EC says it can’t stop freebies, it’s voters’ call
NEW DELHI: It is for voters to decide whether they should elect leaders even if they promise freebies using public funds that could harm the economic health of a state, the Election Commission of India (ECI) told the Supreme Court, expressing its inability to impose restrictions on electoral promises that may disturb the level playing field.
The election watchdog can neither stop political parties from promising freebies, nor can it act against them because there’s no law to deregister political parties for making any “irrational promises” to voters, the commission told the top court.
“Offering or distributing freebies either before or after the polls is a policy decision of the political party concerned, and whether such policies are financially viable or their adverse effects on the economic health of the state is a question that has to be considered and decided by the voters of the state,” the commission said in its affidavit filed on Friday in response to a petition by advocate and Bharatiya Janata Party leader Ashwini Upadhyay.
The poll overseer cannot regulate state policies and decisions that may be taken by the winning party when they form the government. “Such an action, without enabling provisions in the law, would be an overreach of powers,” it said in the affidavit.
The poll panel added that it cannot include a prohibition against freebies as a condition for granting or withdrawing the recognition of a political party because the provisions regarding election symbols pertain only to electoral performance.
“An addition of another condition, i.e., barring political parties from promising/ distributing freebies from public funds before an election may result in a situation where the parties will lose their recognition even
before they display their electoral performance in the elections,” it said, adding the objective of the election symbols order would be frustrated if a party is acted against without any consideration of its electoral performance.
The apex poll body pointed out that its power to deregister a political party is confined to three grounds, as delineated by the top court in Indian National Congress Vs Institute of Social Welfare and others (2002). These include when registration has been obtained on fraud and forgery; when the party ceased to have faith and allegiance to the Constitution; and any other ground where no inquiry needs to be called for on the part of the commission.
In 2004 and again in 2016, the watchdog sent proposals to the central government on electoral reforms, which included the power to deregister political parties in appropriate cases, but there has been no further development.
The affidavit was filed after the Supreme Court’s notice on January 25, when a bench, led by Chief Justice of India NV Ramana, termed unrealistic poll promises and hand outs a “serious issue” that “disturbs the level playing field”.
“This is no doubt a serious issue. Budget for freebies is going above the regular budget. As the Supreme Court said before, this disturbs the level playing field,” the bench had observed while asking for replies from the central government and the commission within four weeks.
During the proceedings on January 25, counsel Vikas Singh, representing Upadhyay, contended that parties, even in debt-ridden states, were promising or distributing freebies to garner votes, creating an uneven playing field before the elections. Singh cited the example of Punjab, where every individual has an average debt of more than ₹3 lakh with the state owing more than ₹2.8 lakh crore, and said political parties were promising freebies to attract voters.
The public interest litigation, filed through advocate Ashwani Dubey, relied on the Supreme Court’s judgment in S Subramaniam Balaji vs Government of Tamil Nadu & Ors in July, 2013, which dealt with the issue of election manifesto and freebies.
In the 2013 judgment, the top court had said that distribution of freebies of any kind influences all people. “It shakes the root of free and fair elections to a large degree. The Election Commission through its counsel also conveyed the same feeling both in the affidavit and in the argument that the promise of such freebies at government cost disturbs the level playing field and vitiates the electoral process and thereby expressed willingness to implement any directions or decision of this Court in this regard,” that judgment had said.
The court had held that promises in the election manifesto cannot be construed as “corrupt practice” under the Representation of People Act, or under any other prevailing law and, hence, distribution of freebies can’t be stopped when the ruling party uses public funds for this purpose through the passage of Appropriation Acts in the state assembly.
At the same time, the court noted there is no enactment that directly governs the contents of the election manifesto, and directed the commission to frame guidelines in consultation with all recognised political parties.
Upadhyay relied upon the 2013 judgment to argue that the promise or distribution of freebies from public funds before election unduly influences voters, shakes the roots of free and fair elections, disturbs a level playing field and vitiates the purity of election process.
The plea pointed out that ECI’s guidelines said that while there could be no objection to the promise of welfare measures in election manifestos, political parties should avoid making promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.
“Arbitrary promises of irrational freebies violated the ECI’s mandate for free and fair elections, and distributing private goods (and) services, which were not for public purposes, from public funds clearly violated the Constitution,” added Upadhyay’s petition.
The fulcrum of democracy is the electoral process, said the petition, adding that if the integrity of electoral process is compromised then the notion of representation becomes vacuous.