12th March 2009
Shri N. Gopalaswami, IAS
The Chief Election Commissioner (CEC)
Election Commission of India (ECI)
Nirvachan Sadan, Ashoka Road
Esteemed Chief Election Commissioner Sri Gopalaswami ji,
Sub: Political parties’ irresponsible poll promises – corrupt electoral practice – Reg.
I would like to bring to your attention certain inducements being brazenly offered to voters by major political parties in the general elections for the Andhra Pradesh Assembly and the Lok Sabha, which clearly constitute corrupt electoral practices.
True electoral politics is about legitimate and productive public policy contention between various political parties. Articulation of policy stances by parties and their candidates generally takes place in the form of poll promises (typically, compiled in the form of a ‘manifesto’) made before the elections. It is the right and indeed the solemn duty of every political party to put forth its views on critical issues, and thereby offer alternatives to the electorate. Over the decades, the Election Commission has been doing an admirable job of encouraging such legitimate political discourse and public policy contention among political parties during elections.
Political parties are completely justified in promising state-sponsored subsidies, benefits and packages that mitigate public suffering, promote livelihoods of the poor, help fulfill potential or support the weak and the vulnerable. For instance, promising subsidized rice to the truly poor and the hungry, state-sponsored homes to the homeless and the destitute or subsidized electricity to the already-indebted farmers are all legitimate poll promises made from time to time by political parties. The specific merits and wisdom of these policies and programmes are always a matter of debate and contention, as indeed they should be. But we have to respect the legitimacy of such policies and promises as part of electioneering.
However, we have to recognize that there are acceptable limits to making poll promises in a democratic and civilized society. A promise related to the Constitutional obligations of a government, or in pursuance of the directive principles, can be construed as articulation of a legitimate public policy goal. But if an electoral promise is completely outside the sphere of government’s Constitutional responsibilities, then it is a clear, unambiguous and unethical inducement to voters, albeit with public money. If such a distinction is not drawn, and such a standard is not applied, then political parties can get away with any and every kind of populist promise devoid of public interest.
Sec 29-A of the Representation of the People Act prescribes that a political party can be registered only if it bears true faith and allegiance to the Constitution of India as by law established. Therefore poll promises made by a party also should conform to the provisions of the Constitution. Any violation of the letter or spirit of the Constitution by a political party would be a violation of Section 29 A, and, therefore, such a party should be denied registration.
Article 246 of the Constitution specifies the matters which are within the jurisdiction of the Union, or the State, or both. The Seventh Schedule of the Constitution lists the subjects or matters on which the State can act. List II refers to the State List, and List III refers to the Concurrent List. The state government cannot act beyond the jurisdiction specified in List II or List III. Any public expenditure by the state government requires legislative approval. Legislative authorization of public expenditure is a part of law making. Constitutionally, the state legislature, or Parliament cannot authorize expenditure on subjects not within the jurisdiction of the respective House under Article 246. In particular, the state legislature has no flexibility in this matter. Entry 97 in List I allows Parliament to legislate on any matter “ not enumerated in List II and List III”. But the state legislature has to limit its law making and expenditure to the entries in List II (State List) and List III (Concurrent List). It, therefore, follows that any electoral promise should be in relation to subjects enumerated in List-II or List-III of the Seventh Schedule of the Constitution. Any promise of expenditure on matters outside the Seventh Schedule is a clear and unambiguous violation of the Constitution. Such a Constitutional violation by a political party would make it ineligible for registration as a party as per Section 29A of the R P Act, 1951. A material inducement offered to voters in violation of the Constitution is a clear and unambiguously corrupt electoral practice.
The established political parties are increasingly adopting the path of making unethical and irresponsible poll promises which are tantamount to corrupt electoral practices. The print and electronic media have widely reported the Telugu Desam Party (TDP)’s draft manifesto (announced on 5th March, 2009; sample newspaper coverage enclosed) containing the poll promise of distributing free colour television sets to voters. Such a reckless and irresponsible electoral promise has crossed all bounds of acceptable political campaigning. Distribution of free colour TVs with public resources cannot be regarded as legitimate public policy, by any standard.
Such rash and unethical poll promises are nothing but brazen attempts by candidates and their parties to bribe the voters – collectively, by offering direct inducements. Such poll promises act as an undue influence on the voters’ electoral choice. Therefore, they are nothing but corrupt electoral practices, under Section 123(1)(A) of the Representation of the People Act (1951). In no way can such corrupt electoral promises be claimed to be in pursuit of legitimate public policy or an attempt to exercise a legal right. Distribution of colour Television sets to people is completely beyond the scope of a government’s, or legislature’s Constitutional responsibilities, and is clearly unconstitutional. Such blandishments and inducements to woo the electorate with public money are an undisguised attempt to indulge in corrupt and unacceptable electoral practices. These promises do not in any way fall within the constitutional obligations of the state. Therefore, such electoral promises do not fall under the category of exceptions under Section 123(2(b) of the RP Act, 1951.
If such corrupt and unethical electoral tactics go unchecked, elections will certainly be reduced to a public auction, where votes are bought by the highest bidder. In future elections, parties could well come up with more disingenuous and unethical promises. A party may offer free motorcycles, another refrigerators, and a third, motorcars to all. Given the current trend, it is not too unthinkable that in the near future, a party would promise a hundred bottles of liquor to each family every year – at government’s expense!
Such a brazen inducement was earlier resorted to by the DMK in Tamil Nadu in the 2006 elections. The Election Commission’s silence on this issue emboldened the Congress (I) to repeat the same electoral promise in the 2008 Karnataka Assembly election. Despite our urging (vide communication dated 8th May, 2008), the Election Commission chose not to intervene.
These developments go beyond mere electoral populism and portend danger to our democracy: traditional political parties in their unbridled lust for power are indulging in corrupt and unethical practices at public expense and are ready to sacrifice the long-term interests of the poor and imperatives of nation building at the altar of short-term vote-maximization. So far, vote buying through money and liquor has been ubiquitous in the country. Illegitimate expenditure for such corrupt electoral practices is astronomical. In Andhra Pradesh, it is widely believed that such illegitimate expenses exceed Rs. 5 crore per Assembly constituency for every candidate of a major traditional party. This cannot be easily controlled for want of legally admissible proof. But promise of distribution of colour TVs at public expense by a party seeking office constitutes a brazen, public and provable corrupt electoral practice. If it is not checked by the Commission, there can be even more brazen and egregious promises of, say, distribution of a gold necklace to every voter, or a scooter or automobile to every household or free liquor to every family as a part of the government programme. Such material inducements unrelated to livelihoods, and promise of public expenditure outside a government’s Constitutional responsibilities and the state’s legislative competence clearly constitute a corrupt electoral practice by any reasonable standards.
If even such brazen attempts to offer material inducements unrelated to livelihoods or the constitutional responsibilities of government are allowed without hindrance, all canons of democracy and free exercise of franchise are violated. The Election Commission in its communication No. 4/2008/JS-II/13 dated 17th June, 2008 had ignored this vital aspect, and equated all poll promises without distinction or discernment. Such an approach is detrimental to the very foundations of democracy. A legitimate question arises in this context: would the Commission treat the promise of a gold necklace to every voter if a party is elected to power as a legitimate promise, and not as a corrupt electoral practice? Would it stand to reason that the promise of five bottles of free liquor to every household if a party is elected to office as a legitimate poll plank? Where exactly do we draw the line? Is it the mere technicality of a promise being an offence under IPC that makes it a corrupt electoral practice? Is there no other standard? If so, would the Commission condone a promise of free liquor? These are legitimate issues which cannot be conveniently ignored by invoking technicalities.
The Constitution created Constitutional authorities in order to make democracy work. It is the responsibility of Constitutional authorities to make a fair and objective judgment on issues of fundamental nature. If Constitutional authorities hide behind technicalities, then the authority invested in them is futile. The line between excessive action and inaction is a thin, but vital one. The Supreme Court rightly earned the trust and gratitude of the people by its fearless advocacy and defence of Constitutionalism. Equally, the Supreme Court attracted criticism when during the Emergency the Court refused to protect the liberties of citizens. If the Election Commission now fails to act, it will soon lead to unconstitutional public expenditure and irresponsible and reckless populism all over India.
When people are deliberately kept in ignorance and poverty, and when they are made to believe that the government is maibap, the Constitutional authorities must be willing to step in and draw the line between right and wrong. Ultimately the people’s wisdom is the true guarantor of liberty. But people’s judgment is final on political matters, not on Constitutional issues.
Whether or not a Rs 1000 – 2000 grant per month to all middle class and poor families is a sensible way of eliminating poverty is a matter of political judgment, and should rightly be left to the electorate. Political competitors can make their argument to the people, and let people decide. But if the promise is by definition unconstitutional, the Constitutional authorities have the power and duty to act decisively. For instance, in an area of insurgency, a party may want to secede from the nation, or advocate transfer of territory to a neighbouring country. Such a question cannot be allowed to be decided politically. The sentinels of the Constitution should step in.
Free and fair elections form the bedrock of our democracy. And the Election Commission is vested with the Constitutional mandate of superintendence, direction and control over the entire process of the conduct of these elections. On this issue of unethical poll promises unrelated to government’s Constitutional responsibilities, there is no law of Parliament at this time. In the absence of such a law, the Commission has the power and the duty to intervene under Article 324. We, therefore, urge the Commission to act immediately and decisively in this case to discipline the errant party/parties and to check such blatant inducements and corrupt electoral practices. Otherwise, public office may well become the preserve of the highest and most shameless bidder.
In view of the vital public importance of the issue, I am releasing this letter to the general public to facilitate a wider debate.
With warm personal regards,
Sri Navin B Chawla, Election Commissioner
Dr SY Quraishi, Election Commissioner
Friday, July 5, 2013
12th March 2009