Promises made in election manifestos do not constitute corrupt practices under Section 123 of the Representation of the People Act, 1951; legislative clarity is needed.

JUDGMENT

Navin Chawla, J. (Oral)

1. This petition has been filed, in public interest, praying for the following reliefs:

"a) an appropriate writ in the nature of declaration declaring inter alia that offer of transfer of cash by way or in the guise of freebies in election manifestos is a corrupt electoral practice under section 123 of Representation of People Act, 1951 as well as the guidelines framed by the Respondent No.2 as part of its Model Code of Conduct pursuant to the decision of the Hon'ble Supreme Court of India in S. Subramaniam Balaji Vs. State of Tamil Nadu (2013) 9 SCC 659;

b) a writ in the nature of declaration that election manifestos promising transfer of cash not by way of goods to be distributed for free or at a subsidized rate or in pursuance of any scheme which would provide an opportunity to earn in exchange of physical labour or any kind of productivity being unknown to Directive Principles of State Policy is ultra vires the Constitution of India;

c) a writ in the nature of certiorari commanding the Respondents, particularly the Respondent No.2 to transmit all records relating to their inaction towards preventing the Respondents Nos.3 and 4 from inducing voters with corrupt electoral promise of transfer of cash in lieu of votes as regards General Elections, 2019 so that conscionable justice may be done by quashing the same;"

2. During the course of the hearing today, the learned senior counsel for the petitioners submitted that the petitioners do not press their prayers against the respondent nos.3 and 4 and the respondent nos.3 and 4 have been accordingly deleted from the array of the parties.

3. It is the case of the petitioners that the issue of transfer of cash in the garb of distribution of 'freebies' is an unprecedented corrupt electoral practice in India, and the guidelines issued by the respondent no.2, pursuant to the judgment of the Supreme Court in S.Subramaniam Balaji v. State of Tamil Nadu and Ors., (2013) 9 SCC 659, do not address the said issue, and are vague, cryptic and open to be interpreted to all such practices to continue.

4. The learned senior counsel for the petitioners submits that the Supreme Court in S.Subramaniam Balaji (supra) did not consider the issue of promise to give 'freebies' in the form of cash as part of electoral promises made by the political party in their election manifesto as constituting "corrupt practice" and 'bribery' in terms of Section 123 of the Representation of the People Act, 1951. He submits that the 'Model Code of Conduct for the Guidance of the Political Parties and Candidates' (hereinafter referred to as the "Guidelines") issued by the respondent no.2 in purported compliance of the judgment in S.Subramaniam Balaji (supra) are vague and do not fully address this issue, which in fact was not considered by the Supreme Court in the referred judgment. He submits that the Supreme Court was only considering the issue of freebies in the form of certain material benefits, not being cash, promised by the political parties.

5. On the other hand, the learned counsel for the respondent no.2 submits that the issue raised by the petitioners is squarely covered by the judgment of the Supreme Court in S.Subramaniam Balaji (supra). He submits that in compliance with the directions issued by the Supreme Court, the respondent no.2 has issued the Guidelines, within the limited scope of jurisdiction that it has in these matters. He submits that, therefore, there is no merit in the present petition.

6. We have considered the submissions made by the learned