published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40527
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 5130 OF 2013
3 (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 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 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 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 15/17th 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 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 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 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 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 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 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 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 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 & 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 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 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.
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 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 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 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 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 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 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:
“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 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 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.
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 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 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 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, (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 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 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 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 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 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 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 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
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 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 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 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 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 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 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.
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 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 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 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 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 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.
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
(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 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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Bride should have completed |
| |a) Age Limit |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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Minimum age of 20 years for |
| |a) Age Limit |the bride and below 40 years|
| | |for the bridegroom. |
| |b) Income Limit |No income ceiling. |
(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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |18 years |
| |a) Age Limit | |
| |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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |18 years |
| |a) Age Limit | |
| |b) Income Limit |Not exceeding Rs.24,000/- |
| | |per annum |
(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 |Rs.25,000/- (Rs.15,000/- |
| |Educational Qualification |DD/Cheque, Rs.10,000/- NSC |
| | |Certificate) along with 4 |
| | |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Minimum 18 years |
| |a) Age Limit | |
| |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
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 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 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 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 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, 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
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 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 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:
|Year |Schools |Arts/Science |Engineering |Polytechnics |
| | |College |Colleges | |
|2011-12 |Plus Two |1st & 3rd |2nd & 4th |1st & 3rd |
| |(12th std.) |years |year students|year students|
| | |students | | |
|2012-13 |Plus Two |3rd year |2nd & 4th |1st & 3rd |
| |(12th std.) |students |Year students|year students|
|2013-14 |Plus Two | - |- |1st year |
| |(12th std.) | | |student |
During the year 2011-12, laptop computers will be distributed to 9.12
lakh students studying in 12th standard, 1st and 3rd year of Arts and
Science Colleges, 2nd and 4th year of Engineering Colleges and 1st and
3rd 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 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 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.
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 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 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 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 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.
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.
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 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 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 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 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 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.
(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 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 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 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.
-----------------------
72
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
1
2 CIVIL APPEAL NO. 5130 OF 2013
3 (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 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 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 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 15/17th 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 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 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 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 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 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 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 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 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 & 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 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 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.
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 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 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 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 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 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 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:
“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 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 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.
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 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 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 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, (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 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 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 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 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 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 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 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
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 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 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 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 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 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 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.
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 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 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 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 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 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.
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
(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 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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Bride should have completed |
| |a) Age Limit |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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Minimum age of 20 years for |
| |a) Age Limit |the bride and below 40 years|
| | |for the bridegroom. |
| |b) Income Limit |No income ceiling. |
(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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |18 years |
| |a) Age Limit | |
| |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 |Rs.25,000/- along with 4 |
| |Educational Qualification |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |18 years |
| |a) Age Limit | |
| |b) Income Limit |Not exceeding Rs.24,000/- |
| | |per annum |
(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 |Rs.25,000/- (Rs.15,000/- |
| |Educational Qualification |DD/Cheque, Rs.10,000/- NSC |
| | |Certificate) along with 4 |
| | |gms. gold coin (for those |
| | |who have studies up to 10th |
| | |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 |Minimum 18 years |
| |a) Age Limit | |
| |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
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 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 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 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 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, 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
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 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 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:
|Year |Schools |Arts/Science |Engineering |Polytechnics |
| | |College |Colleges | |
|2011-12 |Plus Two |1st & 3rd |2nd & 4th |1st & 3rd |
| |(12th std.) |years |year students|year students|
| | |students | | |
|2012-13 |Plus Two |3rd year |2nd & 4th |1st & 3rd |
| |(12th std.) |students |Year students|year students|
|2013-14 |Plus Two | - |- |1st year |
| |(12th std.) | | |student |
During the year 2011-12, laptop computers will be distributed to 9.12
lakh students studying in 12th standard, 1st and 3rd year of Arts and
Science Colleges, 2nd and 4th year of Engineering Colleges and 1st and
3rd 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 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 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.
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 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 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 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 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.
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.
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 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 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 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 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 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.
(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 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 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 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.
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