Ex-post-facto law

This article is written by Shikha Mishra, of Banasthali University, Jaipur. This article seeks to elucidate whether promises by political leaders made publicly are legally enforceable.

Introduction 

No promises made by political parties are legally accountable. Basically in India, democracy operates in two ways, one leads to a future where every political party is diversifying on similar promises and the election turns into an investment decision for the rich where the other is the purchasing power of its own and the other has prevented political parties from formulating false assurances given by civil society, regulatory functionaries and additional political parties themselves. If democracy is treated as a social contract between elected parties and common citizens the declaration must be treated as a valid contract that establishes the stated development agenda of the country. To maintain the health of India’s democracy, it must be ensured that the enforceability of the manifesto is an important reform to be pursued. 

Promises made by political parties are not legally enforceable

An electoral manifesto is described as a declaration that is announced by political parties, individuals or groups of people showing their intention, purpose and point of view in certain matters. It is considered as a reference document for the public at large and as to what a political party is. Future political parties announce their election manifesto, where voters can find out which party they should vote for, after comparing the ideologies, strategies and agendas of political parties, and which election manifesto best matches their expectations and aspirations. Political parties in their election manifesto pledged to run schemes for Dalits with some privileges on a daily, monthly or yearly basis to induce voters.

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However, the schemes mentioned in the election manifesto did not readily inform the voters about it. Neither is described how the Treasury will fund the plan, nor how individuals will be able to receive funds under a specific scheme. With the only intention of motivating voters to vote for a specific party, some political parties furnish gifts like pressure cookers, stoves etc.

In the current political landscape, most manifestos contain aggressive campaign elements that are inserted to stimulate a specific sentiment or tendency. In India, no one scrutinizes the manifesto. Whereas proclamations are all about influencing the voters or helping the parties to manipulate the voters. Nowadays it has turned into an analytical and idealistic practice. Preferably the election manifesto will be considered as the most important part of the election process where political parties make promises to the citizens that they will deal with their issues such as money for healthcare or matters related to it will determine the standard of living of the society, economy and law. But the autocratic politician was seen above the law. The candidate who requests your vote explicitly takes one action and then does something completely different, which is harmful to the citizens.

For instance, this can be seen in several elections where the political parties manipulate the citizens through raising the issues of religion and casteism and tend to increase their vote banks.

Political parties are elected based on the effective manifesto and this manifesto gives hope to the people that the promises made by the political parties will be fulfilled. However, we know that this is done to merely attract voters and garner a strong vote base. People choose their leaders based on the manifesto. Unfortunately, it seems that the political parties forget or do not want to give attention to the election promises and do not want to work for the welfare of the people.

For example, many parties promised to introduce the Women’s Reservation Bill from 2004 and reiterated the same in 2009 and 2014 even though the parties did not make efficient efforts to support its passage in power or opposition. However, it’s 2021 and till now this bill has not been introduced.

The Supreme Court delivered its judgment on a PIL filed by Advocate Mithilesh Kumar Pandey in 2015 and a bench of Justice HL Dattu and Justice Amitava Roy stated that there is no such provision in the law that applies against political parties when they do not fulfil their promises. Also, the Chief Justice said that the Court has been adjusted to take better decisions on behalf of the people and further the Bench noted that the judiciary is not accountable for every problem that arises in the political system.

Further, Advocate Mitilesh Kumar Pandey argued several legal guidelines must be mentioned by the courts to regulate the promises made in the election manifesto and political parties should be accountable for their promises. So that the expectations of the people can be fulfilled, and some work can be done for their welfare. The Supreme Court of India further clarified that it was not for the courts to decide the cases of unfinished suits at the time of elections, as they are not legally bound to do so. Therefore the petitioner’s plea had been rejected on the ground of no merit.

There is one situation mentioned above where we can note that some political parties offered gifts such as gas stoves, pressure cookers, laptops etc. When this matter came before the Supreme Court, it said that it is against the law to offer things to such people for votes. Therefore, it was also contended that offering these gifts was contradictory to the principle laid down in Article 282 of the Constitution of  India.

Because of this, the Supreme Court of India provided direction to the Election Commission of India to draw up the guidelines regarding the election manifesto and this will be considered as a Model Code of Conduct for the elections. The Election Commission of India had prepared a Model Code of conduct for the 2014 general elections and certain guidelines were mentioned that had restricted the parties from developing promises in the manifesto that would have an undue influence on voters. This action was taken to restrain the practice of giving gifts at the time of elections but the Election Commission has not taken strict action against the political parties and they made fake promises to the people and because of the illiteracy and poor conditions of the citizens. They believed in their promises which were made during the election time. But it can be seen that these political parties were not accountable for their promises. After five years when the Lok Sabha election was held in 2019, the Election Commission of India came up with additional guidelines and said that the manifesto should not be released 48 hours before each phase of polling. Unfortunately, these guidelines were not working because the potential voters had already been impressed by the election manifesto. 

The bitter truth is that this election manifesto practice was only laid down in papers, after that the political parties forgot about their election manifesto and were not enforced in the court of the law. Still, the opposition party also did not raise questions regarding the enforcement of election manifesto promises. That’s why we can say that the election manifesto of political parties is only on paper and not in action. Hence it can be seen that the promises made by the political parties in their election manifesto are not fulfilled on time.

The doctrine of legitimate exception

Legitimate exception signifies that an individual can have a rational assumption of behaving in a definite way by executive authorities because of some continuous practice in the history or an explicit promise rendered by the council concerned. According to this principle, a public authority can be held accountable in exchange for a legitimate expectation. Thus, the principle of legitimate expectation deals with the association between an individual and a public authority. Manifestly, this doctrine is not considered a legal right. It is an assumption of profit, assistance or relief that may usually flow from a promise or specified practice. The word established practice refers to a routine, compatible, reliable and specific conduct, procedure or exercise of the decision-making administration.

  • How is the doctrine of legitimate exception important in the present scenario

Legitimate exceptions also play a very important role in the present scenario where people have voted based on promises made by political parties, so people have legitimate expectations that the elected government will fulfil their promises legally. But these are the only expectations of people. The bitter truth is that political parties are not fully accountable for their manifestos as per the law.

As in our present scenario, we can see that political parties make promises to enact or abolish certain laws and also make promises to eradicate poverty and provide job opportunities to the people. The people who are not economically strong and do not provide education to their children tend to believe their manifesto. But there are several examples, which clearly shows that political parties are not accountable for their promises which were announced at the time of the election.

For instance, the Indian Congress in elections of 2004 and 2009 asserted in their manifesto that it will give immediate revenue to the farmers. After operating the government for 10 years, they did nothing about it. Further, Congress promised to provide electricity to every home but till now we can see that there are many villages where there is no electricity supply. Further, they promised to eradicate the root of black money and corruption but we are all aware of the fact that the members of the Congress party themselves are involved in several scams like the 2G spectrum, Commonwealth scam.

These political parties are using a variety of tools to prove themselves to be more trustworthy and credible than others and make their manifesto more powerful. However, when they fail to fulfil their promises, the expectations of the people fall. There has been no improvement in their working conditions to fulfil the promises made by the political parties. The legitimate exception of the people to the government is reasonable and valid.  There is no notion of benefit, aid or relief that can generally flow from a promise or specified practice that is given to people.

  • Relation between the political parties and the doctrine of a legitimate exception

There is a valid legal relation between political parties and the doctrine of legitimate exception. As we know, the doctrine of legitimate exception describes that if any representative or administration has made some promises either by words or oral and further the past consistent practices of the political parties give an expectation and general assurance that the promises will be fulfilled in future. This doctrine imposes a legal duty to the representative or administration to implement their pledges fairly by carrying all the essential factors regarding the committed pledges and work for the welfare of the people.

If we glimpse in our present scenario, it is noticed that political parties make promises to the people and give assurance that they will fulfil their promises. So the people assume that the promises made by the political parties give some benefits and work on the welfare of the people. But nothing like that happens so the people should have a legal right to take action against the politician who does not carry out their pledges. Thus, the principle of legitimate expectation deals with the relationship between an individual and a public authority.

  • Application of the legitimate exception in our present scenario

This doctrine is applicable in our present scenario therefore we need to glimpse three situations that have occurred in the doctrine of legitimate exception.

  1.  If there are implied promises made by the public authority.
  2. There are existing practices of the public authority that furnish expectations to the people that it will be reasonably continued.
  3. These expectations must be reasonable.
  • So if we are concerned with the first situation in our present scenario that political parties are bound to make promises in their manifesto, then they will be bound to fulfil these promises as it gives expectations to the people that these parties will work in their interest.  
  • Now, if we glimpse at the second situation and relate it to our present scenario then the promises made by political parties are considered as custom and it is prevalent since ancient times. There have been many elections held in our country where political parties made a powerful manifesto and assured people that they would work in their favour, and it gave people expectations that political parties are legally bound by their promises.
  • Further, If we look at the third situation and narrate it in our present scenario then people should have reasonable expectations from political parties but the same applies to political parties that they have to make reasonable promises to the people which they can fulfil.

The doctrine of promissory estoppel

This principle is founded on the principle of justice, fair play and good conscience and was developed by Equity to Prevent Injustice. This concept is neither covered under contract nor subject to reasonable withholding. This doctrine is developed by equities to prohibit injustice and although it is usually named ‘promissory estoppel’, Estopel’s rule is considered as the law of evidence and the elements of Section 115 of the Indian Evidence Act, 1872, shall be assured by the application of the doctrine. Hence, the plea of the principle would contradict the constitutional provision beneath Article 299, which furnishes for exemption from the personal penalty of the individual creating the pledge or confirmation. 

  • How is the doctrine of promissory estoppel important in our present scenario

This doctrine plays a significant role in our present scenario because this principle is based on equity, justice and conscience and prevails against injustice therefore it can be applied to the promises made by the political parties. While we know that these political parties make promises in their manifesto but after that, they forget to fulfil so it’s unfair to the people. political parties also have a legal intention to build good relations with the people. Both the parties show trust towards each other because we know that people vote for parties. That’s why we all know that parties violate promises and think only of their good and because of this injustice is done to the people. Since the promissory estoppel principle is considered an equitable principle, it must be applicable when justice is required.

For instance, several parties said that they would provide employment opportunities, eliminate poverty, and further assure that no one would be left homeless. This is some common manifesto which political parties announce at the time of election but forget to fulfil. Still, the parties are not exempted from the obligation to fulfil the pledge made by it for its future conduct and it cannot fail to fulfil the promise made based on necessity or expediency on some undefined and undisclosed grounds that’s why the people have the right to take reasonable action against them. 

As in our present scenario, we can see that those promises are not legally enforceable by the parties, people should be given the right to take legal action against them by applying the doctrine of promissory estoppel. 

  • Relation between the political promises and the doctrine of promissory estoppel

There is a reciprocal relationship between political parties and promissory estoppel. This principle works when one party has a legal intention to make a reciprocal relationship with the other party and both parties will be acting on it while the parties must be bound by the promise and both are acted upon it.

For instance, XYZ is a political party and ABC has considered citizens where XYZ makes a promise to ABC that they will fulfil all the demands addressing welfare if ABC gives them a vote. So, XYZ gives a future promise to the ABC and makes an oral or written agreement between them. So, if XYZ is not fulfilling its promises after getting the vote from ABC, there will be a breach of promises and ABC has the right to make a complaint against XYZ by using this principle. Therefore if political parties are not enforceable or breach their promises so the citizens have a right to take action against them by applying this doctrine.

  •  Application of promissory estoppel in our present scenario

Certain circumstances which illustrate that the doctrine of promissory estoppel will be acceptable in our present scenario are mentioned below. 

  • The government should render the promises within the confine of the legislation 

If we look in our present scenario where we noticed that some pledges made by the political parties are not legally enforceable.

For instance, some parties make hypothesis promises in their manifesto to get the attention of the voters but if we notice these promises it seems difficult to implement because these promises are hypotheses and beyond the law. So it is necessary that the political parties make the commitments within the ambit of the legislation and can be enforceable.

  • The additional party must do an act or is prohibited to perform anything to fulfil that pledge

If we glimpse in our present scenario where we found that political parties have some common agenda in their manifesto that either they would do any act or be forbidden to any activity in the interest of the citizens.

For instance, many political parties cited in their manifesto that they would curtail corruption, violence, inflation and make peace in the country. But if we check the history of the parties it seems that these promises only laid down in the paper never get enforced. So this principle assists the citizens to take legal action against the political parties if they are not getting responsible for their promises.

Case analysis of Nazma v. the Government of  NCT of  Delhi 

Facts of the case

  • In this case, the petitioners have filed a PIL to implement the pledge made by the Chief Minister of Delhi in March 2020. Petitioner numbers 1 to 3, 5, are daily wage labourers who argued that they are tenants and unable to pay their monthly rent.
  • Further, Petitioner No. 4 is treated as a landlord who demands monthly rent from the tenants and is unable to get the same. The petitioner demanded that the Delhi government has to repay the monthly rent amount as per their statement declared by the CMs of Delhi.
  • It was a pledge that he committed during the press conference and had given assurance to the people that the Delhi government had furnished relief to the tenants.
  • The petitioners argued that on 29 March 2020, the CM held a press conference and said that within the scope of the COVID-19 pandemic, he requested all landlords to defer the demand or collection of rent from tenants who are poor and living in poverty. 
  • In the backdrop of owners’ representatives being forced to pay their rent, landlords were directed to speak to their tenants and defer the collection of rent and it was argued that the CM had made a clear commitment in the press conference that if any tenant is unable to compensate the rent due to deprivation, the government will reimburse his rent on his behalf. 
  • Petitioner stated that it seems that the government also forgot about their promise; it can be enforced through the principle of promissory estoppel and legitimate exceptions.

Arguments advanced

Petitioner

  • As claimed by the petitioners a respectable guarantee was mentioned that the government would take care of the tenants. It is, therefore, a confirmation that the petitioners are trying to execute judicially through this writ petition, as the Chief Minister has allegedly failed to fulfil the promises made in the press conference.
  • The petitioners claimed that despite their countless appeals, the Delhi government has closed its eyes while the CM himself makes promises to the public. Hence the poor petitioners had taken a loan to pay their rent. 
  • In front of the CM’s office, he made a representation and asked the Chief Minister to fulfil his promise to pay the outstanding rent, but no reply was received from the Principal Secretary’s office. Further, the petitioners argued that there was no need for a policy decision to maintain the writ petition as it was a settled position in law.
  • Being the Chief Minister and the head of the government, then he will be bound by his promise. Later the petitioners rely on the judgement passed in the case of the State of Jharkhand & Ors. v. Brahmaputra Metallics Ltd., Ranchi & Anr., 2021, DY Chandrachud in his own words that “the State must end the societal belief that it is a free allotment charity at its will. Its agreements give rise to legitimate expectations that the state will conduct in the public sphere according to within weeks it decides to faithfully organize representation by public officials.  Requires norms because citizens live their lives based on their faith in the state”.  
  • Therefore, he observed that when the public administration fails to comply with its expressions without giving proper reasons to the citizens for this negligence, it violates the trust built by the citizens in the state.
  • The petitioner argues that the Right to Shelter is considered a fundamental right, while the Delhi chief minister announced a statement at a press conference that would be attached as a representation made by the government. If the Delhi government does not fulfil the promise, then people’s trust in the CM will be completely broken.
  • Although this promise protects the interests of landlords and tenants on both sides, this writ petition can be maintained. Further, the petitioner said that for the period of the lockdown, the government should be directed to reimburse the amount of rent spent by the petitioners.

Respondent

  • The Council, appearing for the Respondent, held that the principle of legitimate exception could depend only on actual government policy, government notification or executive decision and not merely on political statements. A promise cannot be the mere basis of a claim based on the principle of legitimate expectation whenever a formal genuine government notice is not issued.
  • The respondents, therefore, relied on the judgment of case that supports their contention i.e State of Bihar v. Kalyanpur Cement (2010) In this case it was decided that if the administration has declared some notice regarding exemption of tax in the industrial policy, then the administration will have to fulfil its promise.  Because members of the industry have a valid exception that the government will fulfil its promises, the government cannot be exempted from their promises. So if we look at our present case where the Delhi government also promises the people that the Delhi government will pay the rent and it gives hope to the people that the government will fulfil its promises.  So it can be said that the government has to keep its promise otherwise it will do injustice to the people which is against the law.
  • Further, the respondent also argued that it was held in the case of State of Bihar v. Sachindra Narayan et al., (2019) that the sacred hope of a citizen cannot be the basis for a claim based on the principle of Legitimate Expectation. A moral obligation cannot be the basis of a valid expectation unless a crystallized right is present.
  • Again the respondent also argued that the present writ petition is not maintainable and rests on the judgment passed in the case Gaurav Jain v. Union of India 15 June 2020.

Analysis

The Court said that in a democratic country where the individual is appointed to a position, especially administration, heads of state and those in responsible positions at the time of crises,  it is believed from them that they would make reasonable promises or confirmations to the citizens of India. There must have been clear prospects of the citizens that the government would influence their commitments and work in the interest of the people by fulfilling its promises. several tenants and landlords who believe in the pledge of the chief minister of Delhi and did not migrate to their village during the lockdown.

Therefore the Court stated that the statement is declared with the conscious mind in a press conference that is held on the announcement of lockdown during the Covid 19 and the mass departure of the migrant labourers can not be ignored. People trust and believe in the statement which is declared by the people who are in power. So it is compulsory to rely on the promises and try to complete them on time so the people can not get disturbed.

Finally, the Court concluded that the promise which was made by the Chief Minister in a press conference is held accountable even without passing the formal order on behalf of the government. This writ petition will be legally valid and applied through the doctrine of promissory estoppel and legitimate exception.

Judgement

The single-judge bench of Justice Singh of the Delhi High Court stated that the pledge made by the Chief Minister is legally enforceable.

Courts tend to issue further directions to the Court that the Delhi Government should take reasonable action within the 6 weeks on the behalf of the tenants and landlords by implementing the guidelines for repaying the tenants rent. And this will give assurance to the people that whatever promises the government makes, those promises are fulfilled with time. The decision shall be held in the light of concerning the interest of the citizens or in the favour of the people whom the benefit is provided through the statement of Delhi government so the Court always works for the welfare of the people and protects their interest.

Further, the Court also directed the Delhi Government to frame policy regarding this and the Court also held that if any schemes or policy used to be announced, the petitioner’s case would be considered beneath this scheme or policy it would be followed with the procedure which laid down the policy or schemes.

The introductory paragraph of the judgment reminds and sanctifies the old idiom “रघुकुल रीत सदा चली आई, प्राण जाए पर वचन न जाई”, this means that the “lineage of Raghu does not break the promise even at the cost of one’s life”. 

This was considered the basic principle of Ramayana and was implemented during the reign of Lord Rama. The same phrase will apply in the present scenario where the promises made by the government will be implemented as the promises give assurance and sympathy to the people that the government will work on the welfare of the people so it is imperative to maintain the trust of the people. We all know that the saying holds in the social context that promises are made to be broken. The law has developed two principles, the principle of Legitimate Exception and the promissory note which will assure that the promises made by the government cannot be broken and that if necessary the judiciary will be obstructed and the promises can be enforced by taking legal action.

Conclusion 

Now we can analyze that a drastic shift can be expected in how our political leaders behave in public not just in Delhi, but across the nation. In destiny, they will speculate twice earlier, rendering any pledges to people because they understand that they will be held responsible for what they announce. They will discover that they can’t announce anything in public and get out with it.  They did their task before creating any pledges and only rendered commitments they realized they could honor. If this occurs, we can predict to see a substantial fall in the negligence of our ministers, bureaucrats, elected representatives and politicians with which the faith of common citizens is at risk, and often smashed with immunity. 

 Reference 

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