Abstract

http://ssrn.com/abstract=1398545
 
 

Footnotes (137)



 


 



Constitution and 'Extraconstitution': Colonial Emergency Regimes in Postcolonial India and Pakistan


Anil Kalhan


Drexel University School of Law

January 2010

EMERGENCY POWERS IN ASIA, Victor V. Ramraj & Arun K. Thiruvengadam, eds., Cambridge University Press, 2010
Drexel College of Law Research Paper No. 2009-A-16

Abstract:     
This essay explores the experiences with emergency and emergency-like powers in postcolonial Pakistan and India to illustrate the ways in which constitutional and extraconstitutional states of exception can converge in their application. The experiences in Pakistan with what I term its "extraconstitution" - illustrated most recently by the state of "emergency" declared by Pervez Musharraf in 2007 - demonstrate, perhaps unsurprisingly, that extraconstitutional assertions of emergency powers can provide a ready template for authoritarian rulers to usurp power, violate fundamental rights, and transform the constitutional landscape in the guise of addressing a crisis. At the same time, the authoritarianism in such moments is not entirely "lawless," and the experiences of both Pakistan and India suggest that the assertion of constitutionally-authorized emergency powers - as perhaps most notably exercised by Indira Gandhi in India from 1975-77 - can be as difficult to constrain as extraconstitutional regimes of the sort seen in Pakistan, and can lead to excesses and lasting transformations that are at least as severe.

While constitutionality is not necessarily irrelevant in constraining or legitimising emergency powers regardless of context, in postcolonial South Asia the significance of constitutionality has had limits. Owing in part to the persistence in both countries of the shared discourse of emergency powers inherited from the British colonial state, the antidemocratic tendencies inherent in the use of emergency powers have continued to manifest themselves in the laws and institutions of both India and Pakistan, albeit in evidently and importantly different ways in each country. Whether those tendencies have operated through constitutional or extraconstitutional means, the basic results have in some respects been strikingly similar.

Number of Pages in PDF File: 34

Keywords: emergency powers, constitution, extraconstitution, rule of law, legality, lawyers' movement, India, Pakistan, South Asia, Indira Gandhi, Pervez Musharraf

Accepted Paper Series


Download This Paper

Date posted: May 8, 2009 ; Last revised: August 29, 2013

Suggested Citation

Kalhan, Anil, Constitution and 'Extraconstitution': Colonial Emergency Regimes in Postcolonial India and Pakistan (January 2010). EMERGENCY POWERS IN ASIA, Victor V. Ramraj & Arun K. Thiruvengadam, eds., Cambridge University Press, 2010; Drexel College of Law Research Paper No. 2009-A-16. Available at SSRN: http://ssrn.com/abstract=1398545

Contact Information

Anil Kalhan (Contact Author)
Drexel University School of Law ( email )
3320 Market Street
Philadelphia, PA 19104
United States
+1 215 804-9098 (Phone)
Feedback to SSRN


Paper statistics
Abstract Views: 1,951
Downloads: 337
Download Rank: 47,608
Footnotes:  137

© 2014 Social Science Electronic Publishing, Inc. All Rights Reserved.  FAQ   Terms of Use   Privacy Policy   Copyright   Contact Us
This page was processed by apollo7 in 0.437 seconds