Distribution of freebies during Elections - Legal?

A case study of the landmark judgment with regard to the distributions of freebies during Elections by Political parties.

1. Civil Appeal No. 5130 of 2013 (Arising out of SLP (c) No. 21455 of 2008) and Transferred Case No.112 of 2011 Distribution of freebies during Elections – Legal?

2. Civil Appeal No. 5130 of 2013 (Arising out of SLP (c) No. 21455 of 2008) and Transferred Case No.112 of 2011 CASE ANALYSIS S. Subramaniam Balaji v . Government of Tamil Nadu

3. Facts of t he Case The Appellant, Mr. S Subramaniam Balaji under this appeal had challenged the Schemes floated by the Political Parties under their Election Manifestos to lure voters. Two Writ petitions were filed by the Appellant against DMK before the Madras High Court alleging the Schemes implemented by them to be a corrupt practice to woo the voters. On coming to power in 2006 in accordance with the scheme they made a policy decision to provide Colour TVs to all eligible families in the State. The above stated Writ petitions were dismissed by the Madras High Court. The appellant herein aggrieved by the decision preferred a special leave before the Apex Court. ( SLP(C) No. 21455 of 2008 )

4. Pursuant to Elections of the Tamil Nadu State Assembly in 2011, the opposition party AIDMK also announced under the its election manifesto with freebies offered by DMK. Another Writ Petition was filed by the Appellant against AIDMK alleging the scheme a corrupt practice and to restrain the government form implementing the scheme. In view of the Pendency of SLP(C) No. 21455 of 2008 in relation to the similar issue , the transfer of the above writ petition was sought . By order dated 16.09.2011, the Court allowed the transfer as Transfer Case no. 112 of 2011 and was tagged along with SLP(C) No. 21455 of 2008

5. Contentions of the Appellant Article 282 of the Constitution of India only permits defraying of funds from the Consolidated Fund of the State for "public purpose"; According to the Appellant the expenditure incurred by the Government in implementation of scheme is not for common good or public purpose, but it rather results in creation of public assets. The distributions made by the Respondent-State is violative of Article 14 since there is no reasonable classification; CTVs, mixer grinders were distributed to all people having ration card. Laptops were to be distributed to all students studying in the State Board and not to students studying in Central Board schools.

6. Promises of free distribution of non-essential commodities in an election manifesto amounts to electoral bribe under Section 123 of the Representation of People Act, 1951; Under Section 123 (1) (A) any “gift, offer or promise” by a candidate or his agent or by any other person, with the object of inducing a person to vote at an election amounts to “bribery”, which is a “corrupt practice” under the said section. Key element in this section is that the voter must be influenced to vote in a particular manner. The Comptroller and Auditor General of India has a duty to examine expenditures even before they are deployed Safeguards must be built into schemes to ensure that the distribution is made for a public purpose and is not misused.

7. Contentions of the Respondent Freebies as promised under the election manifesto, would not come under the head ‘corrupt practice’ and ‘electoral offences’ in terms of the RP Act. Reason provided: The schemes are in accordance with the Directive principle of State policy under which State Government can promote the welfare of people, who are below the poverty line . Political Parties are not State, therefore, not amenable to writ jurisdiction of the High Court under Article 226 or writ jurisdiction of the Supreme Court under Article 32 of the Constitution of India

8. Vishaka principle not-applicable as Section 123 of RP Act enumerates ‘corrupt practices’ exhaustively. Vishaka and others v. State of Rajasthan and others “ if on a given topic there is no law enacted by a competent legislature, then this Court has power to issue directions under its inherent powers under Article 142 and141 of the Constitution and the said directions would operate and bind all concerned till the competent Legislature enacts a law on the concerned subject ” Promises of political parties do not constitute corrupt practice Reasons stipulated: Section 123 of the RP Act is a penal statute and allegation of “corrupt practice” must be strictly proved as a criminal charge. Manifesto under which promises were made by the political parties was to achieve a social order removing economic inequalities.

9. The Schemes under challenge operate within the parameters of public purpose and Article 14 of the Constitution has no role to play The concept of public purpose is essentially linked to Directive principles of State Policy. The schemes under election manifesto promised to raise the standard of living of the people and was for the upliftment of poor Article 39 of the Constitution contemplates that State shall take actions to provide adequate means of livelihood and for distribution of material resources to the community on egalitarian principle. The concept of livelihood is no longer confined to bare physical survival but also now must necessarily include some provision for medicine, transport, education, recreation etc . The other facet of the argument is that the freebies distributed irrespective of the income level and therefore, violative of Article 14 as unequals are treated equally. Learned senior counsel submitted that this principle of not to treat unequals as equals has no applicability as far as State largesse is concerned. This principle applies only where the law or the State action imposes some burden on the citizen either financial or otherwise.

10. Findings of the Court Whether the promises made by the political parties in the election manifesto would amount to 'corrupt practices' as per Section 123 of the RP Act ? Section 123 only speaks about a candidate or his agent or any other person but not Political Parties. The court agreed to the fact the promises made by the political parties indeed induces the voters thereby affecting the level playing field between the candidates. The court further goes on to state that all promises in the election would not amount to corrupt practice . The provisions of the said Act place no fetter on the power of the political parties to make promises in the election manifesto. The provisions relating to corrupt practice are penal in nature and, therefore, the rule of strict interpretation must apply The courts cannot issue a direction for the purpose of laying down a new norm for characterizing any practice as corrupt practice.

11. Whether the schemes under challenge are within the ambit of public purpose and if yes, is it violative of Article 14 ? Various checks and balance are in existence within the mandate of the Constitution before the scheme can be implemented. If the scheme comes within the realm of public purpose and money is withdrawn with Appropriation bill, the court has limited power to interfere in such schemes . The court held that the schemes are for the implementation of DPSP and does not violate Article 14. While implementing the DPSP, it is for the government to take into account its financial resources and need of the people. There cannot be a straight jacket formula set for the implementation of the same.

12. Whether the court has inherent power to issue guidelines by application of Vishaka principles ? The court held that in this case there is no legislative vacuum where the judiciary can apply its inherent power to frame guidelines. Section 123 of the RP Act enumerates exhaustively a series of acts as “corrupt practice” Whether Comptroller and Auditor General of India has a duty to examine expenditure before they are deployed ? The Court held that the Duty of CAG will arise only after the expenditure has incurred. Under Article 148 of the Constitution his main role is to audit the income and expenditure incurred by the Governments, Government bodies and State-run corporations.

13. Whether the writ jurisdiction will lie against a political party ? The court held that in context of pecuniary and territorial jurisdiction objection has to be taken at earliest possible opportunity. This case relates to jurisdiction of subject matter and thus stands on a different footing . Question in case of subject matter can be raised even in the appeal stage. As this petition was fit for dismissal, the jurisdiction issue was left open.

14. Judgment The Election Commission should ensure level playing field between the contesting parties, should frame guidelines for election manifesto released by a political party as a ingredient of Model Code of Conduct for the guidance of political parties and candidates. Separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society .

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