The Sanctity and Legality of the Election Manifesto: A misused tool during elections – By Aaditya Vijaykumar

After Article 370 of the Constitution of India was abrogated, the External Affairs Minister of India, Dr. S. Jaishankar stated to a foreign correspondent “you know what..? this Government actually does what it says in its election manifesto!”. While in this particular case the government actually did what it promised to, that has not always been the case with any dispensation whatsoever. Should we not ensure that each promise made in the election manifestos by every State and Central Government is actually enforced, to the hilt? Unfortunately, most Election Manifestos and the promises made in it by each political party are conveniently forgotten.

An election manifesto is generally defined as a published declaration of the intentions, motives or views of an individual, group, political party or the government, in certain cases. It therefore serves as a reference document or benchmark for the public at large on what a political party stands for. By comparing the ideologies, policies and programmes of political parties, electors can decide which party they should vote for, based on which election manifesto best aligns with their expectations and aspirations.[1] Political parties have published such election manifestos since the year 1952.

However, there are basic issues that every political manifesto has and this problem has persisted for 73 years. The first and fundamental problem with an election manifesto, across the political spectrum, is that it does not contain adequate details of the manner in which the policy would be implemented, the source of funds for such implementation, etc. Illustratively, political parties promised, in their election manifestos, to float schemes for the downtrodden with certain benefits on a daily, monthly or yearly basis with the intent to sway the electorate. However, the schemes in the election manifestos conveniently did not apprise the electorates as to how the ex-chequer would fund the scheme nor how an individual would qualify for receiving money under a particular scheme. In short, the scheme was absolutely bereft of any particulars.

In some manifestos, certain regional political parties offered freebies such as pressure cookers, stoves etc., with the sole intention to induce the electorate into voting for a particular party.

Finally, in the present political scenario, most manifestos tend to have offensive campaign material, which is inserted to stir a particular feeling or inclination.

The bottom line still is that despite each of these problems, election manifestos issued by the different parties have always played a crucial part in the formation of governments at the state as well as at the central level. Each government has in fact been brought to power purely on the strength of its election manifesto.

Unfortunately, the political parties who have been elected either on the strength of their manifestos or otherwise, tend to ignore, indefinitely delay, or even outright reject manifesto policies, which were popular with the public at the time of elections. These political parties can do this simply because there is no enforcement mechanism, parameter or guideline in respect of election manifestos, whether in the Representation of Peoples Act, 1951 or set by the Election Commission, despite repeated directions by the Supreme Court of India.

One aspect as described above and its growing trend, i.e. regional parties offering freebies in their election manifestos such as pressure cookers, gas stoves, washing machines, laptops, gold thalis, electric fans etc. came to the attention of the Supreme Court. It was argued that offering these freebies was contrary to the principles set out in Article 282[2] of the Constitution of India. To curb this growing problem of providing freebies and to provide a proper code of conduct, the Supreme Court[3]directed the Election Commission of India to frame guidelines on election manifestos to be included as part of the Model Code of Conduct for elections. The direction of the Supreme Court is set out hereunder:

 “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.”

In terms of the directions of the Supreme Court thus, the Election Commission on August 12, 2013 held consultations with various political parties. However, despite express directions of the Supreme Court of India, the Election Commission did not issue guidelines whether in respect of freebies, timing of release of election manifesto, implementation of promises etc.

Instead, the Election Commission came up with generic guidelines stating that the election manifesto is to be in compliance with the Model Code of Conduct, the promises should not vitiate the purity of elections and that “in the interest of transparency, level playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it”. The guidelines were so broad and generic that the entire exercise further to the Supreme Court’s directions was rendered futile.

Some political parties, in the Lok Sabha election for the year 2014, exploited these patently weak guidelines when they released their manifestos on the day of voting in the first phase, with a view to sway voters. Unfortunately, the Election Commission at that point in time did not take any steps whatsoever against this behavioural pattern of these political parties.

Instead, after a period of 5 years, belatedly, the Election Commission only came up with additional guidelines for the Lok Sabha elections in 2019 stating that manifestos should not be released 48 hours before polling before each phase. However, such a guideline was and is actually of no particular use as the prospective voter would have already been swayed by the manifesto. It seemed that the Election Commission, in essence, completely forgot about the directions of the Supreme Court.

The ground reality however still is that even after 7 years of the directions of the Supreme Court, the problems in election manifestos continues. In other words, each manifesto continues to have virtually no detail, continues to offer freebies in some cases and has offensive campaign material. It is inconceivable that this problem has not been and could not have been addressed for 73 years since India’s independence.

The unfortunate truth is that after elections, these written manifestos are forgotten by the political parties and not enforced in law by courts, since there is no mechanism provided in any law whatsoever. [4] The opposition also does not seek to raise questions on enforcement of poll promises after elections.

The question that therefore begs an answer is if a prospective voter has voted on the basis of a promise, should s/he not have the legitimate expectation that the government voted to power perform such poll promises in full? Making the government perform its poll promises would ensure that tall promises merely to induce voters are not made and the promises made are sincere and well conceived.

As a solution, a mechanism ought to be set out in the Representation of Peoples Act, 1951 in respect of when the Election Manifesto is to be released by political parties, guidelines as to what such Election Manifestos should indicatively contain (including long term and short term agendas), indicate the ways and means to meet the financial requirements for such promises.

Further, if it is a manifesto of the party of the incumbent government, it should also contain the poll promises made in the previous election and as to how its MP’s, MLA’s and the ruling government have enforced and implemented the previous poll promises with data and statistics. A mechanism also ought to be put in place in order to impose penalties if this mechanism under the Representation of Peoples Act is not followed. This factor coupled with the potential to enforce the promises would deter political parties from making promises, which they cannot keep.

In countries such as Bhutan and Mexico, political parties are required to submit a copy of their election manifesto to the Election Commission before primary round of National Assembly elections. Manifestos are issued to the public only with the approval of the Election Commission, after thoroughly vetting and filtering out issues with potential to undermine the security and stability of the nation. In fact, in the United Kingdom and the Netherlands legal provisions applicable to offensive campaign material are screened and taken out. Such a principle ought to be applied to India as well. Each Election Manifesto ought to be screened by the Election Commission before it is released (to remove any objectionable or misleading campaign material) and a mechanism ought to be provided to enforce an election manifesto of a ruling party, if the party promising them is not implementing such poll promises. Messages, which evoke a certain feeling, ought to be screened and consequently removed.

It may be argued that it is best left to the political parties to regulate its own Election Manifesto and be critiqued by the media and academicians. It may also be argued that a political party may not be able to give a complete diagnosis or solution at the time of making the promise. However, if that be the case, it is incomprehensible how political parties are making promises in the first instance, without there being a basis, adequate information or “diagnosis” or a “solution”.

The question that one should ask is: Shouldn’t every process have absolute transparency? Should people exercising their franchise not be entitled to enforce and avail the benefit of an implied promise, which was the basis of their vote?

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Aaditya Vijaykumar is a lawyer practicing in the Delhi High Court. His practice areas include arbitration, litigation relating to contractual disputes, consumer disputes, gaming laws, anti-trust issues, litigation before the Debt Recovery Tribunal, NCLT, litigation for and on behalf of the government and PSUs, as well as litigation relating to property disputes and election laws.

[1]https://eci.gov.in/election-manifestos/

[2] Article 282 of the Constitution of India: 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.

[3] S. Subramaniam Balaji v. Government of Tamil Nadu, dated 5th July 2013 in SLP(C) No. 21455 of 2008

[4]https://timesofindia.indiatimes.com/india/Promises-in-poll-manifesto-not-legally-enforceable-Supreme-Court/articleshow/49146022.cms, https://www.tribuneindia.com/news/punjab/hc-can-t-direct-parties-to-implement-poll-manifestos/727965.html

Disclaimer: The views or opinions expressed are solely of the author.