WHETHER THE SEC.

123(9) INSERTED BY THE PARLIAMENT IN THE

REPRESENTATION OF PEOPLE ACT,1951 IS VIOLATIVE OF ARTICLE 19(1)(a)

AND ARTICLE 21 , PART III i.e. FUNDAMENTAL RIGHTS OF THE

CONSTITUION OF BHARAT NADU ?

The petitioner humbly submits before the Honourable SC that the petitioners, United

National Congress Party (UNCP) and the farmers’ association Raith Mitra Claims the

protection of their FRs as guaranteed by the Const. of Bharat Nadu under Part III of the

Const. the Sec. 123(9) Inserted by the Parliament in RP Act,1951 restricts the political parties

to promise any gainful benefits like freebies, loan waivers etc, in its election manifesto. Such

a provision is violative of Art. 19 (1) (a) as claimed by the political party UNCP and Art. 21

as claimed by the Farmers’ association. Therefore, on various grounds set forth under, the

Sec.123(9) of RP Act,1951 violates the aforesaid FRs.

A MANIFESTO SERVES AS A REFERENCE DOCUMENT FOR THE PUBLIC AT

LARGE FOR WHAT A POLITICAL PARTY STANDS FOR.

An election manifesto is a published document containing declaration of the ideology,

intentions, views, policies and programmes of a political party. It therefore serves as a

reference document for the public at large for what a political party stands for. Sec. 123(9) of

RP Act,1951 restricts the parties to make any promise of any gainful benefits like freebies,

loan waivers etc in manifesto.

It is humbly submitted that Political parties are not restricted to make promises. such as

waiving of agricultural loans, pension scheme for aged and helpless farmers, etc. Oxford

dictionary defines freebie as something provided or given free of charge. The Hon’ble SC in
its judgement in the case S. Subramaniam Balaji vs. Govt. of Tamil Nadu1 and Ors. observed

that such promises by political parties under present law does not amount to corrupt practice,

the apex court, however, said that election manifesto released by parties can be included in

the model code of conduct.

“After examining and considering the parameters laid in Section 123 of RP Act, we arrived

at a conclusion that the promises in the election manifesto cannot be read 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 prevailing law," the court said.

“If we are to declare that every kind of promises made in the election manifesto is a corrupt

practice, this will be flawed.2 Since all promises made in the election manifesto are not

necessarily promising freebies per se... 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 kind of promises can or cannot be made in

the election manifesto," it said.

The bench, however, concluded that the promises in an manifesto under the present law

cannot be declared corrupt practice.

It is humbly submitted before the Hon’ble SC that there is a difference between election

promise and vote buying where former is made publically for the benefits of large groups,

latter is made in secret, targeting small groups. In the case of election promises voters are

typically offered non-self interested reasons to vote in favour of the candidate issuing the

promise, for instance that the policy promised is just. vote buying involves a contractual

relation. Whereas a promise only obliges the promising party to act in a certain way. Also

election promise is not conditional and involves full membership in political community.

1
2
Prof. Ramchandra G kapse vs. Haribansh ramakbal Singh, AIR 1996 SCC 817.
THE RESTRICTION POSED BY THE AMENDMENT, SEC. 123(9) OF RP ACT,

1951 FAILS TO QUALIFY THE TEST OF REASONABILITY.

Art. 19(1)(a) of the Constitution of Bharat Nadu guarantees that all citizens shall have the

right to freedom of speech and expression This freedom is essential for the proper functioning

of the democratic process It plays a crucial role in the formation of public opinion and it has

been described as “basic human rights”3. In Romesh Thappar vs. State of Madras4 The SC

held that the freedom of speech and expression includes freedom to propagate Ideas which is

ensured by freedom of circulation of a publication, as publication is a title value without

circulation. Sec. 123(9) of the RP Act, 1951 is against the FR of freedom of speech and

expression This law restricts the political party to convey their opinions and their agendas to

the masses.

However this FR is not absolute and is subject to reasonable restrictions. In State of Madras

vs. V.G. Row5 SC observed “ it is important in this context to bear in mind that the test of

reasonableness, wherever prescribed, should be applied to each individual statute and no

abstract standard or general pattern , of reasonableness can be laid down as applicable to all

cases.” “The limitation imposed on a freedom should not be arbitrary or excessive, or beyond

what is required in the situation in the interest of the public.”6 But restriction imposed under

Sec. 123(9) RP Act, 1951 is excessively or arbitrarily invading the rights of the political

parties and thus cannot be characterised as reasonable. The reasonableness of a restriction has

to be determined in an objective manner and from the standpoint of the interests of the

general public and not from the point of view of the persons upon whom the restrictions are

3
4
AIR 1950 SC 124.
5
AIR 1952 SC 196.
6
M.R.F. Ltd vs. Inspector Kerala Govt. AIR 1999 SC 188.
imposed or upon abstract consideration7. The Amendment in the RP Act, 1951 Sec. 123(9)

creates a hindrance for the general public in arriving at a decision as to exercise their legal

right of Voting which makes the Amendment opposed to public Interest.

It is humbly submitted that the determination by the Legislature of what constitutes a

reasonable restriction is not final and conclusive8, it is subject to supervision of Courts.

RIGHT TO RECIEVE INFORMATION FORMS A VALID EXTENSION OF

FREEDOM OF SPEECH AND EXPRESSION.

Article 19(1)(a) of the constitution of Bharat Nadu not only guarantees the freedom of speech

and expression but is also held inclusive of right to acquire information. In People’s Union

for civil Liberties. The right of the citizens to obtain information on matters relating to public

acts flows from the FRs enshrined in Art. 19(1)(a). In State of Uttar Pradesh vs. Raj Narain9

the SC held that Art. 19(1)(a) ensures and comprehends the right of citizens to know, the

right to receive information regarding matters of public concern. The Delhi HC in

Association for Democratic Reforms vs. UOI10 has emphasised that the right to receive

information acquires great significance in the context of elections.

Sec. 123(9) of RP Act, violates the right of the general public to receive information about

the political party’s promises and agendas Aggrieved by the same Raith Mitra has challenged

the very provision of the RP Act, 1951.

If the Farmers are not aware of the ideas and the promises of the political party they would

not be able to make a firm choice as to whom should they vote and this will hinder their legal

right to vote.

7
Mohd. Hanif Quareshi Vs. State of Bihar, AIR 1958 SC 731.
8
Bhau Ram Vs. Baji Nath Singh, AIR 1962 SC 1476; Chintaman Rao vs. State of M.P.,AIR 1951 SC,118,120.
9
AIR 1975 SC 865, 884.
10
AIR 2001Del,126,137.
‘LIFE’ IS NOT MERELY EXISTENCE BUT ALSO INCLUDES RIGHT TO

LIVELIHOOD.

Article 21 of the Const. of Bharat Nadu guarantees Protection of life and personal liberty. No

person shall be deprived of his life or personal liberty except according to the procedure

established by law. The Court has been giving an expansive interpretation to ‘life’. The Court

has observed in Munn vs. Illinois11 “something more is meant than mere animal existence....”

In Fracis Coralie vs. Delhi12 the court observed that “right to life also includes the right to

live with human dignity and all that goes along with it , namely, the bare necessaries of life..”

It is humbly submitted before the Hon’ble SC that if any statutory provisions run counters to

such a right it must be held unconstitutional.13 Art.21 includes Right to livelihood14 as

deprivation of livelihood would make life impossible to live. The waiving of farm loans and

supply of freebies to farmers help them to overcome the circle of debt in which they tangle

themselves at the time of crop failure because of unfavourable climatic conditions. This helps

them to invest further in their agriculture and not managing to pay off the debts Sometimes

the farmers borrow money from unofficial money lenders at high interest rates. Farm loan

waivers schemes will divert these farmers to borrow money from banks. As per the fact

sheet15 farmer’s suicide is on the rise and has become a national ignominy. To decrease the

increasing farmer’s suicide rates the govt. need to gain the trust of farmers, farmer loan

waiver scheme does that. Bharath Nadu being a welfare state should be such which focuses

on the lower strata of the society as well and waiving of farm loans is one such way.

11
94 U.S. 113 (1877).
12
Francis Coralie vs. Union Territory of Delhi, AIR 1981 SC 746.
13
Confederation of Ex- servicemen Association vs. UOI,AIR 2006SC 2945
14
Board of trustee of the Port of Bombay vs. Dilipkumar R. Nandkarni, AIR 1983 SC 109.
15