SC to reconsider judgment that making promises in election manifestos is not ‘corrupt practice’

CJI says three-judge Bench should consider whether an ‘enforceable’ order can be passed to stop political parties in power from promising ‘irrational freebies’

August 26, 2022 11:53 am | Updated 04:32 pm IST - New Delhi

The Supreme Court directed its 2013 judgment in S. Subramaniam Balaji case to be placed before a three-judge Bench for reconsideration. File

The Supreme Court directed its 2013 judgment in S. Subramaniam Balaji case to be placed before a three-judge Bench for reconsideration. File | Photo Credit: Getty Images

The Supreme Court on Friday decided to reconsider a 2013 judgment, which held that promises in the election manifesto do not constitute a “corrupt practice” under the poll law.

A Bench led by the Chief Justice of India, N.V. Ramana, ordered a three-judge Bench to be set up to review the court’s earlier position that such pre-poll promises made by political parties to entice voters do not fall within the ambit of Section 123 (corrupt practices) under the Representation of the People (RP) Act.

The S. Subramaniam Balaji judgment, delivered by a two-judge Bench, had observed that “although the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people”.

Opinion | ‘Freebies’, a judicial lead and a multi-layered issue

On Friday, Chief Justice Ramana said the three-judge Bench should consider whether an “enforceable” order can be passed to stop political parties in power from promising and distributing “irrational freebies”, completely divorced from actual welfare schemes, using public money in order to merely “capture vote banks”.

The court said the three-judge Bench should also deliberate if an expert body can be formed to independently study and make recommendations against the distribution of largesse at the cost of the national economy and public welfare.

It was Chief Justice Ramana’s Bench which initiated the idea of forming an expert committee to examine the problem of free gifts and prepare a “White Paper” suggesting the way forward. The court had recently even urged the Centre to call an all party meeting to discuss freebies.

But the debate before Chief Justice Ramana’s Bench reached a stalemate when several political parties intervened to argue that “not all promises are freebies” and welfare measures rolled out for public good cannot be equated with “freebies”. The parties had dissuaded the court from “gagging” a welfare state from following the Directive Principles of State Policy and distribute benefits to the people.

“Ultimately, it appears that the issues raised by the parties require a comprehensive hearing before orders can be passed,” Chief Justice Ramana noted in the court’s order on Friday.

The court ordered the freebies case to be listed before the new three-judge Bench in four weeks.

It said the electorate was the final judge in a democracy, deciding which party should come to power and whether they should remain at the helm after the next elections.

“It is the electorate that decides which party or candidate comes to power and also judge the performances of the party/candidates at the end of their legislative terms during the next round of elections,” Chief Justice Ramana noted.

Finally, the court said the judiciary usually did not interfere in matters of fiscal policy, but had taken up this case swayed by the arguments of the petitioners, led by advocate Ashwini Upadhyay, that freebies “create such a situation that a State government cannot even provide basic amenities due to lack of funds”.

“In the same breath, we should also remember that such freebies are extended utilising the taxpayers’ money for increasing the popularity of the party and its electoral prospects,” the court underscored.

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