By- Kapil Kumar Verma & Ravi Sharma

The State of Exception has emerged as a prominent area of legal discussion in light of emergencies that have emerged worldwide, which can include internal strife to external threats. The State of Exception describes a state of affairs more commonly understood as an Emergency or legality of the extraordinary. This can also be said to be something between ‘public law and political fact’. The main theorist who established a framework for understanding the State of Exception is Carl Schmitt. He was trying to understand the idea of sovereignty and legality in the tumultuous years of the Weimar Constitution. The state of exception offers a critique of the failure of the liberal order. Although the State of Exception is a derivative of the Civil Law System, Anglo-American Common law has borrowed heavily from it when the questions are of a similar nature. After 9/11 the global war on terror also made countries like UK and India look towards a theory of legality for extra-legal authority that is considered as an anathema to liberal constitutional order. The paper looks into the theory of State of Exception in the context of India and the laws of the United Kingdom. The analysis is on the basis of practice and legal framework, as legal jurisprudence in Courts has not considered such questions from a Schmittinan viewpoint.

 Keywords: State of Exception, Emergency law, National Security Law, Public Law, Constitutionalism