Ensuring a level playing field is different from redrawing the rules of the game. While correctly holding that the promise of freebies in election manifestos by political parties would not come under “corrupt practices” and “electoral offences” defined in the Representation of the People Act, the Supreme Court went too far in directing the Election Commission of India to frame guidelines for regulating the contents of manifestos and in calling for a separate legislation in this regard. Of course, the EC is duty-bound to ensure a level playing field for all political parties, big and small, whether in a general election or in a by-election. To this purpose, it is empowered to put a cap on election expenses so as to not disadvantage smaller parties or independent candidates, and to check government spending in election-time so as to not disadvantage opposition parties. Indeed, the Model Code of Conduct for the Guidance of Political Parties and Candidates specifically bars “corrupt practices” and offences under the election law such as bribing, intimidation or impersonation of voters, canvassing near polling stations, and transport of voters to and from the election booth. However, any attempt to regulate the contents of manifestos can only be termed bizarre.

At stake is whether courts can sit in judgment over the policies and programmes of a political party, however ill-advised or impractical these might be. The Supreme Court did admit that “it is not within the domain of this court to legislate on what kind of promises can or cannot be made in the manifesto.” But what it could not do, it wants the EC to somehow push through. The apex court was willing to grant that the government had the right to decide how to implement the Directive Principles of State Policy, and that distributing largesse in the form of TVs, laptops and mixer-grinders to deserving persons was directly related to the Directive Principles. But strangely, the Bench also held that the distribution of freebies influenced all voters and shook the “root of free and fair elections to a large degree.” Election promises — whether of resource-draining, untargeted freebies or of progressive social welfare schemes — do not disturb the level playing field: after all, one promise can be matched by another. And, since a promise per se costs nothing, smaller parties are in no way handicapped in any competitive offering of freebies. Voters make choices on the basis of campaign promises and practical experience. The court may be right in expressing its disquiet over reckless populism, but the remedy for any fiscally irresponsible act by a political party can only lie with voters and not judges.

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