# S. SUBRAMANIAM BALAJI -r v. THE GOVERNMENT OF TAMIL NADU & ORS

- **Citation:** [2013] 13 S.C.R. 668
- **Court:** Supreme Court of India
- **Decided:** 2013-07-05
- **Case number:** Civil Appeal No. 5130 of 2013
- **Bench:** P. Sathasivam, RANJAN GOGOi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/s-subramaniam-balaji-r-v-the-government-of-tamil-nadu-ors-28987
- **Pages:** 84

## Headnote

Representation of the People Act, 1951 -
s. 123 -
J.t
Elections - Promises made by political parties in their election
c manifesto - If amounts to 'corrupt practices' as per s.123 -
..._
Held: Promises in the election manifesto cannot be read into
s. 123 for declaring it to be a corrupt practice - Promises in
the election manifesto do not constitute as a corrupt practice
under the prevailing law - However, reality cannot be ruled
D out that distribution of freebies of any kind, undoubtedly,
--f
influences all people - It shakes the root of free and fair
elections to a large degree - Considering that there is no
enactment that directly governs the contents of the election
manifesto, the Election Commission is directed to frame
E guidelines for the same in consultation with all the recognized
political parties - 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 done before
F 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 - Election
Commission directed to take up this task as early as possible
owing to its utmost importance - Also, there is need for a
G
separate legislation to be passed by the legislature in this
,._~
regard for governing the political parties - Constitution of
India, 1950 - Art. 324.
Policy - Government policy - State Largesse - Scheme
•
framed by State for free distribution of Colour Television Sets
H
668
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
669
TAMIL NADU
(CCTVs) to eligible families in the State -
Scheme
A
challenged in writ petition - Whether the scheme was within
the ambit of public purpose and if yes, was it violative of Art. 14
of the Constitution - Held: The mandate of the Constitution
provides various checks and balances before a Scheme can
be implemented -
Therefore, as long as a scheme comes
8
within the realm of public purpose and monies withdrawn for
implementation of the scheme by passing suitable
~-
Appropriation Bill, the Court has limited jurisdiction to interfere
in such scheme - Judicial interference is permissible only
when action of the government is unconstitutional or contrary c
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
- The scheme in question fell within the realm of fulfilling the
Directive Principles of State Policy thereby falling within the
scope of public purpose and was a/so in consonance with
D
j.
Art. 14 of the Constitution - Scope for application of the
principle laid down in Vishaka case did not arise as there was
no legislative vacuum in the case on hand -Constitution of
India, 1950 - Art. 14 - Representation of the People Act, 1951
- s.123.
E
Constitution of India, 1950 - Art. 148 - Comptroller and
Auditor General of India (GAG) - Role and duties of - Held:
,..
CA G is a constitutional functionary appointed ul Art. 148 of the
Constitution - His main role is to audit the income and
expenditure of the Governments, Government bodies and
F
State-run corporations - GAG examines the propriety, legality
and validity of all expenses incurred by the Government -
Comptroller and Auditor General's (Duties, Powers etc.) Act,
1971.
Constitution of India, 1950 - Art. 148 - Comptroller and
G
Auditor General of India (GAG) - Whether GAG has a duty
to examine expenditures even before they are deployed -
Held: The office of GAG exercises effective control over the
government accounts and expenditure incurred on schemes
•.
H
670
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A only after implementation of the same - Duty of the CAG
arises only after the expenditure is incurred.
Respondent No.8-Dravida Munnetra Kazhagam
(DMK), while releasing the election manifesto for the 2006
Assembly Elections, announced a Scheme of free
8 distribution

## Text

_Characters 0–39,955 of 146,044. This is a partial read: ask again with offset=39955 for what follows._

(2013) 13 S.C.R. 668
A
S. SUBRAMANIAM BALAJI
-r
v.
THE GOVERNMENT OF TAMIL NADU & ORS.
(Civil Appeal No. 5130 of 2013)
B
JULY 5, 2013
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]
Representation of the People Act, 1951 -
s. 123 -
J.t
Elections - Promises made by political parties in their election
c manifesto - If amounts to 'corrupt practices' as per s.123 -
..._
Held: Promises in the election manifesto cannot be read into
s. 123 for declaring it to be a corrupt practice - Promises in
the election manifesto do not constitute as a corrupt practice
under the prevailing law - However, reality cannot be ruled
D out that distribution of freebies of any kind, undoubtedly,
--f
influences all people - It shakes the root of free and fair
elections to a large degree - Considering that there is no
enactment that directly governs the contents of the election
manifesto, the Election Commission is directed to frame
E guidelines for the same in consultation with all the recognized
political parties - 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 done before
F 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 - Election
Commission directed to take up this task as early as possible
owing to its utmost importance - Also, there is need for a
G
separate legislation to be passed by the legislature in this
,._~
regard for governing the political parties - Constitution of
India, 1950 - Art. 324.
Policy - Government policy - State Largesse - Scheme
•
framed by State for free distribution of Colour Television Sets
H
668
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
669
TAMIL NADU
(CCTVs) to eligible families in the State -
Scheme
A
challenged in writ petition - Whether the scheme was within
the ambit of public purpose and if yes, was it violative of Art. 14
of the Constitution - Held: The mandate of the Constitution
provides various checks and balances before a Scheme can
be implemented -
Therefore, as long as a scheme comes
8
within the realm of public purpose and monies withdrawn for
implementation of the scheme by passing suitable
~-
Appropriation Bill, the Court has limited jurisdiction to interfere
in such scheme - Judicial interference is permissible only
when action of the government is unconstitutional or contrary c
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
- The scheme in question fell within the realm of fulfilling the
Directive Principles of State Policy thereby falling within the
scope of public purpose and was a/so in consonance with
D
j.
Art. 14 of the Constitution - Scope for application of the
principle laid down in Vishaka case did not arise as there was
no legislative vacuum in the case on hand -Constitution of
India, 1950 - Art. 14 - Representation of the People Act, 1951
- s.123.
E
Constitution of India, 1950 - Art. 148 - Comptroller and
Auditor General of India (GAG) - Role and duties of - Held:
,..
CA G is a constitutional functionary appointed ul Art. 148 of the
Constitution - His main role is to audit the income and
expenditure of the Governments, Government bodies and
F
State-run corporations - GAG examines the propriety, legality
and validity of all expenses incurred by the Government -
Comptroller and Auditor General's (Duties, Powers etc.) Act,
1971.
Constitution of India, 1950 - Art. 148 - Comptroller and
G
Auditor General of India (GAG) - Whether GAG has a duty
to examine expenditures even before they are deployed -
Held: The office of GAG exercises effective control over the
government accounts and expenditure incurred on schemes
•.
H
670
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A only after implementation of the same - Duty of the CAG
arises only after the expenditure is incurred.
Respondent No.8-Dravida Munnetra Kazhagam
(DMK), while releasing the election manifesto for the 2006
Assembly Elections, announced a Scheme of free
8 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. This Scheme
was challenged by the appellant, by filing writ petition
before the High Court on the ground that the expenditure
C to be incurred by the State Government for its
implementation out of the State Exchequer was
unauthorized, impermissible and ultra vires the
Constitutional mandate. The appellant filed complaint to
the Election Commission of India seeking initiation of
D action in respect of the said promise under Section 123
of the Representation of People Act, 1951. The appellant
also forwarded the complaint to the Chief Election Officer,
Tamil Nadu.
E
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
F 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. Being aggrieved
by the implementation of the Scheme, the appellant filed
another complaint to the Chief Secretary and the
G Revenue Secretary pointing out the unconstitutionality of
the Scheme. He also preferred Writ Petition before the
High Court alleging the Scheme a corrupt practice to woo
the gullible electorates with an eye on the vote bank. The
High Court dismissed both the writ petitions filed by the
H
+--
,,._
'
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
671
TAMIL NADU
appellant holding that the action of the Government in A
distributing free CTVs cannot be branded as a waste of
exchequer.
In the instant appeal, the following questions arose
for consideration in the present appeal.
B
(i) Whether the promises made by the political parties
in the election manifesto would amount to 'corrupt
practices' as per Section 123 of the Representation
of People Act, 1951?
c
(ii) Whether the schemes under challenge are within
the ambit of public purpose and if yes, is it violative
of Article 14?
(iii) Whether the Supreme Court has inherent power D
to issue guidelines by application of the principle laid
down in Vishaka case?
(iv) Whether the Comptroller and Auditor General of
India has a duty to examine expenditures even
before they are deployed?
E
(v) Whether the writ jurisdiction will lie against a
political party?
Dismissing the appeal and the transferred cases, the
F
Court
Issue No. 1
Whether the promises made by the political parties in
their election manifestos would amount to 'corrupt G
practices' as per Section 123 of the Representation of the
People Act, 1951?
1. The purpose of incorporating Section 123 of the
RP Act is to ensure that elections are held in a free and
fair manner. A perusal of sub-sections 1-8 of Section 123 H
672
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
of the Act makes it clear that it speaks only about a
candidate or his agent or any other person. There is no
word about political parties. [Paras 47, 49 and 50) [709D; 715-G; 716-B]
8
2.1. If every kind of promise made in the election
manifesto is declared as 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
C 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
D kind of promises can or cannot be made in the election
manifesto. [Para 53) [716-H; 717-A-C]
2.2. 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
E
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
F
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
G 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. [Para
H 54) [717-C-F]
••
-+'
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
673
TAMIL NADU
2.3. Thirdly, the provisions relating to corrupt practice
A
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.
B
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. [Para 55) [717-G-H; 718-A]
2.4. Lastly, it is settled law that the courts cannot c
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
D
covered by parliamentary enactments, no directions can
be issued as sought by the appellant. As an outcome, it
cannot be held that the promises made by the political
parties in their election manifesto as corrupt practice
under Section 123 of the RP Act. [Para 56) [718-B-C]
E
Patangrao Kadam vs. Prithviraj Sayajirao Yadav
Deshmukh and Ors. (2001) 3 SCC 594: 2001 (2) SCR 118
- relied on.
F
Union of India & Anr. vs. International Trading Co. & Anr.
2003 (5) SCC 437: 2003 (1) Suppl. SCR 55; K. T. Moopil
Nair VS. State of Kera/a AIR 1961 SC 552: 1961 SCR 77;
Bhim Singh vs. Union of India and Ors. (2010) 5 SCC 538:
2010 (6) SCR 218; Federal Bank Ltd. vs. Sagar Thomas and
Others (2003) 10 SCC 733: 2003 (4) Suppl. SCR 121; Aruna
G
Ramachandra Shanbaug vs. Union of India and Others (2011)
4 SCC 454: 2011 (4) SCR 1057; Union of India vs.
Association for Democratic Reforms and Another (2002) 5
SCC 294: 2002 (3) SCR 696; People's Union for Civil
Liberties (PUCL) and Anr. vs. Union of India and Anr. (2003)
H
-
I
+
674
SUPREME COURT REPORTS
[2013] 13 S.C.R.
l
A 4 sec 399: 2003 (2) SCR 1136; M. J. Jacob vs. A.
-r
Narayanan and Others (2009) 14 SCC 318: 2009 (4) SCR
305; Ba/dev Singh Mann vs. Surjit Singh Dhiman (2009) 1
SCC 633: 2008 (16 ) SCR 540; Samatha vs. State of A.P.
and Others (1997) 8 SCC 191: 1997 (2) Suppl. SCR 305;
B Keshavanand Bharati vs. State of Kera/a (1973) 4 SCC 1461
and Deepak Theatre, Dhuri vs. State of Punjab and Others
1992 Supp (1) sec 684: 1991 (3) Suppl. SCR 242 -
referred to.
)(.
c
Coates vs. Campbell and Others 37 Minn. 498 ((USA);
Roberts vs. Hopwood & Ors. 1925 AC 578; Bromley London
Borough Council, London vs. Greater Council & Anr. 1982 (2)
WLR 62; R vs. Secretary of State for Foreign Affairs (1995) 1
All ER 611; Richardson-Garnder vs. Ekykn (1869) 19 LT 613
D
and Kingston Cotton Mills Co. Re [1896) 2 Ch 279 - referred
to.
-+
Issue No. 2
Whether the schemes under challenge are within the
E ambit of public purpose and if yes, is it violative of Article
14?
3.1. The concept of State largesse is essentially
linked to Directive Principles of State Policy. Whether the
~
State should frame a scheme, which directly gives
F benefits to improve the living standards or indirectly by
-i
increasing the means of livelihood, is for the State to
decide and the role of the court is very limited in this
regard. [Para 57) [718-D, E]
G
3.2. 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
H confined to bare physical survival in terms of food,
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
675
TAMIL NADU
clothing and shelter but also now necessarily includes A
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. [Para 61) [743-B-C]
B
3.3. It cannot be said 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 c
...
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. All such
questions must be debated and decided in the legislature
and not in court. [Para 62) [743-D-E]
D
+--
3.4. 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. [Para 63] [7 43-F]
3.5. There are various checks and balances within the E
mandate of the Constitution before a scheme can be
implemented. As long as the schemes come within the
)rrealm of public purpose and monies for the schemes is
withdrawn with appropriate Appropriation bill, the court
...
has limited power to interfere in such schemes. [Para 68)
F
[745-E-F]
3.6. 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 G
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 H
676
SUPREME COURT REPORTS
[2013) 13 S.C.R.
- A
arbitrary in nature. In the given case no such
circumstances prevail as envisaged for judicial enquiry;
this Court is not persuaded to interfere with the policy
decision. [Para 69] [745-G-H; 746-A, F]
8
3.7. 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
C 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
D available to all the citizens. The State can gradually
extend the benefit and this principle has been recognized
by this Court in several judgments. [Para 70] [746-H; 747A-C]
E
Ekta Shakti Foundation vs. Government of NCT of Delhi
(2006) 1 o scc1 337: 2006 (3) Suppl. SCR 631 - relied on.
Issue No. 3
Whether this Court has inherent power to issue
F
guidelines by application of Vishaka principle?
4. 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
.....
G application of the principle in Vishaka case. In Vishaka,
'!-- -.
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
'
H
the case at hand, there is a special legislation,- namely,
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
677
TAMIL NADU
the Representation of People Act wherein Section 123
A
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. [Para 71] [747-D-G]
Vishaka and Others vs. State of Rajasthan and Others
B
(1997) 6 SCC 241: 1997 (3) Suppl. SCR 404 - referred to.
Issue No. 4:
Whether Comptroller and Auditor General of India has a
C
duty to examine expenditures even before they are
deployed?
5. The Comptroller and Auditor General of India is a
constitutional functionary appointed Linder Article 148 of
the Constitution. His main role is to audit the income and
D
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
E
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
F
schemes only after implementation of the same. As a
result, the duty of the CAG will arise only after the
expenditure has incurred. [Para 72] [747-H; 748-A-D]
Issue No. 5
Whether the writ jurisdiction will lie against a political
party?
G
6. The respondents never raised any objection
relating to the jurisdiction in the High Court or even in the
H
678
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A pleadings before this Court. It is only in the oral
-<
submissions that this issue has been raised. 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
B relates to the jurisdiction over the subject matter. This is
totally distinct and stands on a different footing. As such,
th~ 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
c jurisdiction issue is left open. [Paras 74, 75) [748-E, G-H;
749-A-B]
7. Summary:
(i) After examining and considering the parameters
D
laid in Section 123 of RP Act, it is clear that the
promises in the election manifesto cannot be read
-t
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
E
prevailing law.
Prof. Ramchandra G. Kapse vs. Haribansh Ramakbal
Singh (1996) 1 sec 206: 1995 (6) Suppl. SCR 471 -
referred to.
F
(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.
G
(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
H
passing suitable Appropriation Bill, the court has
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
679
TAMIL NADU
limited jurisdiction to interfere in such schemes.
A
(iv) 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
B
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.
c
(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
D
expenditure has incurred.
(viii) Since this petition is fit for dismissal dehors the
jurisdiCtion issue, the issue of jurisdiction is left open.
[Para 76] [749-C-H; 750-A-C]
E
8. Directions:
}
8.1. Although, the law is that the promises in the
election manifesto cannot be construed as 'corrupt
practice' under Section 123 of RP Act, the reality cannot
F
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
G
level playing field and vitiates the electoral process and
thereby expressed willingness to implement any
directions or decision of this Court in this regard. [Para
77] [750-D-E]
H
680
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A
8.2. 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
B purity of the election process does not get viti<\ted, 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
C 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. [Para 78]
[750-F-H; 751-A]
D
8.3. Considering that there is no enactment that
directly governs the contents of the election manifesto,
the Election Commission is hereby directed to frame
guidelines for the same in consultation with all the
recognized political parties as when it had acted while
E 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
F Guidance of Political Parties & Candidates. 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
G 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. [Para 79] [751-8-D]
H
8.4. The Election Commission is directed to take up
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
681
TAMIL NADU
)'-
this task as early as possible owing to its utmost A
. '
importance. Also, there is the need for a separate
legislation to be passed by the legislature in this regard
for governing the political parties. [Para 80] [751-E]
Case Law Reference:
B
37 Minn. 498 (USA)
referred to
Para 10
1925 AC 578
referred to
Para 10
~
1982 (2) WLR 62
referred to
Para 10
(1995) 1 All ER 611
referred to
Para 10
c
2003 (~) Suppl. SCR 55
referred to
Para 17
1961 SCR 77
referred to
Para 18
(1'869) 19 LT 613
referred to
Para 20
D
[1896] 2 Ch 279
. referred to
Para 27
2010 (6) SCR 218
referred to
Para 28
2003 (4) Suppl. SCR 121
referred to
Para 32
1997 (3) Suppl. SCR 404
referred to
E
Paras 34, 71
2011 (4) SCR 1057
referred to
Para 34
2002 (3) SCR 696
referred to
Para 35
2003 (2) SCR 1136
referred to
Para 35
F
2009 (4) SCR 305
referred to
Para 36
2008 (16 ) SCR 540
referred to
Para 37
-I;., -"'.
1997 (2) Suppl. SCR 305
referred to
Para 39
G
(1973) 4 sec 1461
referred to
Para 41
1991 (3) Suppl. SCR 242
referred to
Para 42
2001 (2) SCR 118
relied on
Para 51
2006 (3) Suppl. SCR 631
relied on
Para 69
H
682
SUPREME COURT REPORTS
(2013] 13 S.C.R.
A
1995 (6) Suppl. SCR 471
referred to
Para 76
B
c
D
E
F
G
'H
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5130 of 2013.
From the Judgment & Order dated 25.06.2007 of the
Court of Madras, Madurai Bench in W.P. No. 9013 of 2006.
WITH
T.C. No. 112 of 2011.
P.P. Malhotra, ASG, Arvind P. Datar, Shekhar Naphade,
Abhay Kumar, Rupesh Kumar Pandey, Upendra Pratap Singh,
Neetu Jain, Vineet Kumar Singh, Shubhangi Tuli, R. Rakesh
Sharma, P. Krishnamoorthy, B. Balaji, Rachana Joshi lssar,
D.K. Thakur, Sushma Suri, D.S. Mahra, Meenakshi Arora for
the appearing parties.
The Judgment of the Court was delivered by
P. SATHASIVAM, J.
SLP CC) 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 lC) 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
~
i
>-- "'.
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
683
TAMIL NADU [P. SATHASIVAM, J.]
Television Sets (CTVs) to each and every household which did
A
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
B
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 c
-
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
D
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.
E
(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
F
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
G
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
H
684
SUPREME COURT REPORTS
[2013) 13 S.C.R.
A
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.
B
(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
c
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
D aggrieved, the appellant herein has preferred this appeal by
way of special leave before this Court.
Transferred Case (Cl No. 112 of 2011
E
(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 Dravidn Munnetra
Kazhagam (AIADMK) and its alliance also announced its
F
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,
G 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
H are unauthorized, impermissible and ultra vires the
~ -
>- -
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
685
TAMIL NADU [P. SATHASIVAM, J.]
Constitutional mandates. The appellant herein also filed a 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 8
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 C
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 tjle D
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 E
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
F
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 G
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.
H
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SUPREME COURT REPORTS
[2013] 13 S.C.R.
A
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.
8
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
C
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
D 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
E
Constitution of India and Section 123(1) of the RP Act.
Contentions by the Appellant:
6. Mr. Datar, learned senior counsel for the appellant
i
submitted that a "gift", "offer~ or "promise" by a candidate or
F
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
Wbrth is estimable in money and that too from the consolidated
fund of the State under the head "promise of publication" or
>- ,
G "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:
H
(I) Article 282 of the Constitution of India only permits
' - _..._
S. SUBRAMANIAM BALAJI v GOVERNMENT OF
687
TAMIL NADU [P. SATHASIVAM, J.]
defraying of funds from the Consolidated Fund of the State for
A
"public purpose";
(II) The distributions made by the respondent-State is
violative.of Article 14 since there is no reasonable classification;
(Ill) Promises of free distribution of non-essential
commodities in an election manifesto amounts to electoral
bribe under Section 123 of the RP Act;
B
(IV) The Comptroller and Auditor General of India has a
duty to examine expenditures even before they are deployed; c
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".
D
7. Regarding the first contention relating to Article 282 of
E
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
F
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
G
in the manner provided by the Constitution. Under Article 162,
H
688
SUPREME COURT REPORTS
[2013] 13 S.C.R.
A 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 which1he State
s 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
C 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
D 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.
E
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,
F 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
G 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
H power is limited by the principle that such benefits must not be
S. SUBRAMANIAM BA~JI v GOVERNMENT OF
689
TAMIL NADU [P. SATHASIVAM, J.]
,..
excessive or unreasonable. As Lord Atkinson stated in Roberts
A
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
B
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 c
r
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
D
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
E
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
F
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
G
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
H
690
SUPREME COURT REP9RTS
[2013] 13 S.C.R.
A 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
B
line residing in rural areas.