Offering or distributing freebies either before or after an election is a policy decison of a political party, the Election Commission of India (ECI) has told the Supreme Court.
The poll body was replying to a petition filed by advocate Ashwini Upadhyay that the promise and distribution of “irrational freebies” by political parties amounted to bribery and unduly influencing voters. It vitiated free and fair elections in the country, the petition said.
But the ECI adopted a hands-off approach, saying “whether such policies are financially viable or have adverse effect on the economic health of the State is a question that has to be considered and decided by the voters of the State”.
The election body said it cannot regulate policies and decisions that may be taken by the winning party when they form the government.
“Such an action, without enabling provisions of law, would be an overreach of powers,” the ECI said in its affidavit.
The ECI referred to the top court’s own decision in the S. Subramaniam Balaji case that the poll body cannot intervene in promises made in election manifestos released by parties before the announcement of the election dates, after which the Model Code of Conduct (MCC) kicked in.
It said new MCC guidelines were framed in consultation with political parties, keeping in mind the potential influence freebies may have on a level playing field. A letter from the ECI had even advised parties to submit their declarations along with copies of manifestos.
The ECI did not agree with Mr. Upadhyay’s plea to seize the election symbols of parties which promise gifts. The lawyer had wanted an additional condition that “a political party shall not promise/distribute irrational freebies from the public funds before election” to be inserted in the Election Symbols Order of 1968.
The recognition and continuation of state and national parties are based on one touchstone — electoral performance, the ECI countered.
“Barring parties from promising/distributing freebies from public funds before election may result in a situation where parties will lose their recognition even before they display their electoral performance in elections,” the ECI reasoned.
The poll body also did not agree with the lawyer’s proposal in court to direct the ECI to de-register parties which offer or distribute irrational freebies.
It said parties can be de-registered only if they had registered through fraud or forgery or if they were declared illegal by the Centre or if they had stopped abiding by the Indian Constitution.
“There is no provision for de-recognising a political party for distribution of irrational freebies,” the ECI said.
However, the ECI said it has been, for years, appealing to the Centre to arm it with the powers to de-register political parties.
In a letter to the Law Minister in July 1998, the Chief Election Commissioner had said that out of over 650 parties registered with the ECI, only 150 or so contested elections in 1998.
The letter was referred to in another communication in July 2004 when the ECI had sent a set of 22 proposals for electoral reforms, including powers to de-register political parties.
Again, in December 2016, the ECI had sent a batch of 47 proposals for electoral reforms to the Centre. These included suggestions in respect of reforms relating to political parties. One of these proposals included the deregistration of political parties which have an existence only on paper with an eye on availing the benefit of income tax exemption.