This appeal is directed against the final judgment and order dated 25.06.2007 passed by the Madurai Bench of the Madras High Court in Writ Petition (C) Nos. 9013 of 2006 ...
No Acts & Articles mentioned in this case
Page 1 REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 5130 OF 2013
(Arising out of SLP (C) No. 21455 of 2008)
S. Subramaniam Balaji .... Appellant(s)
Versus
The Government of
Tamil Nadu & Ors. ....
Respondent(s)
WITH
TRANSFERRED CASE NO 112 OF 2011
S. Subramaniam Balaji .... Appellant(s)
Versus
The Government of
Tamil Nadu & Ors. ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
SLP (C) No. 21455 of 2008
1)Leave granted.
2)This appeal is directed against the final judgment and
order dated 25.06.2007 passed by the Madurai Bench of
1
Page 2 the Madras High Court in Writ Petition (C) Nos. 9013 of
2006 and 1071 of 2007 whereby the High Court dismissed
the petitions filed by the appellant herein.
3)Brief Facts:
(a)The case relates to distribution of free gifts by the
political parties (popularly known as ‘freebies’). The
Dravida Munnetra Kazhagam (DMK)- Respondent No. 8
herein, while releasing the election manifesto for the
Assembly Elections 2006, announced a Scheme of free
distribution of Colour Television Sets (CTVs) to each and
every household which did not possess the same, if the
said party/its alliance were elected to power. The Party
justified the decision of distribution of free CTVs for the
purpose of providing recreation and general knowledge to
the household women, more particularly, those living in
the rural areas. In pursuance of the same, follow up
actions by way of enlisting the households which did not
have a CTV set and door to door identification and
distribution of application forms were initiated.
(b)This Scheme was challenged by one S. Subramaniam
Balaji-the appellant herein, by way of filing writ petition
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Page 3 before the High Court on the ground that the expenditure
to be incurred by the State Government for its
implementation out of the State Exchequer is
unauthorized, impermissible and ultra vires the
Constitutional mandates. The appellant herein filed a
complaint dated 24.04.2006 to the Election Commission of
India seeking initiation of action in respect of the said
promise under Section 123 of the Representation of
People Act, 1951 (in short ‘the RP Act’). The appellant
herein also forwarded the complaint to the Chief Election
Officer, Tamil Nadu.
(c)The DMK and its political allies emerged victorious in
the State Assembly Election held in the month of May,
2006. In pursuit of fulfilling the promise made in the
election manifesto, a policy decision was taken by the
then government to provide one 14” CTV to all eligible
families in the State. It was further decided by the
Government to implement the Scheme in a phased
manner and a provision of Rs. 750 crores was made in the
budget for implementing the same. A Committee was
constituted, headed by the then Chief Minister and eight
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Page 4 other legislative members of various political parties, in
order to ensure transparency in the matter of
implementation of the Scheme.
(d)For implementing the first phase of the Scheme, the
work of procurement of around 30,000 CTVs was
entrusted to Electronic Corporation of Tamil Nadu Ltd.
(ELCOT), a State owned Corporation. The first phase of
the Scheme was implemented on 15/17
th
September, 2006
by distributing around 30,000 CTVs to the identified
families in all the districts of the State of Tamil Nadu.
(e)Being aggrieved by the implementation of the
Scheme, the appellant herein filed another complaint to
the Chief Secretary and the Revenue Secretary pointing
out the unconstitutionality of the Scheme. He also
preferred Writ Petition being Nos. 9013 of 2006 and 1071
of 2007 before the Madurai Bench of the High Court of
Madras alleging the Scheme a corrupt practice to woo the
gullible electorates with an eye on the vote bank. By
order dated 25.06.2007, the High Court dismissed both
the writ petitions filed by the appellant herein holding that
the action of the Government in distributing free CTVs
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Page 5 cannot be branded as a waste of exchequer. Being
aggrieved, the appellant herein has preferred this appeal
by way of special leave before this Court.
Transferred Case (C) No. 112 of 2011
(f)In the month of February 2011, pursuant to the
elections to the Tamil Nadu State Assembly, the ruling
party (DMK) announced its manifesto with a volley of free
gifts. In the same manner, the opposite party-All India
Anna Dravida Munnetra Kazhagam (AIADMK) and its
alliance also announced its election manifesto with free
gifts to equalize the gifts offered by the DMK Party and
promised to distribute free of cost the following items, viz.,
grinders, mixies, electric fans, laptop computers, 4 gms
gold thalis, Rs. 50,000/- cash for women’s marriage, green
houses, 20 kgs. rice to all ration card holders even to
those above the poverty line and free cattle and sheep, if
the said party/its alliance were elected to power during
the Tamil Nadu Assembly Elections 2011.
(g)The very same Scheme was also challenged by the
appellant herein on the ground that such promises by the
parties are unauthorized, impermissible and ultra vires the
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Page 6 Constitutional mandates. The appellant herein also filed a
complaint dated 29.03.2011 to the Election Commission of
India seeking initiation of action in respect of the said
Scheme under Section 123 of the RP Act.
(h) The AIADMK and its political allies won the State
Assembly Elections held in 2011. In order to fulfill the
promise made in the election manifesto, a policy decision
was taken by the then government to distribute the gifts
and, pursuant to the same, tenders were floated by the
Civil Supplies Department for mixies, grinders, fans etc.,
as well as by ELCOT for lap top computers.
(i) On 06.06.2011, the appellant herein filed another
complaint to the Comptroller and Auditor General of India
and the Accountant General of Tamil Nadu (Respondent
Nos. 3 and 4 therein respectively) pointing out the
unconstitutionality of the Scheme and transfer of
consolidated funds of the State for the same. In the
meanwhile, the appellant herein preferred a Writ Petition
being No. 17122 of 2011 before the High Court of Madras
alleging the Scheme a corrupt practice and to restrain the
government from in any way proceeding with the
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Page 7 procurement, placement of tenders or making free
distributions under various Schemes introduced to woo the
voters. In view of the pendency of SLP (C) No. 21455 of
2008 in this Court relating to the similar issue, the
appellant preferred a Transfer Petition (C) No. 947 of 2011
before this Court praying for the transfer of the said writ
petition. By order dated 16.09.2011, this Court allowed the
said petition and the same has been numbered as T.C No.
112 of 2011 and tagged with the abovesaid appeal.
4)Heard Mr. Arvind P. Datar, learned senior counsel for
the appellant/petitioner, Mr. Shekhar Naphade, learned
senior counsel for the State of Tamil Nadu, Mr. P.P.
Malhotra, learned Additional Solicitor General for the
Union of India and Ms. Meenakshi Arora, learned counsel
for the Election Commission of India.
5)Prayer/Relief Sought For:
(a) When DMK started distribution of CTVs, the
appellant/petitioner herein approached the High Court of
Judicature at Madras, Bench at Madurai, by way of filing
Writ Petition (C) No. 9013 of 2006 with a prayer to issue a
writ of mandamus to forbear the respondents therein from
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Page 8 incurring any expenditure out of the public exchequer for
the purchase and distribution of colour Televisions within
the State of Tamil Nadu.
(b)After 5 years, when AIADMK elected to power,
pursuant to their election manifesto, they started
distributing various freebies, which was also challenged by
the very same person – the appellant/petitioner herein by
filing a writ petition being No. 17122 of 2011 before the
High Court of Judicature at Madras praying for issuance of
a writ to declare the free distribution of (i) grinders (ii)
mixies (iii) electric fans (iv) laptop computers (v) 4 gm.
gold thalis (vi) free green houses (vii) free 20 kgs. rice to
all ration card holders even to those above the poverty
line and (viii) free cattle and sheep ultra vires the
provisions of Articles 14, 41, 162, 266(3) and 282 of the
Constitution of India and Section 123(1) of the RP Act.
Contentions by the Appellant:
6)Mr. Datar, learned senior counsel for the appellant
submitted that a “gift”, “offer” or “promise” by a
candidate or his agent, to induce an elector to vote in his
favour would amount to “bribery” under Section 123 of
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Page 9 the RP Act. He further pointed out that to couch this
offer/promise to give away a gift whose worth is estimable
in money and that too from the consolidated fund of the
State under the head “promise of publication” or “public
policy” or “public good” is to defeat the purposes of the
above Section viz., Section 123(1) of the RP Act. While
elaborating his submissions, Mr. Datar raised his
objections under the following heads:
(I)Article 282 of the Constitution of India only permits
defraying of funds from the Consolidated Fund of the State
for “public purpose”;
(II)The distributions made by the respondent-State is
violative of Article 14 since there is no reasonable
classification;
(III)Promises of free distribution of non-essential
commodities in an election manifesto amounts to electoral
bribe under Section 123 of the RP Act;
(IV)The Comptroller and Auditor General of India has a
duty to examine expenditures even before they are
deployed; and
(V)Safeguards must be built into schemes to ensure that
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Page 10 the distribution is made for a public purpose and is not
misused.
(I) Article 282 of the Constitution of India only
permits defraying of funds from the Consolidated
Fund of the State for “public purpose”.
7)Regarding the first contention relating to Article 282
of the Constitution of India which only permits use of
monies out of the Consolidated Fund of the State for
public purpose, it is useful to refer the said Article which
reads as under:
“282.Expenditure defrayable by the Union or a
State out of its revenue – The Union or a State may
make any grants for any public purpose,
notwithstanding that the purpose is not one with respect
to which Parliament or the Legislature of the State, as
the case may be, may make laws.”
8)It is pointed out by Mr. Datar that under Article
266(3) of the Constitution, the monies out of the
Consolidated Fund of India or the Consolidated Fund of the
State can only be appropriated in accordance with law and
for the purposes and in the manner provided by the
Constitution. Under Article 162, the extent of the
executive power of the State is limited to the matters with
respect to which the Legislature of the State has the
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Page 11 power to make laws. Likewise, under Article 282, the
Union or the States may make grants for “any public
purpose”, even if such public purpose is not one with
respect to which the State or the Union may make laws.
By referring these Articles, Mr. Datar submitted that
monies out of the Consolidated Fund of the State can only
be appropriated for the execution of laws made by the
State, or for any other “public purpose”.
9)It is further pointed out that the State raises funds
through taxation which can be used by the State only to
discharge its constitutional functions. Taxpayers’
contribution cannot be used to fund State largesse. While
the taxpayer has no right to demand a quid pro quo
benefit for the taxes paid, he has a right to expect that the
taxes paid will not be gifted to other persons without
general public benefit. The main intention of an act done
for a public purpose must be the public, and that the act
would remotely, or in a collateral manner, benefit the local
public is not relevant at all.
10)According to Mr. Datar, the most important
constitutional mandate is that a “public purpose” cannot
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Page 12 be the one that results in the creation of private assets.
The exceptions that can be made to this overarching
principle are the distributions that fulfill an essential need
such as food, clothing, shelter, health or education. Even
if certain distributions, such as the distribution of
televisions might have some public benefit, it would not
amount to public purpose since the dominant purpose of
such a distribution is only the creation of private assets.
Where the purposes of the expenditure are partly public
and partly private, the Courts in the US have held that the
entire act must fail. (vide Coates vs. Campbell and
Others, 37 Minn. 498).
11)While statutory authorities can confer social or
economic benefits on particular sections of the
community, their power is limited by the principle that
such benefits must not be excessive or unreasonable. As
Lord Atkinson stated in Roberts vs. Hopwood & Ors.
1925 AC 578, the State cannot act in furtherance of
“eccentric principles of socialistic philanthropy”. In view
of the above, a reference was also made to Bromley
London Borough Council, London vs. Greater Council
1
Page 13 & Anr. 1982 (2) WLR 62 and R vs. Secretary of State
for Foreign Affairs (1995) 1 All ER 611.
12)In this context, it is pointed out that Article 41 of the
Constitution of India states that the State, “within its
economic capacity and development” can make effective
provision for securing “public assistance” in certain special
cases. Article 39(b) states that the State shall endeavour
to ensure that the “material resources” of the community
are so distributed as best to subserve the “common
good”. Both these articles imply that the goal of the
Constitution, as evidenced by these Directive Principles, is
to ensure that the State distributes its resources to secure
“public assistance” and “common good”, and must not
create private assets.
13)It is also pointed out that the Constitutions of 17
States of the US explicitly prohibit the making of private
gifts by the Government, and it is recognized even
elsewhere in the US that the public funds cannot be used
to make gifts to private persons.
14)It is further stated that the spending on free
distribution must be weighed against the public benefits
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Page 14 that ensue from it and only if the public benefits outweigh
the same, can the spending be classified as being for a
public purpose. Mr. Datar asserted that when the literacy
rate in the State of Tamil Nadu is around 73% and there
are 234 habitations across the State with no school access
whatsoever, distribution of free consumer goods to the
people having ration cards cannot be justified as “public
purpose”.
15)In addition to CTVs by the previous Government, the
following free distributions have been promised by the
Government of Tamil Nadu in the Budget Speech for the
year 2011-2012:
“1.60,000 green houses, at a cost of Rs.1.8
lakhs per house, totally amounting to Rs.1080
crores. The green houses are being supplied to
persons below the poverty line residing in rural areas.
However, they are being supplied to persons who
already own 300 sq. ft. of land.
Comment by the appellant:
The State is creating private assets through this
distribution, when it can, instead build houses owned by
the State which can be occupied by eligible persons.
2. 4 gms of gold for poor girls for thali, plus
Rs.50000 cash for wedding purposes, totally
amounting to Rs.514 crores.
Comment by the appellant:
The State can achieve the same end of subsidizing
marriages by providing institutions such as mandaps
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Page 15 and temples that can be used for marriage. There are
no safeguards in any scheme proposed by the State to
ensure that Rs.50,000 given in cash to the eligible
beneficiaries will be used for the marriage, and not
diverted for other purposes.
3. Free mixies, grinders and fans for 25 lakh
families, totally amounting to Rs.1250 crores.
Comment by the appellant:
The reasons given by the State, of alleviating women of
“domestic drudgery” are frivolous and do not amount to
a “public purpose”. Mixies, grinders and fans are
luxuries and cannot be freely distributed by the
Government. The distribution is being made to a large
section of persons without even ascertaining whether
the persons already own these goods and whether they
require state assistance to acquire these goods.
4. 9.12 lakh laptops to all class XII students in
Tamil Nadu amounting to Rs. 912 crores.
Comment by the appellant:
No “public purpose” is served by such distribution. The
State is duty bound to create computer labs in schools
and colleges and not distribute such expensive articles
as gifts. Classification of students eligible for the
laptops suffers from overclassification, violative of
Article 14 of the Constitution. The classification is also
violative of Article 14 as it omitted certain categories of
students.
5. Free cattle to poor families in certain rural
areas, Rs.56 crores. Distribution of milch cows is
being done, according to the State’s Government Order,
to “boost the productivity of milk in the State.”
Comment by the appellant:
It is stated that the State does run a diary, and the
constitutionally valid method to boost milk production is
to spend on these institutions and not to create private
assets under these Government Orders.
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Page 16 6. Free rice to 1.83 crore families under the
PDS system, amounting to Rs.4500 crores.
Comment by the appellant:
Rice is already being distributed in the State at Rs.2 per
kilo. Under this scheme, rice is being distributed free of
cost, as a pure populist measure. As per the State’s
own submissions, rice is priced at Rs.2 under the
Anthyodaya Anna Yojana, which is being followed
throughout the country.
16)Mr. Datar, learned senior counsel for the appellant
pointed out that the Constitution of India does not permit
free distribution of goods such as colour televisions,
mixies, grinders, laptops since these are consumer goods
and only benefit the persons to whom they are distributed
and not the public at large. Public spending on these
goods to the tune of Rs.9000 crores far outweighs any
public benefit that might arise from such distributions.
When the same ends can be efficiently achieved without
the creation of private assets, such as the creation of
Community Computer Centers instead of distributing
laptops, or setting up of Community Televisions at the
Panchayat level resorting to make large scale free
distribution, it clearly violate Articles 162, 266(3) and 282
of the Constitution. It is further pointed out that the fact
that CTVs and other schemes of previous Government
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Page 17 were cancelled by the present Government shows that
these were not for “public purpose” but only to serve the
political objectives of a particular party.
II.The distributions made by the respondent fall
foul of Article 14 since there is no reasonable
classification
17)The right to equality under Article 14 of the
Constitution requires that the State must make a
reasonable classification based on intelligible differentia,
and such classification must have a nexus with the object
of the law. In making free distributions, the State,
therefore, must show that it has identified the class of
persons to whom such distributions are sought to be made
using intelligible differentia, and that such differentia has
a rational nexus with the object of the distribution. As
held in Union of India & Anr. vs. International
Trading Co. & Anr. 2003 (5) SCC 437, Article 14 applies
to matters of government policy and such policy or action
would be unconstitutional if it fails to satisfy the test of
reasonableness.
18)This Court, in K.T. Moopil Nair vs.State of Kerala
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Page 18 AIR 1961 SC 552, held that a statute can offend Article 14
if it groups together persons who are dissimilar. In that
case, a flat tax of Rs. 2 per acre was levied on land
without ascertaining the income earning potential of such
land, which was struck down as unconstitutional.
19)In the case on hand, the colour televisions, mixies
and grinders were being distributed to all persons having
ration card. While the distribution of these goods is
supposedly being made to help people who cannot afford
these items, the State has not made any attempt to find
out if such persons already own a colour television, a
mixie or a grinder. Further, the differentia of a ration card
has no rational nexus with the object of free distribution of
the items since a ration card does not indicate the income
of the family or whether they already own these goods.
20)Similarly, in another Scheme, the State has promised
to distribute free laptops to all the students studying in
the State Board. Again, this classification is arbitrary since
there are numerous similarly placed students in Central
Board schools who were being excluded by this Scheme.
The Scheme also excludes commerce, law and medical
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Page 19 college students and violates Article 14 by not providing
intelligible differentia having a nexus with such
distribution.
III. Promises of free distribution of non-essential
commodities in election manifesto amounts to an
electoral bribe under Section 123 of the RP Act.
21)Under Section 123(1)(A) of the RP Act, any “gift, offer
or promise” by a candidate or his agent or by any other
person, with the object of inducing a person to vote at an
election amounts to “bribery”, which is a “corrupt
practice” under the said section. The key element in this
section is that the voter must be influenced to vote in a
particular manner. It has been held in Richardson-
Garnder vs. Ekykn, (1869) 19 LT 613 that the making of
charitable gifts on an extensive scale would lead to an
inference that this was made to influence voters.
22)Mr. Datar pointed out that the plea that promises in
the manifesto do not amount to bribery is completely
baseless and finds no support in the plain words of the
statute or in decided case laws. The statute very clearly
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Page 20 includes a “promise” within its ambit, and an
unconstitutional promise clearly falls foul of the language
of Section 123 of the RP Act. Such ‘freebies’ are in form
part of an election manifesto but in substance is a bribe or
inducement under section 123. If such practices are
permitted, then the manifesto does indirectly what a
candidate cannot do directly.
23)It is further pointed out that the promise of
distribution was made at the time of elections and not
after, and instead of focusing on basic necessities, it was
on free distributions which indicates that the promise of
free colour televisions, grinders, mixies, laptops, gold etc.,
was only made as an electoral bribe to induce voters.
24)Mr. Datar further pointed out that the intent of
Section 123 of the RP Act is to ensure that no candidate
violates the level playing field between the candidates.
Therefore, whether such promises are made by the
political party or by the candidate himself is irrelevant.
The manifesto, where such illegal promises are made,
implore the voters to vote for that particular party.
IV. The Comptroller and Auditor General of India
has a duty to examine expenditures even before
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Page 21 they are deployed.
25)The Comptroller and Auditor General of India is a
constitutional functionary appointed under Article 148 of
the Constitution. His main role is to audit the income and
expenditure of the Government, Government bodies and
state-run corporations. The extent of his duties is listed
out in the Comptroller and Auditor General’s (Duties,
Powers etc.) Act, 1971. Section 13 of this Act states that
the CAG shall audit all the expenditure from the
Consolidated Fund of India, and of each State, and
ascertain whether the moneys so spent were “legally
available for and applicable to the service of purpose to
which they have been applied or charged.”
26)Section 15 of the Act states that where grants and
loans have been given for any specific purpose to any
authority or body other than a foreign state or an
international organization, the CAG has the duty to
scrutinize the procedure by which the loan or grant has
been made.
27)The language of the provision suggests that the role
of CAG is limited to review. However, this would rob the
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Page 22 CAG of the power to ensure that large-scale unauthorized
spending of public funds, such as these free distributions,
does not take place. The Section must be given purposive
interpretation that would further its intent to ensure that
the government’s spending is only on purposes that are
legally allowable. The Chancery Division has held in
Kingston Cotton Mills Co. Re [1896] 2 Ch 279 that an
auditor is a “watchdog”. To perform his role as a
watchdog, the CAG must be vigilant, watch for any large-
scale illegal expenditures, and act upon them
immediately.
V.Safeguards must be built into schemes to
ensure that the distribution is made for a public
purpose, and is not misused.
28)The Members of Parliament Local Area Development
Scheme (MPLADS) was challenged before this Court in
Bhim Singh vs. Union of India and Ors., (2010) 5 SCC
538 wherein the Constitution Bench of this Court upheld
the scheme on the grounds that there were three levels of
safeguards built into the scheme to ensure that the funds
given to the Members of Parliament would not be misused.
This Court held as under:
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Page 23 “8) The court can strike down a law or scheme only on
the basis of its vires or unconstitutionality but not on the
basis of its viability. When a regime of accountability is
available within the Scheme, it is not proper for the
Court to strike it down, unless it violates any
constitutional principle.
9) In the present Scheme, an accountability regime
has been provided. Efforts must be made to make the
regime more robust, but in its current form, cannot be
struck down as unconstitutional.”
29)The MPLAD Scheme clearly had prohibitions against
spending on the creation of private assets and to make
loans. It is pointed out that there is no scheme of
accountability in the above mentioned promises for free
distributions, hence, learned senior counsel prayed for
necessary guidelines for proper utilization of public funds.
Contentions by the Respondents:
Contentions of the State of Tamil Nadu:
30)On the other hand, Mr. Shekhar Naphade, learned
senior counsel for the State of Tamil Nadu while disputing
the above claim submitted that the freebies, as promised
in the election manifesto, would not come under the head
“corrupt practices” and “electoral offences” in terms of
the RP Act. He further submitted that in view of the
mandates in the Directives Principles of State Policy in
Part IV of the Constitution, it is incumbent on the State
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Page 24 Government to promote the welfare of the people, who
are below the poverty line or unable to come up without
their support. In any event, according to learned senior
counsel, for every promise formulated in the form of
election manifesto, after coming to power, the same were
being implemented by framing various
schemes/guidelines/eligibility criteria etc. as well as with
the approval of legislature. Thus, it cannot be construed as
a waste of public money or prohibited by any Statute or
Scheme.
31)While elaborating his submissions, Mr. Shekhar
Naphade replied for the contentions made by the
appellant under the following heads:
(I) Political Parties are not State, therefore, not amenable
to writ jurisdiction of the High Court under Article 226 or
writ jurisdiction of the Supreme Court under Article 32 of
the Constitution of India or any other provisions of the
Constitution. For corrupt practices, the remedy is Election
Petition.
(II) Non-application of Vishaka principle and the difficulties
in implementing the directions, if any, that may be issued
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Page 25 by this Court.
(III) Promises of political parties do not constitute a corrupt
practice.
(IV) The Schemes under challenge operate within the
parameters of public purpose and Article 14 of the
Constitution has no role to play.
(I) Political Parties are not State, therefore, not
amenable to the writ jurisdiction of the High Court
under Article 226 or the writ jurisdiction of the
Hon’ble Supreme Court under Article 32 of the
Constitution of India or any other provisions of the
Constitution. For corrupt practices, the remedy is
an Election Petition.
32)Learned senior counsel submitted that a political
party is not a statutory Corporation. Similarly, a political
party is also not a Government. It is also not an
instrumentality or agency of the State. None of the
parameters laid down by several judgments of this court
for identifying an agency or instrumentality of the State
apply to a political party and, therefore, no political party
can be considered as a State or any agency or
instrumentality of the State, hence, no writ can lie against
a political party. [vide Federal Bank Ltd. vs. Sagar
Thomas and Others , (2003) 10 SCC 733.
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Page 26 33)Further, learned senior counsel put forth that it is the
claim of the appellant that the promises like giving colour
TVs, mixer-grinders, laptops etc. constitute a corrupt
practice and, therefore, must vitiate an election. If the
promise of the above nature is a corrupt practice, then the
only remedy for the appellant is to file an Election Petition
under Section 80, 80A read with other provisions of the RP
Act. Under Section 81, such an Election Petition must be
filed within 45 days from the date of the election. In the
petition, the appellant must set out clearly and specifically
the corrupt practice that he complains of and also set out
as to how the returned candidate or his agent has
committed the same or has connived at the same. An
election Petition is to be tried on evidence and therefore,
the writ petition is not a remedy.
(II) Non-application of Vishaka principle and the
difficulties in implementing the directions, if any,
that may be issued by this Court.
34)It was submitted that Entry 72 of List-I of the VIIth
Schedule to the Constitution of India deals with election to
Parliament and State Legislative Assemblies. In exercise
of this power, the Parliament has enacted the RP Act. The
2
Page 27 Act, as originally enacted, did not contain any provision
relating to corrupt practice as contained in Section 123.
Section 123 defines and enumerates “corrupt practices”
exhaustively. Section 123 came as a result of
recommendations of the Select Committee of the
Parliament on the basis of which the said Act was
amended by substituting Chapter 1 in Part VII of the Act
by Act No. 27 of 1956. The Legislature has dealt with the
subject of corrupt practice and it is not a case of
legislative vacuum. The field of corrupt practice is
covered by the provisions of the said Act. Once the
Legislature has dealt with a particular topic, then the
Vishakha principle (Vishaka and Others vs State of
Rajasthan and Others (1997) 6 SCC 241) has no
applicability. This Court, in Vishaka (supra) and Aruna
Ramachandra Shanbaug vs. Union of India and
Others, (2011) 4 SCC 454 and other cases has clearly
held that if on a given topic there is no law enacted by a
competent legislature, then this Court has power to issue
directions under its inherent powers under Article 142 and
141 of the Constitution and the said directions would
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Page 28 operate and bind all concerned till the competent
Legislature enacts a law on the concerned subject.
Whether the present provisions of the said Act are
adequate or not is a matter for the Parliament and the
Parliament alone to decide. This Court, in exercise of
powers under Article 141 and 142 or under any other
provision of law, cannot issue a direction to include any
practice not specified as corrupt practice under the Act as
Corrupt Practice.
35)Further, learned senior counsel emphasized on the
difficulties to implement the guidelines, if any, framed by
this Court by referring to previous cases, viz., Union of
India vs. Association for Democratic Reforms and
Another (2002) 5 SCC 294 and People’s Union for Civil
Liberties (PUCL) and Anr. vs. Union of India and Anr.
(2003) 4 SCC 399.
(III) Promises of political parties do not constitute a
corrupt practice.
36)Learned senior counsel submitted that inasmuch as
the words mentioned in Section 123 of the Act are clear
and unambiguous, the same should be interpreted in the
same manner as stated therein. Section 123 of the RP Act
2
Page 29 is a penal statute and ought to be strictly construed. It is
settled principle of law that an allegation of “corrupt
practice” must be strictly proved as a criminal charge and
the principle of preponderance of probabilities would not
apply to corrupt practices. In M.J. Jacob vs. A.
Narayanan and Others , (2009) 14 SCC 318, it has been
held by this Court in paras 13 and 15 as under:
“13. It is well settled that in an election petition for proving
an allegation of corrupt practice the standard of proof is
like that in a criminal case. In other words, the allegation
must be proved beyond reasonable doubt, and if two views
are possible then the benefit of doubt should go to the
elected candidate vide Manmohan Kalia v. Yash, vide SCC
p. 502, para 7 in which it is stated:
“7. … It is now well settled by several authorities of this
Court that an allegation of corrupt practice must be
proved as strictly as a criminal charge and the principle
of preponderance of probabilities would not apply to
corrupt practices envisaged by the Act because if this
test is not applied a very serious prejudice would be
caused to the elected candidate who may be
disqualified for a period of six years from fighting any
election, which will adversely affect the electoral
process.”
15. In Surinder Singh v. Hardial Singh, vide SCC p. 104,
para 23 it was observed:
“23. … It is thus clear beyond any doubt that for over 20
years the position has been uniformly accepted that
charges of corrupt practice are to be equated with
criminal charges and proof thereof would be not
preponderance of probabilities as in civil action but
proof beyond reasonable doubt as in criminal trials.”
37)In Baldev Singh Mann vs. Surjit Singh Dhiman ,
2
Page 30 (2009) 1 SCC 633, this Court observed as under:
“19. …. ….. The law is now well settled that the charge
of a corrupt practice in an election petition should be
proved almost like the criminal charge. The standard of
proof is high and the burden of proof is on the election
petitioner. Mere preponderance of probabilities is not
enough, as may be the case in a civil dispute.
Allegations of corrupt practices should be clear and
precise and the charge should be proved to the hilt as in
a criminal trial by clear, cogent and credible evidence.
21. The Court in a number of cases has held that the
charge of corrupt practice is quasi-criminal in character
and it has to be proved as a criminal charge and proved
in the court. In Jeet Mohinder Singh case the Court
observed as under:
“(ii) Charge of corrupt practice is quasi-criminal in
character. If substantiated it leads not only to the
setting aside of the election of the successful candidate,
but also of his being disqualified to contest an election
for a certain period. It may entail extinction of a
person’s public life and political career. A trial of an
election petition though within the realm of civil law is
akin to trial on a criminal charge. Two consequences
follow. Firstly, the allegations relating to commission of
a corrupt practice should be sufficiently clear and stated
precisely so as to afford the person charged a full
opportunity of meeting the same. Secondly, the charges
when put to issue should be proved by clear, cogent and
credible evidence. To prove charge of corrupt practice a
mere preponderance of probabilities would not be
enough. There would be a presumption of innocence
available to the person charged. The charge shall have
to be proved to the hilt, the standard of proof being the
same as in a criminal trial.”
38)It is further submitted that the manifesto of the
political party in question promises to achieve a social
order removing economic inequalities, attain a social
plane and attempts to reduce the degradations existing in
our society where only a certain class of people are
3
Page 31 elevated and entitled to economic upliftment. The
mandate for social and economic transformation requires
that material resources or their ownership and control be
so distributed as to subserve the common good.
39)In Samatha vs. State of A.P. and Others, (1997) 8
SCC 191, in paras 76 and 79, it has been held as under:
“76. Social and economic democracy is the foundation
on which political democracy would be a way of life in
the Indian polity. Law as a social engineering is to create
just social order removing inequalities in social and
economic life, socio-economic disabilities with which
poor people are languishing by providing positive
opportunities and facilities to individuals and groups of
people. Dr B.R. Ambedkar, in his closing speech in the
Constituent Assembly on 25-11-1949, had lucidly
elucidated thus:
“… What does social democracy mean? It means a way
of life which recognises liberty, equality and fraternity as
the principles of life. These principles of liberty, equality
and fraternity are not to be treated as separate items in
a trinity. They form a union of trinity in the sense that to
divorce one from the other is to defeat the very purpose
of democracy. Liberty cannot be divorced from equality,
equality cannot be divorced from liberty. Nor can liberty
and equality be divorced from fraternity. Without
equality, liberty would produce the supremacy of the
few over the many. Equality without liberty would kill
individual initiative. Without fraternity, liberty and
equality could not become a natural course of things. It
would require a constable to enforce them. We must
begin by acknowledging the fact that there is complete
absence of two things in Indian society. One of these is
equality. On the social plane, we have in India a society
based on the principle of graded inequality which means
elevation for some and degradation for others. On the
economic plane, we have a society in which there are
some who have immense wealth as against many who
live in abject poverty. On the 26th January, 1950, we are
going to enter into a life of contradictions. In politics we
will have equality and in social and economic life we will
3
Page 32 have inequality. In politics we will be recognizing the
principle of one man one vote and one vote one value.
In our social and economic life, we shall, by reason of
our social and economic structure, continue to deny the
principle of one man one value. How long shall we
continue to live this life of contradictions? How long shall
we continue to deny equality in our social and economic
life? If we continue to deny it for long, we will do so only
by putting our political democracy in peril. We must
remove this contradiction at the earliest possible
moment or else those who suffer from inequality will
blow up the structure of political democracy which this
Assembly has so laboriously built up.”
(Vide B. Shiva Rao’s The Framing of India’s Constitution:
Select Documents, Vol. IV, pp. 944-45.)
79. It is necessary to consider at this juncture the
meaning of the word “socialism” envisaged in the
Preamble of the Constitution. Establishment of the
egalitarian social order through rule of law is the basic
structure of the Constitution. The Fundamental Rights
and the Directive Principles are the means, as two
wheels of the chariot, to achieve the above object of
democratic socialism. The word “socialist” used in the
Preamble must be read from the goals Articles 14, 15,
16, 17, 21, 23, 38, 39, 46 and all other cognate articles
seek to establish, i.e., to reduce inequalities in income
and status and to provide equality of opportunity and
facilities. Social justice enjoins the Court to uphold the
Government’s endeavour to remove economic
inequalities, to provide decent standard of living to the
poor and to protect the interests of the weaker sections
of the society so as to assimilate all the sections of the
society in a secular integrated socialist Bharat with
dignity of person and equality of status to all.”
40)In Bhim Singh (supra), a Constitution Bench of this
Court observed as under:
“58. The above analysis shows that Article 282 can be
the source of power for emergent transfer of funds, like
the MPLAD Scheme. Even otherwise, the MPLAD Scheme
is voted upon and sanctioned by Parliament every year
as a scheme for community development. We have
already held that the scheme of the Constitution of India
is that the power of the Union or State Legislature is not
limited to the legislative powers to incur expenditure
3
Page 33 only in respect of powers conferred upon it under the
Seventh Schedule, but it can incur expenditure on any
purpose not included within its legislative powers.
However, the said purpose must be “public purpose”.
Judicial interference is permissible when the action of
the Government is unconstitutional and not when such
action is not wise or that the extent of expenditure is
not for the good of the State. We are of the view that all
such questions must be debated and decided in the
legislature and not in court.
95. This argument is liable to be rejected as it is not
based on any scientific analysis or empirical data. We
also find this argument a half-hearted attempt to
contest the constitutionality of the Scheme. MPLADS
makes funds available to the sitting MPs for
developmental work. If the MP utilises the funds
properly, it would result in his better performance. If
that leads to people voting for the incumbent candidate,
it certainly does not violate any principle of free and fair
elections.
96. As we have already noted, MPs are permitted to
recommend specific kinds of works for the welfare of the
people i.e. which relate to development and building of
durable community assets (as provided by Clause 1.3 of
the Guidelines). These works are to be conducted after
approval of relevant authorities. In such circumstances,
it cannot be claimed that these works amount to an
unfair advantage or corrupt practices within the
meaning of the Representation of the People Act, 1951.
Of course such spending is subject to the above Act and
the regulations of the Election Commission.”
(IV) The Schemes under challenge operate within
the parameters of public purpose and Article 14 of
the Constitution has no role to play.
41)The argument of the appellant that giving of colour
TVs, laptops, mixer-grinders etc. on the basis of the
manifesto of the party that forms the Government is not
an expense for a public purpose. This argument is devoid
3
Page 34 of any merit according to learned senior counsel for the
State of Tamil Nadu. It was submitted that the concept of
State Largesse is essentially linked to Directive Principles
of State Policy. Whether the State should frame a
scheme, which directly gives benefits to improve the living
standards or indirectly by increasing the means of
livelihood, is for the State to decide. The preamble to the
Constitution recognizes Socialism as one of the pillars of
Indian Democracy. The preamble has been held to be a
part of the Constitution by a catena of judgments
including Keshavanand Bharati vs. State of Kerala
(1973) 4 SCC 1461. The State largesse is directly linked to
the principle of Socialism and, therefore, it is too late in
the day for anybody to contend that the Government
giving colour TVs, laptops, mixer-grinders, etc. that too to
the eligible persons as prescribed by way of Government
Order is not a public purpose. For the same reasons, it
must be held that it is a part of Government function to
take measures in connection with Government largesse.
42) It is further submitted that the political parties in their
election manifesto promised to raise the standard of living
3
Page 35 of the people and to formulate a scheme/policy for the
upliftment of the poor. The distribution of basic
necessities in today’s time like TVs, mixers, fans and
laptops to eligible persons fixing parameters, can by no
stretch of imagination be said to be State largesse. A
three-Judge Bench of this Court in Deepak Theatre,
Dhuri vs. State of Punjab and Others , 1992 Supp (1)
SCC 684, held as under:
“5. Witnessing a motion picture has become an
amusement to every person; a reliever to the weary and
fatigued; a reveller to the pleasure seeker; an imparter
of education and enlightenment enlivening to news and
current events; disseminator of scientific knowledge;
perpetuator of cultural and spiritual heritage, to the
teeming illiterate majority of population. Thus, cinemas
have become tools to promote welfare of the people to
secure and protect as effectively as it may a social order
as per directives of the State policy enjoined under
Article 38 of the Constitution. Mass media, through
motion picture has thus become the vehicle of coverage
to disseminate cultural heritage, knowledge, etc. The
passage of time made manifest this growing imperative
and the consequential need to provide easy access to all
sections of the society to seek admission into theatre as
per his paying capacity.”
43)The grievance of the appellant is that the public
resources are being used for the benefit of individuals.
According to learned senior counsel for the respondent,
this argument is completely misconceived. It was
submitted that in catena of cases, this Court has held that
3
Page 36 while judging the constitutional validity of any law or any
State action, the Directive Principles of the State Policy
can be taken into account. Article 38 contemplates that
the State shall strive to promote the welfare of the people.
Article 39 contemplates that the State shall take actions to
provide adequate means of livelihood and for distribution
of material resources of the community on an egalitarian
principle. Article 41 contemplates that the State shall
render assistance to citizens in certain circumstances and
also in cases of undeserved want. Article 43 directs that
the State shall “endeavour to secure to all workers, by
suitable legislation or economic organisation or any other
way to ensure decent standard of life and full enjoyment
of leisure and social and cultural opportunities to the
workers”. Similarly, Article 45 contemplates that the State
shall endeavour to provide early childhood care and
education to all children below the age of 6 years and
Article 46 says that the State shall promote educational
and economic interests of the weaker sections of the
people. Article 47 contemplates that the State shall take
steps to raise the level of nutrition and the standard of
3
Page 37 living. The concept of livelihood and standard of living are
bound to change in their content from time to time. This
Court has dealt with the concept of minimum wage, the
fair wage and the living wage while dealing with industrial
disputes and has noted that these concepts are bound to
change from time to time. What was once considered to
be a luxury can become a necessity. The concept of
livelihood is no longer confined to a bare physical survival
in terms of food, clothing and shelter, but also now must
necessarily include some provision for medicine,
transport, education, recreation etc. How to implement
the directive principles of State Policy is a matter within
the domain of the Government, hence, the State
distributing largesse in the form of distribution of colour
TVs, laptops, mixer-grinders etc. to eligible and deserving
persons is directly related to the directive principles of the
State Policy.
44)The other facet of the argument is that this largesse
is distributed irrespective of the income level and,
therefore, violative of Article 14 as unequals are treated
equally. Learned senior counsel submitted that this
3
Page 38 principle of not to treat unequals as equals has no
applicability as far as State largesse is concerned. This
principle applies only where the law or the State action
imposes some burden on the citizen either financial or
otherwise.
45)Article 14 essentially contemplates equality in its
absolute sense and classification can be taken recourse to
if the State is unable or the State policy does not
contemplate the same benefit or treatment to people who
are not similarly situated. It is the philosophical sense
decoded by this Court in the first part of Article 14 which is
equal treatment for all without any distinction. This is the
concept of formal equality which is not necessarily an
antithesis to Article 14. The concept of equality based on
classification is proportional equality. The formal equality
applies when the State is in a position to frame a scheme
or law which gives the same benefit to all without any
distinction and the proportional equality applies when the
State frames a law or a Scheme which gives benefit only
to people who form a distinct class. It is in the case of
proportional equality that the principles of intelligible
3
Page 39 differentia having reasonable nexus to the object of
legislation gets attracted. Article 14 does not prohibit
formal equality. The Directive Principles of State Policy
save proportional equality from falling in foul with formal
equality contemplated by Article 14.
Contentions of the Union of India, CAG and Election
Commission:
46)Mr. P.P. Malhotra, learned ASG also reiterated the
stand taken by learned senior counsel for the State. It is
the stand of the CAG that they have no role at this
juncture, particularly, with reference to the prayer sought
for. Ms. Meenakshi Arora, learned counsel for the Election
Commission of India submitted that with the existing
provisions in the RP Act, Election Commission is
performing its duties, however, if this Court frames any
further guidelines, they are ready to implement the same.
47)We have carefully considered the rival contentions,
perused the relevant provisions, various Government
orders, guidelines and details furnished in the counter
affidavit. The following points arise for consideration:
Points for Consideration:
(i)Whether the promises made by the political parties in
3
Page 40 the election manifesto would amount to ‘corrupt practices’
as per Section 123 of the RP Act?
(ii)Whether the schemes under challenge are within the
ambit of public purpose and if yes, is it violative of Article
14?
(iii)Whether this Court has inherent power to issue
guidelines by application of Vishaka principle?
(iv)Whether the Comptroller and Auditor General of India
has a duty to examine expenditures even before they are
deployed?
(v)Whether the writ jurisdiction will lie against a political
party?
Discussion:
Issue No. 1
Whether the promises made by the political parties
in their election manifestos would amount to
‘corrupt practices’ as per Section 123 of the
Representation of the People Act, 1951?
48)Before going into the acceptability or merits of the
claim of the appellant and the stand of the respondents, it
is desirable to reproduce certain provisions of the RP Act.
Part VII of the RP Act deals with “corrupt practices” and
“electoral offences” which was brought into force with
4
Page 41 effect from 28.08.1956. Chapter I of Part VII deals with
“corrupt practices”. Section 123 is the only Section
relevant for our purpose which reads thus:-
“123. Corrupt practices.- The following shall be
deemed to be corrupt practices for the purposes of this
Act:
(1) "Bribery", that is to say-
(A) any gift, offer or promise by a candidate or his agent
or by any other person with the consent of a candidate
or his election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of
inducing-
(a) a person to stand or not to stand as, or [to withdraw
or not to withdraw] from being a candidate at an
election, or
(b) an elector to vote or refrain from voting at an
election, or as a reward to-
(i) a person for having so stood or not stood, or for
[having withdrawn or not having withdrawn] his
candidature; or
(ii) an elector for having voted or refrained from voting;
(B) the receipt of, or agreement to receive, any
gratification, whether as a motive or a reward-
(a) by a person for standing or not standing as, or for
[withdrawing or not withdrawing] from being, a
candidate; or
(b) by any person whomsoever for himself or any other
person for voting or refraining from voting, or inducing
or attempting to induce any elector to vote or refrain
from voting, or any candidate [to withdraw or not to
withdraw] his candidature.
Explanation.- For the purposes of this clause the term"
gratification" is not restricted to pecuniary gratifications
or gratifications estimable in money and it includes all
forms of entertainment and all forms of employment for
reward but it does not include the payment of any
expenses bona fide incurred at, or for the purpose of,
any elec- tion and duly entered in the account of
election expenses referred to in Section 78.
(2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the
4
Page 42 candidate or his agent, or of any other person [with the
consent of the candidate or his election agent], with the
free exercise of any electoral right: Provided that-
(a) without prejudice to the generality of the provisions
of this clause any such person as is referred to therein
who-
(i) threatens any candidate or any elector, or any person
in whom a candidate or an elector is interested, with
injury of any kind including social ostracism and ex-
communication or expulsion from any caste or
community; or
(ii) induces or attempts to induce a candidate or an
elector to believe that he, or any person in whom he is
interested, will become or will be rendered an object of
divine displeasure or spiritual censure,
shall be deemed to interfere with the free exercise of
the electoral right of such candidate or elector within
the meaning of this clause;
(b) a declaration of public policy, or a promise of public
action, or the mere exercise of a legal right without
intent to interfere with an electoral right, shall not be
deemed to be interference within the meaning of this
clause.
(3) The appeal by a candidate or his agent or by any
other person with the consent of a candidate or his
election agent to vote or refrain from voting for any
person on the ground of his religion, race, caste,
community or language or the use of, or appeal to
religious symbols or the use of, or appeal to, national
symbols, such as the national flag or the national
emblem, for the furtherance of the prospects of the
election of that candidate or for prejudicially affecting
the election of any candidate:
Provided that no symbol allotted under this Act to a
candidate shall be deemed to be a religious symbol or a
national symbol for the purposes of this clause.
(3A) The promotion of, or attempt to promote, feelings
of enmity or hatred between different classes of the
citizens of India on grounds of religion, race, caste,
community, or language, by a candidate or his agent or
any other person with the consent of a candidate or his
election agent for the furtherance of the prospects of
the election of that candidate or for prejudicially
affecting the election of any candidate.
(3B) The propagation of the practice or the commission
4
Page 43 of sati or its glorification by a candidate or his agent or
any other person with the consent of the candidate or
his election agent for the furtherance of the prospects of
the election of that candidate or for prejudicially
affecting the election of any candidate.
Explanation.- For the purposes of this clause," sati" and"
glorification" in relation to sati shall have the meanings
respectively assigned to them in the Commission of Sati
(Prevention) Act, 1987 .
(4) The publication by a candidate or his agent or by any
other Person, [with the consent of a candidate or his
election agent], of any statement of fact which is false,
and which he either believes to be false or does not
believe to be true, in relation to the personal character
or conduct of any candidate, or in relation to the
candidature, or withdrawal [of any candidate, being a
statement reasonably calculated to prejudice the
prospects of that candidate' s election.
(5) The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel by a candidate or his
agent or by any other person with the consent of a
candidate or his election agent], [or the use of such
vehicles or vessel for the free conveyance] of any
elector (other than the candidate himself, the members
of his family or his agent) to or from any polling station
provided under Section 25 or a place fixed under sub-
section (1) of Section 29 for the poll:
Provided that the hiring of a vehicle or vessel by an
elector or by several electors at their joint costs for the
purpose of conveying him or them to and from any such
polling station or place fixed for the poll shall not be
deemed to be a corrupt practice under this clause if the
vehicle or vessel so hired is a vehicle or vessel not
propelled by mechanical power:
Provided further that the use of any public transport
vehicle or vessel or any tramcar or railway carriage by
any elector at his own cost for the purpose of going to or
coming from any such polling station or place fixed for
the poll shall not be deemed to be a corrupt, practice
under this clause.
Explanation.- In this clause, the expression" vehicle"
means any vehicle used or capable of being used for the
purpose of road transport, whether propelled by
mechanical power or otherwise and whether used for
4
Page 44 drawing other vehicles or otherwise.
(6) The incurring or authorizing of expenditure in
contravention of Section 77.
(7) The obtaining or procuring or abetting or attempting
to obtain or procure by a candidate or his agent or, by
any other person [with the consent of a candidate or his
election agent], any assistance (other than the giving of
vote) for the furtherance of the prospects of that
candidate's election, from any person in the service of
the Government and belonging to any of the following
classes, namely:-
(a) gazetted officers;
(b) stipendiary judges and magistrates;
(c) members of the armed forces of the Union;
(d) members of the police forces;
(e) excise officers;
(f) revenue officers other than village revenue officers
known as lambardars, malguzars, patels, deshmukhs or
by any other name, whose duty is to collect land
revenue and who are remunerated by a share of, or
commission on, the amount of land revenue collected by
them but who do not discharge any police functions;
and]
(g) such other class of persons in the service of the
Government as may be prescribed:
Provided that where any person, in the service of the
Government and belonging to any of the classes
aforesaid, in the discharge or purported discharge of his
official duty, makes any arrangements or provides any,
facilities or does any other act or thing for to or in
relation to any candidate or his agent or any other
person acting with the consent of the candidate or his
election agent, (whether by reason of the office held by
the candidate or for any other reason), such
arrangements, facilities or act or thing shall not be
deemed to be assistance for the furtherance of the
prospects of that candidate' s election.
(h) class of persons in the service of a local authority,
university, government company or institution or
concern or undertaking appointed or deputed by the
Election Commission in connection with the conduct of
elections.
(8) Booth Capturing by a candidate or his agent or other
person.
4
Page 45 Explanation.- (1) In this Section the expression" agent"
includes an election agent, a polling agent and any
person who is held to have acted as an agent in
connection with the election with the consent of the
candidate.
(2) For the purposes of clause (7), a person shall be
deemed to assist in the furtherance of the prospects of a
candidate' s election if he acts as an election agent of
that candidate.
(3) For the purposes of clause (7), notwithstanding
anything contained in any other law, the publication in
the Official Gazette of the appointment, resignation,
termination of service, dismissal or removal from service
of a person in the service of the Central Government
(including a person serving in connection with the
administration of a Union territory) or of a State
Government shall be conclusive proof-
(i) of such appointment, resignation, termination of
service, dismissal or removal from service, as the case
may be, and
(ii) where the date of taking effect of such appointment,
resignation, termination of service, dismissal or removal
from service, as the case may be, is stated in such
publication, also of the fact that such person was
appointed with effect from the said date, or in the case
of resignation, termination of service, dismissal or
removal from service, such person ceased to be in such
service with effect from the said date.]
(4) For the purposes of clause (8)," booth capturing"
shall have the same meaning as in Section 135A.”
49)Keeping the parameters fixed in the above Section,
we have to analyze the claim of both the parties
hereunder. A perusal of sub-sections 1-8 of Section 123
makes it clear that it speaks only about a candidate or
his agent or any other person. There is no word about
political parties. Taking note of the conditions mandated
in those sub-sections, let us test the respective stand of
4
Page 46 both the parties.
50) For deciding the issue whether the contents of the
political manifesto would constitute a corrupt practice
under Section 123 of RP Act, it is imperative to refer to the
intention of the legislature behind incorporating the
respective section. The purpose of incorporating Section
123 of the RP Act is to ensure that elections are held in a
free and fair manner.
51)The object of provisions relating to corrupt practices
was elucidated by this Court in Patangrao Kadam vs.
Prithviraj Sayajirao Yadav Deshmukh and Ors.
(2001) 3 SCC 594 as follows:-
14. “….Fair and free elections are essential requisites to
maintain the purity of election and to sustain the faith of the
people in election itself in a democratic set up. Clean, efficient
and benevolent administration are the essential features of
good governance which in turn depends upon persons of
competency and good character. Hence those indulging in
corrupt practices at an election cannot be spared and allowed
to pollute the election process and this purpose is sought to be
achieved by these provisions contained in the RP Act.”
52)With this background, let us analyze the contention
of the appellant. The gist of appellant’s argument is that
promises of freebies such as colour TVs, mixer-grinders,
laptops, etc., are in form part of an election manifesto of a
4
Page 47 political party but in substance is a bribe or inducement
under Section 123. Thus, it is the stand of the appellant
that the promise of this nature indeed induces the voters
thereby affecting the level playing field between the
candidates, which in turn disrupts free and fair election.
Therefore, the appellants suggested for construing the
promises made in the election manifesto as a corrupt
practice under Section 123 of RP Act. He mainly relied on
the principle that one cannot do indirectly what it cannot
do directly.
53)As appealing this argument may sound good, the
implementation of this suggestion becomes difficult on
more than one count. Firstly, if we are to declare that
every kind of promises made in the election manifesto is a
corrupt practice, this will be flawed. Since all promises
made in the election manifesto are not necessarily
promising freebies per se, for instance, 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. Therefore, it will be misleading to construe that
4
Page 48 all promises in the election manifesto would amount to
corrupt practice. Likewise, it is not within the domain of
this Court to legislate what kind of promises can or cannot
be made in the election manifesto.
54)Secondly, the manifesto of a political party is a
statement of its policy. The question of implementing the
manifesto arises only if the political party forms a
Government. It is the promise of a future Government. It
is not a promise of an individual candidate. Section 123
and other relevant provisions, upon their true
construction, contemplate corrupt practice by individual
candidate or his agent. Moreover, such corrupt practice is
directly linked to his own election irrespective of the
question whether his party forms a Government or not.
The provisions of the RP Act clearly draw a distinction
between an individual candidate put up by a political party
and the political party as such. The provisions of the said
Act prohibit an individual candidate from resorting to
promises, which constitute a corrupt practice within the
meaning of Section 123 of the RP Act. The provisions of
the said Act place no fetter on the power of the political
4
Page 49 parties to make promises in the election manifesto.
55)Thirdly, the provisions relating to corrupt practice are
penal in nature and, therefore, the rule of strict
interpretation must apply and hence, promises by a
political party cannot constitute a corrupt practice on the
part of the political party as the political party is not within
the sweep of the provisions relating to corrupt practices.
As the rule of strict interpretation applies, there is no
scope for applying provisions relating to corrupt practice
contained in the said Act to the manifesto of a political
party.
56)Lastly, it is settled law that the courts cannot issue a
direction for the purpose of laying down a new norm for
characterizing any practice as corrupt practice. Such
directions would amount to amending provisions of the
said Act. The power to make law exclusively vests in the
Union Parliament and as long as the field is covered by
parliamentary enactments, no directions can be issued as
sought by the appellant. As an outcome, we are not
inclined to hold the promises made by the political parties
in their election manifesto as corrupt practice under
4
Page 50 Section 123 of the RP Act.
Issue No. 2
Whether the schemes under challenge are within
the ambit of public purpose and if yes, is it violative
of Article 14?
57)The concept of State largesse is essentially linked to
Directive Principles of State Policy. Whether the State
should frame a scheme, which directly gives benefits to
improve the living standards or indirectly by increasing
the means of livelihood, is for the State to decide and the
role of the court is very limited in this regard.
58)It is not in dispute that television is a widely used
tele-communication medium for receiving moving images.
Today, television has a lot of positive effects and
influences on our society and culture. Television gives
helpful information and it is not an equipment aimed for
entertainment alone. The State Government has also
asserted that the purpose of distributing colour television
sets is not restricted for providing recreation but to
provide general knowledge to the people, more
particularly, to the household women.
5
Page 51 59)On behalf of the State of Tamil Nadu, it was
explained that in order to promote the welfare of the
people by securing and protecting, as effectively as it
may, a social order in which social and economic justice
can be achieved, the Government of Tamil Nadu has
announced certain welfare schemes for raising the
standard of living of the people by providing assistance to
the deserving ones as envisaged under the Directive
Principles of the Indian Constitution. In order to
implement those schemes effectively, the Government of
Tamil Nadu had exclusively formed a Special Programme
Implementation Department. Guidelines for each Scheme
were framed to identify the beneficiaries and mode of
distribution.
60)It is pointed out by the State that the Government
has issued necessary orders for the following schemes:
(i)Marriage Assistance Scheme;
(ii)Distribution of Milch Animals and Goats;
(iii)Solar Powered Green House Scheme;
(iv)Laptop Computer to students;
(v)Free Rice Scheme; and
5
Page 52 (vi)Free distribution of Electric Fans, Mixies and Grinders
to women.
The Schemes are as under:
“Marriage Assistance Scheme
1)The economic status of a family plays a vital role in
enabling the poor parents who have daughters to fulfill the
social obligation of marriage. Various Marriage Assistance
Schemes being implemented by the Government of Tamil
Nadu are in vogue to benefit the poor and the downtrodden
for whom the marriage ceremony of their daughters
impose a heavy burden. There are at present 5 marriage
assistance schemes and they are as follows:
(i)Moovalur Ramamirtham Ammaiyar Ninaivu Marriage Assistance
Scheme for poor girls
(ii)Dr. Dharmambal Ammaiyar Ninaivu Widow Re-marriage
Assistance Scheme to encourage the remarriage of young
widows
(iii) E.V.R. Maniammaiyar Ninaivu Marriage Assistance Scheme for
daughters of poor widows
(iv)Annai Theresa Ninaivu Marriage Marriage Assistance Scheme
for Orphan Girls.
(v)Dr. Muthulakshmi Reddy Minaivu Inter-caste Marriage
Assistance Scheme
2) With the extraordinary rise in the price of gold, poor families
and the abovementioned vulnerable categories find it difficult to
buy even a small quantity of gold for the traditional
‘Thirumangalyam’ (Mangal Sutra). To mitigate the hardship of
the poor families and vulnerable sections, the State Government
has ordered the provision of 4 gms (1/2 sovereign) 22 ct. gold
coin for making the ‘Thirumangalyam’ in addition to the already
existing financial assistance of Rs.25,000/-. Moreover, with the
aim of encouraging higher education among women, the present
Government has also introduced a new scheme of providing
financial assistance of Rs.50,000/- for graduates/diploma holders
along with the four grams 22 carat gold coin for making the
‘Thirumangalayam’.
3)The guidelines for sanction of assistance under the various
Marriage Assistance Scheme include that the annual income
of the family should not exceed Rs.24,000/- and the minimum
age limit for the girls should be 18 years. The detailed
guidelines have been issued in G.O.(Ms.) No. 49, SW & NMP
5
Page 53 Dept. dated 26.07.2011. The details pertaining to each
scheme are as follows:
(A) Moovalur Ramamiratham Ammaiyar Ninaiyu
Marriage Assistance Scheme
1.Objectives of the Scheme To help the poor parents
financially in getting their
daughter’s married and to
promote the educational
status of poor girls.
2.Assistance provided and
Educational Qualification
Rs.25,000/- along with 4
gms. gold coin (for those
who have studies up to 10
th
std., Vth Std, for Scheduled
Tribes)
3.To whom the benefit is due Girls belonging to poor
families
4.When the benefit is due Before marriage
5.Eligibility Criteria
a) Age Limit
Bride should have completed
18 years of age
b) Income Limit Not exceeding Rs.24,000/-
per annum
c) Other criteria Only one girl from a family is
eligible
(B) Dr. Dharmambal Ammaiyar Ninaivu Widow Re-
marriage Assistance Scheme
1.Objectives of the Scheme To encourage widow
remarriage and rehabilitate
widows
2.Assistance provided and
Educational Qualification
Rs.25,000/- along with 4
gms. gold coin (for those
who have studies up to 10
th
std., Vth Std, for Scheduled
Tribes)
Rs. 50,000/- along with 4
gms. gold coin (for Graduate
and diploma holders)
3.To whom the benefit is due To the couple
4.When the benefit is due Within 6 months from the
date of marriage
5.Eligibility Criteria
a) Age Limit
Minimum age of 20 years for
the bride and below 40 years
for the bridegroom.
b) Income Limit No income ceiling.
5
Page 54 (C) E.V.R. Maniammaiyar Ninaivu Marriage Scheme
for daughters of poor widows
1.Objectives of the Scheme To help the poor widows by
providing financial
assistance for the marriage
of their daughters
2.Assistance provided and
Educational Qualification
Rs.25,000/- along with 4
gms. gold coin (for those
who have studies up to 10
th
std., Vth Std, for Scheduled
Tribes)
Rs. 50,000/- along with 4
gms. gold coin (for Graduate
and diploma holders)
3.To whom the benefit is due Daughter of poor widow
4.When the benefit is due Before marriage
5.Eligibility Criteria
a) Age Limit
18 years
b) Income Limit Not exceeding Rs.24,000/-
per annum
c) Other Criteria Only one daughter of a poor
widow is eligible
(D) Annai Theresa Ninaivu Marriage Assistance
Scheme for Orphan Girls
1.Objectives of the Scheme To help the orphan girls
financially for their marriage
2.Assistance provided and
Educational Qualification
Rs.25,000/- along with 4
gms. gold coin (for those
who have studies up to 10
th
std., Vth Std, for Scheduled
Tribes)
Rs. 50,000/- along with 4
gms. gold coin (for Graduate
and diploma holders)
3.To whom the benefit is due Orphan girls
4.When the benefit is due Before marriage
5.Eligibility Criteria
a) Age Limit
18 years
b) Income Limit Not exceeding Rs.24,000/-
per annum
5
Page 55 (E) Dr. Muthulakshmi Reddy Ninaivu Inter-Caste
Marriage Assistance Scheme
1.Objectives of the Scheme To abolish caste and
community feelings based
on birth and wipe out the
evils of untouchabiity by
encouraging inter-caste
marriage
2.Assistance provided and
Educational Qualification
Rs.25,000/- (Rs.15,000/-
DD/Cheque, Rs.10,000/- NSC
Certificate) along with 4
gms. gold coin (for those
who have studies up to 10
th
std., Vth Std, for Scheduled
Tribes)
Rs. 50,000/- (Rs.30,000/-
DD/cheque, Rs.20,000/- NSC
Certificate) along with 4
gms. gold coin (for Graduate
and diploma holders)
3.To whom the benefit is due Inter-caste married couple
4.When the benefit is due Considering the special
constraints in such
marriages the facility will be
extended up to two years.
5.Eligibility Criteria
a) Age Limit
Minimum 18 years
b) Income Limit No Income limit
II. Distribution of Milch Animal and Goats
(i)It is highlighted by the State that with the growing
population and shrinking land resources, the
nutritional requirement of the State cannot be met by
increasing the agricultural production alone.
Moreover vagaries of monsoon, availability of water
have added to the pressure on increasing the
agricultural production. To compensate this, it is
necessary to improve the animal production.
(ii)As per the Indian Council for Agriculture Research (ICAR)
norms, the per capita requirement of milk and meat per
individual per day is 260 gms per day and 15gms. per
day respectively. At present, the per capita availability
of milk and meat in Tamil Nadu is below the
5
Page 56 recommended requirement. Hence, it is the need of the
hour to increase the milk and meat production in the
State to the State’s human population requirements.
Moreover, still a large population in the State live below
the poverty line.
(iii)Hence, it has been proposed to improve the standard of
living by providing the needy poor with a Milch cow (to
60000 families) and sheep/goats to about poorest of the
poor (7 lakh families) spread across the State. The main
aim of the above Schemes will be to improve the
standard of living of the poorest of the poor.
(iv)Under the Scheme of free distribution of Milch Cows, it
has been envisaged to distribute Milch Cows to the poor
people selected by the Grama Sabha based on norms in
such villages/districts which do not have adequate
availability of milk. Likewise, the poorest of the poor
living in the rural areas will be identified democratically
by the Grama Sabha and will be given 4 sheep/goats in
order to sustain their livelihood by rearing these
sheep/goats.
A. The scheme for distribution of 60,000 lactating
cows free of cost in rural village panchayats
(i)The Government of Tamil Nadu have planned to launch
a Scheme to distribute 60,000 free Milch Cows to the
poor beneficiaries in the rural areas in the next 5 years
in order to give boost to the milk productivity of the
State. This scheme will be called “Scheme for free
distribution of Milch Cows”.
2. Selection of Villages for the Scheme
(i)The Commissioner of Animal Husbandry and Veterinary
Services (CA&VS) will select the Village Panchayats to
be taken for implementation during each of the 5 years
in such a way that in a year, approximately 12,000
beneficiaries are distributed free Milch Cows in order to
complete the distribution of 60,000 Milch Cows in 5
years.
(ii)The free Milch Cows will be distributed to the poor
beneficiaries on a priority basis in such Districts that
have lesser number of Co-operative Societies than the
total number of revenue villages. In such Districts, the
distribution will be undertaken in those Village
Panchayats where there are no Primary Milk Cooperative
5
Page 57 Societies at present. Consequent upon the distribution
of the cows, action will be taken to form Primary
Cooperative Societies of the beneficiaries in these
villages and render the beneficiaries necessary hand-
holding assistance by the Dairy Development
Department. The Co-operative network has the
following advantages for the beneficiaries:
(a)Availability of immediate opportunity of sale of milk
through the Milk Cooperative Society at good prices.
(b)Availability of Breeding services as well as Veterinary
care at the door steps through the Society as well as
Milk Union.
(c)Opportunity to tap the benefits of various Central/State
funded Schemes meant for the co-operative sector.
(iii)Out of the villages to be selected within the Districts
concerned, the smaller village Panchayats will be
prioritized by the Commissioner of Animal Husbandary &
Veterinary Services for the implementation of the
Scheme since it will be easier to form the Primary Milk
Societies of smaller and cohesive units. Further, the
Village Panchayats to be taken up each year will be
grouped in appropriate geographical Clusters as to
facilitate the economical collection of milk.
3. Breed of Milch Cows to be procured
(i)The breeding policy of the State envisages rearing of the
Cross Bred Jersey Cows in the plains and Cross Bred
Holstein-Friesian cows in the hilly areas of the State and
the Cross Bred Cows yield, on an average, 2.5 times the
milk yield of indigenous cows. It is, hence, proposed to
supply Cross bred cows as per the Breeding Policy of the
State. Further, in most of the cases, farmers prefer
rearing of cows as compared to buffaloes. Hence, it is
proposed to distribute only cows in this Scheme.
Amongst the Cross Bred cows too, it is proposed to
supply lactating cows that are in their first/second
lactation so as to ensure a continuous production for
next five lactations. The age of the animal should not
be more than 5 years.
4. Identification of Beneficiaries
(i)The free Milch Cows will be distributed at the rate of one
Cow per eligible household. In order to empower the
women, it has been decided that the actual beneficiary
will be the Woman of the household. In case there are
any transgender residing in the Village Panchayat, who
are otherwise eligible as per the criteria given below,
they will also be considered to be eligible for the
5
Page 58 Scheme.
(ii)Criteria for eligibility The beneficiaries should satisfy
the following criteria:
·Women Headed households are to be given priority,
(Widows, Destitutes and the Disabled women to be
given priority within this group).
·Are below 60 years of age.
·Do not own land over 1 acre in their own name or family
members’ name (However, owning some land is
preferable, since it will enable production of green
fodder in own land).
·Do not own any cows/buffaloes at present.
·Are not employees of Central/State Government or any
Organisation/cooperative or member of any Local Body
(nor should their spouse or father/mother/parents-in-
law/son/daughter/son-in-law/daughter-in-law be so).
·Have not benefited from the free Goats/Sheep Scheme
of the Government.
·Should be permanent resident of the Village Panchayat.
·At least 30% beneficiaries from the Village Panchayat
should necessarily belong to SC/ST (SC 29% and ST 1%)
Communities.
(iii) In order to form a viable and successful
procurement of milk by the Primary Milk Cooperative
Societies, it is preferable that at least 50 members
within a village Panchayat should pour the milk to the
Milk Cooperative Society. Hence, ordinarily around 50
beneficiaries should be provided with cows in each of
the selected Village Panchayats.
(iv) In the District, the District Collector will be overall in-
charge of the process of identification of beneficiaries.
The Regional Joint director (Animal Husbandry) (RJAD),
Project Officer (Mahalir Thittam) and Assistant Director
(Panchayats) will assist him in this regard. The District
Collector will form a village Level Committee consisting
of (i) Village Panchayat President, (ii) Vice-President, (iii)
the senior most Ward member (by age) representing
SC/ST Community, (iv) the Panchayat Level Federation
(PLF) Coordinator, (v) an active SHG representative (vi)
the Veterinary Assistant Surgeon (VAS) of the area and
(vii) the Deputy, Block Development Officer (ADW) to
identify and shortlist the list of beneficiaries per the
norms specified. The District Collector should also
ensure that necessary support is rendered to the
Committee by the Village Panchayat Assistant
concerned. The purpose of adding the Veterinary
Assistant Surgeon and Deputy Block Development
5
Page 59 Officer is to ensure that the short listed beneficiaries are
conforming to the prescribed norms.
(v)After constituting the Village Level Committee for
the selected Village Panchayats concerned, the District
Collector should arrange to convene a meeting of all the
members concerned and in that meeting, the details of
the Scheme and the eligibility conditions are to be
explained in detail. Since, the number of Village
Panchayats per District will be ordinarily only about 10
per District per year, the District Collector should
himself convene this meeting and convey the details.
(vi) The District Collector should, thereafter, fix a
Special Meeting of the Grama Sabha in the Village
Panchayat concerned to inform the details of the
Scheme to the villagers. The Veterinary Assistant
Surgeon and Deputy Block Development Officer (ADW)
will explain the salient features of the Scheme and the
eligibility details of the beneficiaries in the meeting.
Applications for the free Milch Cows will be sought for in
this Special Gram Sabha Meeting from the interested
beneficiaries.
(vii)A period of one week will also be given for further
receipt of Applications. The Applications can be given to
any of the village Level Committee members or directly
to the Village Panchayat. Thereafter, the Veterinary
Assistant Surgeon and Deputy Block Development
Officer (ADW) will arrange a meeting of the village level
Committee in the office of the Village Panchayat to
scrutinize and list out the names of all the eligible
beneficiaries for the Scheme.
(viii)The list prepared should also be got verified by
the Veterinary Assistant Surgeon and Deputy Block
Development Officer (ADW) with the Village
Administrative officer concerned, with regard to the land
ownership details and the community details. (No
certificate is however to be insisted upon and the
scrutiny of the Village Level committee and
subsequently the Gram Sabha will be considered to be
final). Only after ensuring the eligibility of the proposed
beneficiaries, the list will be approved by the village
Level Committee.
(ix)The finalized list should be placed before the Gram
Sabha for approval. The Gram Sabha should again
ensure that 30% of the beneficiaries belong to SC/ST
5
Page 60 communities.
(x)The District Collector should also arrange to send the
Veterinary Assistant Surgeon/Deputy Block
Development Officer or another official of the rank of
Deputy Block Development Officer (in case the Deputy
Block Development Officer is unable to attend) to
participate in the Gram Sabha meeting and facilitate the
discussion and finalization of the beneficiaries list.
(xi)The list finalized by Gram Sabha will be displayed in the
Village Panchayat, Notice Board and other prominent
places in the Village Panchayat.
B. Scheme for free distribution of goats/sheep to
the poorest of the poor
The Government of Tamil Nadu have proposed to launch
a “Scheme for free distribution of Goats/Sheep” for the
poorest of poor in the rural areas in order to enhance
their standard of living.
2. Implementation of the Scheme
(i)The Goats/Sheep can be procured within the State and
also from outside the State. However, the procurement
of Goats/Sheep in larger numbers from the other States
is not preferable since this category of animals (also
called ‘small ruminants’ in veterinary terminology) are
fragile or prone to diseases when transported enmasse
from long distances and different climatic zones. Hence,
unlike the Scheme for procurement of free Milch Cows
wherein cows only from other States are proposed to be
procured, it has been decided to procure Goats/Sheep
predominantly from the local market shandies available
within the State in the proximity of the beneficiaries. If
good quality animals are brought and supplied by the
breeders in the village itself, the supply of Goats/Sheep
through such breeders will be permitted.
(ii)It is presumed that about 6-7 lakh Goats/Sheep can be
procured from the shandies within the State or from the
neighbouring State shandies without causing shortage
of availability of Goats/Sheep for meat purpose and
without causing impact on the price of Goats/Sheep in
the area.
(iii)In view of the availability of about 6-7 lakh Goats/Sheep
in a year, the number of families to be assisted in each
year will be 1.5 lakh and in the current year,
6
Page 61 approximately one lakh families can be assisted since
the first quarter of the year is already over. The Gram
Sabha will be utilized to identify the poorest of the poor
beneficiaries within each village.
3. Eligibility Norms
The beneficiaries will be the poorest of the poor families
living in Village Panchayats (rural areas) who are
identified by the village Level Committee as per the
norms and whose name is approved by the Gram Sabha
as the poorest of the poor in the village.
The free Goats/Sheep will be distributed at the rate of 4
Goats/Sheep per household. In order to empower the
women, it has been decided that the actual beneficiary
will be the Woman of the household. In case there are
any transgender residing in the Village Panchayat, who
are otherwise eligible as per the criteria given below,
they will also be considered to be eligible for the
Scheme.
The beneficiaries under this Scheme should satisfy the
following eligibility criteria
·Must be the landless Agricultural labourers.
·Should be a permanent resident of the Village
Panchayat.
·The beneficiary household should have at least one
member between the age of 18 and 60 to effectively
rear the Goats/Sheep.
·Should not own any Cow/Goat/Sheep at present.
·Should not be an employee of Central/State
Government or any Organisation/Cooperative or
member of any local body (nor should their spouse or
father/mother/parents-in-law/son/daughter/son-in-
law/daughter-in-law be so).
·Should not have benefited from the free Milch Cows
Distribution Scheme of the Government.
2) Atleast 30% beneficiaries from the Village Panchayat
should necessarily belong to SC/ST (SC 29% and ST 1%)
community.
(i)The target number of beneficiaries for each District
will be decided by the Commissioner of Animal
Husbandry and Veterinary Services (CAH&VS) based
on the strength of the rural population of the District.
The Village Panchayat as well as the Block target
6
Page 62 within the District will also be based on the
proportionate rural population.
(ii)Within each District, the Village Panchayats will be
selected in such a manner that approximately one-
fifth of the beneficiaries will be covered in each Block
in a year and the beneficiaries of a particular Village
Panchyat will be fully covered within the year itself.
The Commissioner of Animal Husbandry and
Veterinary Services will work out the detailed Action
Plan in this regard and convey to the District
Collectors for implementation. In case of difficulties
in implementation of the Scheme in some of the
Village Panchayats having urbanized characters, the
District Collector will, in consultation with the
Commissioner of Animal Husbandry and Veterinary
Services, re-allocate the surplus target to other
deserving Village Panchayats.
(iii)In the District, the District Collector will be the overall
in-charge of the process of identification of
beneficiaries. The Regional Joint Director (Animal
Husbandry) (RJAD), Project Officer (Mahalir Thittam)
and Assistant Director (Panchayats) will assist him in
this regard. The District Collector will form a Village
Level Committee consisting of (i) Village Panchayat
President, (ii) Vice-President, (iii) the senior most
Ward member (by age) representing SC/ST
Community, (iv) the Panchayat Level Federation (PLF)
coordinator (v) an active SHG representative (vi) the
Veterinary Assistant Surgeon (VAS) of the area and
(vi) the Deputy Block Development Officer (ADW) to
identify and shortlist the list of beneficiaries as per
the norms specified. The District Collector should
also ensure that necessary support is rendered to the
Committee by the Village Panchayat Assistant
concerned. The purpose of adding the VAS and
Deputy BDO(ADW) is to ensure that the shortlisted
beneficiaries are conforming to the prescribed norms.
(iv)After constituting the Village Level Committee for the
selected Village Panchayats concerned, the District
Collector should arrange to convene a meeting of all
the members concerned and in that meeting, the
details of the Scheme and the eligibility conditions
are to be explained in detail. The District Collector
should himself convene this meeting in one or more
sessions in order to convey the details and the
seriousness of the selection process.
(v)The District Collector should, thereafter, fix a Special
Meeting of the Gram Sabha in the Village Panchayat
concerned to inform the details of the Scheme to the
6
Page 63 villagers. The Veterinary Assistant Surgeon and
Deputy Block Development Officer (ADW) will explain
the salient features of the Scheme and the eligibility
details of the beneficiaries in the meeting.
Applications for the free Goats/Sheep will be sought
for in this Special Gram Sabha Meeting from the
interested beneficiaries.
(vi)A period of one week will also be given for further
receipt of applications. The applications can be given
to any of the Village Level Committee members or
directly to the Village Panchyat. Thereafter, the
Veterinary Assistant Surgeon and Deputy Block
Development Officer (ADW) will arrange a meeting of
the Village Level Committee in the office of the
Village Panchayat to scrutinize and list out the names
of all the eligible beneficiaries for the Scheme.
(vii)The list prepared should also be got verified by the
Veterinary Assistant Surgeon and Deputy Block
Development Officer (ADW) with the village
Administrative Officer concerned, to confirm the
‘landless’ status of the proposed beneficiaries and
the community details. (No certificate is however to
be insisted upon and the scrutiny of the Village Level
Committee and subsequently the Gram Sabha will be
considered to be final). Only after ensuring the
eligibility of the proposed beneficiaries, the list will be
approved by the Village Level Committee.
(viii)The finalized list should be placed before the Gram
Sabha for approval. The Gram Sabha should again
ensure that 30% of the beneficiaries belong to SC/ST
(SC 29% and ST 1%) communities.
(ix)The District Collector should also arrange to send the
Veterinary Assistant Surgeon/Deputy Block
Development Officer (ADW) or another official of the
rank of Deputy Block Development Officer (in case
the Deputy Block Development Officer (ADW) is
unable to attend) to participate in the Gram Sabha
meeting and facilitate the discussion and finalization
of the beneficiaries list.
III. Solar Powered Green House Scheme
1. The Government proposed to construct “Solar Powered
Green House Scheme” for the benefit of the poor in the
rural areas and measuring about 300 square feet with
unit cost of Rs.1.80 lakhs by meeting the entire cost by
Government. The scheme aims at providing Solar
Powered Green House for the poor living below poverty
line in rural areas. Accordingly, it is proposed to
6
Page 64 construct 60,000 Solar Powered Green House of 300 sq.
ft. each year for the next five years from 2011-2012
totalling 3 lakh house.
2. Eligibility Criteria :
1. The beneficiary under Solar Powered Green House
Scheme should reside within the Village Panchayat and
find a place in the below poverty line list.
2. He/she should own a site of 300 sq. ft. with clear title
and patta.
3. Should not own any pacca concrete house and not
benefited by any other housing scheme.
4. Rs.1.50 lakhs will be earmarked for construction of
house and Rs.30,000/- for installing solar Powered Home
Lighting System.
5. The scheme will be implemented by the District
Collector so as to ensure that the construction of houses
are completed in time.
IV. Laptop Computers to students
The State of Tamil Nadu have emerged as a favoured
destination both for the domestic and multinational IT
companies. This has opened new vistas of job
opportunities for youth in Tamil Nadu. Further the
students from lower rungs of the socio-economic
pyramid also need to be equipped to participate in the
emerging market. To provide level playing field by
bridging the digital divide, develop skills and improve
human resources in consonance with the millennium
development goals, the Government of Tamil Nadu have
decided to provide Laptop computers at free of cost to
all students studying in Government and Government
aided Higher Secondary Schools, Arts & Science
colleges, Engineering Colleges and polytechnic colleges.
Accordingly the Government have issued order in G.O.
(Ms) No.1, Special Programme Implementation
Department dated 03.06.2011 for distribution of Laptop
Computer at free of cost.
Under this scheme, the students studying in
Government and Government aided schools, Arts and
Science Colleges, Engineering Colleges and Polytechnics
will be eligible. These students will be covered as
follows:
6
Page 65 Year Schools Arts/Science
College
Engineering
Colleges
Polytechnics
2011-12 Plus Two
(12
th
std.)
1
st
& 3
rd
years
students
2
nd
& 4
th
year
students
1
st
& 3
rd
year
students
2012-13 Plus Two
(12
th
std.)
3
rd
year
students
2
nd
& 4
th
Year
students
1
st
& 3
rd
year
students
2013-14 Plus Two
(12
th
std.)
- - 1
st
year
student
During the year 2011-12, laptop computers will be
distributed to 9.12 lakh students studying in 12
th
standard, 1
st
and 3
rd
year of Arts and Science Colleges,
2
nd
and 4
th
year of Engineering Colleges and 1
st
and 3
rd
year of Polytechnic colleges. The concerned Heads of
Institutions will ensure that the
dropouts/discontinued/transferred students are not
included in the list of eligible students.
V. Free Rice Scheme
Note on the Scheme of Distribution of free rice
under Universal Public Distribution System in Tamil
Nadu
In Tamil Nadu Universal Public Distribution System is
being followed and there is no differentiation as APL/BPL
categories based on income criteria for supply of
essential commodities to family cardholders under
Public Distribution System. Hence, there is no
differentiation like BPL/APL family cards in this State.
Instead family cards have been issued on the basis of
option exercised by the card holders under self-selection
process to receive either rice with all commodities or to
receive additional sugar in lieu of rice with other
commodities after verifying the genuiness of the
residence in this State.
Features of Universal Public Distribution System in Tamil
Nadu
(1)Universal Public Distribution System is the heart and
soul of State Food Policy. It is built on the principles
of non-exclusion, easy access to Public Distribution
System shops and adequate availability of food gain
6
Page 66 at an affordable price.
(2)Though Government of India advocates Targeted
Public Distribution system(TPDS), Government of
Tamil Nadu is not in favour of rigid targeting, as it
may lead to exclusion of large number of genuine
Below Poverty Line (BPL) families and vulnerable
Above Poverty Line (APL) families due to enumeration
errors and improper bench marking.
(3)Poverty is a dynamic and relative concept and hence,
it is difficult to design acceptable criteria and
methodology to measure poverty. Thus any method
used for identifying BPL families is bound to result in
some amount of exclusion of deserving families.
Further, due to unforeseen natural calamities like
droughts, floods and disaster etc., a large number of
vulnerable APL families may be forced into poverty
trap again.
(4)Rigid government system will not be able to respond
quickly to such situation. Thus targeted public
distribution system approach will always have some
families outside the Public Distribution system at any
point of time in defeating the objective of total food
security and elimination of hunger.
(5)On the other hand Universal Public Distribution
System is based on principle of self selection. Only
those who need subsidized food articles will go to the
Public Distribution System shops and not the entire
population.
(6)Based on these principles and out of years of
experiences, Government of Tamil Nadu is convinced
that Universal Public Distribution System assures
better food security to the people and therefore has
decided to continue with it.
Process for issue of family cards
On application for issue of family cards in the form
prescribed (available in the website of the Department
of Civil Supplies and Consumer Protection and can be
downloaded and used – No cost for application), the Civil
Supplies authorities verify the genuiness of the
application and recommend for issue for family card or
for rejection of cards as the case may be.
No income details are collected from the individual and
this information is not entered in the family card also.
As income, except in the case of persons employed in
the organized sector, is a dynamic variable susceptible
to undergo charges in sync with any unexpected events
in the employment market, these details are not being
6
Page 67 collected for the purpose of the existing Universal Public
Distribution System.
On the other hand, option is given to the applicant to
choose whether he would like to draw rice or not. If he
selects not to draw rice, he is given the benefit of
drawing 3kgs. extra sugar in lieu of rice in addition to
the normal entitlement of ½ kg. per person per month
subject to the maximum of 2kg per month per card.
VI. Free Distribution of Electric Fans, Mixies & Grinders to
Women
This scheme is introduced as a welfare measure for
women and intends universal coverage of women
beneficiaries belonging to families holding family cards
which are eligible for drawing rice. To make women
more effective participants in the economy, it is
imperative to relieve them from the domestic drudgery.
Therefore, the Government have decided to distribute a
package of electric Fan, Mixie and Grinder to all the
women from the families holding family cards which are
eligible to draw rice. This scheme is expected to
improve the standard of living of the poor women apart
from providing equal opportunities.
In pursuance to above, the Government have issued
Orders in G.O. Ms. 2 Special Programme Implementation
Department, Dated 03.06.2011 for free distribution of
25 lakh packages of electric fans, mixies and grinder
during 2011-12. In total about 1.83 crore women
beneficiaries will be covered in a phased manner.
2. Eligibility Criteria
All households having a family card which is eligible for
drawing rice are eligible for electric fans, mixies and
grinders, at free of cost, under this Scheme. The
benefits will be distributed only to a woman member of
these households.
In case, a household having family card which is eligible
for drawing rice, does not have any woman member it
will be given to the head of the family.
The family cards as on 30.06.2011 will be considered for
distribution of the items during the current year (2011-
12).
The benefits will be distributed to an eligible family only once.
6
Page 68 While distributing the benefits, priority should be given
to rural areas within the Assembly Constituency followed
by Town Panchayats, then Municipalities and Municipal
Corporations, if any.”
61) The concepts of livelihood and standard of living are
bound to change in their content from time to time. It is
factual that what was once considered to be a luxury has
become a necessity in the present day. It is well settled
that the concept of livelihood is no longer confined to bare
physical survival in terms of food, clothing and shelter but
also now necessarily includes basic medicines, preliminary
education, transport, etc. Hence, the State distrusting
largesse in the form of distribution of colour TVs, laptops,
etc. to eligible and deserving persons is directly related to
the directive principles of the State policy.
62)As a result, we are not inclined to agree with the
argument of the appellant that giving of colour TVs,
laptops, mixer-grinders etc. by the Government after
adhering to due process is not an expense for public
purpose. Judicial interference is permissible when the
action of the government is unconstitutional and not when
such action is not wise or that the extent of expenditure is
not for the good of the State. We are of the view that all
6
Page 69 such questions must be debated and decided in the
legislature and not in court.
63)More so, the functioning of the Government is
controlled by the Constitution, the laws of the land, the
legislature and the Comptroller and Auditor General of
India. As per Article 73 of the Constitution, the executive
power of the Union of India is co-extensive with its
legislative power. Similarly, the executive power of the
State is co-extensive with its legislative power (Article
162). In Bhim Singh (supra) , this Court has held that
the Government can frame a scheme in exercise of its
executive powers but if such a scheme entails any
expenditure, then it is required to be backed by law.
Article 266 of the Constitution lays down that all monies
received by the Central Government or by the State
Government by way of taxes or otherwise must be
credited to the Consolidated Fund of India. Article 267
also constitutes Contingency Fund of India. If any money
(except which is charged on the Consolidated Fund) is to
be withdrawn for any governmental purpose, then there
has to be an Appropriation Act under Article 266(3) read
6
Page 70 with Article 114 of the Constitution. Every department of
the Government presents its demand to the legislature
concerned and the legislature votes on the same, and
thereafter, the Appropriation Act is passed which
authorizes the Government to withdraw the money from
the Consolidated Fund. There are similar provisions
relating to the State. The Contingency Fund can be
established only by enacting a law in that behalf and not
by an executive fiat. The law creating the Contingency
Fund authorizes the purposes for which the amount in it
can be spent. This is how the money is being spent by the
Government on its schemes under the control of the
Legislature.
64)In Bhim Singh (supra) , Article 282 of the
Constitution in the context of Government expenditure on
various projects was considered. In that case, the
Government in question had framed the scheme
empowering the Members of Parliament to recommend
works and projects in their respective constituencies. The
said Scheme was challenged on the ground that the same
has been formulated without enacting any law in that
7
Page 71 behalf. This challenge was negatived by this Court
principally on the ground that any expenditure which the
Government incurs on the said Scheme is authorized by
the Appropriation Act and the Appropriation Act is a law as
contemplated by Article 282. This Court also negatived
the challenge on the ground that the same is not for public
purpose.
65)In addition to the legislative control by way of
Appropriation Acts, the rules framed by the Parliament
under Article 118 and by the State Legislatures under
Article 208 of the Constitution of India, also create a
mechanism to keep a check on the expenditure incurred
by the Government.
66)As far as State of Tamil Nadu is concerned, the
Legislature has framed rules under Article 208 of the
Constitution and these rules are known as The Tamil Nadu
Legislative Assembly Rules. Under Chapter XX of the said
Rules, a Public Accounts Committee is set up and usually
such Public Accounts Committee is headed by a Member
of the Opposite Party. The Public Accounts Committee
scrutinizes the Government accounts and submits its
7
Page 72 report to the Legislature for its consideration. So, apart
from the Appropriation Act, there is also effective control
over the Government accounts and expenses through the
Public Accounts Committee.
67)In addition to the Legislative control, the founding
fathers of the Constitution have also thought it fit to keep
a check on Government accounts and expenses through
an agency outside the Legislature also. Article 148 has
created a constitutional functionary in the form of the
Comptroller and Auditor General of India (CAG). CAG
examines the propriety, legality and validity of all
expenses incurred by the Government. The office of CAG
exercises effective control over the Government accounts.
68)If we analyze the abovementioned articles and the
rules of procedure, it is established that there are various
checks and balances within the mandate of the
Constitution before a scheme can be implemented. As
long as the schemes come within the realm of public
purpose and monies for the schemes is withdrawn with
appropriate Appropriation bill, the court has limited power
to interfere in such schemes.
7
Page 73 69)Further, the appellant contended by referring to
various foreign cases to highlight the principle that public
money cannot be used to create private assets. In our
opinion, there is no merit in this contention also. The
purpose of the schemes is to enforce the directive
principles of state policy. In what way the state chooses to
implement the directive principles of state policy is a
policy decision of the State and this Court cannot interfere
with such decisions. Ordinarily, this Court cannot interfere
with policy decisions of the government unless they are
clearly in violation of some statutory or Constitutional
provision or is shockingly arbitrary in nature. In Ekta
Shakti Foundation vs. Government of NCT of Delhi
(2006) 10 SCC 337, it was held:-
10 “While exercising the power of judicial review of
administrative action, the Court is not the appellate authority
and the Constitution does not permit the Court to direct or
advise the executive in matter of policy or to sermonize any
matter which under the Constitution lies within the sphere of the
Legislature or the executive, provided these authorities do not
transgress their constitutional limits or statutory power. The
scope of judicial enquiry is confined to the question whether the
decision taken by the Government is against any statutory
provisions or is violative of the fundamental rights of the citizens
or is opposed to the provisions of the Constitution. Thus, the
position is that even if the decision taken by the Government
does not appear to be agreeable to the Court it cannot interfere.
The correctness of the reasons which prompted the Government
in decision making, taking one course of action instead of
another is not a matter of concern in judicial review and the
Court is not the appropriate forum for such investigation.
7
Page 74 In the light of settled principle and observing that in the
given case no such circumstances prevail as envisaged for
judicial enquiry; we are not persuaded to interfere with the
policy decision.
70)With regard to the contention that distribution of
State largesse in the form of colour TVs, laptops, mixer-
grinders, etc., violates Article 14 of Constitution as the
unequals are treated equally. Before we venture to answer
this question, we must recall that these measures relate
to implementation of Directive Principles of State Policy.
Therefore, the principle of not to treat unequals as equal
has no applicability as far as State largesse is concerned.
This principle applies only where the law or the State
action imposes some burden on the citizen either financial
or otherwise. Besides, while implementing the directive
principles, it is for the Government concerned to take into
account its financial resources and the need of the people.
There cannot be a straight jacket formula. If certain
benefits are restricted to a particular class that can
obviously be on account of the limited resources of the
State. All welfare measures cannot at one go be made
7
Page 75 available to all the citizens. The State can gradually
extend the benefit and this principle has been recognized
by this Court in several judgments.
Issue No. 3
Whether this Court has inherent power to issue
guidelines by application of Vishaka principle?
71)It is the stand of the appellant that there is legislative
vacuum in the given case. Hence, the judiciary is
warranted to legislate in this regard to fill the gap by
application of Vishaka principle. However, learned
counsel for the respondent made a distinction between
the Vishaka (supra) and the given case. While
highlighting that in Vishaka (supra), there was no
legislation to punish the act of sexual harassment at work
place, therefore, the judiciary noting the legislative
vacuum framed temporary guidelines until the legislatures
passed a bill in that regard. However, in the case at hand,
there is a special legislation, namely, the Representation
of People Act wherein Section 123 enumerates
7
Page 76 exhaustively a series of acts as “corrupt practice”.
Therefore, this is not a case of legislative vacuum where
the judiciary can apply its inherent power to frame
guidelines.
Issue No. 4:
Whether Comptroller and Auditor General of India
has a duty to examine expenditures even before
they are deployed?
72)As reiterated earlier, the Comptroller and Auditor
General of India is a constitutional functionary appointed
under Article 148 of the Constitution. His main role is to
audit the income and expenditure of the Governments,
Government bodies and state-run corporations. The
extent of his duties is listed out in the Comptroller and
Auditor General’s (Duties, Powers etc.) Act, 1971. The
functioning of the Government is controlled by the
Constitution, the laws of the land, the legislature and the
Comptroller and Auditor General of India. CAG examines
the propriety, legality and validity of all expenses incurred
by the Government. The office of CAG exercises effective
7
Page 77 control over the government accounts and expenditure
incurred on these schemes only after implementation of
the same. As a result, the duty of the CAG will arise only
after the expenditure has incurred.
Issue No. 5
Whether the writ jurisdiction will lie against a
political party?
73) Learned senior counsel for the respondent (State of
Tamil Nadu) raised the issue of jurisdiction stating that
political parties are not State within the meaning of Article
12 of the Constitution of India and therefore, no writ of
any nature can be issued against them either under Article
226 or Article 32 of the Constitution of India or any other
provision of the Constitution or any other law. The correct
forum is the Election Tribunal and not writ jurisdiction.
74) Admittedly, the respondents never raised any
objection relating to the jurisdiction in the High Court or
even in the pleadings before this Court. It is only in the
oral submissions that this issue has been raised.
75) In the matters relating to pecuniary jurisdiction and
7
Page 78 territorial jurisdiction, the objection as to jurisdiction has
to be taken at the earliest possible opportunity. But, this
case relates to the jurisdiction over the subject matter.
This is totally distinct and stands on a different footing. As
such, the question of subject matter jurisdiction can be
raised even in the appeal stage. However, as this petition
is fit for dismissal de hors the jurisdiction issue, the
jurisdiction issue is left open.
76)Summary:
(i) After examining and considering the parameters laid in
Section 123 of RP Act, we arrived at a conclusion that the
promises in the election manifesto cannot be read into
Section 123 for declaring it to be a corrupt practice. Thus,
promises in the election manifesto do not constitute as a
corrupt practice under the prevailing law. A reference to a
decision of this Court will be timely. In Prof.
Ramchandra G. Kapse vs. Haribansh Ramakbal
Singh (1996) 1 SCC 206 this Court held that “..Ex facie
contents of a manifesto, by itself, cannot be a corrupt
practice committed by a candidate of that party.”
(ii) Further, it has been decided that the schemes
7
Page 79 challenged in this writ petition falls within the realm of
fulfilling the Directive Principles of State Policy thereby
falling within the scope of public purpose.
(iii) The mandate of the Constitution provides various
checks and balances before a Scheme can be
implemented. Therefore, as long as the schemes come
within the realm of public purpose and monies withdrawn
for the implementation of schemes by passing suitable
Appropriation Bill, the court has limited jurisdiction to
interfere in such schemes.
(iv) We have also emphasized on the fact that judicial
interference is permissible only when the action of the
government is unconstitutional or contrary to a statutory
provision and not when such action is not wise or that the
extent of expenditure is not for the good of the State.
(v)It is also asserted that the schemes challenged under
this petition are in consonance with Article 14 of the
Constitution.
(vi) As there is no legislative vacuum in the case on
hand, the scope for application of Vishaka principle does
not arise.
7
Page 80 (vii) The duty of the CAG will arise only after the
expenditure has incurred.
(viii) Since this petition is fit for dismissal dehors the
jurisdiction issue, the issue of jurisdiction is left open.
Directions:
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.
78) As observed in the earlier part of the judgment, this
Court has limited power to issue directions to the
legislature to legislate on a particular issue. However, the
Election Commission, in order to ensure level playing field
8
Page 81 between the contesting parties and candidates in
elections and also in order to see that the purity of the
election process does not get vitiated, as in past been
issuing instructions under the Model Code of Conduct. The
fountainhead of the powers under which the commission
issues these orders is Article 324 of the Constitution,
which mandates the commission to hold free and fair
elections. It is equally imperative to acknowledge that the
Election Commission cannot issue such orders if the
subject matter of the order of commission is covered by a
legislative measure.
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
8
Page 82 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.
80)We hereby direct the Election Commission to take up
this task as early as possible owing to its utmost
importance. We also record the need for a separate
legislation to be passed by the legislature in this regard
for governing the political parties in our democratic
society.
81)In the light of the above discussion, taking note of
statutory provisions of the RP Act, which controls only
candidate or his agent, mandates provided under the
directive principles, various guidelines such as income
limit, preference to women, agricultural labourer etc as
detailed in the counter affidavit by the State, we find no
8
Page 83 merit in the appeal as well as in the transferred case.
With the above observation as mentioned in paragraph
Nos. 77-80, the appeal and the transferred case are
dismissed. No order as to costs.
...…………….………………………J.
(P. SATHASIVAM)
.…....…………………………………J.
(RANJAN GOGOI)
NEW DELHI;
JULY 05, 2013.
8
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