General Concept of Emergency
The concept of Emergency refers to the effect on National Security, Sovereignty, war, armed conflict, and various dimensions of the government which obstruct the smooth functioning of the governmental organs. The economic crisis of a nation and failure of Constitutional Mechanism also comes under the situation of Emergency. It is a situation when the state fails to control such a situation and negatively affects peace, security, and unity in the state.¹

Any country can experience public emergencies as a result of war, invasion, armed uprisings, terrorist attacks, natural disasters, epidemics, or other types of crisis or catastrophes. A democratic constitutional order may, however, present particular challenges when it comes to dealing with emergencies since it is difficult to make swift decisions and might hinder effective action because of the legally protected rights and institutional checks and balances that are associated with it. ²

Meaning and Definition of Emergency Power
The Emergency Power is the tool to control such situations and maintain peace and harmony in the state. The condition of emergency arrives when there is threat to national security, peace, and functioning of the government. Emergency powers are those special prerogatives that a government or a president can resort to in extraordinary situations such as war, insurgency, terrorist attacks, or other severe threats to the state, environmental calamities, serious industrial accidents, pandemics, or similar situations that threaten a considerable number of lives.³

According to Merriam Webster, Emergency Power is a power granted to or used or taken by a public authority to meet the exigencies of a particular emergency (as of war or disaster) whether within or outside a constitutional frame of reference.⁴

History of Emergency Power
The history of emergency powers can be traced back to ancient Rome, where the practice of dictatorship was used to temporarily grant someone emergency powers to deal with a threat to the republic.

The constitution of Weimar Germany, which was established after World War I, required the use of emergency provisions more than 200 times. Initially, these provisions were invoked to combat violent insurrection and direct threats to the constitutional system. However, in the early 1930s, these provisions were increasingly used to address a wide range of social and domestic problems, including economic failure. Although these provisions probably helped Weimar Germany survive, they also enabled Adolf Hitler to seize and consolidate power by formally exercising the constitution’s emergency powers as chancellor in 1933. 

Niccolò Machiavelli revived the concept of Emergency Power in the modern era, arguing for giving a ruler extraordinary power to save a society and its political institutions. In the era of John Locke and Jean-Jacques Rousseau, Locke felt that a constitutional system would have to be capable of facing unexpected and immediate threats. 

Emergency power in International Arena
The international practices of emergency powers vary widely across different countries and contexts. Some countries have formal rules regarding states of emergency in their constitutions or laws, specifying the circumstances, duration, scope, and limitations of emergency powers. Others rely on informal or ad hoc arrangements that depend on the discretion of political actors or public opinion. Some countries have rarely or never used emergency powers, while others have frequently or continuously resorted to them for assorted reasons, such as war, terrorism, natural disasters, or civil unrest.

The COVID-19 pandemic has been a recent example of how distinct types of governments have dealt with an emergency threat using various kinds of emergency powers. Some autocratic regimes, such as China, have used centralized and coercive measures to contain the virus, but have also faced criticism for suppressing information and violating human rights. Some democratic regimes, such as France, have declared states of emergency and granted extensive powers to the executive, but have also faced challenges in coordinating responses across various levels of government and ensuring accountability and oversight. Similarly,  other democratic regimes, such as Sweden, have opted for a more decentralized and voluntary approach, relying on the trust and cooperation of citizens and local authorities.

Emergency Power in the UK: Crown can use Emergency Power. As per Emergency Power Act, 1920 of England, King/Queen can declare emergency in time of internal extreme disarray or war with other country. The Parliament Act of Prevention of Terrorism, 1989 has also enlisted about this power. ⁵

Emergency Power in the USA: President can declare Emergency, power relating to declare war with other country, suspension of revolt and manage military law, etc. Some examples of emergency power in action are:

- The Alien and Sedition Acts of 1798: These acts were passed by Congress during a quasi-war with France. They allowed the president to deport or imprison any alien who was deemed dangerous to the peace and safety of the United States, and to punish anyone who spoke or wrote maliciously against the government or its officials. These acts were widely criticized as violating freedom of speech and press and were repealed or expired by 1802. 

- The Emancipation Proclamation of 1863: This proclamation was issued by President Abraham Lincoln during the Civil War. It declared that all slaves in the rebel states were free and authorized the enlistment of Black soldiers in the Union army. Lincoln justified this act as a military necessity to weaken the Confederacy and preserve the Union.⁶ The proclamation did not apply to slaves in the border states or areas under Union control, and was later confirmed by the Thirteenth Amendment. ⁷

- The Espionage Act of 1917 and Sedition Act of 1918 ⁸: These acts were passed by Congress during World War I. They made it a crime to interfere with military operations, support America's enemies, or obstruct recruitment or enlistment. They also prohibited any disloyal or abusive language about the government, flag, or military. These acts were used to prosecute hundreds of people who opposed or criticized the war effort, including socialists, pacifists, labor activists.

Emergency Power in India: The emergency can be declared by President on the recommendation of Council of Minister with respect to whole or particular part in case of war, external rebellion, conflict, etc.⁹

Emergency Power and Constitution of Nepal
The constitution is the supreme law of the land, but what happens when there is a crisis that threatens the security and stability of the nation? How does the constitution deal with the need for emergency power in times of war, disaster, or civil unrest? This is why the provision for Emergency Power has been enlisted in the constitution itself. 

Emergency power is the ability of the government to take extraordinary measures that would normally be unconstitutional or illegal, in order to deal with an urgent situation that requires immediate action. Nepal has its own development journey in regard to Emergency Power. The historical traces of Emergency and its development in various Constitution can be pointed as follows: 

Nepal has experienced seven Constitution till date and all these Constitution has the provision of Emergency Power, some of the Constitution have exercised this power as well. However, it is necessary for us to know the present provisions regarding emergency power which has been provisioned in Part 30, Article 273. There are 10 clauses which are as follows: ¹⁰

Moving forward with the relationship between the Emergency Power and Fundamental Rights, There are some rights that can be suspended during the situation of Emergency whereas there are some non-derogable rights as well. The derogable rights has been mentioned in Clause 10 whereas the non derogable rights has been mentioned in the proviso of the aforementioned clause.
Articles that can be suspended

Articles that can not be suspended

The right to constitutional remedy in relation to such articles pursuant to article 46 and the right to seek the remedy of habeas corpus shall not be suspended.

Case Law:
Proprietor of Durga Laxmi Nirmaan Sewa, Mr. Dambar Gadhal, residing at Ward No. 6, Fikkal VDC vs. Ilam Municipality et.al  (D.No: 4769)
Writ petition challenging a municipal decision to cancel a contract and confiscate a security deposit of a contractor for the reconstruction of Tundikhel ground.

The petitioner claims that his constitutional and legal rights have been violated by the municipal decision and seeks an extraordinary remedy under Article 88(2) of the Constitution of Nepal, 2047. (Jurisdiction of the Supreme Court)

The writ petition was initially rejected by the registrar of the Supreme Court on the grounds that Article 23 of the Constitution, which provides for constitutional remedy, was suspended during the state of emergency declared by Article 115. The petitioner appealed to a single judge bench, which referred the case to a Special bench for a comprehensive deliberation on the complex constitutional question. The five-judge bench invited amicus curiae from Nepal Bar Association and Supreme Court Bar Association to assist the court.

The main constitutional issue to be decided by the court is whether writ petitions can be filed under Article 88(2) for the enforcement of non-suspended rights and legal rights without effective remedy during the state of emergency. The court also examines the validity of the registrar’s order to reject the writ petition.

The court analyzes the constitutional provisions on emergency power and balances between state power and citizens’ rights. The court observes that some fundamental rights are non-derogable, and some are derogable during a crisis. The court stresses that the court must maintain a sensitive balance between the state power and the citizens’ rights and adopt a harmonious construction of the Constitution.

Analysis and Conclusion
The concept of Emergency occurs when the state goes to such a situation which causes obstacles in smooth functioning of different governmental organs due to war, pandemic, or several reasons. The state should follow different measures as per the Constitution in the state where there is written Constitution viz, Nepal, India, USA and as per the Custom, practice, or different laws where there is nothing such as codified Constitution. The provision regarding Emergency was mentioned in the Government of Nepal Act 2004, for the very first time in the history of Nepal. All Power relating to emergency was centered within His Highness Prime Minister, where he can assume, repeal, or amend the power of any official or authority if there is disturbance in governance or conflict in nation. The Interim Constitution of Nepal did not have clear provision relating to the emergency. As the King had all state governance relating power, we can say that the  provision of emergency power was vested in the King. The further two constitutions viz; The Constitution of Kingdom of Nepal,2015, and the Constitution of Nepal 2019) had the provision of emergency power vested in the King. After the Constitution of Kingdom of Nepal 2047, the defacto power to declare emergency was shifted to the Council of Ministers. Following that the Interim Constitution provisioned the power to declare emergency to be vested in the President on the recommendation of the Council of Ministers. With many practices and provisions in the Constitution, the concept of Emergency has developed in a refined way in the present Constitution. 

In a nutshell, there have been many drawbacks in the history of the practice of emergency powers, some leaders have misused it with malafide intentions. However, the present constitution has made it simpler for us as well as for the organs of the government regarding the powers. The fundamental rights have been suspended during emergencies as per the priority basis. Some fundamental rights which could not be suspended as it directly affects the living of people, and various basic rights, the fundamental rights are not suspended and anyone who violated such rights which are not suspended during emergency, one may sue and get constitutional remedy as well.