Qs & As
‘How and where would the law draw the line between what could be considered permissible promises and those that may amount to corrupt practices? That’s what will have to be thrashed out’
The distinction between a genuine affordable party manifesto pledge and a “freebie” promised to secure votes of a section of the population is a complex question. Can it lead to a spiral of populist promises that the country can ill afford and are the legal issues clear enough to avoid such a damaging pitfall are the subject of views by Lex in this week’s Qs & As.
* The Indian Supreme Court heard last August arguments to curb political parties from distributing “irrational freebies” from public funds. It thereafter said that “the issues raised by the petitioners require an ‘extensive hearing’ before any concrete orders can be passed”. This would suggest that this is a complex issue and would require profound debate. What are your views on this issue?
It is indeed a complex issue. Most political parties do make promises to the electorate with a view to boosting their chances of winning the election and forming a government. How and where would the law draw the line between what could be considered permissible promises and those that may amount to corrupt practices? That’s what will have to be thrashed out.
* Is there a definition of what may constitute a freebie and, secondly, can a distinction be made between a reasonable and an irrational freebie?
The dictionary meaning of a freebie is that it’s something that is given to somebody without the latter having to pay for it. In politics it has a much wider meaning in that freebies are given or promised to attract support and votes.
* Even if it could mean that anything that is not promised from party funds but is paid for by taxpayers money is a freebie, however an elected government has the responsibility to deliver schemes to end poverty, provide healthcare, education, etc., which can be equated with welfare schemes or measures for the public good, isn’t it?
Of course, any sitting or incoming government needs to keep in mind the general welfare of the population and the interest of the country. Promises may be made, but they would be deemed to be irrational whenever they are made in a wild manner without any explanations as to whether they have been budgeted nor about the source of the funds for such a budgetary measure or whether they are likely to weaken or threaten the stability of the country’s finances.
Let us take the case of an increase in old-age pension. There have been persistent rumours that the pension would be increased to Rs. 13,500 before the next election and ultimately to Rs 15,000 following the election in case of electoral victory. That is a purely a vote-catching strategy. Pensioners or would-be pensioners would flock to vote for the party that makes such a promise. It could therefore be argued that such a device would entail taxpayers’ money being used to finance the electoral campaign of a sitting government that is seeking another mandate. That’s unfair.
* What this means is that any announcement made by a sitting government prior to the general elections relating to an increase in the old-age pension, or the accelerated implementation of the Pay Research Bureau report in favour of public sector employees would amount to irrational freebies that could influence electoral outcomes?
Indeed. And they amount to illegal practices. But the Supreme Court in the Suren Dayal election petition has ruled that such is not the case.
On the issue of the payment of the basic retirement pension (BRP), the court concluded that “it has not been established on a balance of probabilities that the announcement of an increase in BRP constituted an act of bribery. It was an electoral promise contained in an electoral manifesto and made in the course of normal electoral campaigning. It was no more no less than a statement of intention of a future eventual government…” The same argument applies to the other promises.
In 2013 the Supreme Court of India had to decide whether promises made by political parties in an election manifesto would amount to corrupt practices. The Indian judges decided that such promises cannot be called corruption or bribery.
* But the Supreme Court’s judgement in the Dayal’s petition relating to Constituency No. 8 took the view that promises made countrywide were not matters specific to one particular constituency and they accordingly dismissed the petition. Do you think the Privy Council might hold a different view?
It is difficult to say so at this stage. The Privy Council would have to consider the provisions of the Representation of the People Act and determine whether these freebies amounted to a corrupt practice.
* Ashock Jugnauth lost his seat in parliament following the 2005 general elections after the Privy Council upheld in November 2018 the earlier Supreme Court judgement which found him guilty on account of electoral bribery in the form of a promised new Muslim cemetery and by promising jobs to 101 health care assistants from his constituency in exchange for votes in his favour. Is there any marked difference in these two petitions: Raj Ringadoo’s against Ashock Jugnauth and Suren Dayal’s?
In the former case the Supreme Court found that Ashock Jugnauth had made a direct appeal to Muslim voters to vote for him and his party on the promise that land would be given for a cemetery.
This is what the Supreme Court stated: “The misleading statement of the respondent constitutes nothing more than an act of corrupt practice of bribery to mislead and to influence the Muslim voters of constituency no 8, which constitute 10% of the voters, to vote for him and his party. It was an attempt to gratify the Muslim voters by inducing them to believe that the Government had donated land worth Rs 2m for the extension of the Muslim cemetery.”
There was direct evidence of that promise made. Whether the promises made in the Dayal case are different would be for the Privy Council to decide.
* Does the Privy Council’s judgement in the Raj Ringadoo’s petition against Ashock Jugnauth’s election indicate a trend in the thinking of the Law Lords as regards electoral bribery and electoral promises?
The case does not set a trend. Each case is decided on its own merits.
* Coming back to the debate on freebies (the ‘revdi culture’ in India which seeks to garner votes by distributing revdis – a sweet that is popular in North India and often distributed during festivals -, the Indian Supreme Court had in January 2022, ahead of the UP elections, issued notices to the Central government and the Electoral Commission of India seeking directions to seize election symbols and deregister political parties that promised to offer irrational freebies at the public’s expense. Can we see that happening here?
No way. Elections are won by making promises and by appealing to the emotions of the electorate on the basis of community, caste, religion. People do not vote for a programme or in the interest of the country. They are not to blame because politicians themselves have nurtured such a culture in the minds of the electorate. So nothing will change.
We do have an Electoral Commission, but it is perceived to be a toothless bulldog. Why, for example, did the Commission condone the presence of computers in the counting centres at the last elections without candidates of the opposition parties having access to the computer rooms? This is but one example.
Mauritius Times ePaper Friday 4 November 2022
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