A political party promising a colour TV, grinder, cycles, or free housing, electricity and employment, cannot be considered bribery or corruption. This was the main conclusion that the Supreme Court came to in 2013 in the Subramaniam Balaji vs Government of Tamil Nadu case in 2013, when a petitioner went to court against the distribution of free colour TVs by the DMK government in state after it won the 2006 Assembly elections. The SC looked at the question of ‘free gifts’ from the government, or ‘freebies’, and whether they’re violative of the Constitution.
As the apex court is hearing another petition on the question of ‘freebies’, on the back of comments by Prime Minister Narendra Modi against what he calls ‘Revadi Culture’, here’s a look at what the Supreme Court bench of Justices P Sathasivam and Ranjan Gogoi said in 2013 in the Subramaniam Balaji case.
1. Promises made by political parties, including the promise of free gifts, cannot be called bribery or corruption.
The court was considering the question, “Whether the promises made by the political parties in the election manifesto would amount to ‘corrupt practices’ as per Section 123 of the Representation of People Act.”
The SC decided that such promises cannot be called corruption or bribery because the Representation of People Act speaks of candidates and not political parties as a whole. “The manifesto of a political party is a statement of its policy. The question of implementing the manifesto arises only if the political party forms a Government. It is the promise of a future Government. It is not a promise of an individual candidate,” the court said.
The court further said that promises in an election manifesto include things like employment and the development of some neighbourhoods, and all of them cannot be called bribery or corruption. “it is not within the domain of this Court to legislate what kind of promises can or cannot be made in the election manifesto,” the SC said.
2. If a government gives items for free to its people to improve their standard of life, that is in accordance with the Directive Principles of State Policy.
The SC was dealing with the question, “Whether the schemes under challenge are within the ambit of public purpose and if yes, does it violate Article 14?” The court decided that all these items promised by political parties would improve the lives of people, and therefore, they are in accordance with the Directive Principles of State Policy.
The Directive Principles of State Policy are enumerated in Part IV of the Constitution; these are guidelines that governments in India must follow while making laws and policies for the welfare of people. They stand a step below Fundamental Rights, in that a citizen cannot go to court if a Directive Principle has been violated. The Directive Principles remind the state of what it should aim for.
“The concept of State largesse is essentially linked to Directive Principles of State Policy,” the SC said, “Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide and the role of the court is very limited in this regard.”
The court further said that the definition of what is ‘necessary’ for livelihood changes from time to time, and that the court cannot tell a state whether colour TVs are a public good or not. The SC can only intervene if what the state is doing is unconstitutional, the court held.
3. Giving ‘freebies’ is not against the Right to Equality promised by the Constitution.
On the question of Article 14 (Right to Equality), the petitioner in the case said distributing ‘freebies’ treats ‘unequals as equals’ and is therefore unconstitutional. The petitioner was referring to several schemes promised by the DMK during elections that benefited certain groups of people. For instance, only those who had ration cards that provided them with rice were eligible for electric fans, mixies and grinders.
The court however held that since the said schemes are in furtherance of Directive Principles, the principle of ‘do not treat unequals as equals’ is not applicable in this case, since the state is not placing any financial liability on citizens.
“While implementing the directive principles, it is for the Government concerned to take into account its financial resources and the needs of the people,” the court said, “If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State. All welfare measures cannot at one go be made available to all the citizens. The State can gradually extend the benefit and this principle has been recognized by this Court in several judgments.”
4. The court cannot make guidelines or laws on what election promises should be allowed and what shouldn’t.
The court also considered the question, “Whether the apex court has inherent power to issue guidelines by application of Vishaka Guidelines principle.” The Vishaka Guidelines were given by the Supreme Court in 1997 in the context of the Bhanwari Devi gangrape case. The guidelines talk about the responsibility of an employer to provide a safe working environment to women. The petitioner wanted the Supreme Court to similarly issue guidelines on promises and distribution of ‘freebies’.
The SC however said in the case of Vishaka Guidelines, the court stepped in because there was no law protecting women from sexual abuse in the workplace; and since no legal lacuna exists on the question of election manifestos and practices, there as no need for the SC to step in. The court’s stance was that since the Representation of People Act thoroughly governs matters to do with elections, there was no legal vacuum, and therefore the court does not have the powers to set guidelines on what promises can and cannot be made by political parties.
5. The CAG cannot tell a state government how to spend their money — that’s for the government to decide.
The fourth question the court considered was, “Whether the Comptroller and Auditor General of India (CAG) has a duty to examine expenditures even before they are deployed.” On this, the court ordered that the CAG is only an auditor, and cannot dictate how governments spend their money.
“CAG examines the propriety, legality and validity of all expenses incurred by the Government. The office of CAG exercises effective control over the government accounts and expenditure incurred on these schemes only after implementation of the same. As a result, the duty of the CAG will arise only after the expenditure has been incurred,” the court said.
The current case in the Supreme Court filed by a BJP member, Ashwini Upadhyay. It was last heard on August 11. The court has observed that “legislation barring political parties from offering voters freebies is not advisable,” adding that “de-registering them for making such promises would be “anti-democratic.” The next hearing is scheduled for August 21.