The Constitutional Paradox: How Emergency Powers And Black Laws Threaten Democratic Freedoms In India
Diksha Taneja, Assistant Professor, Rama University, Kanpur
ABSTRACT
This paper examines the tension at the heart of India’s constitutional order: the very emergency powers designed to safeguard the state may, under certain conditions, undermine the democratic freedoms they are meant to protect. The research paper begins with a description of emergency rule under the constitution where the primary focus will be a discussion of Arts 352, 356, and 360 dealing with ‘national emergency’, ‘state emergency’, and ‘financial emergency’ respectively. Arts 352, 356, 360 aim at consolidation of the state and its governance, but decades of legal and political scholarship highlight the ominous embedding of the potential for the erosion of democracy within these provisions. The second thematic focus is on the ‘black laws’. These laws are usually passed as emergency or exceptional legislation in the name of “national security or public order”. They are built on the principle of concentration of power, the restriction of fundamental rights and the provision of flimsy legal procedural frameworks. The term “black laws” is historically most associated with the colonial legislation (like the 1919 Rowlatt Act, known as the “Black Act”) or agricultural regulation where legislation is hastily passed with little public and legislative discussion, and a high degree of executive discretion is authorized. By means of doctrinal analysis, historical case studies, including the 1975-77 Emergency period, and a normative critique, this paper argues that the paradox created by the use of emergency powers and black laws is that while such provisions seek to protect a democracy, they simultaneously facilitate the stripping away of its fundamental elements: the “right to free speech”, the “right to assemble”, “due process”, and state centrism. This paper proposes the addition of stronger safeguards (judicial safeguards, sunset provisions, parliamentary supervision, protections at the state level) and invites the study of this nexus of digital surveillance, state of emergency, and erosion of democracy.
Keywords: Black Laws, Art 352, Art 356, Emergency Powers, Constitution.
