Freebies in Electoral Democracy | Day 7: Freebies amount to corrupt practices in elections, argue petitioners

Freebies in Electoral Democracy and Welfare State

Judges: D.Y. Chandrachud CJI, J.B. Pardiwala J, Manoj Misra J

Advay Vora | 22nd Nov 2023

On 22 November 2023, a Division Bench led by Chief Justice D.Y. Chandrachud, J.B. Pardiwala, and Manoj Misra heard arguments on the validity of electoral freebies promised by political parties prior to elections. 

Today, Senior Advocate Vijay Hansaria, appearing for the petitioners, argued that the Supreme Court in S. Subramaniam Balaji v Government of Tamil Nadu (2013) incorrectly held that electoral freebies do not fall under “corrupt practices” under Section 123 of the Representation of Peoples Act, 1951 (ROPA).

Background

On January 22nd, 2022 Former BJP spokesperson and advocate Mr. Ashwini Kumar Upadhyay filed a Public Interest Litigation arguing that the promise of freebies unfairly influences voters. The petition claims that promising freebies amount to bribery (Section 171B) and undue influence (Section 171C) under the Indian Penal Code, 1860. He further argued that using public funds to provide freebies did not serve a ‘public purpose’, and thus violated Articles 162, 266(3) and 282 of the Constitution of India, 1950.

Article 162 sets the extent of executive power of State. Article 266(3) bars misappropriation of funds from the Consolidated Fund of India or the Consolidated Fund of a State. Article 282 allows the Union and State governments to utilise government revenue for a ‘public purpose’.

More importantly, the petition sought the Court’s direction to add a condition to the Election Symbols Order, 1968. The condition would bar political parties from promising or distributing ‘irrational freebies from public funds before election’ and deregister parties that do so.

On 24 August 2022, former Chief Justice N.V. Ramana and Justices C.T. Ravikumar and Hima Kohli referred the case to a three-judge Bench. Parties had argued that the 2013 decision in Subramaniam Balaji v State of Tamil Nadu needed reconsideration. In Subramaniam Balaji, the Court held that promises made by a party during elections did not amount to a corrupt practice. As Subramaniam Balaji was decided by a two-judge Bench, the Supreme Court referred the case to a three-judge Bench.

Hansaria: Election Commission’s “hands are tied” in case of freebies

Section 123 of ROPA defines “bribery” as a “gift, offer or promise” by a candidate, candidate’s agent or “any other person” to an elector inducing a vote in the elections. In Subramaniam Balaji, the Supreme Court held that the provision only extends to individual candidates and not political parties, which can include many individuals. Hansaria argued that this reasoning was flawed and that “persons” under Section 123 must include a political party. 

Hansaria then referred to Section 100(b) of ROPA which includes “corrupt practices” as a ground for declaring an election as void. Presumably, Hansaria was pointing out that electoral freebies—if declared as a “corrupt practice”—are grounds for challenging an election. 

Hansaria argued that the Election Commission of India (ECI) does not have the authority to prohibit electoral freebies. He referred to Indian National Congress (I) v Institute of Social Welfare (2002), which restricted the ECI from de-registering political parties for giving out freebies. Indian National Congress (I), which set forth three exhaustive grounds for deregistering a political party, does not include freebies as valid grounds. Going the extra mile, he contended that because of Indian National Congress (I), the ECI cannot deregister parties even if they violate the constitutional provisions, the law, and the model code of conduct. 

As the hearings in this case began just half an hour prior to the closing hours of the Court, CJI Chandrachud directed Hansaria to continue his arguments 23 November 2023.