Delhi High Court

Mithilesh Kumar Pandey vs Election Commission Of India & Ors on 16 September, 2014

Author: Rajiv Sahai Endlaw

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 16th September, 2014

+              W.P.(C) No.1950/2014 & CM No.4077/2014 (for directions).

       MITHILESH KUMAR PANDEY                                    ..... Petitioner
                           Through:     Petitioner-in-person.


                                 Versus


       ELECTION COMMISSION OF INDIA & ORS                       ....Respondents
                           Through:     Mr. P.R. Chopra, Adv. for R-1/ECI.
                                        Mr. Sanjay Jain, ASG with Mr.
                                        Akshay Makhija and Mr. Akash
                                        Nagar, Advs. for UOI.
                                        Mr. Mike Desai, Adv. for State of
                                        Maharashtra.
CORAM:
HON'BLE THE CHIEF JUSTICE
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. This petition is filed by an Advocate, as a Public Interest Litigation,

contending:-

(i) that the recent experience shows that the political parties who

were bitter rivals during the election process and campaigns,

post-election, actually end up supporting each other and

together forming a Government;

(ii) such a practice of formation of post-poll alliances is in blatant

disregard to the wishes of the voters who feel cheated and at the

same time helpless;

(iii) post-poll alliances are not compatible with the Indian concept

of democracy and enhance political instability;

(iv) that the Consultation Paper dated 8th January, 2001 of the

National Commission to Review the Working of the

Constitution (NCRWC) titled "Review of the Working of

Political Parties specially in relation to Elections and Reform

Options" has also observed that formation of post-poll alliances

amongst political opponents is an area of concern;

(v) that inspite of repeated representations of the petitioner, the

respondent Election Commission of India (ECI) has not issued

any directions prohibiting political parties from entering into

post-poll alliances and to make manifesto a legal binding

document;

(vi) that the present Government (at the time of filing of the petition

in March, 2014) also has reneged on more than 40% of its

promises made in Parliament;

(vii) that during election campaign, false promises are made and

which are never honoured;

(viii) the political parties continue to campaign with false and

misleading advertisements;

(ix) that the Law Commission also in its 170th Report on Electoral

Reforms has observed that the proliferation of political parties,

necessitating the formation of coalitions, with all internal

contradictions, has contributed to instability in governance and

has to be checked;

(x) that the manifesto released by a political party forms the basis

of the party‟s election campaign since it compiles in one

document the policies of the party; the party explicitly seeks the

votes of the electorate on the basis of statements and promises

made in the manifesto; the manifesto of a political party is

analogous to making an „offer‟ as understood in the law of

contract, which contract is complete on the acceptance of the

„offer‟, that is to say, at the time when the voters vote for that

political party and the party ultimately comes to power or

makes the Government;

(xi) that the political parties should not be permitted to carry out

acts which are in blatant disregard and breach of their own

manifestos;

(xii) where a political party expressly states in the manifesto that it

will not ally with any political party post elections, then for

such party to enter into a post election alliance with a rival

political opponent amounts to an abuse of election system and

such practices must be held to be illegal and corrupt; the

ordinary voter is a helpless sufferer in such situation;

(xiii) that political opponents who, for the purpose of forming the

Government, ally with each other post elections, should also be

punished under the provisions of Indian Penal Code, 1860 for

criminal breach of trust, cheating and for misleading the voters

into believing that they would not ally with other parties post

election;

(xiv) that had the voters known that a political party would ally with

a rival party post election, then the voters perhaps would have

voted differently in the election;

(xv) Articles 74 and 75 of the Constitution of India do not impose

any Constitutional compulsion that a Prime Minister must have

an absolute numerical majority in the Parliament; all that they

require is that there shall be a Council of Ministers headed by

the Prime Minister to aid and advise the President.

On the basis of the aforesaid contentions, the following reliefs are

claimed in the petition:

"a. Issue a writ/order/direction declaring unconstitutional 'the practice of post-poll alliances among parties which contested elections against each other'; and;

b. Issue a writ /order/direction directing the Respondent to issue directions preventing political parties from violating their own manifestos when such parties enter into post-poll electoral alliances in order to form a government; and

c. Issue directions to competent authority to take steps to make the manifesto a legal binding document and direct competent authority to take action against

Election Commission for not initiating action against political parties and person for violating manifesto; and

d. Issue a direction to ban the misleading advertisement."

2. The petition though was filed, as aforesaid, in March, 2014 but was on

the request of the petitioner adjourned from time to time for admission

purposes. The counsels for the respondents appear on advance notice. We

heard the petitioner appearing in person as well as the learned ASG for the

purpose of admission and reserved order.

3. We, at the outset, invited attention of the petitioner appearing in

person to the judgment of Justice R.C. Lahoti (as his Lordship then was) of

this Court in ANZ Grindlays Bank Pie Vs. Commissioner, MCD 1995 II

AD (Delhi) 573 where, dealing with an argument of promissory estoppel and

legitimate expectations on the basis of election manifesto, it was held that

election manifesto of a political party howsoever boldly and widely

promulgated and publicised, can never constitute promissory estoppel or

provide foundation for legitimate expectations. It was further held that it is

common knowledge that political parties hold out high promises to the

voters expecting to be returned to power but it is not necessary that they

must be voted in by the electorate; the political parties may commit to the

voters that they would enact or repeal certain laws but they may not succeed

in doing so for reasons more than one and they know well this truth while

making such promises and the electorate to which such promises are made

also knows it. It was further held that neither the plea of promissory

estoppel nor the plea of legitimate expectations can be founded thereon.

4. We similarly drew the attention of the petitioner appearing in person

to the judgment of the Supreme Court in S. Subramaniam Balaji Vs.

Government of Tamil Nadu (2013) 9 SCC 659 pertaining to election

manifesto announcing that if the said party and its alliance was elected to

power, it will launch scheme for free distribution of colour television sets to

each and every household which do not possess the same. One of the

arguments for consideration was that promise of such freebies in election

manifesto of a political party, in substance is a bribe or inducement under

Section 123 of the Representation of the People Act, 1951 thereby affecting

the level playing field between the candidates and which in turn disrupts free

and fair election. It was further the argument that such promises in election

manifesto should be considered as corrupt practice. The Supreme Court held

that though such arguments may sound good but the implementation of the

suggestion of construing the promises made in the manifesto as a corrupt

practice was fraught with difficulty. It was held that the manifesto of a

political party is a statement of its policy and the question of implementing

the manifesto arises only if the political party forms a government and is not

a promise of an individual candidate and the provisions of the

Representation of the People Act clearly draw a distinction between an

individual candidate put up by a political party and the political party as such

and the provisions of the Act as they exist place no fetter on the power of the

political parties to make promises in the election manifesto. More

importantly, it was held, "it is not within the domain of this Court to legislate

what kind of promises can or cannot be made in the election manifesto".

5. We thus enquired form the petitioner appearing in person that how, in

view of the aforesaid position, the matter can be said to be open for

consideration of this Court.

6. The petitioner argued that the matter in issue in the present petition is

different from what was for adjudication in the judgments aforesaid,

however without reference to the passages of the judgments on which we

have relied upon. The petitioner contended that the matter aforesaid before

the Supreme Court was not concerned with post-poll alliances, as this

petition is.

7. Undoubtedly so. However, the fact remains that the sole basis in this

petition for the reliefs claimed, is the election manifesto and in fact the

reliefs as set out hereinabove are also on the basis of election manifesto.

The petitioner, neither in the petition has referred to nor during the hearing

could give any other basis, except the election manifesto, for the reliefs

sought. The repeated argument of the petitioner is that the political parties,

which in their election manifesto have declared that they will not form

government with the support of any other political party and/or political

parties which have contested against the other political parties, cannot post

elections take support of the same adversaries. On the said aspect, the

judgment aforesaid of the Supreme Court laying down, i) that the provisions

of the Representation of the People Act place no fetter on the power of the

political parties to make promises in the election manifesto, and, ii) that it is

not for the Courts to legislate what kind of promises can or cannot be made

in the election manifesto, applies on all fours.

8. Reference in this regard may also be made to what Lord Denning,

sitting in the House of Lords observed in Bromley London Borough

Council Vs. Greater London Council 1982 (1) All England Law Reports

129. It was said:-

"A manifesto issued by a political party - in order to get votes - is not to be taken as gospel. It is not to be regarded as a bond, signed, sealed and delivered. It may contain - and often does contain - promises or proposals that are quite unworkable or impossible of attainment. Very few of the electorate read the manifesto in full. A goodly number only know of it from what they read in the newspapers or hear on television. Many know nothing whatever of what it contains. When they come to the polling booth, none of them vote for the manifesto. Certainly not for every promise or proposal in it. Some may by influenced by one proposal. Others by another. Many are not influenced by it at all. They vote for a party and not for a manifesto. I have no doubt that in this case many ratepayers voted for the Labour Party even though, on this one item alone, it was against their interests. And vice versa. It seems to me that no party can or should claim a mandate and commitment for any one item in a long manifesto. When the party gets into power, it should consider any proposal or promise afresh - on its merits - without any feeling of being obliged to honour it or being committed to it. It should then consider what is best to

do in the circumstances of the case and to do it if it is practicable and fair."

The same view was followed by the High Court of Justice Queen's

Bench Division Administrative Court in R (Island Farm Development Ltd.)

Vs. Bridgend County Borough Council [2006] EWHC 2189 (Admin).

9. In view of the aforesaid legal position, post-poll alliances cannot be

declared as illegal on the ground of being contrary to the manifesto of the

political parties entering into the alliance and it is not within the domain of

this Court to legislate or issue a direction therefor, making the manifesto a

legally binding document on the political party issuing the same.

10. We may record the contention of the learned ASG that if the post-poll

alliances are so prohibited, in the event of a hung House / Parliament, with

neither party having the required majority, the only option will be to conduct

a re-election and which is not a feasible or a practical solution; elections are