Will EC’s notice on Tamil Nadu election manifesto promises pass legal test?

Free rice, laptops and mobile phones—voters in Tamil Nadu are spoiled for choice when it comes to election freebies. But who will pay for all this generosity?

In the first intervention of its kind, the Election Commission (EC) has issued notices to the chiefs of both key regional parties in Tamil Nadu—chief minister J. Jayalalithaa of the ruling All India Anna Dravida Munnetra Kazhagam (AIADMK) and K. Karunanidhi of the opposition Dravida Munnetra Kazhagam (DMK)—under the guidelines on election manifesto of model code of conduct (MCC) on the grounds that their election manifestos do not “substantially” fulfil the guidelines.

The big question, however, remains whether such an intervention (the EC is yet to take a final call on the issue) would stand legal ground. It is the first case ever, has not been tested before legally and the model code of conduct does not go into the specific details of the quantum of populist promises.

While the AIADMK and DMK have announced the maximum sops, other political parties too have announced freebies for different target groups like women and youth.

The EC, in almost identical notices to both the leaders, asked them to explain their stand on “non-compliance of the guidelines of the Commission and also reflect the rationale for the promises made in your manifesto and broadly indicate the ways and means to meet the financial requirement for the same.”

The EC’s notice was in response to complaints filed against the content of manifestos by both DMK and AIADMK. The poll watchdog asked both the leaders to send their response by 5pm on Sunday. According to an update by the EC, while the AIADMK furnished its reply on Sunday, the DMK has requested more time and the matter is under consideration by the Commission.

“This is a first of a kind notice by the EC. The first time that a political party has been asked to explain its stance under section 8 of the model code of conduct regarding promises in poll manifestos. We will factor in their responses and a final call will be taken on it,” a senior official from the EC said, requesting anonymity.

Section 8 of the MCC states, among other things, “In the interest of transparency, level-playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.”

In its election manifesto, the AIADMK announced a waiver of all farm loans, free laptops for Class X and XII students, free cellphones for all ration card holders and government reimbursement of education loans, whereas DMK announced cellphones at subsidized rates, waiving off of education loans for college students and 20 kg free rice per month.

Experts said that it was unlikely that courts would interfere with the EC order.

“Once the election process starts, courts don’t interfere. The Election Commission can take action when there is a violation of model code of conduct,” a lawyer said, on the condition on anonymity.

Srijoni Sen, head of the public law vertical at Vidhi Centre for Legal Policy, said that the apex court has previously directed the Election Commission to issue guidelines with respect to a level-playing field and electoral promises.

“It’s in fact a responsibility placed on the political parties to include details of how they intend to fulfil electoral promises they make. It is unlikely that it will be successfully challenged because the Supreme Court directed these to be included as guidelines and now they are part of the model code of conduct. It isn’t an independent decision of the EC,” Sen said.

Sen was referring to a July 2013 decision of the Supreme Court in the case of S. Subramaniam Balaji versus Government of Tamil Nadu, where a two-judge bench comprising justices P. Sathasivam and Ranjan Gogoi directed the Election Commission to frame guidelines ensuring a level-playing field for political parties.

The case came in the wake of freebies being given by the then DMK government, which certain petitioners had challenged as corrupt practices. The apex court ruled that the same was not a corrupt practice, but noted that the “reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people”.

According to Jagdeep Chhokar, founder member of Delhi-based non-governmental organization Association for Democratic Reforms, said that there may not be enough ground to challenge this in the court of law.

“According to me, this order cannot be challenged legally because the EC’s guidelines itself states that the Supreme Court has given explicit powers to the Commission to take a view and eventually initiate action against certain promises in an election manifesto,” Chhokar said.

“This order protects the powers of the EC and its assessment in this case will be final. It is not about giving a notice to one party and not to another, it is about judging each promise on its merit—what is the promise, what is the rationale behind it and is the promise achievable or not,” he added.