Freebies in Electoral Democracy | Day 8: If inducement of bribery cannot be done directly, it cannot be done indirectly, argue petitioners

Freebies in Electoral Democracy and Welfare State

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

Sushovan Patnaik | 23rd Nov 2023

On 23 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. 

Senior Advocate Vijay Hansaria, appearing for the petitioners, continued his arguments from the previous hearing. He argued that the Supreme Court had erred when it upheld freebies in S. Subramnaim Balaji v Government of Tamil Nadu (2013). Additionally, he had argued that “persons” under Section 123 of the Representation of Peoples Act, 1951 (ROPA) include a political party.

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.

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: The decision in Subramaniam Balaji allowed those engaging in corruption to subvert the law  

Hansaria relied on the definition of “person” under the General Clauses Act, 1897, to argue that a “person” includes a company, a body of persons, or an association. According to him, a political party can also be considered as a “person” under this definition.

CJI Chandrachud observed that Section 123, which defines “corrupt practices”, states that the act must have been carried out by some “individual”, and not necessarily a “person” in its juristic sense. This reasoning was adopted by the Supreme Court in Subramaniam Balaji when it considered freebies outside of “corrupt practices”. Hansaria responded that this rationale could have deleterious implications. To buttress his point, he submitted that 2,732 political parties in India did not contest elections, or have any offices, as per data from the Election Commission of India (ECI). Such parties were set up by candidates to attain immunity from Section 123. Hansaria reasoned that, along similar lines, candidates engaging in corruption can also give “gift” through NGOs or associations of persons, established by the candidate’s “consent” and attain immunity from prosecution for “corrupt practices”. This would defeat the purpose of the provision, he said. 

Hansaria claimed that the ECI is unable to keep check on these political parties due to the decision in Indian National Congress (I) v Institute of Social Welfare (2002). Indian National Congress (I) had laid down three exhaustive grounds for deregistering a political party but did not include freebies as valid grounds. 

CJI Chandrachud asked whether including political parties as “any other person” under Section 123 would consequentially include contesting individual candidates within the political party.

Hansaria stated that electoral freebies in the form of promises within the manifesto are construed as an “inducement to bribery.” Senior Advocate Arvind Datar and Hansaria iterated the fundamental principle that “what cannot be done directly, could also not be done indirectly.” They claimed that freebies by political parties were essentially an indirect inducement of bribery by a candidate. 

The Bench deferred the hearing to 29 November 2023 due to a paucity of time.