If a candidate makes an outlandish election promise, it is for the voter to decide whether to buy it or not. While the central poll panel labours over what is essentially a policy matter, an election practice that is actually problematic is not getting its attention
In 1999, the Association for Democratic Reforms filed a public interest lawsuit against the Election Commission of India (ECI), asking it to make all state and national election candidates disclose all pending criminal cases.
Remember that the Right to Information law came into force much later in 2005. The idea of this lawsuit was that in order to make an informed choice, voters must know criminal antecedents, if any, of the candidates. The Delhi high court upheld the demand of the petitioner and went further by asking disclosure about wealth, loans from public banks and education background. The case went into appeal to the Supreme Court (SC).
The government of India appealed and all political parties intervened and were determined to overturn the Delhi high court order. Their main contention was that ECI had no business to insist on disclosure beyond what was required by the election law. The law as it was just required information on name, age and party affiliation. Nothing else.
The objection to the high court order was that ECI could not insist on information beyond the law. And that it was tantamount to usurping the legislative turf, a domain strictly meant for lawmakers. But thankfully the SC in March 2003 upheld the original judgment on the principle of the voters’ right to know (they cannot exercise their right to vote without adequate information). And candidates who submit self-sworn affidavits cannot lie about their criminal background, so that information is authentic.
By now it is a widely accepted practice in all elections, including municipal and village council elections, that the detailed affidavits regarding criminal cases, wealth, liabilities and educational background are available in the public domain. No government or political party can object, and the voters at large understand and accept that such information is required at the very least.
The ECI first said no, then yes
This background is worth recalling in light of a new case before the SC to do something about the freebie culture and reckless promises made in political manifestos. The SC sought a response from the ECI to which it responded in March.
The official response in an affidavit of the ECI says that, “.. offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse effect on the economic health of the State is a question that has to be considered and decided by the voters of the state.”’
It also added that, “The ECI cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action, without enabling provisions in the law, would be an overreach of powers.”
In other words, this is beyond ECI’s mandate and truly in the domain of lawmakers. This is indeed a matter between the voters and the party which is campaigning. If the candidates make outlandish and incredible promises, the voters can decide whether to vote or not. Why should the ECI intervene? Its job is to conduct free and fair elections in an atmosphere free from fear, coercion, bribery and fraud.
But in October, the ECI changed its mind. It issued a suo motu letter to all political parties, proposing to change the model code of conduct (MCC). That change will now have new disclosure requirements about freebies promised, and “mandate [the] political parties to inform voters at large about financial ramifications of their promises in manifesto as against well-defined quantifiable parameters.” It has included a detailed proposed format, which has two parts.
In the first part, the political party will have to spell out the impact of their expenditure proposals on the Union or state finances including information about news source of revenues, expenditure commitments and fiscal sustainability. And, in the second part, the Union or state government will be required to submit the current fiscal health report card.
The rationale for this suo motu letter, the ECI says, is that it cannot overlook the impact of some poll promises on the conduct of free and fair elections. It seems quite contradictory to the affidavit the ECI submitted to the Supreme Court back in March.
What happened between March and October that made the ECI change its stance (if not its mind)? Maybe there’s a clue to this from the statement of the then Chief Justice in July. He said that unrealistic poll promises are a serious problem, and need to be controlled.
The court further observed, “God save the ECI if it’s saying that we can’t do anything when the electorates are sought to be bribed through freebies.” Did this statement spur the ECI into issuing a letter? Or was it also the speech also in July by the Prime Minister, where he decried the growing “revadi culture.”
PM Modi on revadi culture
There has been a national debate on what constitutes freebies versus what is the legitimate and essential service to be provided by the government. For instance, the free food grain scheme running now for 33 months, with expenditure of over Rs 4 lakh crore is not being called a freebie. Or the fertiliser subsidy where farmers are able to buy it for only 25% of the cost is not a freebie. It costs the exchequer Rs 2 lakh crore.
As is evident, these are policy matters and certainly beyond the mandate of ECI and conduct of elections. But it looks like the ECI is keen to modify the MCC and include some regulation of freebies promised in manifestos.
While it tries to make elections free and fair, it should consider barring candidates with serious criminal cases from contesting. The ECI has repeatedly asked the government and Parliament to pass suitable laws to bar such criminally tainted candidates. But lawmakers have not acted for over two decades.
As noted by the Supreme Court in 2003, in absence of law, the court can step into the vacuum and pass orders in public interest, and removing criminals from the ballot is surely in public interest. The proportion of elected candidates with criminal charges, even serious ones like rape, assault and murder has been rising steadily since the past 15 years, in both central and state legislatures. It would be good to see the ECI exert its energies also on this issue, which has been pending for too long.