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$~9

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IN THE HIGH COURT OF DELHI AT NEW DELHI

Date of Decision: 17.05.2022

+

W.P.(C) 1126/2020

PARASHAR NARAYAN SHARMA AND ANR. ..... Petitioner

Through:

Mr.Soumya

Chakraborty,

Sr.

Advocate with Mr.Ankush Tyagi,

Mr.Akash Verma, Advs.

versus

UNION OF INDIA AND ORS.

..... Respondents

Through:

Mr.Ajay

Digpaul,

CGSC

with

Mr.Kamal R. Digpaul and Ms.Swati

Kwatra, Advs. for UOI

Mr.Sidhant Kumar with Ms.Manyaa

Chadhok,

Advs.

for

Election

Commission of India.

CORAM:

HON’BLE THE ACTING CHIEF JUSTICE

HON’BLE MR. JUSTICE NAVIN CHAWLA

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

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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

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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 counsels for

the parties.

7. The Supreme Court in S.Subramaniam Balaji (supra) was

considering the issue of election manifestos of the political parties promising

free gifts by a political party (popularly known as freebies). The Supreme

Court culled out the points for consideration before it as under:

“Points for Consideration

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55.

55.1. (i) Whether the promises made by the

55.2. (ii)

55.3. (iii) Whether this Court has inherent

55.4. (iv) Whether the Comptroller and Auditor

55.5. (v) Whether the writ jurisdiction will lie

against a political party?”

8. In answer to the first point of consideration referred hereinabove, the

Supreme Court has held as under:

“

61.1. Firstly, if we