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This article has been written by Dhaval Vyas, pursuing the Certificate Course in Advanced Civil Litigation: Practice, Procedure and Drafting from LawSikho. This article has been edited by Prashant Baviskar (Associate, Lawsikho) and Zigishu Singh (Associate, Lawsikho).

Introduction

What if your boss tells you, if you achieve a particular sales target, you will be entitled to an all-expense-paid tour to any destination in the world of your choice! Wouldn’t it be a call to action and motivate you to act? Later on, you would find that once the target is achieved, the company is on a cost-cutting spree, as the finance team has signaled financial prudence for the next few years due to the precarious economic situation. Wouldn’t you feel cheated? Wouldn’t a thought cross your mind to sue your boss and your company? Well, that is exactly the feeling when a political party makes huge, sometimes unbelievable promises in their election manifestos to be voted to power. How do such manifestos stand in scrutiny to the law of the land? Is there a remedy available to get them enforced? These are some of the questions we will discuss in this article.

Defining a ‘manifesto’

A manifesto is what a vision statement is to a company but a more dramatic call to action, almost like a slogan or advertisement of its promise to achieve a particular goal if a political party gets elected. A manifesto is a published declaration of the intentions, motives, or views of the issuer, be it an individual, group, political party, or government. 

Why is there an expectation of enforcing the election manifesto?

There have been several instances where the politicians of several political parties have made promises in their manifestos and have failed to fulfill them post their election. This made people wary of such promises and created a lack of trust.  It is this chain of broken promises that have been debated in society and even brought into active debates time and again by the media. Even the judicial courts have issued directives and guidelines -based on which (Election Commission of India 2015) has issued a model election code of conduct to various political parties to ensure no unfair advantage is taken in the immediate elections vote share by the political parties.

However, these regulations are for more immediate purposes to ensure free and fair elections. The inherent need for enforceability of election manifestos is to bring accountability and curb the dissipation of the hope of the innocent public who are unaware of the politics behind such claims. Many promises are too good to be true and as rightly defined, they have the potential to churn emotions and raise expectations and hence these promises need to be enforced. 

Are manifestos enforceable?

The basic question that has been debated by many is whether the manifestos are enforceable? There have been debates regarding this in legal circles,, where recourse is taken to the law of contracts. Accordingly, a manifesto is a promise, an offer and as per Section 10 of the law of contract, 1872 anyone making a contract is estopped from denying the promise made and could be made accountable to it. 

Most recently,

  1. In Najma versus Government of NCT of Delhi on July 22nd, 2021 the court held a stay order on the decision to “pay the rent” on behalf of tenants unable to pay the same due to poverty, in light of the COVID-19 pandemic. The writ wanted the chief minister of Delhi’s promise, as the basis for the petition in a press conference, dated March 29, 2020.

The court decided that the payment can be made by the government if there exists a scheme or a policy, made for such people affected by the pandemic. The Chief Minister had no consideration, therefore cannot be made to pay the rent.

However, as per the author, the decision to announce relief cannot be randomly made by a single person without considering the opinions of the cabinet ministers and the central government’s advice. A thorough proposal has to be passed by the responsible Delhi State Government or the Central Government after a thorough project report and feasibility study causes, it is the taxpayer’s money. Delhi government is a mixed government, in the sense that it does not have full autonomy. The finances are held by the center, and therefore one cannot make declarations without first making a proposal and thorough debate.

This must be the case even if Delhi or any state has full autonomy. Any decision having financial and crucial consequences affecting wide stakeholders has to be made only after considering and satisfying all the objections. Otherwise, it would become a contravention of a system for extorting money from the exchequer of the state. A promise made has to be backed by a visible plan of implementation with solid intent and the essential elements of a formal contract.

  1. An older SC judgment in Motilal Padampat Sugar Mills Co. Ltd. versus the State of Uttar Pradesh and Ors (1978) stated that if the promisor makes a promise and the promisee( the tenants in the above case) acted on the hope given by such promise, then the government who is the promisor will be held responsible, even if there is no consideration or a formal contract. This decision was backed by Article 299 of the Constitution of India. 

There have been a plethora of judgments on election manifestos and the associated practices by the politicians. For instance:

High Court Tamil Nadu W.P.(MD). No.18733 of 2020 in M.Chandramohan (M/48/2020) vs. The Secretary 

Held: Gave a list of 19 questions which funneled to a contention that:

The political parties must refrain from giving exaggerated promises as it may burden the public money kept in state funds, during times of financial distress. It also agreed that not all promises are corrupt, but many are and so guidelines must be given by the election commission of India to form a model code of conduct based on the SC court decision on S.Subramaniam Balaji vs. State of Tamil Nadu and Others reported in (2013) 9 Supreme Court Cases 659. 

High court of Kerala WP(C) NO. 11054 of 2021 Sibha S vs. Union Of India 

Held: That the promises made before the election, and upon achieving power, have a moral duty to be fulfilled. It may fructify such an offer by any democratic strategy or means available in line with socio-welfare ideas for the masses.

Few older cases in High Courts

V.P. Ammavasai versus Chief Election Commissioner (2019), Mithilesh Kumar Pandey versus Election Commission of India & Ors (2014), ANZ Grindlays Bank Pie versus Commissioner, MCD),(1995), have held that the promises made in election manifestos cannot be enforced.

Thus, the political parties should be prohibited or prevented from giving election promises, which they are not capable of performing, as that would be misleading. These decisions show that though there is an issue stated, there are no laws to enforce them.

What is the purpose of the election manifestos?

The purpose of the election manifestos can be understood from its definition. It is fundamentally a statement made to achieve the objectives of the people who will vote for them.

There are several issues and demands by the public which need to be addressed. The elected representatives pass such demands in the house of the parliament at the center and the legislative assembly and council at the state level and make acts that are implemented. Many a time certain schemes and policies are made which may not have the backing of an act but an ordinance or simple approvals by the president of the governors can allow such spendings. Thus we see that the ideals of the public at large are fulfilled if the election manifestos are properly implemented.

Election Commission of India on election manifestos based on the SC judgment on 05.07.2013 between S.Subramaniam Balaji vs. Government of Tamil Nadu and Others

The Election Commission of India is an autonomous constitutional authority responsible for administering election processes in India. The body administers elections to the Lok Sabha, Rajya Sabha, State Legislative Assemblies in India, and the offices of the President and Vice President in the country. The Election Commission operates under the authority of the Constitution as per Article 324 and subsequently enacted the Representation of the People Act,1951.

Supreme Court judgment dated 05.07.2013 in SLP(C) No.21455 of 2008 and TC No.112 of 2011- S.Subramaniam Balaji vs. Government of Tamil Nadu and Others 

It passed an order for framing guidelines on manifestos of the Political parties on the election commission of India. The Supreme Court stated free and fair election is fundamental to constitutional ideals. The distribution of powers has to be maintained and the election commission must not enter the domain of legislative measures If legislation is required it must be passed by the legislature to govern the political parties. Accordingly, the all-party meet was conducted by the Election Commission of India to take their views on it.

The ECI (Election Commission of India) has conducted comparative studies of various international legislation and formed a model code of conduct passed and Section VIII 

This provided the following points on the same:-

  1. The election manifestos cannot be considered as a corrupt practice according to the Section 123 of The Representation of People’s Act, 1951; and distributing freebies interrupts the process of a fair election.
  2. The election commission must issue the model code of conduct as follows to en- sure free and fair election as it has done in the past;
  3. If the election manifesto is made before the election dates are announced then the ECI has no authority to regulate, however, an exception can be made in exceptional cases.
  4. The meetings with the political parties were conducted to maintain a balance between the rights of the political parties to announce their manifestos and maintain a level field for fair elections.
  5. ECI made guidelines to political parties to ensure the spirit and directive principles of state policy are abided by for declaring welfare policies without exaggerated promises which prima facie seems objectionable.
  1. Whether single-phase or multiphase election manifesto’s must not be released during the probationary period as per Section 126 of the Representation of People’s Act, 1951.

In sub-para 4 of para I general conduct

The current model code of conduct at the time the above was ordered by the Supreme Court has good provisions such as “All parties and candidates must not indulge in corrupt activities, bribing, intimidation, impersonation of voters, canvass- sing within 100 meters of the polling station during the last 48 hours after the date fixed for the closure of the poll is announced, transportation or conveyance of voters.”

In Para VII Party in Power

The party at center or state shall not misuse official power to sanction funds/grants, lay any foundation stone, make the promise of infrastructure development projects, make any specific appointments in the government after election dates are announced to influence the voter.

Internationali Manifesto practices

  1. In the United States of America, policies affecting large populations are discussed broadly on topics such as economic policy, foreign policy, healthcare, governance reform, environmental issues, and immigration to name a few. No specific benefits are discussed.
  2. Western Europe is more concrete in terms of its manifestos where financial paragraphs are added which can be audited to calculate how realistic the promise is.
  3. In Bhutan the election manifestos are audited by the election commission and only after their approval are they allowed to be published to the public.
  4. Mexico too has a body such as the Federal Electoral Institute (IFE) which vets the documents in election manifestos to ensure that they are in line with the basic beliefs of the parties.

Having a look at the author’s point of view

The election promises signal intent or at best an invitation to offer, and not promises per se if construed strictly from the Contract Act 1872 point of view. Although offer or proposal is defined as per Section 2(a) of the Indian Contract Act. There is no direct law for the invitation to offer. However, the concept has strong precedential backing by the famous case Carlill vs. Carbolic Smoke Balls Company where the decision was in favor of the plaintiff. It was a unilateral general offer (though the courts believed otherwise stated it was a specific offer due to an offer of consideration of pound 100 reward to anyone who followed the instruction of smoking the product to avoid influenza infection. The offer was unilateral or general, and as soon as someone purchased the product, it became specific once they made a claim. This case brings into consideration many questions such as what is a general contract, unilateral contract, consideration? Is it a specific offer or a general offer? And so on.

If we apply the case to advertisements made by the companies, then similar questions may be asked and newer remedies claimed against false advertisements today. However, the basic question is, whether political parties are considered similar to businesses offering products or services? They do, of course, offer services. But can the offers made by the members of the political party bind them? Who is the principal? Are the promises made in the manifestos an offer or invitation to offer? To understand that, one has to understand the difference between offer and invitation to offer, the author has provided examples of invitations to offer, not described in The Indian Contract Act 1872.

  • If a shop displays merchandise, it is an invitation to offer, to the general public, to visit the shop and make an offer to buy. If the shopkeeper agrees to sell, then it is an agreement to the offer made. Here although the shop made an invitation to offer, the actual offer is made by the consumer, as the shop did not go to the consumer. This is a fundamental difference.
  • Taking the same context, are politicians or members of the political parties, or the parties themselves selling something? Are they selling any service or dream by their promises? On selecting a particular member to represent, is the entire party responsible? How can one get the intent? Whether it was an offer or an invitation to offer? 
  • In an invitation to offer, what the politicians are saying is this:- Elect me to power, and other members of my party and we would do x and y. This doing of x and y by way of promise is an advertisement, if the invitation to offer premise is selected.
  • This means when we elect them we have made an offer to pay taxes or do our duty which helps them to bring their part of the acceptance to light. The promise can be implemented but we have to offer them first to fulfill such a promise, by way of making a policy draft request or application, or our inputs as to how such a promise can be enforced. They are our representatives but the project report (if we consider it in a business sense) has to be made by us or suggested by us. It would be accepted by the cabinet and policies would be framed. The consolidated funds will then allocate funds to ministers to implement the policies or schemes.

However, the problem lies in the fact that we as voters would not be involved in the day-to-day functioning of this process.  Are such promises feasible? Who pays for such a scheme?

  • If the party is elected in majority, the representation is not 100% of all people in a state. However, the policies can benefit everyone, even if they did not vote. If the party is in minority it has to take support from other parties. Any decision made will be pre- sumed to be the collective will of the people as it is through a system of democracy.
  • Policies and schemes are in the domain of the executive and may change with the change of power. To ensure that promises are fulfilled, an act has to be passed by the parliament, only then it will have the potential to be implemented by any political par- ty that comes to power. The making of the policy is completed only after the negotiations by way of offer, acceptance, counter-offer is done by way of commission of reports generated from consultation with experts, common man and various stake-holders ( read offer).
  • Revision, amendments are all  a part of the complex process of negotiation, which is completed  when the policy or scheme is framed or sanctioned. This is acceptance by the political party through their party members. Now these schemes and  policies have to be analyzed as to whether they can  be enforced and whether there is a need for the act or its rules to be framed on the same. Only then can an individual go to court for enforceability of the manifesto promises. An Act or a Rule which mentions specifics can be enforceable.  

Therefore one has to see whether there is a solid intent behind the offer or invitation to offer. In Carlill vs. Carbolic Smoke Ball Company, the contract was an invitation to offer converted to offer when the product was consumed and claimed. The deposit of 1000 pounds by the company in an account for presumable claims showed it was not frivolous but specific.

Extrapolating to promise by the political, we must ask the following questions:-

  1. Whether there is an offer or invitation to offer?
  2. Whether there is any concrete intent by using the objective test of steps taken by the promisor to be considered?
  3. The merits have to be seen when comparing cases between two private individuals such as Carlill v/s carbolic smoke ball company;
  4. The case against a political party, by a private individual would be public v/s private case;
  5. Whether the agreement is a.
  • Family agreement: (a presumption of no contract is made);
  • Social agreement (i.e. agreement between friends, no presumption, then case decided on its merits, using the objective test);
  • Commercial agreements: (a presumption of a valid contract is made); or
  • Collective agreements: (a presumption of no contract has to be determined to be enforceable ).

Conclusion

Thus the above analysis will help one to determine the framing of contractual liability useful for enforceability. The potential of enforceability of the election manifestos would only be possible when they are backed by a specific plan, intent, and based on data. If these schemes and policies, Acts, and Rules framed on such manifestos are executed and lead to violations, they could be challenged in a court of law.

References

Apr 2015, ECI Publications, online website, viewed

on 6th Nov 2021; available at https://eci.gov.in/election-manifestos/;

  • SLP(C ) No.21455 of 2008 and TC No.112 of 2011- S.Subramaniam Balaji Vs Government of Ta- mil Nadu and OthersS.Subramaniam Balaji v. State of Tamil Nadu and Others reported in (2013) 9 Supreme Court Cases 659; available at:-https://indiankanoon.org/doc/106854428/ Accessed 6th Nov 2021;
  • Election Commission of India, MODEL CODE OF CONDUCT FOR THE GUIDANCE OF POLITICAL PARTIES AND CANDIDATES, dated, ECI Publications, online website, viewed on 6th Nov 2021; available at https://eci.gov.in/mcc/;

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