Regulation for election freebies

Varun Chugh
Today the Supreme Court of India issued notice to Union of India and the Election Commission of India on the plea, seeking directions to the ECI not to permit political parties to promise or distribue irrational freebies from the public fund before elections and de-register political parties or seize election symbol of the parties. This is the serious issue brought up again before this country’s apex Court.
There has been no guidelines or mechanisms that could stop the arbitrary promises on distribution of irrational freebies tries to induce an elector to vote in their favour without thinking that monies out of the Consolidated Fund of the State can only be appropriated for the execution of laws made by the State any other ‘Public Purpose’ not for private assets.
A Bench comprising the Chief Justice of India NV Ramana, Justice AS Bopanna and Justice Hima Kohli observed that it is undoubtedly a serious issue, but
‘We want to know how to control this. It’s a serious issue, no doubt. The Freebie budget is going beyond the regular budget, and sometimes as observed by SC it’s not a level playing field for some parties etc. In a limited scope,what we can do is, we had directed ECI to form guidelines’ – C J I Ramana.
The Hon’ble Court has shown the concern over the freebie budget that is going overboard the regular budget and the Supreme Court, in a different issue, had directed election commission to frame guidelines on the matter. Earlier also in 2013 the same issue was brought before the Supreme Court in S Subramaniam Balaji vs State of Tamil Nadu, (2013), 9SCC659, by an advocate, in which the Supreme Court directed the Election Commission to take up this task as early as possible owing its utmost importance and conclued by saying that promises in a manifesto under the present law cannot be declared corrupt practice.
The irrational freebie distribution that politial parties are promising are from the public funds, the Supreme Court of India should direct ECI to regulate such promises. The constitution of 17 States of the US explicitly prohibits the making of the private gifts by the Government. Even elsewhere in the US, it is recognized that public funds cannot be used to make gifts to private people.
Further, the Supreme Court should direct the ECI to frame guidlines in such a way that the spending on free distribution must be weighed against the public benefits that ensue from it and only if the public benefits outweighs the same. The Hon’ble Court should direct ECI to have some committee or authority that could regulate the promises made by the Pol parties in their manifesto because the Constitution of India does not permit free distribution of goods such as Color television, Smartphones, Grinders, Scooters, laptops, since these are consumer goods and only benefits the persons to whom they are distributed and not the public at large. Furthermore, this distribution leads to the violation of Article 14 of the Constitution of India by not providing the intelligible differentia having a nexus with such distribution. Post Covid-19, this is imperative that such political manifestos should come under the scanner of the ECI as the pandemic has dented our economy, and in most of the cases, such illegal promises are made just to implore that voters to vote for a particular party not for the betterment of the society.
Therefore, there is no enactment that directly governs the contents of the election manifesto. The Representative of people Act, 1950 is the only legislation that remotely deals with the election process. Also, the promises in the election manifesto cannot be constructed as ‘Corrupt Practice’ under the Section 123 of Representative of people Act, 1950. Therefore, my appeal is that there should be separate legislation passed by the lawmakers through which the Election Commission can regulate the promises made in Election manifesto.
(The author is practising lawyer in Supreme Court)