With another poll season and another promise of freebies to voters, it’s time to revisit the supreme court judgment of 2013
Gyanant Singh | October 20, 2015
In July 2013, the supreme court directed the election commission to frame guidelines on the contents of manifestos after noting that freebies announced by political parties shake “the root of free and fair elections”. Though guidelines have now been put in place, the state of affairs virtually remain the same with parties in fray continuing to promise freebies with scope for violating the spirit of the norms framed by the poll panel.
The BJP’s Bihar poll manifesto promises laptops (for meritorious students), scooties (for meritorious girls) and colour TVs (for dalits) at government expense if the party is voted to power. Other parties have also made competing bids – taking us back to the circumstances under which the supreme court was forced to direct the poll panel to frame guidelines.
A bench presided over by justice P Sathasivam had on July 5, 2013 directed the poll panel to frame guidelines on the content of manifestos while disposing of a PIL questioning such promises by DMK and AIADMK in their election manifestos of 2006 and 2011, respectively.
Two years hence, nothing seems to have changed. The BJP manifesto, released recently, is similar to the DMK and AIADMK manifestos which had come up for scrutiny before the supreme court. While DMK in 2006 had promised and distributed colour TVs, the AIADMK had promised mixer-grinders, electric fans, laptops, etc. in 2011.
Ironically, the judgment which sought to change the system may have itself frustrated the very purpose of regulating the content of election manifestos. The court had emphasised in the judgment that distributing freebies shake “the root of free and fair elections to a large degree”. But coming to the case at hand, it observed that distributing laptops, TVs, mixer-grinders, etc. came within the ambit of Directive Principles of State Policy which guided the government in taking policy decisions.
Observing that “distribution of freebies of any kind, undoubtedly, influences all people”, the court had asked the election commission to take up the task of framing guidelines on contents of manifesto “as early as possible owing to its utmost importance”.
The judges, however, came to the conclusion that the schemes in the case before it fell within the realm of Directive Principles of State Policy laid down under the constitution. “With regard to the contention that distribution of state largesse in the form of colour TVs, laptops, mixer-grinders, etc. violates Article 14 of the constitution as the unequals are treated equally. Before we venture to answer this question, we must recall that these measures relate to implementation of the Directive Principles of State Policy,” the court said.
In the guidelines formulated pursuant to the order of the court, the election commission has permitted inclusion of welfare measures covered by the Directive Principles of State Policy in manifestos. “The Directive Principles of State Policy enshrined in the constitution enjoin upon the state to frame various welfare measures for the citizens and therefore there can be no objection to the promise of such welfare rneasures in election manifestos. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise,” the guideline says.
With the court having already held that distributing TVs, laptops, etc. was covered by the guiding principles enumerated in the constitution, a manifesto promising private assets like the one released by BJP can be defended or justified as falling within the ambit of the guidelines formulated by the poll panel.
This takes one back to the situation under which the court had made observations pertaining to the violation of purity of elections and had issued directions to the poll panel to frame guidelines regulating the content of manifestos. This surely could not have been the purpose or the intent behind the direction issued by the court in 2013.
The court had acknowledged that such promises exerted undue influence on the mind of voters. The poll panel guideline also recommends avoiding promises which could exert undue influence on the voters in exercising their franchise. But the finding by the court with respect to the promises in the Tamil Nadu case gives scope for violating the spirit of the guidelines issued by the poll panel.
Though the 2013 judgment lacks clarity, the reference to Directive Principles of State Policy could be on account of the fact that arguments in the Tamil Nadu case also covered implementation of the promises by the government after the election. Rejecting arguments by the petitioner, the court said it was not inclined to agree that “giving colour TVs, laptops, mixer-grinders, etc. by the government after adhering to due process is not an expense for public purpose”.
Be that as it may, it cannot be denied that the controversy has survived the July 5, 2013 supreme court judgment. The fact that the problem has resurfaced only points towards the need for a relook at the judgment which seems to have foreclosed the debate without convincingly dealing with all aspects of the controversy.
While formulation and implementation of policy decisions by the government may be a separate issue, the court has failed to convincingly deal with the issue of promises made by political parties in the run-up to elections.
In what is evident from the manner in which the verdict is being interpreted by many, the court may have failed to draw a line between policy decisions taken by governments and promises made by political parties while it referred to the Directive Principles of State Policy. The Directive Principles of State Policy may justify policy decisions taken by governments but it cannot be relied upon to justify promises by political parties if they tend to influence voters.
It goes without saying that announcement of broad policies as in the US have to be allowed to help voters make a choice. In the US, political parties, however, do not offer specific benefits, but outline plans and policies that would benefit large groups of population.
The test should be whether the promise could influence voters and not whether a government was empowered to take such a policy decision.
In fact, the model code of conduct bars announcement of any new project, programme or scheme by the government after the notification of an election. With political parties being permitted to announce freebies, it needs to be debated if it does not amount to permitting a government to do indirectly what it cannot do directly. Such promises may not fall within the definition of bribery under section 123 of the Representation of the People Act, 1951 as held by the court in its 2013 judgment but they surely put undue influence on voters which the provision seeks to deter.
Coming to the conclusion by the court that distributing laptops, TVs, etc. was covered under the Directive Principles of State Policy, the question as to what the principles mean in the present day context is a matter of separate debate.
The constitution makers had left Directive Principles of State Policy to be interpreted according to the socio-economic needs of the society at any given point in time. “It is no use giving a fixed, rigid form to something which is not rigid, which is fundamentally changing and must, having regard to the circumstances and the times, keep on changing,” Dr BR Ambedkar had stated in the constituent assembly.
Though it may not be for courts to decide as to which policy would best serve the needs of the time, people ought to express their judgments on this. Voters need to decide if providing scooty to a few girls or safe transport facility for schools and colleges; providing TV to the deprived or creating community recreation centres; providing laptop to the meritorious or computers in all schools would serve the needs of the society better. Political parties cannot ignore the views of the people while seeking votes.
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