Proposal on electoral promises a case of Election Commission overreach

It contradicts the EC’s own stance in an affidavit filed in the Supreme Court.

AIADMK party workers campaigning with poll promises of free mixer-grinders and fans at Srirangam constituency in Tiruchi in April 2011. | Photo Credit: M. MOORTHY

Do poll promises constitute corrupt practice? Should they be subject to restrictions imposed by the Model Code of Conduct (MCC) for elections? Are Central schemes welfare measures while those of State governments freebies? Is it all right for political parties to receive funding in the form of electoral bonds from donors whose identities are not known? These are some of the questions posed by political parties in response to a proposal by the Election Commission suggesting changes in the MCC guidelines.

On October 4, the EC decided to send a missive to all political parties with a proposal to strengthen the MCC, demanding a declaration of the financial implications of election promises. Many political parties, especially those in the opposition, felt that it was an overreach. As far as the EC was concerned, it was following up on a Supreme Court order of 2013 directing it to issue guidelines on election promises. Parties are supposed to convey their views by October 19, failing which it will be presumed that they have nothing to say on the proposed changes.

The EC’s move is baffling because it seems to contradict the stance that it took in April in an affidavit to the Supreme Court. It said then that offering or distributing freebies either before or after elections is a policy decision of the party concerned and that whether such policies are financially viable is a question to be decided by voters. It also submitted that it could not regulate State policies or decisions that might be taken by the winning party when it formed the government as such action, without enabling provisions in law, would be an overreach of powers.

Barring the BJP, no other party holds the view that welfare schemes and poll promises are freebies. The Prime Minister has consistently been critical of freebies. The practice of issuing freebies is “rewri” culture, he said on one occasion, rewri being a kind of candy given gratis on certain occasions.

BJP leader Ashwini Kumar Upadhyay has revived the legal debate on “freebies” by filing a petition seeking a reconsideration of the order in the Subramaniam Balaji case. The DMK, AAP, and YSCRP have filed intervention applications, averring that welfare schemes are not freebies. The Congress has termed the proposal as “yet another nail in the coffin of democracy”.

When the matter came up in the Supreme Court as a result of Upadhyay’s petition, political parties were opposed to the formation of an expert committee to look into the matter. Holding political parties to account for their election promises was seen as an intrusion into the domain of the legislature. It was argued that the people were the ultimate arbiter in a democracy. That the EC’s letter came close of the heels of this heated debate may not be a coincidence.

The Samajwadi Party’s Akhilesh Yadav, then the Chief Minister of Uttar Pradesh, with students showing off the laptops he handed over in Lucknow in March 2013, in accordance with a poll promise in the party manifesto. | Photo Credit: SUBIR ROY

Opposition parties angry

It has been a long-standing demand of political parties that the MCC be applied objectively and across the board. The EC’s ineffectual measures on the subject of provocative and communally coloured speeches during campaigns and its silence on the subject of electoral bonds have raised questions.

In this context, the move to regulate poll promises has raised the hackles of political parties barring the BJP. The EC letter included a disclosure proforma in two parts. Part A requires the listing of expenditures that would be entailed by electoral promises, along with details of the promised scheme, welfare measures, extent and expanse of coverage, target population, number of beneficiaries, financial implications of the likely expenditure, and the likely total expenditure. The EC listed out the nature of the schemes such as distribution of laptops for students, consumer durables, gadgets, loan waivers, free water, free electricity, free transport, and pension schemes to employees.

Part B demanded information from Central and State governments on revenue receipts, expenditure, borrowings, GSDP, outstanding liabilities, fiscal sustainability ratios, sources of financing the gap with reference to the latest Budget Estimates/Revised Estimates, and so on. All this, according to an explanatory note in the proforma, is meant to enable political parties to assess the reasonableness of resource-raising plans and to make the disclosures by various parties comparable.

The proposal is also apparently meant to enable voters to exercise their franchise in an informed manner. It has been argued, however, that the EC’s primary responsibility is to conduct elections and to ensure that candidates meet the requirements of the Representation of the People Act.

2013 case observations

In 2013, while looking into the issue of whether promises to distribute mixer-grinders, laptops or colour television sets was a corrupt practice (Subramaniam Balaji v Government of Tamil Nadu and Others) under Section 123 of the Representation of the People Act, 1956, the Supreme Court observed that it would be flawed on its part to declare every election promise in a manifesto as corrupt practice. It also held that it was not within the domain of the court to legislate on what kind of promises can or cannot be made in an election manifesto.

It pointed out that the manifesto was a statement of policy not of a candidate but of a potential future government. The applicability of Section 123 relates to corrupt practices of an individual, irrespective of whether their party forms the government or not. A political party’s promises do not constitute corrupt practice as the party is not “within the sweep of the provisions relating to corrupt practices”.

The courts, it held, could not issue a direction for the purpose of laying down a new norm for characterising any practice as corrupt practice. The power to make a law was vested with the Parliament. The court also went into the question posed by the appellant that the distribution of state largesse in the form of colour TVs, laptops or mixer-grinders violated Article 14 of the Constitution as unequals were treated equally. The court made it clear that the measures related to the Directive Principles of State Policy. While implementing the Directive Principles, it is for the government concerned to take into account its financial resources and the need of the people.

On the issue of whether public money can be used to create private assets, the court ruled that there was no merit in the contention. Ordinarily, the court cannot interfere with a government’s policy decisions unless they are clearly in violation of some statutory or constitutional provision or are shockingly arbitrary in nature.

The court ruled that election manifesto promises do not constitute corrupt practice under prevailing laws. It said that the schemes that were challenged in the petition fell under the realm of fulfilling the Directive Principles of State Policy and thereby fell within the scope of public purpose.

Directions to EC

In the 2013 case, the Supreme Court made it clear that it had limited powers to issue directions to the legislature to legislate on a particular issue. The EC had in an affidavit expressed concern that the promise of freebies disturbed the level playing field. The court ruled: “Considering there was no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognised political parties as and when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power, etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the MCC for the guidance of political parties and candidates.”

The EC was also given the power to regulate the election manifesto as it was associated with the election process. The two-judge bench of P. Sathasivam and Ranjan Gogoi directed the EC to take up the task as early as possible. This was on July 5, 2013.

The EC held a meeting with political parties on August 12, 2013, but the parties were not on the same page on the matter. Some guidelines were incorporated in 2015 in Part VIII of the MCC. These stipulated that political parties should avoid making promises that were likely to vitiate the purity of the process or exert undue influence on voters in exercising their franchise. Manifestos should also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for them. The trust of voters should be sought only on those promises which are possible to be fulfilled. Despite these guidelines, the EC found that many of the declarations were routine, ambiguous, and did not provide adequate information for voters to make an informed choice.

Chief Election Commissioner Sushil Chandra. The EC had in an affidavit to the Supreme Court in the 2013 case expressed concern that the promise of freebies disturbed the level playing field.  | Photo Credit: SHIV KUMAR PUSHPAKAR

Its October 4 note said while it was “agnostic to the nature of the promises, the need to frame disclosure requirements to enable healthy debate on the financial implications of implementing those promises both in the immediate future and for the long-term fiscal sustainability is imperative for facilitating the conduct of fair and free elections”.

The CPI(M) called the EC’s proposal “extraordinary and bizarre”. It reasoned that if a political party decided to offer free school uniforms for children in government schools, the worthiness of such a promise was to be decided by voters. The finances to be allocated would fall under the remit of the elected government and not the EC’s.

Speaking to Frontline, Manoj Jha, Rajya Sabha member from the RJD, compared the EC’s proactiveness seen in the October with its silence on other pressing issues. “We have seen institutions crossing their territory and mandate. The EC should not simply appear as a cacophony of the executive’s inclinations as we have seen in the past few years. On electoral bonds, there is absolute lack of transparency by the EC. It appears complicit in the matter of hate speeches, preferring to issue warnings, which don’t make any sense. It doesn’t make its voice heard. People make these speeches and become Chief Ministers and Cabinet ministers,” he said. As for the the feedback from political parties that the EC has sought, he said it was just a routine request and claimed such feedbacks were never taken seriously. “We all are fast moving to an authoritarian state with authoritarian structures and authoritarian command. The EC has become a kind of a megaphone for that kind of commands,” he said.

The Crux

• On October 4, the Election Commission sent a letter to political parties proposing changes in the Model Code of Conduct that would require political parties to disclose how they planned to finance welfare schemes they were promising prior to elections should they come to power.
• Political parties barring the BJP are upset.
• The EC’s stand also contradicts its own stance in an affidavit to the Supreme Court in April.
• The Prime Minister recently dubbed the practice of offering “freebies” as “rewri culture”.