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

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.

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