Recently, in the case of Subramanian Balaji v. State of Tamil Nadu, popularly known as the ‘freebies case’, the Supreme Court held that distribution of free gifts by political parties does not amount to bribery under Section 123(1) (A) of the Representation of the People Act, 1951. Even though the Apex Court ruled in favour of the State of Tamil Nadu, it acknowledged that in reality distribution of free gifts by political parties does influence the electorate and “shakes the root of free and fair elections to a large degree”. Recognizing the limited powers of the judiciary to issue directions to the Parliament to legislate on a particular issue, the Court instructed the Election Commission (‘EC’) to consult recognized political parties and frame guidelines for curbing distribution of freebies, in exercise of its plenary power under Article 324 of the Constitution of India. Additionally, it acknowledged the existence of a legislative vacuum with regard to regulation of the contents of election manifestos and consequently directed the Election Commission to include a separate head for guidelines on election manifesto released by political parties, under the Model Code of Conduct for the Guidance of Political Parties and Candidates. The authors feel that the directions the Court has given to the EC in this case raise several pertinent issues about the scope of Article 324 of the Constitution.
Analysis of Article 324 of the Constitution
The EC plays a fundamental role in the electoral mechanism of the country. It is a permanent constitutional body that has been bestowed with powers of superintendence, direction and control of the entire process for the conduct of elections to the Parliament and State Legislatures and to the offices of the President and the Vice-President of India. Article 324 of the Constitution is the fountainhead of powers of the EC. In the instant case, the first issue that the Apex Court’s directions to the EC raise is regarding the character of the powers of the EC.
In the event of a legislative vacuum, Article 324 enables the EC to act to push forward a free and fair election with expedition. This is why Article 324 makes comprehensive provisions to take care of unforeseen situations. The decision of the Supreme Court in A.C Jose v. Sivan Pillai is relevant to note. In this case, during the 1982 elections for the Kerela State Legislative Assembly, electronic voting system was introduced at some polling booths in one constituency. This was done under the directions of the EC issued under Article 324. The validity of the electronic voting system was challenged through an election petition in the instant case. The Supreme Court set aside the election of the successful candidate, ordered a re-poll and ruled that the order of the EC was without jurisdiction. The choice of voting system was ruled to be a matter falling within the domain of the Parliament.
The Court distinguished between executive powers and legislative powers and said that Article 324 only confers solely executive and not legislative powers on the EC. Legislative powers with respect to elections to Parliament and the State Legislatures vest in Parliament and no other body. The Court explicitly laid down the proposition that “[the] Commission would come into the picture only if no provision has been made by Parliament in regard to the elections to the Parliament or State Legislatures”. The Court did not agree with the contention that the Constitution gives unbridled powers to the EC under Article 324 for the conduct of elections. It could not have been the intention of the Constitution to make the EC an apex body in respect of all matters pertaining to elections and conferring it legislative powers by ignoring the Parliament. Therefore, the Court emphasised on parliamentary supremacy and held that the EC has limited executive powers under Article 324.
Two crucial points of law were laid down in the aforementioned case. First, when no laws or rules exist, the EC may pass any order in respect of the conduct of elections. Second, when there is a legislative enactment occupying the field, the EC cannot override the same and pass orders in direct disobedience to the mandate contained in the rules or the Act. This means that the powers of the EC are meant to supplement and aid, rather than supplant and replace the law and rules in the matter of superintendence, direction and control provided by Article 324.
Ambiguities of Article 324
However, this does not resolve the problematic issues that arise out of Article 324. It is not yet a settled point of law whether the powers of the EC under Article 324 are solely of executive character or not. While the Court in A.C Jose v. Sivan Pillai held that the power under Article 324 is solely of executive character, it deviated from this stance in cases like Sadiq Ali v. Election Commission and Kanhiya Lal Omar v. R.K. Trivedi. In the latter cases, the validity of the Symbols Order, 1968 issued by the EC was challenged on the ground that since it is legislative in character, it is ultra vires the Constitution because under Article 324 the EC has executive powers and not legislative powers. Peculiarly, the Supreme Court has consistently upheld the validity of the Order.
The second troublesome issue that is raised in Subramaniam Balaji v. State of Tamil Nadu is whether guidelines framed by the EC are subject to laws made by the Parliament. In Mohinder Singh v. Chief Election Commission, the Supreme Court clarified the ambit of the EC’s power under Article 324 by laying down that the powers of the EC under Article 324(1) are subject to any law made either by Parliament under Article 327 or by the State Legislatures under Article 328 of the Constitution. This means that even though Article 324(1) is a plenary provision giving wide powers to the EC, it does not provide for unfettered powers. Its powers are subject to judicial review and laws made by the Parliament.
Implications of the Subramaniam Balaji case
This prompts one to ponder about the implications of the decision in the Subramaniam Balaji case. If the EC frames guidelines to curb distribution of freebies in pursuance of the orders of the Court, and subsequently the Union Parliament or any State Legislature enacts a law under Articles 327 and 328 respectively to the effect that no restrictions can be imposed on the distribution of freebies by political parties as this will curtail democratic liberties of the parties, then will the former prevail over the latter?
In the concluding paragraph of the judgment in the instant case, the SC noted the “need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society”. However, it is doubtful whether the Legislature would want to disturb the status quo and enact a law to curb distribution of freebies by political parties, as this would hamper its own self interests. On the contrary, the Parliament may term the decision of the SC as an instance of judicial overreach and proceed to undo it by enacting legislation to the effect that distribution of freebies by political parties is legal and not ultra vires the Constitution. This will lead to a situation in which the guidelines framed by the EC under Article 324(1) are in conflict with a law made by an elected Parliament. The Sixty First Report of the Parliamentary Standing Committee, while noting that the guidelines and orders of the EC “sometimes appears to be encroaching upon legislative power of Parliament”, attempted to resolve this conflict by stating that Article 324 needs to be harmoniously read in light of other constitutional schemes and the Representation of the People Act 1951. Legislature can enact law without affecting plenary powers of the EC; at the same time Article 324 which gives plenary power to the EC cannot be abused to acquire legislative power. However, the issue of what will happen if the Parliament subsequently enacts a law in contravention to the EC guidelines is left open. In other words, is it obligatory on the Parliament to make it supplemental or can the Parliament blindly over-ride Article 324?
The month of July 2013 has been eventful for election law. While covering the Subramaniam Balaji case, newspapers have been rife with reports about what the Supreme Court had to say about the distribution of freebies shaking the roots of free and fair elections. However, pressing legal issues about the scope of the EC’s powers under Article 324, the competency of the EC to frame guidelines and the possibility of such guidelines clashing with future legislative enactments have been overlooked. It will be interesting to note the outcome of a conflict between a future legislative enactment and guidelines on the subject framed by the EC.
This article has been written by Sohini Chatterjee and Vasujith Ram, third and second year students at the West Bengal National University of Juridical Sciences and members of the Research Group, Constitutional Law Society, NUJS.