being hospitably received in Noakhali. ⁷³ In the image, the violence is obliquely signified, nominally, but subsumed within a peaceful depiction, obviating and sidelining any direct elicitation of the originary violence. Dynamography, as in the works of Warburg, is “a notion founded on a permanent, even suspenseful play of constantly moving polarities, constantly in conflict or in reciprocal transformations.” ⁷⁴ What we witness in the image is a distorted reference to the originary cataclysm. The image is on the surface of the normative document, occluding, and covering over, the force of a violent origin. The Constitution is internally forced to countenance its implexity, its alternative genealogy, but it does so in a circuitous and conflicting, which is to say in a dynamographic, manner, and not directly, which is not atypical given that all traumas return in displaced forms. The repressed genealogy of the partition, which shaped the emergency provisions, resurfaces on the text of the Constitution, but, like all repetitions, it comes back in a distorted, displaced, and sanitized manner. Partition’s influence on the emergency provisions can be discerned only through a careful and close reading of the Constituent Assembly debates, but the visual accoutrement on its page provides a direct, albeit sanitized, crucial sign, a critical mark, of this violent originary prototype that spectrally tails the constitutional text.

Constitutionalists, however, do not believe in looking at these constitutive images and so this might well be dismissed as irrelevant. But the image appended to the emergency provisions makes exactly the point that this article has tried to develop: the emergency provisions in the constitution are the site of an intrapsychic crypt, given its tenebrous, subterranean, and internal link to the originary violence that greatly expanded its scope. Emergency is no longer just the antinomic condition that conflicts with the functioning of the law, but it is the site of what Peter Fitzpatrick and Richard Joyce called the “space” in the law for what is other than the law, a space of alterity within the constitutional text that not only stands as an antipode to constitutional principles and practices but drastically, and consistently, reworks and transforms the constitution from within, as has been the case at many points in the country’s postcolonial history, ranging from the internal emergency of 1975 to the variegated instances of emergencies dispersed and performed through various legislations and executive rules.