No power to de-register political parties promising freebies before elections: ECI to Supreme Court

The Election Commission of India (ECI) has told the Supreme Court that it has no power to de-register political parties that promise and distribute freebies to voters before and after elections [Ashwini Kumar Upadhyay v. Union of India and Another]..The same was submitted in an affidavit filed by the ECI in response to the public interest litigation (PIL) filed by BJP leader Ashwini Kumar Upadhyay seeking directions to it to seize election symbols and de-register political parties that promise/distribute irrational freebies using public funds before elections. The affidavit stated,"...barring political parties from promising/distributing freebies from public fund before election, as prayed above, may result in a situation where the parties will lose their recognition even before they display their electoral performance in elections.".On January 25, a three-judge Bench of Chief Justice of India NV Ramana and Justices AS Bopanna and Hima Kohli had issued notice to the Centre and the ECI in the said plea."We want to know how to control this. It's a serious issue and the freebie budget is going beyond the regular budget. We have already observed that its not a level playing field for some parties etc. We had also previously directed the Commission to frame guidelines," the Bench led by CJI Ramana had orally remarked..However, the ECI has pointed out that as was held by the Supreme Court in Indian National Congress v. Institute of Social Welfare and Others, it can only de-register political parties on three grounds, which are:1. where a political party has obtained registration by practising fraud or forgery;2. where the registered political party amends its nomenclature of association, rules and regulations; and3. any like ground where no enquiry is called for on the part of the commission.Since the practice of political parties promising/distributing irrational freebies using public funds before elections does not fall within the above exceptions, it has no power to de-register the parties, the ECI has stated.The affidavit also mentioned that Upadhyay had filed another plea pending before the Supreme Court seeking directions to enable the ECI to de-register parties. .The Commission has also stated that giving out freebies using public funds before elections is a policy decision of a party. In this light,"Offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse effect on the economic health of a State is a question that has to be considered and decided by the voters of the State. The Election Commission of India cannot regulate state policies and decisions which may be taken by the winning party when they form the government.".The Commission has further submitted that in light of the decision of the top court in S Subramaniam Balaji v. State of Tamil Nadu and Others, it had already formed certain guidelines which are to be adhered by the political parties and candidates while releasing their election manifestos for any electionThe affidavit cited the Delhi High Court decision in Mithilesh Kumar Pandey v. Union of India to state that promises made in manifestos are not enforceable by law. It also informed the Court that it has asked political parties to see that promises made are in consonance with Part VIII of the Model Code of Conduct for elections..In his plea, Upadhyay argued that arbitrary promises of irrational freebies violate the ECI's mandate of free and fair elections. Distribution of money and promise of freebies has reached alarming levels, the petitioner contended."If the integrity of electoral process is compromised then the notion of representation becomes vacuous," the plea said.The plea cited the following examples from the recently concluded Punjab Assembly elections:1. Aam Aadmi Party promised ₹1,000 per month to every woman aged 18;2. Shiromani Akali Dal (SAD) promised Rs. 2000 to each woman to lure them.3. Thereafter Congress not only promised Rs. 2000 per month and 8 gas cylinders per year to every house wife but also promised a Scooty to every collage going girl, Rs. 20,000 after passing 12th class, Rs. 15,000 after passing 10th class, Rs. 10,000 after passing 8th class and Rs. 5000 after passing 5th4. For UP Assembly elections, Congress promised a smartphone to every girl studying in Class 12, a Scooty to every girl pursuing graduation, free public transport for women, eight free gas cylinders per year to every housewife, free medical treatment up to Rs 10 lakh per family..He thus prayed for directions to declare that promise/distribution of irrational freebies from the public fund before election to lure voters is violative of Articles 14, 162, 266(3) and 282 of the Constitution and analogous to the 'bribery and undue influence' under Sections 171B and 171C of the Indian Penal Code 1860.The petitioner also prayed for directions to ECI to insert an additional condition in Paras 6A, 6B and 6C of the Election Symbols Order 1968 mandating that “political party shall not promise/distribute irrational freebies from the public fund before election”.The plea also sought directions the ECI to seize election symbols from and to de-register political parties which promise/distribute irrational freebies using public funds..PIL in Supreme Court to deregister political parties promising freebies before elections