In a completely abnormal situation, the continued application of the law through the normal administrative and judiciary channels is going to lead to haphazard and unpredictable results, while preventing effective action to end the emergency… if the applicability of material legal norms presupposes a condition of normality… a polity must be entitled to decide whether to suspend the application of its law on the ground that the situation is abnormal.” “ No legal norm can govern an extreme case of emergency or an absolute state of exception. As the Stanford Encyclopedia summarises the argument: Ever since the German jurist, Carl Schmitt, argued that the sovereign was best understood as the entity who had the power to decide upon the state of exception, the concept has been treated as a political fact, incapable of juridical analysis. In State of Exception, Giorgio Agamben is concerned with theorising the use of emergency powers (the “state of exception”) by modern constitutional states. In this context, it becomes important to engage with works like Giorgio Agamben’s 2005 monograph, “State of Exception”, which is amongst the most famous theoretical treatments of emergency powers in constitutional states.) Given the now-ubiquitous presence of Article 356 in national life, along with Article 370 and the use of the AFSPA throughout the country, emergency powers have now become woven into the fabric of constitutional law.

( One of the classic Constitutional chestnuts is the story of how Ambedkar believed that Article 356, which provides for emergency powers, would never need to be used, and would remain a dead letter – and how then next sixty years have demonstrated how wrong he was.

State of Exception by Giorgio Agamben