“Will you become productive if we give you ₹2000?”, my parents shouted at me. For a few seconds, I thought of making fun of this 'asset-liability' question by confirming from my parents whether they used the word “productive” or “reproductive” but I restricted myself out of no compelling reason. Anyways, this question was thrown at me when I requested my parents to give me ₹2000 so that during Durga puja I could roam here and there with my friends. Before that question, my parents said, “See, we are investing in your education because there is a possibility of return therefrom but what is the possibility of getting a return from investing in roaming here and there?”
Borrowing inspiration from this event I ask a question— What is the possibility of growth and development that we can expect when we pay ₹500 to a class of people or when K. Chandrashekar Rao, the party leader of the Telangana Rashtra Samithi (TRS), offers ₹1 lakh to newly-wed brides?
Yes, I am talking about freebies and to borrow the expression of Balmiki Singh Prasad who is a retired IAS officer and also the former Governor of Sikkim, in his book, he describes the term ‘freebies’ in Hindi: “fokat ka maal ya muft ka uphar”. Let me make it clear that things which are termed as freebies are only free for those who receive them but as the honey produced by 'bees' has to be purchased with money, similarly, the freebies are purchased by the government by using the taxpayer's money which is the behemoth source of government's revenue, and therefore, freebies are not coming for free as it is purchased by the 'honey of the bees which also goes by the name public'
Economic Disaster
Every 1 Rupee of the government earnings is having 68 paise as tax payer's money, and therefore, the taxpayer's money drives the government expenditure. For example, if the government provides ₹500 per month to a class of people, out of it ₹340 is taxpayer's money. Now, what kind of return that class will give back to the country's economy by utilizing ₹500? Now, one may argue that the said amount that class may invest in Tata Steel thereby fuelling the economy but they are forgetting that the government is gifting that money to those people who cannot be expected to be aware of the stock market as they are running with stomach calling for foods or running with minds not searching for education but food. An employment scheme granting employment to people or disbursing loans to the farmers at a lower interest or lowering the rate of electricity for the farmers is not a freebie but a welfare scheme because there is a possibility of returns from those investments and most importantly that secures the welfare of the country and her people.
Providing laptops for free to the students has been termed as a freebie but I argue that it is not a freebie because a student who has an internet connection, can use that laptop to elevate him and his country to heights, and therefore, to my understanding investment done with no possibility of a return is a freebie, and therefore, providing laptops for free to students is not a freebie.
Political Blockbuster
As argued that freebies are investments with no possibility of return but indeed there is a possibility of return and it is on that possibility that freebies are distributed.
We have heard about political manifestoes which essentially disclose the steps that a political party will take if converted to the government of the day, and those steps may also include providing freebies. Freebies are also distributed more to sustain a government failing by all expectations and less to uplift the downtrodden. Therefore, freebies are distributed for garnering votes and sustaining ailing governments. Can any human argue that assisting a person to reduce that person to perpetually being dependent on the assistor promotes the welfare of that person? It appears that essentially, with exceptional cases, the political parties hope to bag votes or assure their government's sustainability by providing freebies. We have learned that garnering votes by offering something is an offence, and therefore, can we convict freebies?
Legal Position
To begin with, Section 171A of IPC defines ‘electoral rights’ which means the right to stand or not to stand and the right to vote and not to vote in an election
Section 171B of IPC defines bribery, and Section 171E punishes bribery. Section 171B essentially declares: Whoever—
(i) gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right or of rewarding any person for having exercised any such right; or
(ii) accepts either for himself or for any other person any gratification as a reward for exercising any such right or for inducing or attempting to induce any other person to exercise any such right, commits the offence of bribery:
(2) A person who offers, or agrees to give, or offers or attempts to procure, a gratification shall be deemed to give a gratification.
(3) A person who obtains or agrees to accept or attempts to obtain a gratification shall be deemed to accept a gratification, ....'
Therefore, one may argue that this sub-section 2 declares that 'a person who agrees to give a gratification' like the way political parties agree to give freebies, and sub-section 3 declares that the 'person who agrees to accept a gratification' like the way the public agrees to accept freebies by voting, and therefore, both the political parties and public are committing an offence under this section. This argument falls apart the moment one reads this proviso-
Provided that a declaration of public policy or a promise of public action shall not be an offence under this section.
The same is the case with Section 123 of the Representation of the People Act, 1951, which even uses the word 'promise' to declare that any promise made by a candidate for garnering a vote is a corrupt practice, i.e., bribery however this flow of the law is changed by adding a similar proviso to Section 123.
What the political parties do while implementing the freebies is that they argue that we are implementing the directive principles of state policy by providing freebies, and therefore, it is a matter of public policy, and therefore, freebies are not bribes under that Section as saved by the said proviso. Now let us see what the court has to say about the freebies and political manifestoes.
The Supreme Court of India in S.Subramaniam Balaji vs Govt. Of T.Nadu & Ors on 5 July, 2013, observed as under:
The political manifestoes cannot be declared as illegal as every promise in a political manifesto is not a freebie. The court gave this example- ‘the election manifesto of a political party promising to develop a particular locality if they come into power, or promising cent percent employment for all young graduates, or such other acts.’ (See Para 53 of the judgment)
Section 123 of the Representatives of People Act, punishes an individual candidate for garnering votes but not a political party, and therefore, there is no prohibition under the law for the political parties to make promises in their manifestoes. (See Para 54 of the judgment)
One may argue that this observation of the court is not upholding the validity of the freebies instead is weaponizing the loophole of law that expressly punishes the candidate but to my understanding also impliedly punishes his/her political parties. However, the court has missed this implication at the cost of confining itself to express expression of the law. The court perhaps has forgotten that a candidate is an agent of a political party where the political party is his/her principal and a candidate as an agent is promoting the interest of his/her party then why not the political party be convicted as a principal for the acts of its agent? The court has also failed to take account of the Model Code of Conduct which considers the political parties and their candidates at the same pedestal which I shall refer to presently.
However, the mind of the court, regarding the freebies, was not free from doubt as evident from:
77) Although, the law is obvious that the promises in the election manifesto cannot be construed as corrupt practice under Section 123 of RP Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree. The Election Commission through its counsel also conveyed the same feeling both in the affidavit and in the argument that the promise of such freebies at government cost disturbs the level playing field and vitiates the electoral process and thereby expressed willingness to implement any directions or decision of this Court in this regard.
79) Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates. We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process.
Therefore, Para 79 of this judgment has granted the political parties the license of making any promise till the time the date of the election is announced apparently on this presumption that any act done by any political party before such announcement may not relate to the election despite the court not remaining unmindful of the fact that election manifestos do relate to the election for which the court has carved out an exception.
Before this judgment, the position of law regarding the announcement of any promise was that no party or candidate shall bribe voters (See Sub-para (4) of Para I of the Model Code of Conduct) and the party in power shall not use its official position for election, and its ministers and authorities shall not make any announcement of promise or financial grant out its discretionary funds after the date of the election has been announced (See Para VII of the of Model Code of Conduct).
Acting in furtherance of the said judgment, the election commission has granted the license of giving freebies to the political parties in the disguise of the directive principle of state policy. The guidelines are as follows: (See No 437/6/Manifesto/2015/Cc/628-698.)
….
The Directive Principles of State Policy enshrined in the constitution enjoin upon the state to frame various welfare measures for the citizens and therefore there can be no objection to the promise of such welfare measures in election manifestos. However, political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise.
In the interest of transparency, level playing field and credibility of promises, it is expected that Manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.
For these directions together with the said judgment, recently the Supreme Court of India was tasked to test the legality of the said judgment where the court referred the matter to a three-judge bench observing there must be a ‘distinction’ between freebies and welfare schemes.
Whether political/election manifestos are enforceable as a contract
Apparently, one may argue that political manifestoes are declared by political parties, and therefore, when that party comes into power it becomes the government, leaving the costume of that political party, and it is the government only who can use consolidated funds or contingency funds for executing contract as envisaged under Article 299 of the Constitution, and therefore, any contract entered between a political party and the people will cease to be a contract under Section 2(j) of the Contract Act the moment a political party becomes the government of the day.
However, there is a fine line in a political manifesto which is that a political party promises to perform the promises only if it is voted into power, and therefore, the contract could be a contingent contract under Section 32 of the Contract Act, and therefore, will come into life only when a political party will become the government of the day. Therefore, let us examine whether the ingredients of the contract are present in political manifestos.
There is a proposal by a political party that we will distribute laptops for the consideration that you vote us to power and the public performs that consideration by voting that party to power thereby accepting the said proposal under Section 7 read with Section 8 of the Contract Act. Everything looks fine, Right? No. There is a twist which is— A political manifesto, in principle, wills to realize directive principles of state policy, and therefore, is unenforceable.
Various High Courts have rejected the enforceability of political manifestoes until recently the single judge of the Delhi High Court has to say something different on the assurance of the Delhi Chief Minister. The Chief Minister said— “In a month or two when this Corona and let’s assume after this entire mess is over, if a tenant has been unable to pay rent due to poverty, I assure you the Government will compensate for it. I am talking about those tenants who may be unable to pay some of their rent due to lack of means…” (translated from his statement given in Hindi during the press conference dated March 29, 2020).
Thereafter, a few tenants and landlords filed the above writ petition before the Delhi High Court, seeking enforcement of this promise.
The court observed:
“The principles governing the doctrines of legitimate expectation and promissory estoppel are well settled. Both these doctrines primarily recognize the role of the State or the Governmental authorities vis-a-vis the public. They are a reflection of the legal recognition being accorded to the trust that citizens repose on promises/ assurances/ representations which are made by Constitutional functionaries and governmental authorities, especially in times of distress. The raison d’être for granting recognition to such assurances/ promises/ representations, is that such functionaries and authorities, who are either elected to public positions or who hold positions of power, are answerable to the people, especially once they undertake or agree to do or not to do a particular thing.”
The court said this by relying on the Motilal Padampat Sugar Mills Co. Ltd. versus the State of Uttar Pradesh and Ors (1978) judgment, wherein the Supreme Court had said:
“…where the Government makes a promise knowing or intending that it would be acted on by the promisees and, in fact, the promisee, acting in reliance on it, alters his position, the Government would be held bound by the promise and the promise would be enforceable against the Government at the instance of the promisees, notwithstanding that there is no consideration for the promise and the promise is not recorded in the form of a formal contract as required by Article 299 of the Constitution.”
However, the judgment of the single judge has been stayed by the division bench of the Delhi High Court. We must note one point that the assurance given by a political party that is also the government of the day is one thing and that given by a political party, not in power but willing to come into power is another thing. Despite all this, no one can refute this premise that every promise by the government which is without any consideration falls under the directive principles of the state policy and therefore every such contract which is founded on such principles becomes unenforceable because the principle itself is unenforceable.
Conclusion
Whether political manifestos founded on the directive principles of state policy are enforceable? Answer— No.
A contract without consideration is always unenforceable except if it is covered under Section 25 of the Contract Act. But according to Motilal Padamant Sugar Mills Co. Ltd. versus the State of Uttar Pradesh and Ors (1978) judgment can one argue that the public can bind the government even when there is no consideration from the public? If the Motilal judgment is a correct law and thereby does it give birth to a new proposition that a contract founded on the directive principle of state policy but having no consideration from the public is enforceable before the courts of law?
Promises are seldom kept but it appears that promises of politics are more promiscuous than least promising.
Thank you for your comment