Supreme Court notice to Election Commission, Modi govt on plea to declare pre-poll promises, freebies by parties as bribery

New Delhi: The Supreme Court on Monday issued notice to the Election Commission and the Union government on a fresh plea for declaring freebies, including cash, by political parties in the run up to Assembly and Parliament elections as bribery or inducement of votes under the Representation of People Act, 1951.

A bench of Chief Justice of India D Y Chandrachud and Justices J B Pardiwala and Manoj Misra tagged the petition filed by Shashank J Sreedhara, a resident of Bengaluru, with that of the plea by advocate Ashwini Kumar Upadhyay and another petition.

Appearing for the petitioner advocate Balaji Srinivasan contended there can't be free lunch.

The petition filed by advocate Srinivasan and drawn by advocate Vishwaditya Sharma also sought a direction to Election Commission to take immediate and effective steps to prohibit political parties from making promises of freebies during the pre-election period.

It claimed promises of monetary gain made by a political party are contrary to the provisions of Constitution and are corrupt practices within the ambit of Representation of Peoples Act, 1951.

"The unregulated promise of freebies imposes a significant and unaccounted financial burden on the public exchequer. Further, there exists no mechanism to ensure the fulfilment of pre-poll promises on which votes were secured," it claimed.

The petition stated political parties often announce such freebies without disclosing how these promises will be funded.

"This lack of transparency leads to either in a failure to fulfil such promises, thereby committing a fraud on the electorate, or in the introduction of populist schemes aimed at garnering future votes, which imposes an undue and disproportionate burden on public funds, thereby committing fraud on the Constitution," it said.

It also undermines the principle of free and fair elections by creating an uneven playing field, where voters are influenced not by the policies or governance record of the candidates, but by the allure of immediate personal benefits, it contended.

The petition claimed the view taken by the Supreme Court in S Subramaniam Balaji excluding political parties from the ambit of Section of 123 RPA defeats the very purpose of the provisions of the Act.

"If the said view is correct, all that is requires to be done by a candidate to claim immunity from the provisions of RPA is to commit corrupt practices not directly but through an association of persons. Interestingly, it is rendered immaterial if he is a member of the said association of persons or not," it said.

The plea also stated Section 123 of RPA 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.

"Once the election is concluded, the electorate of a constituency holds the returned candidate accountable for promises made by the party. Therefore, no real distinction between a political party and its candidate under the RPA and any other conclusion will result in an absurdity," it said.

The narrow interpretation of provisions of Representation of Peoples Act would render the not only the Act ineffective but also the evolution of electoral process by judicial intervention redundant, the plea said.

The petitioner also said the guidelines within the Model Code of Conduct (MCC), introduced in 2014, have proven to be largely toothless and ineffective in curbing the menace of pre-poll promises of freebies.

Despite the growing menace of pre-poll promises of freebies, the Election Commission, as the custodian of free and fair elections, has failed to take adequate steps to curb this practice, the plea said.

"The MCC is not legally enforceable, and violations of its provisions do not attract any stringent penalties. As a result, political parties continue to exploit loopholes in the MCC, making extravagant promises without accountability or transparency, thereby undermining the integrity of the electoral process. The ECI's inability to enforce these guidelines has led to a persistent and growing trend of political parties using freebies as a tool for electoral gain, necessitating the intervention of this court to provide more robust and enforceable solutions," it said.

The petition also referred to case study of Karnataka Assembly elections 2023 and Lok Sabha polls of 2024.

In Karnataka polls, the promises of distribution of free goods and services such as televisions, laptops, electricity, and water but also direct cash benefits to specific sections of the electorate were made.

During the Lok Sabha polls, the Indian National Congress introduced a “Guarantee Card” as a key component of its campaign strategy, in "an attempt to secure votes through promises that were more about buying electoral support than genuine social welfare, and in fact, is rather a calculated effort to purchase votes by manipulating public expectations."