Law, Morality and Indian Politics

Contra legem fact, quit identity fact quod lexes prohibit, in fraud uero, Quisaluis Serbia legs sentential us circumvent one that does what a Statute forbids transgresses the Statute; the person who contravenes the purpose of a Statute, with out disobeying its actual phrases, commits a fraud on it.
it is a mistake to generalise opposing theories of regulation: natural regulation and criminal positivism, or to position it genuinely morality and law. each degree fees towards the other. some are perceptive; others are unfounded. what's less widely known, but equally true, is that traditionally both the natural law defenders and the proponents of legal positivism have disagreed as plenty amongst themselves as with their combatants.
Fuller, a leading American criminal logician in his traditional The Morality of regulation contended that all structures of law comprise an ”internal morality” that imposes on individuals a presumptive duty of obedience. Fuller argues that certain ethical requirements, which he calls “standards of legality,” are constructed into the very idea of regulation, in order that nothing counts as the authentic regulation that fails to satisfy those standards. In the distinctive feature of those ideas of legality, there may be an internal morality to the law that imposes a minimal morality of equity.
A tough middle legal positivist like Hart too believed that there may be a minimum content of morality that a prison device should comprise. but, this minimum morality vanishes when we input into the area of politics. while there may be declining in democratic standards throughout the globe, Indian political state of affairs is leading with deep and distressing decline. The Modi government’s properly planned and strategic selection to boost the Union budget inside the mild of meeting elections in five states is the most recent instance of this lack of morality.

Free and Fair Elections: A Basic Feature

The Constitution of India contemplates loose and honest election. Justice H.R. Khanna in Election case AIR 1975 SC 2299observed that democracy is a basic function of the constitution and includes unfastened and fair elections. This sentiment has additionally been echoed in lots of other choices of the preferred courtroom. The charter Bench in Mohinder Singh Gill v. The chief Election Commissioner, New Delhi [(1978) 1 SCC 405] even as coping with a contention that Election fee has no energy to cancel the election and direct re-poll, cited the pervasive philosophy of democratic elections which Sir Winston Churchill invigorated: “At the bottom of all tributes paid to democracy is the little guy, on foot into a little booth, with a touch pencil, making a bit go on a bit bit of paper” - no amount of rhetoric of voluminous dialogue can possibly diminish the overwhelming significance of the point.
If we may additionally add, the little massive Indian shall not be hijacked from the route of unfastened and honest elections via mob muscle strategies or subtle
perversion of discretion by using guys ‘dressed in little, short authority’. For ‘be you ever so high, the law is above you.’ the ethical can be said with telling terseness in the words of William Pitt: ‘where laws cease, tyranny begins’. Embracing both these mandates and emphasising their blended
effect is the basic regulation and politics of strength best expressed via
Benjamin Disraeli: “I repeat . . . that all energy is an accept as true with that we are
chargeable for its exercise - that, from the people and for the people,
all springs, and all need to exist.”
In* P.V. Narasimha Rao v. nation (CBI/SPE) [(1998) 4 SCC 626]* the preferred courtroom similarly professed: “Parliamentary democracy is part of the primary shape of the charter. it's far settled regulation that during construing the constitutional provision the court ought to undertake a construction which strengthens the foundational capabilities and basic shape of the constitution.”

Election Commission: Custodian of Free and Fair Elections?

Constitution vests comprehensive powers and responsibilities of
superintendence, direction and control of the conduct of elections in the Election Commission. This responsibility cover powers, duties and functions of many sorts, administrative or other depending on the circumstances guaranteeing the limpidness of the electoral process.
To accomplish this constitutional objective the commission can draw upon all incidental and ancillary powers. The Supreme Court in Union of India v. Association for Democratic Reforms  held that (Para 26): “Under Article
324, the Commission can issue suitable directions to maintain the purity of election and to bring transparency in the process of election.” The phrase ‘Superinten-dence and control over the conduct of elections’ is held to be of very wide amplitude which would include power to make all necessary provisions for conducting free and fair elections. The transition of election commission from a nominal body to an effective autonomous institution has been realized by construing liberally these provisions.
The Election Commission is subject to only two limitations. Firstly, the Constitution and secondly, when Parliament or any State Legislature has made valid law relating to or about elections, the Commission shall act in conformity with, not in violation of, such provisions. But where such law is silent Article 324 is a reservoir of power to act for the avowed purpose of, not divorced from, pushing forward a free and fair election with expedition.
It is difficult for any constitution, howsoever immense it is, to list all
the contingencies and vest powers accordingly to deal with them. That the Constitution does not expressly prohibit presenting a budget before elections cannot be stretched to the extent that power lies inherently within the domain of the Executive.
Supreme Court of United States in  Youngstown Sheet & Tube Co. v. Sawyer 343 U.S. 579 has rejected this analogy that the Executive to be capable, as a “steward” of the people, of exerting all power save that which is specifically prohibited by the Constitution or the law.

Pre-emptive Action designed to benefit ruling party

The budget is generally presented on last working day of February but the Union Government’s plan to advance it just before election campaigns in five states were getting into full gear appears to be deceitful. It may be argued historically that such political manoeuvres have not worked for form governments in powers. Manmohan Singh’s budget (1996), Jaswant Singh’s feel good and India shining budget (2003), Chidambaram’s dream budget (1997) could not save their governments, but can this be cited as precedent to give a government a free hand?
In the past too, Union budget was presented just before state elections but not on such a large scale. The advancing budget of the Modi Government would be indispensably unethical for quite a few reasons. Firstly, it is clearly a pre-emptive action considering elections in five States which are very critical for Modi Government for conquering majority in the upper house and approaching the Presidential election.
Secondly, this budget is shadowed by Government’s demonetisation drive that suddenly slowed down the pace of the economy and thirdly; BJP portrays Narendra Modi in all the states’ elections and hence possibly this might affect the purity of elections. Popular budget is not the only device in fact; increasing the list of backwards classes and an addition of other backwards classes into Scheduled Castes are also consistently used by governments in power to lure voters, which is unscrupulous. This disturbs the parity of power between political parties contesting elections and the party in the government and encourage more corrupt practices.

Vigilant Election Commission Needed

Is it not the duty of the Election Commission to devise mechanisms to prevent these unethical practices? Why is the election commission not
mooting the idea of holding general, state and panchayat elections together although ruling party has shown its inclination towards this? The Election Commission is not only to conduct elections but also to prepare the roadmap for the future reforms. Political parties and politicians are unswervingly making a mockery of model code of conduct. The image of Election Commission is now seen as a toothless tiger.

A vibrant, election commission is necessary to ensure that basic structure of the Constitution is not eroded by declining politics. The attitude of Government towards developing decent conventions towards a vibrant democracy is not only playing mayhem with the democratic values but threatening to spoil the expectations of people. But the approach of the
Election Commission is somewhat more frightening.



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Thought of the day

“Smiling doesn’t necessarily mean you’re happy. Sometimes it just means you are strong.”