As free gifts mar poll, EC should frame guidelines

In a big relief to political parties, the Supreme Court on Friday held that freebies offered by them in manifestos would not come under “corrupt practices” and “electoral offences” under the Representation of the People Act.

A Bench of Justices P. Sathasivam and Ranjan Gogoi, however, directed the Election Commission to frame guidelines in this regard in consultation with all recognised parties as it was doing for the general conduct of candidates, holding of meetings and processions, polling day discipline and norms for the party in power.

Directive Principles

Writing the judgment, Justice Sathasivam said: “What was once considered to be a luxury can become a necessity. The concept of livelihood is no longer confined to bare physical survival in terms of food, clothing and shelter but must also now necessarily include some provision for medicine, transport, education, recreation, etc. How to implement the Directive Principles of State Policy is a matter within the domain of the government, hence, the state distributing largesse in the form of colour TVs, laptops, mixer-grinders, etc, to eligible and deserving persons is directly related to the Directive Principles.”

Referring to appellant-advocate S. Subramaniam Balaji’s stand that a promise of this nature indeed “induces the voters, thereby affecting the level-playing field between the candidates, which in turn disrupts a free and fair election,” the Bench said that “as appealing, this argument may sound good, the implementation of this suggestion becomes difficult.”

The Bench, upholding the offer of grinders, mixies, laptops, etc, made by the AIADMK government in Tamil Nadu, said: “Firstly, if we are to declare that every kind of promise made in the election manifesto is a corrupt practice, this will be flawed.” For, all promises made were not necessarily freebies per se — for instance, the promise to develop a particular locality or cent per cent employment for all young graduates. “Therefore, it will be misleading to construe that all promises in the manifesto would amount to a corrupt practice. Likewise, it is not within the domain of this court to legislate on what kind of promises can or cannot be made in the manifesto.”

The Bench said: “Secondly, the manifesto of a political party is a statement of its policy. The question of implementing the manifesto will arise only if the party forms a government. It is the promise of a future government. It is not a promise of an individual candidate. Section 123 of the RP Act and other relevant provisions, upon their true construction, contemplate corrupt practice by an individual candidate or his agent. Moreover, such corrupt practice is directly linked to his own election irrespective of whether his party forms a government or not. The provisions of the RP Act clearly draw a distinction between an individual candidate put up by a party and the political party as such. The provisions of the Act prohibit an individual candidate from resorting to promises, which constitute a corrupt practice within the meaning of Section 123. The provisions of the Act place no fetters on the power of the political parties to make promises in the manifesto.”

It was settled law that courts could not issue a direction for laying down a new norm for characterising any practice as corrupt. Such directions would amount to amending provisions of the Act, the Bench said. “The power to make law exclusively vests in Parliament and as long as the field is covered by parliamentary enactments, no directions can be issued as sought by the appellant.”