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Varanasi
Thursday, December 2, 2021

Judiciary has opened a window for Electoral Reforms

Political parties should be prohibited or prevented from giving election promises that add burden on the public exchequer, the Madras High Court observed in an order passed on 31st March 2021. The bench comprising Justices N. Kirubakaran and B. Pugalendhi directed the Election Commission of India and other Government authorities to respond to 20 crucial questions in this regard.

The major respondents in this case are- Ministry of Parliamentary Affairs, Ministry of Social Justice and Empowerment, Election Commission of India, among other government agencies.

The Madras High Court also went by the judgment of the Supreme Court in the case of S. Subramaniam Balaji v. State of Tamil Nadu and Others (2013) which advised the central Government to take necessary steps to bring legislation covering the issue of political manifestos, especially freebies promised in the election manifestos and governing the political parties. Referring to the Supreme Court’s judgment passed in 2013 by Justices P. Sathasivam and Ranjan Gogoi, the Madras High court has raised the above mentioned 20 crucial questions to the respondents.

The gist of these 20 questions is as under:

  • In how many elections the Election Commission has vetted the election manifestos of the political parties as per the Supreme Court’s judgment in 2013?
  • If so, which are all the political parties which have submitted their election manifestos for vetting during elections, after 2014?
  • What are the actions taken against those political parties, which have not submitted their election manifestos for vetting before the Election Commission?

The above questions are obviously put to the Election Commission by the Madras High Court.

The Court also raised questions with regard to the status of the implementation of the poll promises by the political parties when they came to power in the past 4 elections to Legislative Assemblies and Parliament elections.

The Madras High Court also asked the Election Commission why don’t they de-recognize those election parties, who fail to implement their political promises based on which the voters are lured and the parties are elected to form the Government

The High court also asked the central government the following questions with regard to the legislative measures that are to be taken in this regard:

  • Whether the Central Government has taken any steps to bring legislation covering the issue of political manifestos, especially freebies promised in the election manifestos and governing the political parties?
  • When will the Union Government bring an amendment of Section 123 of Representation of People’s Act 1952, to include “political parties” which could be charged for “corrupt practices”?
  • When the political parties ascend the throne by promises which were believed by the voters and voted, and the promises are foundation of the Government, why not the respondents make election promises as enforceable?
  • Why not the Respondents monitor and verify as to whether the election promises are complied with during the tenure of the political party, which is elected to form the Government?
  • Why not the Respondents prohibit the political parties from making any promises, which cannot be implemented by the State Government, as they are beyond the powers of state Governments. i.e., waiver of loans given by the nationalized bank, etc.?

Major Observations and Directions by Supreme Court in its judgment in 2013 are as under:

The Supreme Court in its judgment (2013) observed that the political  parties are not State within the meaning of Article 12 of the Constitution of India and therefore, no writ of any nature can be issued against them either under Article 226 or Article 32 of the Constitution of India or any other provision of the Constitution or any other law. The correct forum is the Election Tribunal and not writ jurisdiction.

The Supreme Court further observed that though the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.

The Apex Court also stated-

“considering that there is 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 recognized political parties as 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 Model Code of Conduct for the Guidance of Political Parties & Candidates.

We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date.

Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process.”

The Apex court further said,

“We hereby direct the Election Commission to take up this task as early as possible owing to its utmost importance. We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society.”

The above observations and the directions of Supreme Court made in 2013 are the basis on which the Madras High Court has raised the 20 questions in its judgment on 31st March, 2021 to the respondents i.e., Ministry of Parliamentary Affairs, Ministry of Social Justice and Empowerment, Election Commission of India, among others.

It is also important to note the following observations made by the Supreme Court in its 2013 judgment.

“The mandate of the Constitution provides various checks and balances before a Scheme can be implemented. Therefore, as long as the schemes come within the realm of public purpose and monies withdrawn for the implementation of schemes by passing suitable Appropriation Bill, the court has limited jurisdiction to interfere in such schemes.

 We have also emphasized on the fact that judicial interference is permissible only when the action of the government is unconstitutional or contrary to a statutory provision and not when such action is not wise or that the extent of expenditure is not for the good of the State.”

On reading of the above judgments of both Supreme Court ( 2013) and the Madras High Court (2021) it is clear that the judiciary expects the Election commission to suitably modify the Model Code of Conduct to bring an element of responsibility and accountability to the political parties with regard to their election manifestos.

The judiciary also expects the parliament to introduce necessary legislative measures so that the political parties can be prosecuted for non fulfilment of their electoral promises and for resorting to corrupt practices when they garner votes on certain electoral promises and subsequently after coming to power they do not comply with the same.

Hope the social activists and organizations involved in social cause will start putting pressure on the Election Commission and the elected representatives to initiate the required measures as advised by the judiciary so that it will be a good beginning towards electoral reforms in India.

Reference:

  1. https://www.livelaw.in/news-updates/election-promises-political-parties-madras-high-court-172248?infinitescroll=1
  2. https://indiankanoon.org/doc/106854428/

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Dr. B.N.V. Parthasarathi
Ex- Senior Banker, Financial and Management Consultant and Visiting faculty at premier B Schools and Universities. Areas of Specialization & Teaching interests - Banking, Finance, Entrepreneurship, Economics, Global Business & Behavioural Sciences. Qualification- M.Com., M.B.A., A.I.I.B.F., PhD. Experience- 25 years of banking and 14 years of teaching, research and consulting. 100 plus national and international publications on various topics like- banking, global trade, economy, public finance, public policy and spirituality. One book in English “In Search of Eternal Truth”, two books in Telugu and 20 short stories and 27 articles published in Telugu. Email id: [email protected]

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