PIL in SC to make Election Manifesto Legally Enforceable

NEW DELHI: Ashwini Upadhyay, a practicing lawyer at the Supreme Court and a leader of the Bharatiya Janta Party (BJP) has filed a writ petition with the Supreme Court of India under Article 32. The petition seeks order direction or declaration that the Election Manifesto is a vision document, a published declaration of the intentions, motives and views of the political party and used to achieve the particular goals, if political party gets elected. Hence, it is statutory and legally enforceable.

Upadhyay has sought for direction to the Election Commission to seize the election symbol and derecognize/deregister the political parties, which fail to fulfil their essential rational promises. He has mentioned in the petition that the Centre and ECI have not taken steps to regulate functioning of political parties and to regulate manifesto. So, the Court is the only hope of citizens.

Upadhyay has requested in his petition to the Supreme Court to analyze whether political parties are really concerned about governance or do they cynically participate in evisceration of democratic electoral political process, which is a moot point. 

The petition also seeks direction to the Ministry of Law and Justice to take appropriate steps to regulate the functioning of registered and recognized political parties and to make them accountable for essential rational manifesto promises. The Centre, till date has not enacted any law that would regulate the functioning of political parties and their election manifesto not even the ECI made guidelines under Article 324. 

Upadhyay has pointed out that an election manifesto is a window for voters to see through a political party’s governance agenda to make an informed decision and voting is a transactional act. Once a vote is cast on the basis of the transactional value the voter sees in the party, a legal contract arguably comes into existence if the said party forms the ruling government.

Ashwini Upadhyay has citied reference of Delhi government. The Arvind Kejriwal led Delhi government has failed to appoint Delhi Lokayukta after Justice Reva Khetrapal, the then Delhi Lokayukta retired. This led to hundreds of pending complaints in office related to corruption. Unfortunately, the AAP did not amend Lokayukta Act in spirit of Lokpal and Lokayukta Act 2013 and still using outdated ineffective 1995 Act, despite being in power for 3 terms. 

Notably, the AAP was formed after historic Anna Movement, which went after the Lokpal Bill at Centre, Lokayukta in State and Citizen Charter in every department. The Injury to Citizens is Extremely Large because AAP promised Janlokpal Bill-Swaraj Bill in 2013, 2015 and 2020 election manifesto but did nothing to effectuate them.

Upadhyay has mentioned in the petition that the fulcrum of democracy is the fair electoral process. The petition further states that, “If the integrity of electoral process is compromised then the notion of representation becomes vacuous. Political parties are promising irrational freebies but not fulfilling essential promises.

So, the danger to democracy and Indian republic cannot be gainsaid. Rather than taking effective steps to secure social economic political justice, liberty of thought expression belief faith worship, equality of status opportunity, and to promote fraternity assuring dignity of individual and unity-national integration; political parties fulfil freebies only.”

It should be made mandatory for the political parties to mention the respective Article of the Constitution while promising to enact new Law in their election manifesto and the timeline and deadline of completing their promises. It should also be a mandate for the political parties to mention the steps to control corruption crime casteism communalism linguism radicalism and fundamentalism but also mention the essential steps to secure important fundamental rights i.e., right to health, right to education, right to shelter, right to road access, right to water, right to food, right to dignity, right to employment, right to justice, right to legal aid, right to clean environment in their election manifesto.

The point to ponder is whether the promises will always remain as promises and most of them, except the freebies, will ever be implemented honestly. Every political party promises to improve the standard of living of people by providing corruption free transparent governance and good quality infrastructure especially providing basic amenities like, water, transportation and health, which are expected in every democracy. However, they do nothing and focus on freebies. 

The petition states, “Rather than considering fundamental rights-directive principles in election manifesto, political parties are promising freebies from public fund to lure voters, which is a wrongful gain. With limited financial resources, promising freebies is not only immoral unethical and contrary to concept of Welfare State but also arbitrary irrational and violate Articles 14, 162, 266(3), 282. Political parties are prioritizing their self-interest over national interest and public fund, which must be properly utilized to secure fundamental rights, is being used to lure voters.

The Court in S. Subramaniam Balaji [(2013) 9 SCC 659] had said that “the reality cannot be ruled out that the distribution of freebies of any kind, undoubtedly influences all the people. It shakes the roots of free and fair election to a large degree. The ECI also conveyed the same feeling both in the affidavit and in the argument”.

Citing the example of Congress party, Upadhyay states that the Congress has made a cause with agitating farmers that it will repeal three contentious farm laws when it comes to power, So, hypothetically, say Congress subsequently comes to power. Given that the said farms laws are a fundamental issue with the farming community, if the petitioner challenges those laws seek legal enforcement of the Congress Party’s promise, before a Court of law, what could be the legal glitch in that?

‘Uniform Civil Code’ is one such promise that the Bhartiya Janata Party (BJP) has been repeatedly making in its manifesto. In such a situation, what would be the legal hassle if someone takes the BJP to Court seeking fulfilment of the promise? Let it, at least, introduce a UCC Bill and leave it to the machinations of parliamentary democracy, to be settled in due course. 

In countries like Bhutan and Mexico, political parties are required to submit a copy of their manifesto to Election Commission before primary round of National Assembly elections and Manifestos are published only with approval of Commission, after thoroughly vetting and filtering out issues with potential to undermine security and stability of the nation. Similarly, in the United Kingdom and Netherland, legal provisions are applicable and offensive campaign materials are screened and taken out.

Can this principle be applied in India as well? In India, the Manifesto of political parties should be screened by the ECI before it is released. After screening, if the ECI finds any objectionable or misleading campaign material, it can ask the political parties to modify it, also messages, which evoke a certain feeling, needs to be screened and consequently removed.

Majorly, in India manifestos do not contain the manner in which policy would be implemented/source of funds for implementation. On the contrary neither it mentions about how the public exchequer would fund the scheme nor how an individual would qualify for receiving money under a particular scheme.

The petition mentions, “Political parties do not realize the value of manifestos and they prepare it in at a very short notice without deep thinking. Most of political parties are more interested in vote bank than to improve quality of governance and administration. There is a need to improve manifesto from point of view of political stability, social equality and economic growth. Election manifesto of political parties must only talk about public good and not appeal to any sect of voters by promising freebies like cycle, grinding machines, television etc.” 

Court may direct the Election Commission of India to use its plenary constitutional power to frame guidelines to regulate the functioning of registered and recognized political parties and to make them accountable for essential rational manifesto promises.

The matter is listed on August 17, 2022 before three Judges bench headed by CJI NV Ramana.