DISTRIBUTION OF ELECTION FREEBIES IN INDIA A CRITICAL ANALYSIS

REFERENCE: S.SUBRAMANIAM BALAJI VS. THE GOVERNMENT OF TAMIL

NADU AND ORS.

INTRODUCTION

From the inception of Electoral process in India, it being no new concept,has started taking
place before independence from the British Rule. Elections forms the basic substratum for the
functioning of the democracy. It provides the citizens of India with an exclusive right of
Adult Suffrage, whereby people can by way of voting assert their voice, opinion and thereby
elect a candidate who best suits their ideology, policies,viewpoints, priority, passion, etc.
thereby, enchanting the universal straightjacket formula for a democratic election that is
Government OF the people, BY the people and FOR the people.
Election manifesto is a medium adopted by a political party, explaining what it will do if they
win the elections. Through election manifesto the voters come to know about the policies and
intent of the political party. They can easily think that which party will serve the best for
them, they can decide that with whose ideology they want to go. Therefore an election
manifesto is very crucial document stating the will of political parties contesting elections.
Manifesto acts as a mandate of the political party. The mandate released before the election
date do not come under the scrutiny of the EC, nor are the manifestos legally accountable or
legally binding, thereby, not creating an obligation of fulfilment of the promises made by the
parties towards the people in the manifestos.The freebies promised during election has
atendency of luring the generic gullible, credulous, nave and impressionable masses of a
country.
The ill practice adopted of distributing and promising freebies by political parties are now
becoming like a religious dutiful obligation which need to be performed, thereto hoodwink
the credulous masses and impacting the states exchequers.
The morality, ethicality and legality of such promises has been the subject of debate for a
while now. This issue was brought to the forefront when the issue was tackled by the
Supreme Court.
The case relates to distribution of free gifts by the political parties (popularly known as
freebies). In the above case, the Court delved into the legality of promising and distributing
freebies during and after winning elections.
In the assembly Elections of 2006, the DravidaMunnetraKazhagam (DMK), while releasing
the election manifesto, promised free distribution of colour TV sets to each and every
household which did not possessed the same, on being elected to power. This Scheme was
challenged by Mr.SubramaniamBalaji by way of filing writ petition which was later

dismissed by the Madurai Bench of the Madras High Court, in which he had argued that it
was a total waste of public money to honour the party's pre-election promise to the electorate
by distributing free gifts.
The Appellant had also challenged the legitimacy of the promises made during the 2011
Tamil Nadu Assembly Elections by both the ruling and opposition parties in Tamil Nadu.
After the AIADMK came to power in 2011,in order to fulfil the promise made in the election
manifesto, they distributed free gifts along with tender being floated for grinders, mixies,
electric fans, laptops, computers, 4gms gold thalis, Rs. 50,000 cash for womens marriage,
green houses, 20kgs rice to all ration card holders and free cattle and sheep, which led to
contention that distribution made by the Respondent- State was violative of Article 14 since
there was no reasonable classification for distribution of gifts, deeming that the scheme by
the respondent(s) were ultra vires and authorized the constitutional mandates and section 123
(corrupt practices)of the Representation of People Act, 1951
It was also stated by Mr.SubrmaniamBalaji that the Poll promises were unconstitutional and
bribery, amounting to corrupt practice under the Representation of People Act, 1951. Further
he also contended that the government cannot create a private asset out of public funds.
Even though the Supreme Court ruled in favour of the State of Tamil Nadu, stating that the
that promises made in an election manifesto cannot be construed as a corrupt practice under
section 123 of the Representation of the People Act, 1951, it acknowledged that in reality
distribution of free gifts by political parties does influence the electorate and shakes the
root of free and fair elections to a large degree.
The Election Commission in its submissions to the court for this case, also felt that the
promise of such freebies at government cost disturbed the level playing field and vitiated the
electoral process and it expressed willingness to implement any directions of the court in this
regard.
Thus, considering that there was no enactment that directly governs the contents of the
election manifesto, the Court directed the Election Commission to take up the task of framing
guidelines on election manifesto released by the political parties under the Modal Code of
Conduct for the guidance of political parties and candidates. Also, the Supreme Court stated
to record the need for a separate legislation to be passed by the legislature in this regard for
governing the political parties in our democratic polity society.

The areas of concern arising out of the case are given below:

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,
1951?
Whether the schemes under challenge are within the ambit of public purpose and if
yes, is it violative of Article 14?
Whether this Court has inherent power to issue guidelines by application of Vishaka
Principle?
Whether the Comptroller and Auditor General of India has a duty to examine
expenditures even before they are deployed?

Whether the writ jurisdiction will lie against a political party?

RESEARCH METHODOLOGY

The research work undertaken for the purpose of present dissertation is primarily doctrinal
research i.e. a quantitative data analysis. The research work for the present dissertation
involves analysing and interpreting the current situation and role of judiciary in pronouncing
valid reasoned judgement in cases relating to distribution of freebies by the political parties
seekingespecially when the reality cannot be ruled out that distribution of freebies of any
kind, undoubtedly influences all people. Also an analysis of the literature deals with the
Indian statutory provisions and role of the Election Commission policies in protecting
sanctity of a free, fair, just and equitable elections in the country. After going through various
legislations, judicial decisions, articles, commission reports by renowned authors and other
relevant materials as quoted in the dissertation in this behalf, the above mentioned jural
postulates would be answered. The methodology utilized to research and write this thesis is
structured on an analytical rationale in concert with deductive and inductive reasoning.

TENTATIVE LIST OF CHAPTERS FOR DISSERTATION:

1) INTRODUCTION
- ELECTION MANIFESTO CONCEPT AND RELEVANCE
- A BRIEF ANALYSIS OF THE STUDY OF THE ENTIRE PROJECT AND
RAISING CERTAIN ISSUES WHICH SHALL BE DEALT WITH IN THE
CHAPTERS AS MENTIONED BELOW.
- HISTORICAL BACKGROUND
2) LEGAL PROVISIONS INVOLVED IN THE CASE
- SECTION 123 OF REPRESENTATION OF PEOPLE ACT, 1951
- ARTICLE 14 OF CONSTITUTION OF INDIA
- ARTICLE 324 OF THE CONSTITUTION OF INDIA
- OTHER CONSTITUTIONAL AND LEGAL MANDATES
3) AVAILABLE

INTERNATIONAL

PRACTICES

WITH

REFERENCE

MANIFESTOS
4) ABUSE OF ELECTION MANIFESTO
-

ANALYSIS OF FREEBIES
INSTANCES OF DISRTIBUTION OF FREEBIES IN INDIA
WILL FREEBIES BANKRUPT THE STATES?
IS CULTURE OF RAMPANT FREEBIES A GOOD THING?
REGULATING FREEBIES IN ELECTION MANIFESTO

5) CRITICAL ANALYSIS OF THE CASE

-

FACTS OF THE CASE

CONTENTIOS OF THE APPELLANT
ONTENTIONS OF THE RESPONDENT(POLITICL PARTIES)
CONTENTIONS THE ELECTION COMMISSION
LEGAL ISSUES DEALT WITH
OBSERVATION OF THE SUPREME COURT

TO

EXISTING MODEL CODE OF CONDUCT- RELEVANT PROVISIONS

6) CONCLUSION/RECOMMENDATION