Hon'ble Dr. Vijay Laxmi,J.
Heard Sri Ajmal Khan Advocate in person, Sri V.K. Dubey, learned counsel for the Election Commission of India, Sri S.B. Pandey, learned Assistant Solicitor General of India and Sri Vijai Bahadur Singh, learned Advocate General on behalf of the respondent No.3 State of U.P.
It is not necessary to issue notice to the respondent No.4 keeping in view the nature of dispute involved at this stage and in view of the judgment that we are delivering today.
The present writ petition has been filed alleging that the election manifesto of the respondent No.4 Samajwadi Party while fielding its candidates for contesting Assembly Elections of the State in 2012 promulgated a manifesto with a view to influence voters and cast their votes in favour of the said said party, declaring false promises knowingly, which amounts to a corrupt practice and even otherwise, such practices in order to be prevented in future, should be taken notice of by the Election Commission of India for issuing necessary directions. He, therefore, submits that this public interest litigation should be entertained and directions be issued for appropriate action.
In order to substantiate his submissions, Sri Khan submits that so far as corrupt practice is concerned, any form of undue influence as defined under Section 123 (2) of the Representation of Peoples Act, 1951 would amount to a corrupt practice. The respondent Samajwadi Party on the basis of such false promise particularly with regard to distribution of laptops in the field of education, secondly with regard to giving the status of scheduled caste to the most backward Muslim minority Community and thirdly, of providing electronically/ solar charged rickshaws to manual rickshaw pullers were all false promises, that were given knowingly and which were not within the capability of the party to extend. This would amount to an inducement of voters resulting in a corrupt practice. He, therefore, submits that such a political party should be de-recognized and deprived of its right and privileges under the Election Symbols (Reservation & Allotment) Order, 1968. Consequently, the Election Commission of India should withhold all such privileges to the Samajwadi Party.
Sri Khan further prays that a mandamus be issued directing the Election Commission of India to issue reformative orders to all political parties in order to avoid allurement of voters on false, deceptive and wrong promises for which the Election Commission of India has ample powers under Article 324 of the Constitution of India.
Replying to the said submissions, learned counsel for the respondents particularly, Sri Vijai Bahadur Singh, learned Advocate General has invited the attention of the Court to the Apex Court decision in the case of S. Subramaniam Balaji Vs. State of Tamil Nadu and others: (2013) 9 SCC 659 [paragraph-84] to submit that any promise made in an election manifesto of a political party, would not fall within the definition of a corrupt practice. Even otherwise, if a corrupt practice has resulted in materially affecting the results of any elections that were held in the year 2012, the same could be made subject matter of an election petition by the aggrieved person of a particular constituency which is not the case here, hence the writ petition for such a relief would not be maintainable.
On the second issue of issuing any orders for reformation, Sri Singh has relied on paragraph 79 of the above noted decision to urge that guidelines cannot be framed by the Court in this regard.
Countering the said submissions Sri Khan contends that the judgment in the case of S. Subramaniam Balaji (supra) as relied upon by the learned Advocate General is not on the issue so as to prevent this Court from issuing any directions to the Election Commission of India for taking up reformative measures. Sri Khan relies on the judgment in the case of Union of India Vs. Association for Democratic Reforms and another: AIR 2002 SC 2112 [paragraph-56], and Kuldip Nayar. Vs. Union of India & Ors.: AIR 2006 SC 3127 [paragraph-327], to contend that if the Election Commission has the power to take reformative steps, then this Court in exercise of jurisdiction under Article 226 of the Constitution of India can issue directions to the Election Commission for taking appropriate steps even if no guidelines can be directly framed by the Court. He, therefore, contends that the judgment relied upon by the learned Advocate General, does not in any way bar this Court to exercise its discretion in issuing a direction to the Election Commission of India for taking reformative steps particularly, in relation to such false promises being made by the political parties that can never be performed by them. Sri Ajmal Khan submits that the power to grant the status of a scheduled caste is nowhere available to the State Government and is exclusively within the domain of the Centre. Thus, a false promise of giving status of a scheduled caste to the extremely backward Muslims minorities was a promise that was knowingly false beyond the competence of the State and, therefore, the respondent No.4 political party does not deserve to enjoy the privilege of the 1968 Order. It is in this background that he submits that a direction be issued to the Election Commission of India to take appropriate steps.
Having given a thoughtful consideration to the submissions raised, we find that the judgment in the case of S. Subramaniam Balaji (supra), squarely covers the field in no uncertain terms in para 84.1 holding that a promise in a manifesto that remains unfulfilled by itself cannot be a corrupt practice. The Apex Court also relied on its earlier decision in the case of Ramchandra G. Kapse. Vs. Haribansh Ramakbal Singh: (1996) 1 SCC 206. Thus, the first argument of the petitioner does not hold water. As per the constitutional and legal mandate even otherwise the results of an Assembly Elections can be questioned on the ground of corrupt practice only through an election petition under the Representation of Peoples Act, 1951.
The second issue relating to issuing of directions to the Election Commission of India has to be understood in the context of the prayer made in this writ petition. In the case of S. Subramaniam Balaji (supra), while deciding issue No.3, what has been held is that the Court does not enjoy any inherent power to issue guidelines that are already provided under the Representation of Peoples Act, 1951 where Section 123 (2) enumerates a series of acts as falling within the definition of corrupt practices. Thus, in the absence of any legislative vacuum, it was held that the Court will not have any such inherent power.
Reiterating the restraint to be exercised by Courts through judicial interference, in para 84.4, of the Balaji case the Hon'ble Supreme Court ruled that unless the action of Government is unconstitutional or contrary to the statutory provisions, an interference should not be made merely on the ground that the action was not wise or that the extent of expenditure is not good for the State.
However, the aforesaid ratio of the decision does not prevent the Courts from issuing any appropriate direction for the consideration of any such steps to be taken by the Commission that may be necessary to curb any mal-practice that may be constitutionally not permissible. In the instant case, the petitioner has raised an issue that the promise of giving the status of scheduled caste to extremely backward Muslims was a false promise declared in the manifesto that was done knowingly to deceive the voters who are not well aware of the distinction of doctrine of separation of powers and doctrine of distribution of powers.
Admittedly, the status of scheduled caste can be granted by the Central Government during the Presidential Order or by bringing about any alteration in the same which is exclusively in the domain of the Central Government. The State Government in its exercise of authority constitutionally has no decisive role to play in the same. The petitioner, therefore, is not wrong in his submission that such an impression being given to the voters who are not well read to understand the above time distinctions of a working of the Constitution, might have been allured to vote for the respondent No.4 Samajwadi party whereas, no State Government would have power to do so. But the aforesaid impression can also be possibly explained by a political party to mean that the promise was to fight for such a status and not to grant it.
It is in this context that the petitioner has prayed for a direction to the Election Commission for bringing about reformative measures. The issue, therefore is, can a direction be issued by this Court to the Election Commission for a consideration of the same.
It is no doubt true that a free and fair election is a concept inherent in the democratic values adopted by our polity as has been indicated extensively in the Constitution Bench judgment relied upon by Sri Khan in the case of Kuldip Nayar (supra). It is no longer necessary to extract or repeat the observations made therein vis-a-vis a free and fair election to be ensured by the Commission of India. In this direction, Sri Khan has rightly referred to the Apex Court decision in the case of Union of India Vs. Association for Democratic Reforms and another (supra) where the Apex Court was considering the right of citizens to know about the criminal antecedents and other important steps which were necessary for choosing a candidate of one's choice. Thus, the directions which were issued by the High Court for a candidate to provide information, was found to be a step to maintain purity of elections. Consequently, Hon'ble Supreme Court upheld the exercise of power for issuing necessary directions to the Election Commission of India to invoke Article 324 of the Constitution of India calling upon a candidate to disclose the information about himself at the time of contesting elections. The Court, therefore, did exercise its power by issuing a mandamus to that effect and the argument in this regard as is being advanced by Sri Khan was upheld. The aforesaid judgment therefore, is not in conflict with the decision relied on by the learned Advocate General in the case of S. Subramaniam Balaji (supra). The judgment in the case of Union of India Vs. Association of Democratic Reforms (supra) is a three-Judges decision whereas, the judgment in the case of S. Subramaniam Balaji (supra) is a two-judges pronouncement of the Apex Court.
Consequently, we are of the opinion that in order to ensure fairness and purity and streamlining of any procedure, the Election Commission of India can be called upon by this Court to invoke its authority under Article 324 of the Constitution of India to take such preventive or reformative measures that the Commission may find necessary to avoid any such malady and prevent the political parties from deliberately promising something which otherwise, may not be constitutionally permissible for them to do so.
We, therefore, give liberty to the petitioner to approach the Election Commission of India for any such redressal along with his suggestions and it shall be open to the Election Commission of India to take any such steps that may fall within its authority under Article 324 of the Constitution of India in order to regulate the activities of the political parties so as to avoid any form of practice that may be necessary to maintain the purity of elections.
The petition stands disposed of with the said observations.
Order Date :- 14.9.2016 Rajneesh) [Dr. Vijay Laxmi,J.] [Amreshwar Pratap Sahi,J.]