The Ghost of Emergency: How the SIR Agitation Revives 1975 Without Repeating It
Emergency has become a language of protest and a legal fact: easy to summon, hard to prove, and politically useful.
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The situation in Delhi on 10 October 2026 has invoked comparison by observers and political commentators to an ‘undeclared’ emergency, given the sheer extent of state measures deployed to prevent these are concerned. Preventive measures against demonstrations are inbuilt in the statutory framework governing police powers.
In India, emergency powers of the executive can be traced to the provisions of the Constitution. It is explicitly provided under Article 352 which gives the President powers to impose a national emergency, during which fundamental rights, except Articles 20 and 21, can be suspended. They also implicitly govern the operation of certain forms of restrictions such as those on the exercise of fundamental rights under Article 19.
Powers to make laws for preventive detention, which are governed by Article 22 of the Constitution, and that have conferred legitimacy to preventive detention legislations passed in ‘conflict’ regions or that were extensively deployed during the National Emergency, are also construed as an exception to the norm.
While ‘reasonableness’ governs the scope of operation of these executive powers, the extent, duration and impact of such measures often confront their legitimacy.
Legislative Origins
In 2003, Giorgio Agamben expanded on Nazi jurist Carl Schmitt’s conception of the idea of the sovereign as the determinant of the ‘exception’. This came in the backdrop of post 9/11 developments around the world, which propelled nation states to take preventive measures against what was surmised as the global threat of terrorism, culminating into what has come to be euphemised as the “Global War on Terror.”
He points to how the emergency proclamation under the Weimar Constitution lasted for 13 years, giving it a character of permanence. Agamben, thus, theorises that state of exception are contrived by modern liberal democracies, and not dictatorships.
While Agamben traces the origins of state of exception to the first world war, his critics have emphasised the theory’s oblivion to colonial governance models. However, Agamben’s theory of a permanent state of exception remains relevant to understanding legal regimes adopting emergency laws as a form of governance.
A year later, KG Kannabiran, in his classic work on human rights jurisprudence, ‘Wages of Impunity’ also writes about the ‘constant proclamation’ of Section 144 of the Code of Criminal Procedure, now Section 163 of the BNSS, which empowers an Executive Magistrate to pass orders to preserve public tranquillity, amongst other things, where an ‘immediate prevention’ or ‘speedy remedy’ is desirable.
Kannabiran further examines the Supreme Court’s decision in the case of Dr. Ram Manohar Lohia vs State Of Bihar in 1966 where the Supreme Court left undefined the very premise of the invocation of restrictions on assembly.
Since orders passed by the Executive Magistrate under Section 144 / 163 can act as a restriction against freedom of expression, assembly or association, these are required to fulfil the requirement of ‘proportionality’ and ‘reasonableness.’
Constitutional Provisions
However, the declaration of an emergency is often not an explicit 1975-style proclamation by the President, but often, as scholarship dissects, the tendencies of the government in invoking the ‘state of exception.’
Walter Benjamin, who escaped from Germany during the Nazi regime, pointed out that ‘exception’ is an illusion but that ‘state of emergency’ is the norm.
Agamben defined the state of exception as a ‘zone of indifference’ between law and lawlessness. He states that one of the chief characteristics of a state of exception is the ‘provisional abolition’ of the distinction among the executive, legislature and the judiciary.
KG Kannabiran, K Balagopal, Ujjwal Kumar Singh trace emergency governance to colonial continuities. Veena Das explores this question through the modalities of the everyday forms of governance. While the Indian Constitution deals with explicit and implicit notions of emergency, there does not exist any statutory definition of emergency.
The very existence of Section 144 CRPC / 163 BNSS denotes that often separation of powers is diluted by the legislative scheme itself. The provision makes the Executive Magistrate the ‘initial judge of an emergency.’
The 1961 Constitution Bench decision in Babulal Parate vs State Of Maharashtra, while upholding the constitutionality of the provision, held that the post-facto remedy — challenging of the Magistrate’s action in revision — available to a person, makes the preventive action reasonable.
However, what the court does not explain is that the existence of a post-facto remedy can be very different from availing it, or for that matter, what constitutes an ‘emergency’, which is the only situation when restrictions under the Section are permissible. The same also needs to be recorded in the order passed in exercise of powers under Section 163 BNSS.
Mishandling Principles and Protestors
It remains unclear what the ‘emergency’ was which compelled Magistrate action under Section 163 BNSS for 10 October 2026. The invocation came in the backdrop of a call for protests by the Cockroach Janta Party, as has been a common pattern for protests in India in recent times.
The deployment of over 35000 security personnel across Delhi, cancellation of 245 train going to New Delhi, and the closure of 45 metro stations, followed by mass preventive detentions of protesters and bystanders illustrates that emergency can be manufactured and legalised, despite post-facto court orders, and yet be perceived as an ‘exception’.
It is also important to note that modern day protests are different from protests few years back, wherein police action is recorded and publicly available for anyone to view, including the courts hearing challenges to blanket prohibitory orders.
The public records prima facie reveal police brutality.
When the repetitive imposition of Section 144 CRPC was challenged before the Supreme Court by MKSS in 2018, it left the executive to frame guidelines in that regard, and which culminated in police orders governing permission for protests at the designated protest site.
Although the court pointed to the earmarking of an area for the protests at Jantar Mantar, it as such cannot be read to mean the designation of a single site for protests across Delhi. Protests in public places, as well as on the streets, has formed part of the democratic tradition in India. This was also recognised by the Supreme Court Constitution Bench in 1972.
However, following the challenge to the anti-CAA sit-in protests at Shaheen Bagh, a two-Judge Bench of the Supreme Court in 2020 reinforced the concept of designating a site for protesting. Such a requirement for permission is also what prompted the organisers to approach the Delhi High Court seeking permission for protest on 10 October at the designated site of protest. The Court refused to give an urgent hearing and listed it on a date after the protests.
In another development, when the Supreme Court was approached in light of the disproportionate preventive measures shutting down metro stations and cancellation of trains, on 10 October, the court held that there cannot be blanket prohibition on movement of metro. Yet many metro stations remained closed, and people were being stopped, questioned and detained throughout Delhi on the day of protest.
Unconstitutional Emergency
Despite the existence of measures governing use of reasonable force for controlling assemblies that are ‘unlawful’, preventive measures have a tendency to become punitive. The Delhi High Court’s refusal to order independent probe into excessive use of police force inside Jamia Milia Islamia during the 15 December 2019 protests outside its campus, is an illustration of the broad brush of protester ‘violence’ as a justification for use of force, thereby relinquishing the distinction between executive determination of ‘emergency’ and court’s determination of liability.
At least one student during police action had lost his vision on account of police brutality, and civil society documentation of the incident records the disproportionality in the use of force. The lack of independent scrutiny into the ‘alleged’ escalation of violence lays bare the redundancy of existence of post-facto remedies.
This is significant as even limited court interventions on the question of civil liberties does not as such effectively exercise a check upon emergency executive powers. This was one of the criteria on the basis of which the Supreme Court upheld the constitutional validity of Section 144 CRPC.
Thus, what is at stake is not only the shifting perception of courts as regulators of executive high handedness, but also the very foundations of democratic governance itself that routinely resorts to the legality of an undetermined emergency.
(Madhur Bharatiya is the Assistant Professor (Law) at Manipal Law School, Bengaluru, Manipal Academy of Higher Education. This is an opinion piece and the views expressed are the authors' own. The Quint does not endorse or is responsible for them.)