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Synopsis

The Supreme Court on Friday, September 13, 2024, issued notice to the Union government and the Election Commission on a plea seeking a declaration that the promise of freebies, particularly in the form of cash, made by political parties during the run-up to Assembly or General elections, to be funded from the public exchequer post-election if their party forms the government, constitutes a corrupt practice under the Representation of the People Act, 1951.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra sought responses from the Union government and the Election Commission on the plea filed by Bengaluru resident B Lakshmidevi.

Court tagged the instant plea filed through advocate Balaji Srinivasan with a pending petition filed by advocate Ashwini Kumar Upadhyay.

The petitioner, who hailed from Chamrajapet Assembly constituency, cited Section 123 of the Act which specifically listed practices that constitute corrupt practices, including bribery, undue influence, and other forms of electoral malpractice. The Act seeks to ensure that elections are free and fair, and that the democratic process is not compromised by unethical practices. 

The petitioner also relied upon Article 14 of the Constitution which guarantees equality before the law and argued that the promise of freebies, particularly when targeted at specific sections of the electorate, creates an unequal playing field, thereby violating the principle of equality.

"Utilisation of public funds to provide freebies not only contravenes fundamental rights but also do not serve a ‘public purpose’ and hence, violates Articles 162, 266(3) and 282 of the Constitution," the plea said.

The petitioner also sought a direction to the Election Commission to take immediate and effective steps to prohibit political parties from making promises of freebies during the pre-election period.

The plea contended that the unregulated promise of freebies imposes a significant and unaccounted financial burden on the public exchequer. Further, there exists no mechanism to ensure the fulfilment of pre-poll promises on which votes were secured, it said.

"Political parties often announce such freebies without disclosing how these promises will be funded. This lack of transparency leads to either in a failure to fulfil such promises, thereby committing a fraud on the electorate, or in the introduction of populist schemes aimed at garnering future votes, which imposes an undue and disproportionate burden on public funds, thereby committing fraud on the Constitution," the plea said.

Citing the case study of Karnataka, the plea stated the Indian National Congress (INC) made several high-profile promises in their manifesto, which included five principal guarantees aimed at securing votes. 

"The financial burden of such schemes is estimated to run into thousands of crores annually. These populist promises, while seemingly beneficial, create an unsustainable financial liability for the state, potentially leading to cuts in essential services or increased public debt, thereby exacerbating the fiscal deficit. The lack of transparency regarding the financial implications raises concerns about the long-term economic viability of these promises," it said.

The manifesto/pamphlet was issued under the name of a Karnataka Pradesh Congress Committee and not explicitly in the name of the Indian National Congress (registered political party with ECI), raising questions about the accountability and official endorsement of these promises, it pointed out.

The plea said there is an urgent need for comprehensive guidelines to regulate the publication of political manifestos and to prohibit the offering of freebies by political parties. 

"The unregulated promises of financial benefits and material inducements not only distort the democratic process but also impose a significant and unsustainable burden on public resources. The lack of transparency regarding the financial implications of such promises undermines the integrity of elections and leads to widespread voter manipulation," it asserted.

To ensure the integrity of the electoral process and the responsible use of public funds, it is imperative to establish clear and enforceable regulations that govern the content of manifestos and prohibit the practice of making unrealistic and financially burdensome promises. Such guidelines should be aimed at safeguarding the principles of fair and transparent elections while protecting the fiscal health of the state and the interests of the electorate, it said.

The petitioner also contended that the Supreme Court's judgment in S Subramaniam Balaji's case that Section 123 of the Representation of People Act, 1951 does not apply to a political party (association of persons) and only prohibits individual candidates from making promises directly related to their election, was not the correct law.

"Once a candidate filed his nomination along-with the endorsement from a political party in FORM A & B, and his nomination is accepted, no distinction can be drawn between the two. The guarantees of gratification promised in the manifesto by political party are inducement to bribery and directly attributable to the candidates," it said.

Case Title: B Lakshmidevi Vs Union of India