The Election Commission has told the Supreme Court that offering or distribution of any freebies either before or after an election is a policy decision of the party concerned and whether such policies are financially viable or have adverse effect, has to be decided by the voters of that State.
In its affidavit, the EC said, "The Election Commission of India 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."
The poll panel said, "... It is also stated 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 said that in December 2016, a set of 47 proposals on electoral reforms has been sent to the Centre in respect of reforms relating to political parties of which one chapter deals with "de-registration of political parties".
"It is also submitted that the Election Commission of India has also made recommendations to the Law Ministry to enable it to exercise the powers to de-register a political party and to issue necessary orders regulating registration and de-registration of political parties," the poll panel said.
The commission said that in so far as the prayer for of the petitioner Ashwini Kumar Upadhyay that the EC may be directed to seize the election symbol/deregister the political party which promises/distributes freebies from public fund, the Supreme Court in its verdict of 2002 had directed that the EC had no power to cancel the registration of a political party except for three grounds.
Elaborating the three grounds, which include where a political party has obtained registration by practising fraud or forgery, where a registered political party amends its nomenclature of association, rules and regulations and informing the EC that it has ceased to have faith and allegiance to the Constitution.
The third exception includes any like ground where no enquiry is called for on the part of the commission.
"As per the said judgement of his court, it is observed that ECI has no power to de-register a political party, except on three grounds. It is submitted that prayer made in the writ petition that directs the ECI to seize symbols/deregister the political party which promises/distribute irrational freebies from public funds, does not fall under any of the said three exceptions," the Commission said.
The poll panel said that Mr. Upadhyay has also sought a direction to ECI to insert an additional condition that political parties shall not promise/distribute freebies from the public fund before election.
The commission said that the Election Symbols Order of 1968 has provisions which deal with recognition of national parties and continued recognition of such state and national parties.
"The said provisions grant recognition and continuation of such recognition on only one touchstone-electoral performance. An addition of another condition that is barring political parties from promising/distributing freebies from public funds before election, will result in a situation where the parties will lose their recognition even before they display their electoral performance in the elections," it said.
It added that intent behind the provisions is to grant or take away recognition of a party based on electoral performance, exercise of this power by the EC before the election will defeat the very purpose of these provisions.
The poll panel said that model code of conduct guidelines have been framed by it after consultation with recognised political parties.
"The promises made in manifestos are not enforceable under election law; however, the ECI vide letter dated December 27, 2016, advised all the recognised political parties to submit a declaration along with the copies of the manifestoes that programme and polices and also to see the that the promises made therein are in consonance with the Model Code of Conduct," it said.
On January 25, the top court had sought replies from the Centre and the EC on a PIL seeking direction to seize the symbol or deregister a political party that promises or distributes "irrational freebies" before polls, saying it is a “serious issue” as sometimes "freebie budget is going beyond regular budget".
The plea, filed ahead of recent assembly polls in five states, said there should be a total ban on such populist measures to gain undue political favour from voters as they violate the Constitution and the EC should take suitable deterrent measures.
The plea urged the court to declare that the promise of irrational freebies from public funds before elections unduly influences the voters, disturbs the level playing field and vitiates the purity of the poll process.
The petition filed through advocate Ashwani Kumar Dubey has, as an alternative, sought a direction to the Centre to enact a law in this regard.
