A case study of the landmark judgment with regard to the distributions of freebies during Elections by Political parties.

1. Distribution of freebies during
Elections – Legal?
Civil Appeal No. 5130 of 2013 (Arising out
of SLP (c) No. 21455 of 2008) and
Transferred Case No.112 of 2011

2. S. Subramaniam Balaji
v.
Government of Tamil Nadu
Civil Appeal No. 5130 of 2013 (Arising out of SLP
(c) No. 21455 of 2008) and Transferred Case
No.112 of 2011
CASE ANALYSIS

3. Facts of the Case
 The Appellant, Mr. S Subramaniam Balaji under this
appeal had challenged the Schemes floated by the
Political Parties under their Election Manifestos to lure
voters.
 Two Writ petitions were filed by the Appellant against DMK
before the Madras High Court alleging the Schemes
implemented by them to be a corrupt practice to woo the
voters.
 On coming to power in 2006 in accordance with the
scheme they made a policy decision to provide Colour
TVs to all eligible families in the State.
 The above stated Writ petitions were dismissed by the
Madras High Court.
 The appellant herein aggrieved by the decision
preferred a special leave before the Apex Court.
(SLP(C) No. 21455 of 2008)

4.  Pursuant to Elections of the Tamil Nadu State
Assembly in 2011, the opposition party AIDMK also
announced under the its election manifesto with
freebies offered by DMK.
 Another Writ Petition was filed by the Appellant
against AIDMK
alleging the scheme a corrupt
practice
and to restrain the government form
implementing the scheme.
 In view of the Pendency of SLP(C) No. 21455 of
2008 in relation to the similar issue , the transfer of
the above writ petition was sought . By order dated
16.09.2011, the Court allowed the transfer as Transfer
Case no. 112 of 2011 and was tagged along with
SLP(C) No. 21455 of 2008

5. Contentions of the Appellant
1.
Article 282 of the Constitution of India only permits
defraying of funds from the Consolidated Fund of
the State for "public purpose";
According to the Appellant the expenditure incurred by
the Government in implementation of scheme is not for
common good or public purpose, but it rather results in
creation of public assets.
2.
The distributions made by the Respondent-State is
violative of Article 14 since there is no reasonable
classification;
CTVs, mixer grinders were distributed to all people
having ration card.
Laptops were to be distributed to all students studying in
the State Board and not to students studying in Central
Board schools.

6. 3.
Promises of free distribution of non-essential
commodities in an election manifesto amounts to
electoral bribe under Section 123 of the
Representation of People Act, 1951;
Under Section 123 (1) (A) any “gift, offer or promise” by a
candidate or his agent or by any other person, with the
object of inducing a person to vote at an election
amounts to “bribery”, which is a “corrupt practice” under
the said section.
Key element in this section is that the voter must be
influenced to vote in a particular manner.
4.
The Comptroller and Auditor General of India has a
duty to examine expenditures even before they are
deployed
5.
Safeguards must be built into schemes to ensure
that the distribution is made for a public purpose

7. Contentions of the Respondent
1.
Freebies as promised under the election
manifesto, would not come under the head
‘corrupt practice’ and ‘electoral offences’ in
terms of the RP Act.
Reason provided:
The schemes are in accordance with the Directive
principle of State policy under which State
Government can promote the welfare of people,
who are below the poverty line.
2.
Political Parties are not State, therefore, not
amenable to writ jurisdiction of the High Court
under Article 226 or writ jurisdiction of the
Supreme Court under Article 32 of the
Constitution of India

8. 3.
Vishaka principle not-applicable as Section 123 of
RP Act enumerates ‘corrupt practices’ exhaustively.
Vishaka and others v. State of Rajasthan and
others
4.
“if on a given topic there is no law enacted by a competent
legislature, then this Court has power to issue directions
under its inherent powers under Article 142 and141 of the
Constitution and the said directions would operate and bind
all concerned till the competent Legislature enacts a law on
the concerned subject”
Promises of political parties do not constitute corrupt
practice
Reasons stipulated:
• Section 123 of the RP Act is a penal statute and allegation
of “corrupt practice” must be strictly proved as a criminal
charge.
• Manifesto under which promises were made by the political

9. 5.
The Schemes under challenge operate within the parameters of public
purpose and Article 14 of the Constitution has no role to play
 The concept of public purpose is essentially linked to Directive
principles of State Policy.
 The schemes under election manifesto promised to raise the
standard of living of the people and was for the upliftment of poor
 Article 39 of the Constitution contemplates that State shall take
actions to provide adequate means of livelihood and for distribution
of material resources to the community on egalitarian principle.
 The concept of livelihood is no longer confined to bare physical
survival but also now must necessarily include some provision for
medicine, transport, education, recreation etc.
The other facet of the argument is that the freebies distributed irrespective
of the income level and therefore, violative of Article 14 as unequals are
treated equally.
 Learned senior counsel submitted that this principle of not to treat unequals
as equals has no applicability as far as State largesse is concerned. This
principle applies only where the law or the State action imposes some
burden on the citizen either financial or otherwise.


10. Findings of the Court
1.
Whether the promises made by the political parties in the
election manifesto would amount to 'corrupt practices' as
per Section 123 of the RP Act?

Section 123 only speaks about a candidate or his agent or
any other person but not Political Parties.

The court agreed to the fact the promises made by the
political parties indeed induces the voters thereby affecting
the level playing field between the candidates.

The court further goes on to state that all promises in the
election would not amount to corrupt practice.

The provisions of the said Act place no fetter on the power
of the political parties to make promises in the election
manifesto.

The provisions relating to corrupt practice are penal in
nature and, therefore, the rule of strict interpretation must
apply

The courts cannot issue a direction for the purpose of
laying down a new norm for characterizing any practice as
corrupt practice.

11. 2.
Whether the schemes under challenge are
within the ambit of public purpose and if yes, is
it violative of Article 14?
 Various checks and balance are in existence
within the mandate of the Constitution before the
scheme can be implemented.
 If the scheme comes within the realm of public
purpose and money is withdrawn with
Appropriation bill, the court has limited power to
interfere in such schemes.
 The
court held that the schemes are for the
implementation of DPSP and does not violate Article
14.
 While implementing the DPSP, it is for the government
to take into account its financial resources and need of
the people. There cannot be a straight jacket formula
set for the implementation of the same.

12. Whether the court has inherent power to issue
guidelines by application of Vishaka principles?
 The court held that in this case there is no
legislative vacuum where the judiciary can apply
its inherent power to frame guidelines.
 Section 123 of the RP Act enumerates
exhaustively a series of acts as “corrupt practice”
4. Whether Comptroller and Auditor General of
India has a duty to examine expenditure before
they are deployed?
The Court held that the Duty of CAG will arise only
after the expenditure has incurred.
Under Article 148 of the Constitution his main role is
to audit the income and expenditure incurred by the
Governments, Government bodies and State-run
corporations.
3.

13. 5.
Whether the writ jurisdiction will lie against a
political party?
 The court held that in context of pecuniary
and territorial jurisdiction objection has to be
taken at earliest possible opportunity.
 This case relates to jurisdiction of subject
matter and thus stands on a different footing .
 Question in case of subject matter can be
raised even in the appeal stage.
 As this petition was fit for dismissal, the
jurisdiction issue was left open.

14. Judgment
 The Election Commission should ensure level
playing field between the contesting parties,
should frame guidelines for election manifesto
released by a political party as a ingredient of
Model Code of Conduct for the guidance of
political parties and candidates.
 Separate legislation to be passed by the
legislature in this regard for governing the political
parties in our democratic society.

15. THANK YOU
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