DailyPost 2737
ENGINEERED LEGALITY
The Indian political leadership, political executive and government decides first and then gets into the legality of it. The bureaucrats have followed suit. Businesses couldn’t have remined far behind because vast number of the decisions impact them intensely. It should have been the other way round; how various decisions could be taken with the perimeters of the existing laws of the land. Might be once in a while some tweaking could have been needed, that too in linear progression. Hence, people could have seen it coming. Unfortunately, if legality comes as an afterthought, and it keeps creating issues at all times, as it was add on and that too not an organic one.
So, it is imperative to create a camouflage of legality. Unknown to the outside world it is pulled off successfully, over and over again. Additionally, people don’t want to get into legal hassles with the government. A simple example would be the use to the term “public interest” in all governmental transfers making it legal, objective and empirical. The creation and operations of MPLADS (MP Fund) and similar funds at the state level are putting a garb of legality to this nature of allotment, procurement and execution. Literally every second order today would come under camouflaged legality category. The challenge of forcing legality becomes confounded as the systems are not geared to that nature of decision implementation. How much of our political manifestos have legality inbuilt?
Governance and unpredictable decision making cannot go hand in hand. Crossing the stage of camouflaged legality, we reach the stage of engineered legality. A decision is informally taken and there are not laws to sustain it. At times even a new law would not suffice. It might need lots of consequent changes in other laws, which are fundamental to it, and hence changes its essence itself. Not that it was done for the first time in the case of electoral bond enactment, it happens to the most visible case of this genre currently. This is a true manifestation of engineered legality. Legality being politically ordained to a law is engineered legality. The law-making role of an elected representative is primarily to add his numerical might during voting to whatever is proposed by its government.
They have nothing to do with legality even in their wildest dreams. Another great area of engineered legality and even more conspicuous than the first one, is adding legality to lost cases in the highest court of the land, at times delivered by constitutional bench. They have the best understating of the constitution and can interpret it the best in the light of the facts of the case. The power of Delhi government was one issue in the regard. The selection process of Election Commissioners was also altered by legislative might. There are quite a few cases in this landmark category, where the writ of the highest court was superseded by legislative might of the rulers. Is legality the handmaiden of the rulers?
LEGALITY SHOULD HAPPEN BY DEFAULT, ANYTHING DIFFERENT SHOULD BE ALLOWED TO HAPPEN WITH TWO/THIRDS MAJORITY ONLY.
Sanjay Sahay
Have a nice evening.