The Supreme Court on Wednesday said it will constitute a three-judge Bench to re-consider a 2013 judgment which held that pre-poll promises made by a political party cannot constitute a corrupt practice under the Representation of the People (RP) Act.
The S. Subramaniam Balaji versus Government of Tamil Nadu judgment, based on DMK’s pre-election promise to distribute colour TVs to poor households in Tamil Nadu, said only an individual candidate, not his party, can commit a ‘corrupt practice’ under the RP Act by promising free gifts.
The Balaji judgment, by a two-judge Bench of the apex court, came under the spotlight after nine years when Chief Justice N. V. Ramana’s Bench was told on Wednesday that there cannot be a dichotomy between a political party and its candidate. What the candidate promises is what his party wants him to promise. The party cannot escape liability.
“A candidate makes a promise with the backing of his party. There cannot be a dichotomy between a candidate and his party,” senior advocate Arvind P. Datar, who was also a lawyer in the Balaji case, submitted before the Chief Justice Ramana’s Bench during a hearing on ways to rein in irrational freebies.
“I will constitute a three-judge Bench for this,” Chief Justice Ramana said.
Sec 123 of RP Act
During the hearing, Mr. Datar referred to Section 123 of the Act which deals with ‘corrupt practices’. The provision says it is ‘bribery’ and thus deemed a corrupt practice if any gift, offer or promise of gratification is made to voters directly or indirectly by a candidate or his agent or any other person acting on their consent.
Senior advocate Vikas Singh also urged the court to re-examine the Balaji judgment, saying it was wrong in several aspects.
The judgment by a Bench of Justices P. Sathasivam and Ranjan Gogoi (both retired) had clearly drawn a distinction between an individual candidate put up by a political party and the political party itself.
“The provisions of the Act prohibit an individual candidate from resorting to promises, which constitute a corrupt practice within the meaning of Section 123 of the RP Act. The provisions of the Act place no fetter on the power of the political parties to make promises in the election manifesto,” the court had held in July 2013.
Rationale of judgment questioned
The lawyers on Wednesday also questioned the rationale of the judgment which had held that it was directly part of the Directive Principles of State Policy for a State to distribute “largesse in the form of distribution of colour TVs, laptops, etc., to eligible and deserving persons”.
“The purpose of the schemes is to enforce the Directive Principles of State Policy. In what way the State chooses to implement the Directive Principles of State Policy is a policy decision of the State and this court cannot interfere with such decisions unless they are clearly in violation of some statutory or constitutional provision or is shockingly arbitrary in nature,” Justice Sathasivam had observed in the judgment.
The 2013 judgment had said it was for the government concerned to take into account its financial resources and the needs of the people. “There cannot be a straightjacket formula. If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State,” the verdict had said.
It had directed the Election Commission to consult with recognised political parties and frame guidelines for the general conduct of candidates, etc., and also for election manifesto, saying all of this could be included in the Model Code of Conduct for the Guidance of Political Parties and Candidates.
