Holding

Promises in an election manifesto do not amount to a corrupt practice under Section 123 of the RP Act, and the welfare schemes are valid exercises of public purpose that do not violate Article 14.

Summary

The appellant challenged the Tamil Nadu government's distribution of free colour television sets, laptops, mixers, and other welfare items promised in the Dravida Munnetra Kazhagam (DMK) election manifesto, alleging that the expenditure was unauthorized, violated Article 14 and amounted to a corrupt practice under Section 123 of the Representation of People Act, 1951. The High Court dismissed the writ petitions, and the matter was appealed before the Supreme Court. The Court held that Section 123 of the RP Act applies only to candidates and their agents, not to political parties, and therefore promises in a manifesto cannot be read as corrupt practices. It further found that the schemes fell within the ambit of public purpose under the Directive Principles and did not infringe Article 14. The Court declined to invoke the Vishaka principle, noting no legislative vacuum, and clarified that the CAG’s audit duty arises only after expenditure is incurred. The appeal and the transferred cases were dismissed.

Issues considered

Whether promises made in a political party's election manifesto constitute a corrupt practice under Section 123 of the Representation of People Act, 1951.
Whether the welfare schemes (free TVs, laptops, etc.) are within the scope of public purpose and violate Article 14 of the Constitution.
Whether the Supreme Court can issue guidelines under the Vishaka principle in the absence of specific legislation.
Whether the Comptroller and Auditor General of India must examine expenditures before they are deployed.
Whether writ jurisdiction can be exercised against a political party.

Legislation cited

Comptroller and Auditor General's (Duties, Powers etc.) Act, 1971s. 13, s. 15
Constitution of Indias. Article 118, s. Article 14, s. Article 148, s. Article 162, s. Article 208, s. Article 266(3), s. Article 267, s. Article 282, s. Article 324, s. Article 73
Representation of the People Act, 1951s. 123, s. 77, s. 78, s. 80, s. 81

Subjects

election manifestocorrupt practiceRepresentation of People Actpublic purposeArticle 14freebiesModel Code of ConductComptroller and Auditor Generaljudicial reviewVishaka principle

Judgment

(2013) 13 S.C.R. 668

A S. SUBRAMANIAM BALAJI -r
v.
THE GOVERNMENT OF TAMIL NADU & ORS.
(Civil Appeal No. 5130 of 2013)
JULY 5, 2013
B
[P. SATHASIVAM AND RANJAN GOGOi, JJ.]

Representation of the People Act, 1951 - s. 123 - J.t
Elections - Promises made by political parties in their election
c manifesto - If amounts to 'corrupt practices' as per s.123 - ..._
Held: Promises in the election manifesto cannot be read into
s. 123 for declaring it to be a corrupt practice - Promises in
the election manifesto do not constitute as a corrupt practice
under the prevailing law - However, reality cannot be ruled
D out that distribution of freebies of any kind, undoubtedly,
influences all people - It shakes the root of free and fair --f
elections to a large degree - Considering that there is no
enactment that directly governs the contents of the election
manifesto, the Election Commission is directed to frame
E guidelines for the same in consultation with all the recognized
political parties - 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 done before
announcement of the date - Nevertheless, an exception can
F
be made in this regard as the purpose of election manifesto
is directly associated with the election process - Election
Commission directed to take up this task as early as possible
owing to its utmost importance - Also, there is need for a
separate legislation to be passed by the legislature in this ,._~

G regard for governing the political parties - Constitution of

•
India, 1950 - Art. 324.

Policy - Government policy - State Largesse - Scheme
framed by State for free distribution of Colour Television Sets
H 668
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 669
TAMIL NADU
(CCTVs) to eligible families in the State - Scheme A
challenged in writ petition - Whether the scheme was within
the ambit of public purpose and if yes, was it violative of Art. 14
of the Constitution - Held: The mandate of the Constitution
provides various checks and balances before a Scheme can
be implemented - Therefore, as long as a scheme comes 8
within the realm of public purpose and monies withdrawn for
implementation of the scheme by passing suitable
Appropriation Bill, the Court has limited jurisdiction to interfere
~- in such scheme - Judicial interference is permissible only
when action of the government is unconstitutional or contrary
to a statutory provision and not when such action is not wise
c
or that the extent of expenditure is not for the good of the State
- The scheme in question fell within the realm of fulfilling the
Directive Principles of State Policy thereby falling within the
scope of public purpose and was a/so in consonance with
j. Art. 14 of the Constitution - Scope for application of the D
principle laid down in Vishaka case did not arise as there was
no legislative vacuum in the case on hand -Constitution of
India, 1950 - Art. 14 - Representation of the People Act, 1951
- s.123.
E
Constitution of India, 1950 - Art. 148 - Comptroller and
Auditor General of India (GAG) - Role and duties of - Held:
,.. CA G is a constitutional functionary appointed ulArt. 148 of the
Constitution - His main role is to audit the income and
expenditure of the Governments, Government bodies and F
State-run corporations - GAG examines the propriety, legality
and validity of all expenses incurred by the Government -
Comptroller and Auditor General's (Duties, Powers etc.) Act,
1971.

Constitution of India, 1950 - Art. 148 - Comptroller and G
Auditor General of India (GAG) - Whether GAG has a duty
to examine expenditures even before they are deployed -
Held: The office of GAG exercises effective control over the
government accounts and expenditure incurred on schemes
•.
H
670 SUPREME COURT REPORTS [2013] 13 S.C.R.

A only after implementation of the same - Duty of the CAG
arises only after the expenditure is incurred.

Respondent No.8-Dravida Munnetra Kazhagam
(DMK), while releasing the election manifesto for the 2006
Assembly Elections, announced a Scheme of free
8 distribution of Colour Television Sets (CTVs) to each and
every household which did not possess the same, if the
said party/its alliance were elected to power. This Scheme
was challenged by the appellant, by filing writ petition
before the High Court on the ground that the expenditure
C to be incurred by the State Government for its
implementation out of the State Exchequer was
unauthorized, impermissible and ultra vires the
Constitutional mandate. The appellant filed complaint to
the Election Commission of India seeking initiation of
D action in respect of the said promise under Section 123
of the Representation of People Act, 1951. The appellant
also forwarded the complaint to the Chief Election Officer,
Tamil Nadu.

E The DMK and its political allies emerged victorious
in the State Assembly Election held in the month of May,
2006. In pursuit of fulfilling the promise made in the
election manifesto, a policy decision was taken by the
then government to provide one 14" CTV to all eligible
F families in the State. It was further decided by the
Government to implement the Scheme in a phased
manner and a provision of Rs. 750 crores was made in
the budget for implementing the same. Being aggrieved
by the implementation of the Scheme, the appellant filed
another complaint to the Chief Secretary and the
G Revenue Secretary pointing out the unconstitutionality of
the Scheme. He also preferred Writ Petition before the
High Court alleging the Scheme a corrupt practice to woo
the gullible electorates with an eye on the vote bank. The
High Court dismissed both the writ petitions filed by the
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 671
TAMIL NADU
appellant holding that the action of the Government in A
distributing free CTVs cannot be branded as a waste of
exchequer.
In the instant appeal, the following questions arose
for consideration in the present appeal. B
(i) Whether the promises made by the political parties
in the election manifesto would amount to 'corrupt
practices' as per Section 123 of the Representation
of People Act, 1951?
c
(ii) Whether the schemes under challenge are within
the ambit of public purpose and if yes, is it violative
of Article 14?
(iii) Whether the Supreme Court has inherent power
D
+-- to issue guidelines by application of the principle laid
down in Vishaka case?

(iv) Whether the Comptroller and Auditor General of
India has a duty to examine expenditures even
before they are deployed? E

(v) Whether the writ jurisdiction will lie against a
political party?
,,._
Dismissing the appeal and the transferred cases, the
' Court F

Issue No. 1

Whether the promises made by the political parties in
their election manifestos would amount to 'corrupt G
practices' as per Section 123 of the Representation of the
People Act, 1951?
1. The purpose of incorporating Section 123 of the
RP Act is to ensure that elections are held in a free and
fair manner. A perusal of sub-sections 1-8 of Section 123 H
672 SUPREME COURT REPORTS [2013] 13 S.C.R.

A of the Act makes it clear that it speaks only about a
candidate or his agent or any other person. There is no
word about political parties. [Paras 47, 49 and 50) [709-
D; 715-G; 716-B]
2.1. If every kind of promise made in the election
8
manifesto is declared as a corrupt practice, this will be
flawed, since all promises made in the election manifesto
are not necessarily promising freebies per se, for
instance, the election manifesto of a political party
C promising to develop a particular locality if they come
into power, or promising cent percent employment for all
young graduates, or such other acts. 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
D kind of promises can or cannot be made in the election
manifesto. [Para 53) [716-H; 717-A-C]
2.2. Secondly, the manifesto of a political party is a
statement of its policy. The question of implementing the
manifesto arises only if the political party forms a
E Government. It is the promise of a future Government. It is
not a promise of an individual candidate. Section 123 and
other relevant provisions, upon their true construction,
contemplate corrupt practice by individual candidate or
his agent. Moreover, such corrupt practice is directly
F linked to his own election irrespective of the question
whether his party forms a Government or not. The
provisions of the RP Act clearly draw a distinction
between an individual candidate put up by a political party
and the political party as such. The provisions of the said
G Act prohibit an individual candidate from resorting to
promises, which constitute a corrupt practice within the
meaning of Section 123 of the RP Act. The provisions of
the said Act place no fetter on the power of the political
parties to make promises in the election manifesto. [Para
H 54) [717-C-F]
••
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 673
TAMIL NADU
2.3. Thirdly, the provisions relating to corrupt practice A
are penal in nature and, therefore, the rule of strict
interpretation must apply and hence, promises by a
political party cannot constitute a corrupt practice on the
part of the political party as the political party is not within
the sweep of the provisions relating to corrupt practices. B
As the rule of strict interpretation applies, there is no
scope for applying provisions relating to corrupt practice.
contained in the said Act to the manifesto of a political
"!-. party. [Para 55) [717-G-H; 718-A]

2.4. Lastly, it is settled law that the courts cannot
c
issue a direction for the purpose of laying down a new
norm for characterizing any practice as corrupt practice.
Such directions would amount to amending provisions
of the said Act. The power to make law exclusively vests
in the Union Parliament and as long as the field is D
covered by parliamentary enactments, no directions can
be issued as sought by the appellant. As an outcome, it
cannot be held that the promises made by the political
parties in their election manifesto as corrupt practice
under Section 123 of the RP Act. [Para 56) [718-B-C] E

Patangrao Kadam vs. Prithviraj Sayajirao Yadav
Deshmukh and Ors. (2001) 3 SCC 594: 2001 (2) SCR 118
- relied on.

-+' Union of India & Anr. vs. International Trading Co. & Anr. F
2003 (5) SCC 437: 2003 (1) Suppl. SCR 55; K. T. Moopil
Nair VS. State of Kera/a AIR 1961 SC 552: 1961 SCR 77;
Bhim Singh vs. Union of India and Ors. (2010) 5 SCC 538:
2010 (6) SCR 218; Federal Bank Ltd. vs. Sagar Thomas and
Others (2003) 10 SCC 733: 2003 (4) Suppl. SCR 121; Aruna G
Ramachandra Shanbaug vs. Union of India and Others (2011)
4 SCC 454: 2011 (4) SCR 1057; Union of India vs.
Association for Democratic Reforms and Another (2002) 5
SCC 294: 2002 (3) SCR 696; People's Union for Civil
Liberties (PUCL) and Anr. vs. Union of India and Anr. (2003) H
- I

+
674 SUPREME COURT REPORTS [2013] 13 S.C.R. l

A 4 sec 399: 2003 (2) SCR 1136; M. J. Jacob vs. A. -r
Narayanan and Others (2009) 14 SCC 318: 2009 (4) SCR
305; Ba/dev Singh Mann vs. Surjit Singh Dhiman (2009) 1
SCC 633: 2008 (16 ) SCR 540; Samatha vs. State of A.P.
and Others (1997) 8 SCC 191: 1997 (2) Suppl. SCR 305;
B Keshavanand Bharati vs. State of Kera/a (1973) 4 SCC 1461
and Deepak Theatre, Dhuri vs. State of Punjab and Others
1992 Supp (1) sec 684: 1991 (3) Suppl. SCR 242 -
referred to.
)(.
Coates vs. Campbell and Others 37 Minn. 498 ((USA);
c Roberts vs. Hopwood & Ors. 1925 AC 578; Bromley London
Borough Council, London vs. Greater Council & Anr. 1982 (2)
WLR 62; R vs. Secretary of State for Foreign Affairs (1995) 1
All ER 611; Richardson-Garnder vs. Ekykn (1869) 19 LT 613
and Kingston Cotton Mills Co. Re [1896) 2 Ch 279 - referred
D to.
-+
Issue No. 2

Whether the schemes under challenge are within the
ambit of public purpose and if yes, is it violative of Article
E
14?

3.1. The concept of State largesse is essentially
linked to Directive Principles of State Policy. Whether the
~
State should frame a scheme, which directly gives
F benefits to improve the living standards or indirectly by -i
increasing the means of livelihood, is for the State to
decide and the role of the court is very limited in this
regard. [Para 57) [718-D, E]

3.2. The concepts of livelihood and standard of living
G
are bound to change in their content from time to time. It ~-
is factual that what was once considered to be a luxury
has become a necessity in the present day. It is well
settled that the concept of livelihood is no longer
confined to bare physical survival in terms of food,
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 675
TAMIL NADU
clothing and shelter but also now necessarily includes A
basic medicines, preliminary education, transport, etc.
Hence, the State distrusting largesse in the form of
distribution of colour TVs, laptops, etc. to eligible and
deserving persons is directly related to the directive
principles of.the State policy. [Para 61) [743-B-C] B

3.3. It cannot be said that giving. of colour TVs,
laptops, mixer-grinders etc. by the' Government after
)'. adhering to due process is not an expense for public
purpose. Judicial interference is permissible when the
... action of the government is unconstitutional and not
c
when such action is not wise or that the extent of
expenditure is not for the good of the State. All such
questions must be debated and decided in the legislature
and not in court. [Para 62) [743-D-E]
D
+-- 3.4. More so, the functioning of the Government is
controlled by the Constitution, the laws of the land, the
legislature and the Comptroller and Auditor General of
India. [Para 63] [7 43-F]
E
3.5. There are various checks and balances within the
mandate of the Constitution before a scheme can be
implemented. As long as the schemes come within the
)r- realm of public purpose and monies for the schemes is
withdrawn with appropriate Appropriation bill, the court
... has limited power to interfere in such schemes. [Para 68) F
[745-E-F]

3.6. The purpose of the schemes is to enforce the
Directive principles of State Policy. In what way the State
-~ chooses to implement the Directive principles of State G
policy is a policy decision of the State and this Court
cannot interfere with such decisions. Ordinarily, this
Court cannot interfere with policy decisions of the
government unless they are clearly in violation of some
statutory or ·constitutional provision or is shockingly H
676 SUPREME COURT REPORTS [2013) 13 S.C.R.

-A arbitrary in nature. In the given case no such
circumstances prevail as envisaged for judicial enquiry;
this Court is not persuaded to interfere with the policy
decision. [Para 69] [745-G-H; 746-A, F]

3.7. The principle of not to treat unequals as equal
8
has no applicability as far as State largesse is concerned.
This principle applies only where the law or the State
action imposes some burden on the citizen either
financial or otherwise. Besides, while implementing the
directive principles, it is for the Government concerned
C to take into account its financial resources and the need
of the people. There cannot be a straight jacket formula.
If certain benefits are restricted to a particular class that
can obviously be on account of the limited resources of
the State. All welfare measures cannot at one go be made
D available to all the citizens. The State can gradually
extend the benefit and this principle has been recognized
by this Court in several judgments. [Para 70] [746-H; 747-
A-C]

E Ekta Shakti Foundation vs. Government of NCT of Delhi
(2006) 1o scc1 337: 2006 (3) Suppl. SCR 631 - relied on.

Issue No. 3

Whether this Court has inherent power to issue
F guidelines by application of Vishaka principle? .....
4. It is the stand of the appellant that there is
legislative vacuum in the given case, hence, the judiciary
is warranted to legislate in this regard to fill the gap by
G application of the principle in Vishaka case. In Vishaka, '!-- -.
there was no legislation to punish the act of sexual
harassment at work place, therefore, the judiciary noting
the legislative vacuum framed temporary guidelines until
the legislatures passed a bill in that regard. However, in '
the case at hand, there is a special legislation,- namely,
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 677
TAMIL NADU
the Representation of People Act wherein Section 123 A
enumerates exhaustively a series of acts as "corrupt
practice". Therefore, this is not a case of legislative
vacuum where the judiciary can. apply its inherent power
to frame guidelines. [Para 71] [747-D-G]
B
Vishaka and Others vs. State of Rajasthan and Others
(1997) 6 SCC 241: 1997 (3) Suppl. SCR 404 - referred to.

Issue No. 4:

Whether Comptroller and Auditor General of India has a C
duty to examine expenditures even before they are
deployed?
5. The Comptroller and Auditor General of India is a
constitutional functionary appointed Linder Article 148 of
the Constitution. His main role is to audit the income and D
expenditure of the Governments, Government bodies and
state-run corporations. The extent of his duties is listed
out in the Comptroller and Auditor General's (Duties,
Powers etc.) Act, 1971. The functioning of the
Government is controlled by the Constitution, the laws of E
the land, the legislature and the Comptroller and Auditor
General of India. CAG examines the propriety, legality and
validity of all expenses incurred by the Government. The
office of CAG exercises effective control over the
government accounts and expenditure incurred on these F
schemes only after implementation of the same. As a
result, the duty of the CAG will arise only after the
expenditure has incurred. [Para 72] [747-H; 748-A-D]

Issue No. 5 G
Whether the writ jurisdiction will lie against a political
party?

6. The respondents never raised any objection
relating to the jurisdiction in the High Court or even in the H
678 SUPREME COURT REPORTS [2013) 13 S.C.R.

A pleadings before this Court. It is only in the oral -<
submissions that this issue has been raised. In the
matters relating to pecuniary jurisdiction and territorial
jurisdiction, the objection as to jurisdiction has to be
taken at the earliest possible opportunity. But, this case
B relates to the jurisdiction over the subject matter. This is
totally distinct and stands on a different footing. As such,
th~ question of subject matter jurisdiction can be raised
even in the appeal stage. However, as this petition is fit
for dismissal de hors the jurisdiction issue, the ~
c jurisdiction issue is left open. [Paras 74, 75) [748-E, G-H;
749-A-B]

7. Summary:

(i) After examining and considering the parameters
D laid in Section 123 of RP Act, it is clear that the
promises in the election manifesto cannot be read -t
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
E prevailing law.

Prof. Ramchandra G. Kapse vs. Haribansh Ramakbal
Singh (1996) 1 sec 206: 1995 (6) Suppl. SCR 471 -
referred to.
F (ii) Further, it has been decided that the schemes
challenged in this writ petition falls within the realm
of fulfilling the Directive Principles of State Policy
thereby falling within the scope of public purpose.

G (iii) The mandate of the Constitution provides various ';--
checks and balances before a Scheme can be
implemented. Therefore, as long as the schemes
come within the realm of public purpose and monies
withdrawn for the implementation of schemes by
H passing suitable Appropriation Bill, the court has
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 679
TAMIL NADU
limited jurisdiction to interfere in such schemes. A

(iv) Judicial interference is permissible only when the
action of the government is unconstitutional or
contrary to a statutory provision and not when such
action is not wise or that the extent of expenditure
B
is not for the good of the State.

(v) It is also asserted that the schemes challenged
)'- under this petition are in consonance with Article 14
of the Constitution.
c
(vi) As there is no legislative vacuum in the case on
hand, the scope for application of Vishaka principle
does not arise.

(vii) The duty of the CAG will arise only after the
D
expenditure has incurred.

(viii) Since this petition is fit for dismissal dehors the
jurisdiCtion issue, the issue of jurisdiction is left open.
[Para 76] [749-C-H; 750-A-C]
E
8. Directions:

8.1. Although, the law is that the promises in the
} election manifesto cannot be construed as 'corrupt
practice' under Section 123 of RP Act, the reality cannot
be ruled out that distribution of freebies of any kind, F
undoubtedly, influences all people. It shakes the root of
free and fair elections to a large degree. The Election
Commission through its counsel also conveyed the same
... ~ feeling both in the affidavit and in the argument that the
promise of such freebies at government cost disturbs the G
level playing field and vitiates the electoral process and
thereby expressed willingness to implement any
directions or decision of this Court in this regard. [Para
77] [750-D-E]
H
680 SUPREME COURT REPORTS [2013) 13 S.C.R.

A 8.2. This Court has limited power to issue directions
to the legislature to legislate on a particular issue.
However, the Election Commission, in order to ensure
level playing field between the contesting parties and
candidates in elections and also in order to see that the
B purity of the election process does not get viti<\ted, as in
past been issuing instructions under the Model Code of
Conduct. The fountainhead of the powers under which
the commission issues these orders is Article 324 of the
Constitution, which mandates the commission to hold
C free and fair elections. It is equally imperative to
acknowledge that the Election Commission cannot issue
such orders if the subject matter of the order of
commission is covered by a legislative measure. [Para 78]
[750-F-H; 751-A]

D 8.3. Considering that there is no enactment that
directly governs the contents of the election manifesto,
the Election Commission is hereby directed to frame
guidelines for the same in consultation with all the
recognized political parties as when it had acted while
E 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
F Guidance of Political Parties & Candidates. 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
G 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. [Para 79] [751-8-D]

8.4. The Election Commission is directed to take up
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 681
TAMIL NADU

.')'- this task as early as possible owing to its utmost
importance. Also, there is the need for a separate
A

legislation to be passed by the legislature in this regard
for governing the political parties. [Para 80] [751-E]
Case Law Reference:
B
37 Minn. 498 (USA) referred to Para 10
1925 AC 578 referred to Para 10
~ 1982 (2) WLR 62 referred to Para 10
(1995) 1 All ER 611 referred to Para 10
c
2003 (~) Suppl. SCR 55 referred to Para 17
1961 SCR 77 referred to Para 18
(1'869) 19 LT 613 referred to Para 20 D
[1896] 2 Ch 279 . referred to Para 27
2010 (6) SCR 218 referred to Para 28
2003 (4) Suppl. SCR 121 referred to Para 32
E
1997 (3) Suppl. SCR 404 referred to Paras 34, 71
2011 (4) SCR 1057 referred to Para 34
2002 (3) SCR 696 referred to Para 35
2003 (2) SCR 1136 referred to Para 35 F
2009 (4) SCR 305 referred to Para 36
2008 (16 ) SCR 540 referred to Para 37
1997 (2) Suppl. SCR 305 referred to Para 39
-I;., -"'.
G
(1973) 4 sec 1461 referred to Para 41
1991 (3) Suppl. SCR 242 referred to Para 42
2001 (2) SCR 118 relied on Para 51
2006 (3) Suppl. SCR 631 relied on Para 69 H
682 SUPREME COURT REPORTS (2013] 13 S.C.R.

A 1995 (6) Suppl. SCR 471 referred to Para 76
CIVIL APPELLATE JURISDICTION : Civil Appeal No.
5130 of 2013.

From the Judgment & Order dated 25.06.2007 of the
B Court of Madras, Madurai Bench in W.P. No. 9013 of 2006.

WITH

T.C. No. 112 of 2011. ~
c P.P. Malhotra, ASG, Arvind P. Datar, Shekhar Naphade,
Abhay Kumar, Rupesh Kumar Pandey, Upendra Pratap Singh,
Neetu Jain, Vineet Kumar Singh, Shubhangi Tuli, R. Rakesh
Sharma, P. Krishnamoorthy, B. Balaji, Rachana Joshi lssar,
D.K. Thakur, Sushma Suri, D.S. Mahra, Meenakshi Arora for
D the appearing parties.

The Judgment of the Court was delivered by

P. SATHASIVAM, J.

E SLP CC) No. 21455 of 2008
1. Leave granted.

2. This appeal is directed against the final judgment and
order dated 25.06.2007 passed by the Madurai Bench of the
i
F Madras High Court in Writ Petition lC) Nos. 9013 of 2006 and
1071 of 2007 whereby the High Court dismissed the petitions
filed by the appellant herein.

3. Brief Facts:
G
(a) The case relates to distribution of free gifts by the
>-- "'.
political parties (popularly known as 'freebies'). The Dravida
Munnetra Kazhagam (DMK)- Respondent No. 8 herein, while
releasing the election manifesto for the Assembly Elections
2006, announced a Scheme of free distribution of Colour
'H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 683
TAMIL NADU [P. SATHASIVAM, J.]
Television Sets (CTVs) to each and every household which did A
not possess the same, if the said party/its alliance were elected
to power. The Party justified the decision of distribution of free
CTVs for the purpose of providing recreation and general
knowledge to the household women, more particularly, those
living in the rural areas. In pursuance of the same, follow up B
actions by way of enlisting the households which did not have

,. a CTV set and door to door identification and distribution of
application forms were initiated.

- (b) This Scheme was challenged by one S. Subramaniam
Balaji-the appellant herein, by way of filing writ petition before
the High Court on the ground that the expenditure to be incurred
by the State Government for its implementation out of the State
c

Exchequer is unauthorized, impermissible and ultra vires the
Constitutional mandates. The appellant herein filed a complaint
dated 24.04.2006 to the Election Commission of India seeking D
initiation of action in respect of the said promise under Section
123 of the Representation of People Act, 1951 (in short 'the
RP Act'). The appellant herein also forwarded the complaint to
the Chief Election Officer, Tamil Nadu.
E
(c) The DMK and its political allies emerged victorious in
the State Assembly Election held in the month of May, 2006.
In pursuit of fulfilling the promise made in the election manifesto,
} a policy decision was taken by the then government to provide
one 14" CTV to all eligible families in the State. It was further F
decided by the Government to implement the Scheme in a
phased manner and a provision of Rs. 750 crores was made
in the budget for implementing the same. A Committee was
constituted, headed by the then Chief Minister and eight other
.. ~ legislative members of various political parties, in order to
G
ensure transparency in the matter of implementation of the
Scheme.

(d) For implementing the first phase of the Scheme, the
work of procurement of around 30,000 CTVs was entrusted to
Electronic Corporation of Tamil Nadu Ltd. (ELCOT), a State H
684 SUPREME COURT REPORTS [2013) 13 S.C.R.

A owned Corporation. The first phase of the Scheme was
implemented on 15/17th September, 2006 by distributing
around 30,000 CTVs to the identified families in all the districts
of the State of Tamil Nadu.

(e) Being aggrieved by the implementation of the Scheme,
B
the appellant herein filed another complaint to the Chief
Secretary and the Revenue Secretary pointing out the
unconstitutionality of the Scheme. He also preferred Writ
Petition being Nos. 9013 of 2006 and 1071 of 2007 before the ~

c
Madurai Bench of the High Court of Madras alleging the
Scheme a corrupt practice to woo the gullible electorates with
an eye on the vote bank. By order dated 25.06.2007, the High
Court dismissed both the writ petitions filed by the appellant
-
herein holding that the action of the Government in distributing
free CTVs cannot be branded as a waste of exchequer. Being
D aggrieved, the appellant herein has preferred this appeal by
way of special leave before this Court.

Transferred Case (Cl No. 112 of 2011

(f) In the month of February 2011, pursuant to the elections
E
to the Tamil Nadu State Assembly, the ruling party (DMK)
announced its manifesto with a volley of free gifts. In the same
manner, the. opposite party-All India Anna Dravidn Munnetra
Kazhagam (AIADMK) and its alliance also announced its
election manifesto with free gifts to equalize the gifts offered
F by the DMK Party and promised to distribute free of cost the
following items, viz., grinders, mixies, electric fans, laptop
computers, 4 gms gold thalis, Rs. 50,000/- cash for women's
marriage, green houses, 20 kgs. rice to all ration card holders
even to those above the poverty line and free cattle and sheep,
G if the said party/its alliance were elected to power during the >- -
Tamil Nadu Assembly Elections 2011.

(g) The very same Scheme was also challenged by the
appellant herein on the ground that such promises by the parties
H are unauthorized, impermissible and ultra vires the
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 685
TAMIL NADU [P. SATHASIVAM, J.]
Constitutional mandates. The appellant herein also filed a A
complaint dated 29.03.2011 to the Election Commission of
India seeking initiation of action in respect of the said Scheme
under Section 123 of the RP Act.

(h) The AIADMK and its political allies won the State
8
Assembly Elections held in 2011. In order to fulfill the promise
made in the election manifesto, a policy decision was taken
by the then government to distribute the gifts and, pursuant to
the same, tenders were floated by the Civil Supplies
Department for mixies, grinders, fans etc., as well as by C
ELCOT for lap top computers.

(i) On 06.06.2011, the appellant herein filed another
complaint to the Comptroller and Auditor General of India and
the Accountant General of Tamil Nadu (Respondent Nos. 3 and
4 therein respectively) pointing out the unconstitutionality of tjle D
Scheme and transfer of consolidated funds of the State for the
same. In the meanwhile, the appellant herein preferred a Writ
Petition being No. 17122 of 2011 before the High Court of
Madras alleging the Scheme a corrupt practice and to restrain
the government from in any way proceeding with the E
procurement, placement of tenders or making free distributions
under various Schemes introduced to woo the voters. In view
of the pendency of SLP (C) No. 21455 of 2008 in this Court
relating to the similar issue, the appellant preferred a Transfer
Petition (C) No. 947 of 2011 before this Court praying for the F
transfer of the said writ petition. By order dated 16.09.2011,
this Court allowed the said petition and the same has been
numbered as T.C No. 112 of 2011 and tagged with the
abovesaid appeal.

4. Heard Mr. Arvind P. Datar, learned senior counsel for G
the appellant/petitioner, Mr. Shekhar Naphade, learned senior
counsel for the State of Tamil Nadu, Mr. P.P. Malhotra, learned
Additional Solicitor General for the Union of India and Ms
Meenakshi Arora, learned counsel for the Election Commission
of India. H
686 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 5. Prayer/Relief Sought For:

(a) When DMK started distribution of CTVs, the appellant/
petitioner herein approached the High Court of Judicature at
Madras, Bench at Madurai, by way of filing Writ Petition (C) No.
9013 of 2006 with a prayer to issue a writ of mandamus to ·
8
forbear the respondents therein from incurring any expenditure
out of the public exchequer for the purchase and distribution of
colour Televisions within the State of Tamil Nadu.

(b) After 5 years, when AIADMK elected to power, pursuant
C to their election manifesto, they started distributing various
freebies, which was also challenged by the very same person
- the appellant/petitioner herein by filing a writ petition being
No. 17122 of 2011 before the High Court of Judicature at
Madras praying for issuance of a writ to declare the free
D distribution of (i) grinders (ii) mixies (iii) electric fans (iv) laptop
computers (v) 4 gm. gold thalis (vi) free green houses (vii) free
20 kgs. rice to all ration card holders even to those above the
poverty line and (viii) free cattle and sheep ultra vires the
provisions of Articles 14, 41, 162, 266(3) and 282 of the
E Constitution of India and Section 123(1) of the RP Act.

Contentions by the Appellant:

6. Mr. Datar, learned senior counsel for the appellant i
submitted that a "gift", "offer~ or "promise" by a candidate or
F his agent, to induce an elector to vote in his favour would amount
to "bribery" under Section 123 of the RP Act. He further pointed
out that to couch this offer/promise to give away a gift whose
Wbrth is estimable in money and that too from the consolidated
fund of the State under the head "promise of publication" or >- ,
G "public policy" or "public good" is to defeat the purposes of the
above Section viz., Section 123(1) of the RP Act. While
elaborating his submissions, Mr. Datar raised his objections
under the following heads:

(I) Article 282 of the Constitution of India only permits
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 687
TAMIL NADU [P. SATHASIVAM, J.]
defraying of funds from the Consolidated Fund of the State for A
"public purpose";

(II) The distributions made by the respondent-State is
violative.of Article 14 since there is no reasonable classification;

(Ill) Promises of free distribution of non-essential B
commodities in an election manifesto amounts to electoral
bribe under Section 123 of the RP Act;

(IV) The Comptroller and Auditor General of India has a
duty to examine expenditures even before they are deployed; c
and

(V) Safeguards must be built into schemes to ensure that
the distribution is made for a public purpose and is not
misused.
D
(I) Article 282 of the Constitution of India only permits
defraying of funds from the Consolidated Fund of the State for
"public purpose".

7. Regarding the first contention relating to Article 282 of E
the Constitution of India which only permits use of monies out
of the Consolidated Fund of the State for public purpose, it is
useful to refer the said Article which reads as under:

"282. Expenditure defrayable by the Union or a State
out of its revenue - The Union or a State may make any F
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."
' _..._ G
8. It is pointed out by Mr. Datar that under Article 266(3)
of the Constitution, the monies out of the Consolidated Fund
of India or the Consolidated Fund of the State can only be
appropriated in accordance with law and for the purposes and
in the manner provided by the Constitution. Under Article 162, H
688 SUPREME COURT REPORTS [2013] 13 S.C.R.

A the extent of the executive power of the State is limited to the
matters with respect to which the Legislature of the State has
the power to make laws. Likewise, under Article 282, the Union
or the States may make grants for "any public purpose", even
if such public purpose is not one with respect to which1he State
s or the Union may make laws. By referring these Articles, Mr.
Datar submitted that monies out of the Consolidated Fund of
the State can only be appropriated for the execution of laws
made by the State, or for any other "public purpose".

9. It is further pointed out that the State raises funds through
C taxation which can be used by the State only to discharge its
constitutional functions. Taxpayers' contribution cannot be used
to fund State largesse. While the taxpayer has no right to
demand a quid pro quo benefit for the taxes paid, he has a
right to expect that the taxes paid will not be gifted to other
D persons without general public benefit. The main intention of
an act done for a public purpose must be the public, and that
the act would remotely, or in a collateral manner, benefit the
local public is not relevant at all.

E 10. According to Mr. Datar, the most important
constitutional mandate is that a "public purpose" cannot be the
one that results in the creation of private assets. The exceptions
that can be made to this overarching principle are the
distributions that fulfill an essential need such as food, clothing,
F shelter, health or education. Even if certain distributions, such
as the distribution of televisions might have some public
benefit, it would not amount to public purpose since the
dominant purpose of such a distribution is only the creation of
private assets. Where the purposes of the expenditure are
partly public and partly private, the Courts in the US have held
G that the entire act must fail. (vide Coates vs. Campbell and
Others, 37 Minn. 498).

11. While statutory authorities can confer social or
economic benefits on particular sections of the community, their
H power is limited by the principle that such benefits must not be
S. SUBRAMANIAM BA~JI v GOVERNMENT OF 689
TAMIL NADU [P. SATHASIVAM, J.]
,.. excessive or unreasonable. As Lord Atkinson stated in Roberts A
vs. Hopwood & Ors. 1925 AC 578, the State cannot act in
furtherance of "eccentric principles of socialistic philanthropy".
In view of the above, a reference was also made to Bromley
London Borough Council, London vs. Greater Council & Anr.
1982 (2) WLR 62 and R vs. Secretary of State for Foreign B
Affairs (1995) 1 All ER 611.

12. In this context, it is pointed out that Article 41 of the
>- Constitution of India states that the State, "within its economic
capacity and development" can make effective provision for
r
securing "public assistance" in certain special cases. Article
c
39(b) states that the State shall endeavour to ensure that the
"material resources" of the community are so distributed as
best to subserve the "common good". Both these articles imply
that the goal of the Constitution, as evidenced by these
Directive Principles, is to ensure that the State distributes its D
resources to secure "public assistance" and "common good",
and must not create private assets.

13. It is also pointed out that the Constitutions of 17 States
of the US explicitly prohibit the making of private gifts by the E
Government, and it is recognized even elsewhere in the US that
the public funds cannot be used to make gifts to private persons.

14. It is further stated that the spending on free distribution
must be weighed against the public benefits that ensue from it
F
and only if the public benefits outweigh the same, can the
spending be classified as being for a public purpose. Mr. Datar
asserted that when the literacy rate in the State of Tamil Nadu
is around 73% and there are 234 habitations across the State
with no school access whatsoever, distribution of free consumer
-~ G
goods to the people having ration cards cannot be justified as
"public purpose".

15. In addition to CTVs by the previous Government, the
following free distributions have been promised by the
Government of Tamil Nadu in the Budget Speech for the year H
690 SUPREME COURT REP9RTS [2013] 13 S.C.R.

A 2011-2012:
"1. 60,000 green houses, at a cost of Rs.1.8 lakhs per
house, totally amounting to Rs.1080 crores. The green
houses are being supplied to persons below the poverty
line residing in rural areas. However, they are being
B
supplied to persons who already own 300 sq. ft. of land.

Comment by the appellant:
~
The State is creating private assets through this
c distribution, when it can, instead build houses owned by
the State which can be occupied by eligible persons.

2. 4 gms of gold for poor girls for thali, plus Rs.50000
cash for wedding purposes, totally amounting to
Rs.514 crores.
D
Comment by the appellant: .

The State can achieve the same end of subsidizing
marriages by providing institutions such as mandaps and
E temples that can be used for marriage. There are no
safeguards in any scheme proposed by the State to ensure
that Rs.50,000 given in cash to the eligible beneficiaries
will be used for the marriage, and not diverted for other
purposes.
F 3. Free mixies, grinders and fans for 25 lakh families,
totally amounting to Rs.1250 crores.

Comment by the appellant:
).._ _,...
The reasons given by the State, of alleviating women of
G
"domestic drudgery" are frivolous and do not amount to a
"public purpose". Mixies, grinders and fans are luxuries
and cannot be freely distributed by the Government. The
distribution is being made to a large section of persons
without even ascertaining whether the persons already own
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 691
TAMIL NADU [P. SATHASIVAM, J.]
,.,. these goods and whether they require state assistance to A
acquire these goods.

4. 9.12 lakh laptops to all class XII students in Tamil
Nadu amounting to Rs. 912 crores.

Comment by the appellant: b

No "public purpose" is served by such distribution. The
State is duty bourid to create computer labs in schools and
}- colleges and not distribute such expensive articles as gifts.
Classification of students eligible for the laptops suffers c
" from overclassification, violative of Article 14 of the
Constitution. The classification is also violative of Article
14 as it omitted certain categories of students.

5. Free cattle to poor families in certain rural areas,
Rs.56 crores. Distribution of milch cows is being done, D
according to the State's Government Order, to "boost the
productivity of milk in the State."

Comment by the appellant:
E
It is stated that the State does run a diary, and the
constitutionally valid method to boost milk production is to
spend on these institutions and not to create private assets

' under these Government Orders.

6. Free ri.ce to 1.83 crore families under the PDS
system, amounting to Rs.4500 crores.
F

Comment by the appellant:

- ~ Rice is already being distributed in the State at Rs.2 per
kilo. Under this scheme, rice is being distributed free of
cost, as a pure populist measure. As per the State's own
G

submissions, rice is priced at Rs.2 under the Anthyodaya
Anna Yojana, which is being followed throughout the
country.
H
692 SUPREME COURT REPORTS [2013] 13 S.C.R.

A 16. Mr. Datar, learned senior counsel for the appellant
pointed out that the Constitution of India does not permit free
distribution of goods such as colour televisions, mixies,
grinders, laptops since these are consumer goods and only
benefit the persons to whom they are distributed and not the
8 public at large. Public spending on these goods to the tune of
Rs.9000 crores far outweighs any public benefit that might arise
from such distributions. When the same ends can be efficiently
-achieved without the creation of private assets, such as the
creation of Community Computer Centers instead of distributing
C laptops, or setting up of Community Televisions at the
Panchayat level resorting to make large scale free distribution,
it clearly violate Articles 162, 266(3) and 282 of the
Constitution. It is further pointed out that the fact that CTVs and
other schemes of previous Government were cancelled by the
present Government shows that these were not for "public
D purpose" but only to serve the political objectives of a particular
party.

II. The distributions made by the respondent fall foul
of Article 14 since there is no reasonable
E classification

17. The right to equality under Article 14 of the Constitution
requires that the State must make a reasonable classification
based on intelligible differentia, and such classification must
have a nexus with the object of the law. In making free
F distributions, the State, therefore, must show that it has
identified the class of persons to whom such distributions are
sought to be made using intelligible differentia, and that such
differentia has a rational nexus with the object of the distribution.
As held in Union of India & Anr. vs. International Trading Co.
G & Anr. 2003 (5) sec 437, Article 14 applies to matters of
government policy and such policy or action would be
unconstitutional if it fails to satisfy the test of reasonableness.

18. This Court, in K. T. Moopil Nair vs. State of Kera/a AIR )-

H 1961 SC 552, held that a statute can offend Article 14 if it
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 693
TAMIL NADU [P. SATHASIVAM, J.]
groups together persons who are dissimilar. In that case, a flat A
tax of Rs. 2 per acre was levied on land without ascertaining
the income earning potential of such land, which was struck
down as unconstitutional.

19. In the case on hand, the colour televisions, mixies and B
grinders were being distributed to all persons having ration card.
While the distribution of these goods is supposedly being
made to help people who cannot afford these items, the State
>-- has not made any attempt to find out if such persons already
own a colour television, a mixie or a grinder. Further, the
differentia of a ration card has no rational nexus with the object
c
of free distribution of the items since a ration card does not
indicate the income of the family or whether they already own
these goods.

20. Similarly, in another Scheme, the State has promised D
to distribute free laptops to all the students studying in the State
Board. Again, this classification is arbitrary since there are
numerous similarly placed students in Central Board schools
who were being excluded by this Scheme. The Scheme also
excludes commerce, law and medical college students and E
violates Article 14 by not providing intelligible differentia having
a nexus with such distribution.

-r Ill. Promises of free distribution of non-essential
commodities in election manifesto amounts to an
electoral bribe under Section 123 of the RP Act.
F

21. Under Section 123(1 )(A) of the RP Act, any "gift, offer
or promise" by a candidate or his agent or by any other person,
with the object of inducing a person to vote at an election
- "'"" amounts to "bribery", which is a "corrupt practice" under the
said section. The key element in this section is that the voter
G

must be influenced to vote in a particular manner. It has been
held in Richardson-Garnder vs. Ekykn, (1869) 19 LT 613 that
the making of charitable gifts on an extensive scale would lead
to an inference that this was made to influenCti. voters. H-·
694 SUPREME CO~RT REPORTS [2013] 13 S.C.R.
'
A 22. Mr. Datar pointed out that the plea that promises in the
· manifesto do not amount to bribery is completely baseless and
finds no support in the plain words of the statute or in decided
case laws. The statute very clearly includes a "promise" within
its ambit, and an unconstitutional promise clearly falls foul of
B the language of Section 123 of the RP Act. Such 'freebies' are
in form part of an election manifesto but in substance is a bribe
or inducement under section 123. If such practices are
permitted, then the manifesto does indirectly what a candidate·
cannot do directly. ~
c 23. It is further pointed ·out that the promise of distribution
was made at the time of.elections and not after, and instead
o_f focusing ori basic necessities, it was on free distributions
which indicates that the promise of free colour televisions,
grinders, mixies, laptops, gold etc., was only made as an
D electoral bribe to induce voters.

24. Mr. Datar further pointed out that the intent of Section
123 of the RP ACt is to ensure that no candidate violates the
level playing field between the candidates. Therefore, whether
E such promises are made by the political party or by the
candidate himself is irrelevant. The manifesto, where such
illegal promises are made, implore the voters to vote for that
particular party.

IV. The Comptroller and Auditor General of India has
i-
F a duty to examine expenditures even before they are
deployed. '

25. The Comptroller and Auditor General of India is a
constitutional functionary appointed under Article 148 of the
G Constitution. His main role is to audit the income and
expenditure of the Government, Government bodies and state-
run corporations. The extent of his duties is listed out in the
. Comptroller and Auditor General's (Duties, Powers etc.) Act,
1971. Section 13 of this Act states that the CAG shall audit all
H the expenditure from the Consolidated Fund of India, and of
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 695
TAMIL NADU {P. SATHASIVAM, J.]
)' each State, and ascertain whether the moneys so spent were A
.. "legally available for and applicable to the seNice of purpose
to which they have been applied or charged."

26. Section 15 of the Act states that where grants _and,
loans have been given for any specific purpose to any authority s·
or body other than a foreign state or an international
organization, the CAG has the duty to scrutinize the procedure
by which the loan or grant has been made.

27. The language of the provision suggests that the role
of CAG is limited to review. However, this would rob the CAG c
of the power to ensure that large-scale unauthorized spending
of public funds, such as these free distributions, does not take
place. The Section must be given purposive interpretation that
would f1..1rther its intent to ensure that the government's spending
is only on purposes that are legally allowable. The Chancery D
Division has held in Kingston Cotton Mills Co. Re [1896] 2 Ch
279 that an auditor is a "watchdog". To perform his· role as a
watchdog, the CAG must be vigilant, watch for any large-scale
·illegal expenditures, and act upon them immediately.
E
V .. Safeguards must be built into schemes t.o ensure that
the distribution is made for a public purpose, and is not
misused.
~~
28. The Member5 of Parliament Local Area Development
Scheme (MPLADS) was challenged before this Court in Bhim F
Singh vs. Union of India and Ors., (2010) 5 SCC 538 wherein
the Constitution Bench of this Court upheld the scheme .on the
grounds that there were three levels of safeguards built into the
scheme to ensure that the funds given to the Members of
. '""" Parliament would not be misused. This Court held as under: G
"8) The court can strike down a law or scheme only on the
basis of its vires or unconstitutionality but not on the basis
. of its viability. When a regime of accountability is availabfe

H·
696 SUPREME COURT REPORTS [2013] 13 S.C.R.

'
A within the Scheme, it is not proper for the Court to strike it --(
down, unless it violates any constitutional principle.
"'
9) In the present Scheme, an accountability regime has
been provided. Efforts must be made to make the regime
more robust, but in its current form, cannot be struck down
B
as unconstitutional."

29. The MPLAD Scheme clearly had prohibitions against
spending on the creation of private assets and to make loans. ~
It is pointed out that there is no scheme of accountability in the
c above mentioned promises for free distributions, hence, learned
senior counsel prayed for necessary guidelines for proper
utilization of public funds.

Contentions by the Respondents:
D Contentions of the State of Tamil Nadu:

30. On the other hand, Mr. Shekhar Naphade, learned
senior counsel for the State of Tamil Nadu while disputing the
above claim submitted that the freebies, as promised in the
E election manifesto, would not come under the head "corrupt
practices" and "electoral offences" in terms of the RP Act. He
further submitted that in view of the mandates in the Directives
Principles of State Policy in Part IV of the Constitution, it is
incumbent on the State Government to promote the welfare of i-
F the people, who are below the poverty line or unable to come
up without their support. In any event, according to learned
senior counsel, for every promise formulated in the form of
election manifesto, after coming to power, the same were being
implemented by framing various schemes/guidelines/eligibility
G
criteria etc. as well as with the approval of legislature. Thus, it >- -
cannot be construed as a waste of public money or prohibited
by any Statute or Scheme.

31. While elaborating his submissions, Mr. Shekhar
Naphade replied for the contentions made by the appellant
H under the following heads:
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 697
TAMIL NADU [P. SATHASIVAM, J.)
~ (I) Political Parties are not State, therefore, not amenable A
to writ jurisdiction of the High Court under Article 226 or
' writ jurisdiction of the Supreme Court under Article 32 of
the Constitution ·of India or any other provisions of the
Constitution. For corrupt practices, tne remedy is Election
Petition. B

(II) Non-application of Vishaka principle and the difficulties
in implementing the directions, if any, that may be issued
~ by this Court.
--·-~.

·!...-- (Ill) Promises of political parties do not constitute a corrupt c
practice.

(IV) The Schemes under challenge operate within the
parameters of public purpose and Article 14 of the
Constitution has no role to play. D
(I) Political Parties are not State, therefore, not
amenable to the writ jurisdiction of the High Court
under Article 226 or the writ jurisdiction of the
Hon'ble Supreme Court under Article 32 of the
Constitution of India or any other provisions of the E
Constitution. For corrupt practices, the remedy is an
Election Petition.

32. Learned senior counsel submitted that a political party
is not a statutory Corporation. Similarly, a political party is also F
not a Government. It is also not an instrumentality or agency of
the State. None of the parameters laid down by several
judgments of this court for identifying an agency or
instrumentality of the State apply to a political party and,
therefore, no political party can be considered as a State or G
any agency or instrumentality of the State, hence, no writ can
lie against a political party. [vide Federal Bank Ltd. vs. Sagar
Thomas and Others, (2003) 10 SCC 733.
~. ! -- - I

33. Further, learned senior counsel put forth that it ~ the H .
698 SUPREME COURT REPORTS [2013) 13 S.C.R

A claim of the appellant that the promises like giving colour TVs,
mixer-grinders, laptops etc. constitute a corrupt practice and,
therefore, must vitiate an election. If the promise of the above
nature is a corrupt practice, then the only remedy for the
appellanf is to file an Election Petition under Section 80, BOA
s read with other provisions of the RP Act. Under Section 81,
such an Election Petition must be filed within 45 days from the
date of the election .. In the petition, the appellant must set out
clearly and specifically the· corrupt practice that he complains
-i.
of and also set out as to how.,the returned candidate or his
c agent has committed the same or has connived at the same.
An election Petition is to be. tried on evidence and therefore,
the writ petition is not a remedy.

(II) Non-application of Vishaka principle and the
difficulties in implementing the directions; if any, that may
D be issued by this Court.

34. It was submitted that Entry 72 of List-I of the Vllth
Schedule to the Constilution of India deals with election to
Parliament and State Legislative Assemblies. In exercise of
E this power, the Parliament has enacted the RP Act. The Act,
as originally enacted, did not contain any provision relating to
corrupt practice as contained in Section 123. Se9tion 123
. defines and enumerates "corrupt practices" exhaustively.
Section 123 came as a result of recommendations of the
F Select Committee of the Parliament on the basis of whiGh the .
said Act was amended by substituting Chapter 1 in Part Vil of
the Act by Act No. 27 of 1956. The Legislature has dealt with
the subject of corrupt practice and it is not a case of legislative
vacuum. The field of corrupt practice Is covered by the
G provisions of the said Act. Once the Legislature has dealt with ~-
a particular topic, then the Vishakha principle (Vishaka and
Others vs State of Rajasthan and Others ( 1997) 6 SCC 241)
has no applicability. This Court, in Vishaka (supra) and Aruna
Ramachandra Shanbaug vs. Union of India and Others,
(2011) 4 sec 454 and other cases has dearly held that if on
H
700 SUPREME COURT REPORTS [2013] 13 S.C.R.

A are possible then the benefit of doubt. should go to the --(
elected candidate vide Manmohan Kalia v. Yash, vide
sec p. 502, para 7 in which it is stated:
"7.... It is now well settled by several authorities of
·-
this Court that an allegation of corrupt practice must
B
be proved as strictly as a criminal charge and the
principle of preponderance of probabilities would
not apply to corrupt practices envisaged by the Act
because if this test is not applied a very serious --4.,.
prejudice would be caused to the elected candidate
c who may be disqualified for a period of six years
from fighting any election, which will adversely affect
the electoral process."

15. In Surinder Singh v. Hardial Singh, vide SCC p. 104,
D para 23 it was observed:
-.\
"23 . ... It is thus clear beyond any doubt that for over 20
years the position has been uniformly accepted that
charges of corrupt practice are to be equated with criminal
charges and proof thereof would be not preponderance of
E
probabilities as in civil action but proof beyond reasonable
doubt as in criminal trials."

37. In Baldev Singh Mann vs. Surjit Singh Dhiman,
(2009) 1 SCC 633, this Court observed as under: ~-
F
"19 .......... The law is now well settled that the charge of 1c
a corrupt practice in an election petition should be proved
almost like the criminal charge. The standard of proof is
high and the burden of.proof is on the election petitioner.
Mere preponderance. of probabilities is not enough, as may ,L ....
G
be the case in a civil dispute. Allegations of corrupt
practices should be clear and precise and the charge
should be proved to the hilt as in a criminal trial by clear,
cogent and credible evidence.
H 21. The Court in a number of cases has held that the
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 701,
TAMIL NADU [P. SATHASIVAM, J.]
charge of corrupt practice is quasi-criminal in character A
and it has to be proved as a criminal charge and proved
in the court. In Jeet Mohinder Singh case the Court
observed as under:

"(ii) Charge of corrupt practice is quasi-criminal in B
character. If substantiated it leads not only to the setting
aside of the election of the successful candidate, but also
of his being disqualified to contest an election for a certain
period. It may entail extinction of a person's public life and
political career. A trial of an election petition though within
the realm of civil law is akin to trial on a criminal charge.
c
Two consequences follow. Firstly, the allegations relating
to commission of a corrupt practice should be sufficiently
clear and stated precisely so as to afford the person
charged a full opportunity of meeting the same. Secondly,
the charges when put to· issue should be proved by clear, D
)..
cogent and credible evidence. To prove charge of corrupt
practice a mere preponderance of probabilities would not
be enough. There would be a presumption of innocence
available to the person charged. The charge shall have to
be proved to the hilt, the standard of proof being the same E
as in a criminal trial."

38. It is further submitted that the manifesto of the political
... >- party in question promises to achieve a social order removing
economic inequalities, attain a social plane and attempts to F
reduce the degradations existing in our society where only a
certain class of people are elevated and entitled to economic
upliftment. The mandate for social and economic transformation
requires that material resources or their ownership and control
be so distributed as to subserve the common good.
~ G
39. In Samatha vs. State of A.P. and Others, (1997) 8
sec 191, in paras 76 and 79, it has been held as under:

"76. Social and economic democracy is the foundation on
H
702 SUPREME.COURT REPORTS . (2013] 13 S.C.R.

A which political democracy would be a way of life in the
Indian polity. Law as a social engineering is to create just
social order removing inequalities in social and economic
life, socio-economic disabilities with which poor people are
languishing by providing positive opportunities and
B facilities to individuals and groups of people. Dr B.R.
Ambedkar, in his closing speech in the. Constituent
Assembly on 25-11-1949, had lucidly elucidated thus:

".. :What does social democracy mean? It means a way
of life which recognises liberty, equality and fraternity as
c the principles of life. These principles ofliberty, equality and
fraternity are not to be treated as separate items in a trinity.
They form a 1.mion of trinity in the sense that to divorce one
·from the other is to defeat the very purpose of democracy.
Liberty cannot be divorced from equality, equality cannot
·o be divorced from liberty. Nor can liberty and equality be
divorced from fraternity. Without equality, liberty would
produce the supremacy of the few over the many. Equality
without Hberty would kill individual initiative. Without
fraternity; liberty and equality could not become.a natural
E course of things. It Would require a constable to enforce·
them. We must begin by acknowledging the fact that there .
is complete absence of two things in Indian society. One
of these is equality. On the social plane, we have in India . ·~·~ ..
a society based on the principle of graded inequality which
F means elevation forsome and degradation for others. On
the econom~ plane~ we have a society in which there are
.some who have immensewealth as against many who live
in abject poverty. On the 26th January, 1950, we are going
to enter into a life of contradictions. In politics we wiU have·
G equality and in social and economic life we will have
inequality. In politics we will be recognizing the princfple
of one man one vote and one vote one value. In our social
and economic life, we shall, by reason of our social and
economic structure, coritinue to deny the principle of one
H
S. SL!BRAMANIAM BALAJI v GOVERNMENT OF 703
TAMIL NAOU [P. SATHASIVAM, J.}. ··
)- man one value. How long shall we continue to live this life A
of contradir:tions? How long shall we continue to deny
equality in our social and economic life? If we continue to
deny it for long, we will do so only by putting our political
democracy in peril. We must remove this contradiction at
the earliest possible moment or else those who suffer from B
inequality will blow up the structure of political democracy
which this Assembly has so laboriously built up."
'·
·~ (Vide B. Shiva Rae's The Framing of /ncJia's Constitution:
Select DOcuments, Vol. IV, pp. 944-45.)
c
79. ltis necessary to consider at this juncture the meaning
of the word "socialism" envisaged in the Preamble of the .
Con.stitution. Establishment of the egalitarian social order
through rule of law is the basic structure of the Constitution.·
The Fundamental Rights and the Directive· Principles are D
the means, as two wheels of the chariot, to achieve the
above object of democratic socialism. The word "socialist"
used in the Preamble must be read from the goals Articles
14, 15, 16, 17, 21, 23, 38, 39, 46 and all other cognate
articles seek to establish, i.e., to reduce inequalities in E
inco~e and status and to provide equality of opportunity
and facilities. Social justice enjoins the Court to uphold the·
Government's endeavour to remove economic
.~ inequalities, to provide decent standard of living to the poor.
and to protect the interests of the weaker sections of the F
society so as to assimilate all the sections of the society
in a secular integrated socialist Bharat with dignity of
person and equality of status to all."

40. In Bhim Singh (su.pra), a Constitution Bench of this
Court observed ·as under: · G
"""'
"58. The above analysis shows that Article 282 can be the
source of power for emergent transfer of funds, like the
MPLAD Scheme. Even otherwise, the MPLAD Scheme
H
704 . SUPREME COURT REPORTS [2013) 13 S.C.R.

A is voted upon and sanctioned by Parliament every year as
a scheme for community development. We have already
held that the scheme of the Constitution of India is that the
power of the Union or State Legislature is not limited to
the legislative powers to incur expenditure only in respect
B of powers conferred upon it under the Seventh Schedule,
but it can incur expenditure on any purpose not included
within its legislative powers. However, the said purpose
must be "public purpose". Judicial interference is
permissible when the action of the Government is
-'-,.
c unconstitutional and not when such action is not wise or
that the extent of expenditure is not for the good of the
State. We are of the view that all such questions must be
debated and decided in the legislature and not in court.

95. This argument is liable to be rejected as it is not based
D on any scientific analysis or empirical data. We also find ·
this argument a half-hearted attempt to contest the
constitutionality of the Scheme. MPLADS makes funds
available to the sitting MPs for developmental work. If the
MP utilises the funds properly, it would result in his better
E performance. If that leads to people voting for the
incumbent candidate, it certainly does not violate any
principle of free and fair elections.

96. As we have already noted, MPs are permitted to
F recommend specific kinds of works for the welfare of the
~-
people i.e. which relate to development and building of
durable community assets (as provided by Clause 1.3 of
the Guidelines). These works are to be conducted after
approval of relevant authorities. In such circumstances, it
cannot be claimed that these works amount to an unfair
G
advantage or corrupt practices within the meaning of the
Representation of the People Act, 1951. Of course such
spending is subject to the above Act and the regulations
of the Election Commission."

·H
S.- SUBRAMANIAM BALAJI v GOVERNMENT OF 705
TAMIL NADU [P. SATHASIVAM, J.]
)-- (IV) The Schemes under challenge operate within the A
parameters of public purpose and Article 14 of the
Constitution has no role to play.

41. The argument of the appellant that giving of colour TVs,
laptops, mixer-grinders etc. on the basis of the manifesto of the B
party that forms the Government is not an expense for a public
purpose. This argument is devoid of any merit according to
learned senior counsel for the State of Tamil Nadu. It was
-~ submitted that the concept of State Largesse is essentially
linked to Directive Principles of State Policy. Whether the State
should frame a scheme, which directly gives benefits to
c
improve the living standards or indirectly by increasing the
means of livelihood, is for the State to decide. The preamble
to the Constitution recognizes Socialism as one of the pillars

- >- of Indian Democracy. The preamble has been held to be a part
of the Constitution by a catena of judgments including
Keshavanand Bharati vs. State of Kera/a (1973) 4 SCC 1461.
D

The State largesse is directly linked to the principle of
Socialism and, therefore, it is too late in the day for anybody
to contend that the Government giving colour TVs, laptops,
mixer-grinders,· etc. that too to the eligible persons as E
prescribed by way of Government Order is not a public
purpose. For the same reasons, it must be held that it is a part
'> ~ of Government function to take measures in connection with
Government largesse.
F
42. It is further submitted that the political parties in their
election manifesto promised to raise the standard of living of
the people and to formulate a scheme/policy for the upliftment
of the poor. The distribution of basic necessities in today's time
- --\., like TVs, mixers, fans and laptops to eligible persons fixing
G
parameters, can by no stretch of imagination be said to be
State largesse. A three-Judge Bench of this Court in Deepak
Theatre, Dhuri vs. State of Punjab and Others, 1992 Supp (1)
sec 684, held as under:
H
706 SUPREME COURT REPORTS [2013] 13 S.C.R.

"5. Witnessing a motion picture has become an --( ,
A
amusement to every person; a reliever to the weary and
. fatigued; a reveller to the pleasure seeker; an ·imparter of
education and enlightenment enlivening to news and
current events; disseminator of scientific knowledge;
B perpetuator of cultural and spiritual heritage, to the teeming
illiterate majority of population. Thus, cinemas have
become tools to promote welfare of the people to secure
and protect as effectively as it may a social order as per
~-
directives of the State policy enjoined under Article 38 of
the Constitution. Mass media, through motion picture has
c thus become the vehicle of coverage to disseminate
cultural heritage, knowledge, etc. The passage of time
made manifest this growing imperative and the
consequential need to provide easy access to all sections

D
of the society to seek admission into theatre as per his .
paying capacity." ~

43. The grievance of the appellant is that the public
resources are being used for the benefit of individuals.
According to learned senior counsel for the respondent, this
E a·rgument is completely misconceived. It was submitted th.at in
catena of cases, this Court has held that while judging the
constitutional validity of any law or any State action, the
Directive Pr~nciples of the State -Policy can be taken into ~;
account. Article 38 contemplates that the State shall strive to
F promote the welfare of the people. Article 39 contemplates that
the State shall take actions to provide adequate means of
livelihood and for distribution of material resources of the
communjty on an egalitarian principle. Article 41 contemplates
that the State shall rencar assistance to citizens in certain
)...
circumstances and also in cases of undeserved want. Article
G
43 directs that the State shall "endeavour to secure to all
workers, by suitable legislation or economic organisation or any
other way to ensure decent standard of life and full enjoyment
of leisure and social and cultural opportunities to the workers".
Similarly, Article 45 contemplatesthatthe State shall endeavour
·H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 707
TAMIL NADU [P. SATHASIVAM, J.]
t to provide early childhood care and education to all children A
be.low the age of 6 years and Article 46 says that the State shall
promote educational and economic interests of the weaker
sections of the people. Article 4 7 contemplates that the. State
'• shall take steps to raise the level of nutrition and the standard
-{ of living. The concept of livelihood and standard of living are B
bound to change in their content from time to time. This Court
has dealt with the concept of minimum wage, the fair wage and

) . the living wage while dealing with industrial disputes and has
. noted that these concepts are bound to change from time to
time. What was once considered to l:le a luxury can become a c
-" necessity. The concept of livelihood is no longer confined to a
bare physical survival in terms of food, clothing and shelter, but
also now must necessarily include some provision for medicine,
transport, education, recreation etc. How to implement the
.. directive principles of State Policy is a matter within the domain
D
).. of the Government, ~ence, the State distributing largesse in the
form of distribution of colour TVs, laptops,· mixer-grinders etc.
to eligible and deserving persons is directly related to the
directive principles of the State Policy.

44. The other facet of the argument is that this largesse is E
distributed irrespective of the income level and, therefore,
violative of Article 14 as unequals are treated equally. Learned
senior counsel submitted that this principle of not to treat
> ~ unequals as equals has no applicability as far as State largesse •
is concerned. This principle applies only where the law or the F
State· action imposes some burden on the citizen. either
financial or otherwise.

- _..I,,.
45. Article 14 essentially contemplates equality in its
absolute sense and classification can be taken recourse to if
the State is unable or the State policy does not contemplate
the same benefit or treatment to people who are not similarly
situated. It is the philosophical sense decoded by this Court in
G

the first part of Article 14 which is equal treatment for all without
any distinction. This-is the concept of formal equality which is.
H
·708 SUPREME COURif REPORTS [2013) 13 S.C.R.

A not necessarily an antithesis to Article 14. The concept of
equality based on classification is proportional equality. The
formal equality applies when the State is in a position to frame
a scheme or law which gives the same benefit to all without any
distinction and the proportional equality applies when the State
B frames a law or a Scheme which gives benefit only to people ·
who form a distinct class. It is in the case of proportional equality
that the principles of intelligible differentia having reasonable
nexus to the object of legislation gets attracted. Article 14 does
not prohibit formal equality. The Directive Principles of State
c Policy save proportional equality from falling in foul with formal
equality contemplated by Article 14.

Contentions of the Union of India, CAG and Election
Commission:

D 46. Mr. P.P. Malhotra, learned ASG also reiterated the
stand taken by learned senior counsel for the State. It is the
stand of the CAG that they have no role. at this juncture,
particularly, with reference to the prayer sought for. Ms.
Meenakshi Arora, learned counsel for the Election Commission
E of India submitted that with the existing provisions in the RP Act,
Election Commission is performing its duties, however, if this
Court frames any further guidelines, they are ready to
implement the same.

47. We have carefully considered the rival contentions,
F perused the relevant provisions, various Government orders,
guidelines and details furnished in the counter affidavit. Theo
following points arise for consideration:

Points for Consideration:
G
(i) Whether the promises made by the political parties in
the election manifesto would amount to 'corrupt practices' as
per Section 123 of the RP Act?

(ii) Whether the schemes under challenge are within the
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF ,709
TAMIL NADU [P. SATHASIVAM, J.]
')--
ambit of public purpose and if yes, is it violative of Article 14? A

(iii) Whether this Court has inherent power to issue
guidelines by application of Vishaka principle?

(iv) Whether the Comptroller and Auditor General of India
has a duty to examine expenditures even before they are B
deployed?

_)._ (v) Whether the writ jurisdiction will lie against a political
party?
..,. c
' Discussion:

Issue No. 1

Whether the promises made by the political parties in
their election manifestos would amount to 'corrupt D
>- practices' as per Section 123 of the Representation of the
People Act, 1951?

--! 48. Before going into the acceptability or merits of the
claim of the appellant and the stand of the respondents, it is
E
desirable to reproduce certain provisions of the RP Act. Part
VII of the RP Act deals with "corrupt practices" and "electoral
offences" which was brought into force with effect from
I>'~ 28.08.1956. Chapter I of Part VII deals with "corrupt practices".
Section 123 is the only Section relevant for our purpose which
reads thus:- F
.,
"123. Corrupt practices.-. The following shall be deemed
to be corrupt practices for the purposes of this Act:
= ~ (1) "Bribery'', that is to say-
' G
(A) any gift, offer or promise by a candidate or his agent
or by any other person with the consent of a candidate or
his election agent of any gratification, to any person
whomsoever, with the object, directly or indirectly of
inducing- H
710 SUPREME COURT REPORTS [2013] 13 S.C.R.

A (a) a person to stand or not to stand as, or [to withdraw or
not to withdraw] from being a candidate at an election, or

(b) an elector to vote or refrain from voting at an election,
or as a reward to-
B (i) a person for having so stood or not stood, or for [having
withdrawn or not having withdrawn] his candidature; or

(ii) an elector for having voted or refrained from voting; ..1, _

(B) the receipt of, or agreement to receive, any
c gratification, whether as a motive or a reward-
"';---

(a) by a person for standing or not standing as, or for
[withdrawing or not withdrawing] from being, a candidate;
or
D
(b) by any person whomsoever for himself or any other
person for voting or refraining from voting, or inducing or
attempting to induce any elector to vote or refrain from
voting, or any candidate [to withdraw or not to withdraw]
E his candidature.

Explanation.- For the purposes of this clause the term"
gratification" is not restricted to pecuniary gratifications or
gratifications estimable in money and it includes all forms 1 _,
of entertainment and all forms of employment for reward
F but it does not include the payment of any expenses bona
fide incurred at, or for the purpose of, any elec- tion and
duly entered in the account of election expenses referred
to in Section 78.
>- .
G (2) Undue influence, that is to say, any direct or indirect
interference or attempt to interfere on the part of the.
candidate or his agent, or of any other person [with the
consent of the candidate or his election agent], with the
free exercise of any electoral right: Provided that-
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 711
TAMIL NADU [P. SATHASIVAM, J.]
~
(a) without prejudice to the generality of the provisions of A
4 this clause any such person as is referred to therein Who-

(i) threatens any candidate or any elector, or any person
in whom a candidate or an elector is interested, with injury
of any kind including social ostracism and ex- B
communication or expulsion from any caste or community;
or
_). (ii) induces or attempts to induce a candidate or an elector

- to believe that he, or any person in whom he is interested,
will become or will be rendered an object of divine
displeasure or spiritual censure,
c

shall be deemed to interfere with the free exercise of the
electoral right of such candidate or elector within the
',, meaning of this clause;
>- D
(b) a declaration of public policy, or a promise of public
action, or the mere exercise of a legal right without intent
to interfere with an electoral right, shall not be deemed to
be interference within the meaning of this clause.
E
(3) The appeal by a candidate or his agent or by any other
person with the consent of a candidate or his election agent
., t to vote or refrain from voting for any person on the ground
of his religion, race, caste, community or language or the
use of, or appeal to religious symbols or the use of, or F
appeal to, national symbols, such as the national flag or
the national emblem, for the furtherance of the prospects
of the election of that candidate or for prejudicially affecting

- ..... the election of any candidate:

Provided that no symbol allotted under this Act to a G
candidate shall be deemed to be a religious symbol or a
national symbol for the purposes of this clause.

(3A) The promotion of, or attempt to promote, feelings of
enmity or hatred between different classes of the citizens H
712 SUPREME COURT REPORTS [2013) 13 S.C.R.

A of India on grounds of religion, race, caste, community, or
language, by a candidate or his agent or any other person
with the consent of a candidate or his election agent for
the furtherance of the prospects of the election of that
candidate or for prejudicially affecting the election of any
B candidate.

(38) The propagation of the practice or the commission
of sati or its glorification by a candidate or his agent or
any other person with the consent of the candidate or his ~-
election agent for the furtherance of the prospects of the
c election of that candidate or for prejudicially affecting the
election of any candidate.

Explanation.- For the purposes of this clause," sati" and"
glorification" in relation to sati shall have the meanings
D respectively assigned to them in the Commission of Sati
(Prevention) Act, 1987 .

(4) The publication by a candidate or his agent or by any
other Person, [with the consent of a candidate or his
election agent], of any statement of fact which is false, and
E
which he either believes to be false or does not believe to
be true, in relation to the personal character or conduct of
any candidate, or in relation to the candidature, or
withdrawal [of any candidate, being a statement 1 ..
reasonably calculated to prejudice the prospects of that
F candidate' s election.

(5) The hiring or procuring, whether on payment or
otherwise, of any vehicle or vessel by a candidate or his
agent or by any other person with the consent of a
G candidate or his election agent], [or the use of such
vehicles or vessel for the free conveyance] of any elector
(other than the candidate himself, the members of his family
or his agent) to or from any polling station provided under
Section 25 or a place fixed under sub- section (1) of
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 713

,. TAMIL NADU [P. SATHASIVAM, J.]

... Section 29 for the poll: A

Provided that the hiring of a vehicle or vessel by an elector
or by several electors at their joint costs for the purpose
of conveying him or them to and from any such polling
station or place fixed for the poll shall not be deemed to B
be a corrupt practice under this clause if the vehicle or
vessel so hired is a vehicle or vessel not propelled by
mechanical power:
~)..

--
Provided further that the use of any public transport vehicle
or vessel or any tramcar or railway carriage by any elector c
at his own cost for the purpose of going to or coming from
any such polling station or place fixed for the poll shall not
be deemed to be a corrupt, practice under this clause.

Explanation.- In this clause, the expression" vehicle" means D
any vehicle used or capable of being used for the purpose
of road transport, whether propelled by mechanical power
or otherwise and whether used for drawing other vehicles
or otherwise.

(6) The incurring or authorizing of expenditure in E
contravention of Section 77.

.. ~
(7) The obtaining or procuring or abetting or attempting to
obtain or procure by a candidate or his agent or, by any
other person [with the consent of a candidate or his F
election agent], any assistance (other than the giving of
vote) for the furtherance of the prospects of that
candidate's election, from any person in the service of the
Government and belonging to any of the following classes,
. ~ namely:- G
(a) gazetted officers;

(b) stipendiary judges and magistrates;

(c) members of the armed forces of the Union; H
714 SUPREME COURT REPORTS [2013] 13 S.C.R.

A (d) members of the police forces; -f .
r
(e) excise officers;

(f) revenue officers other than village revenue officers
known as lambardars, malguzars, patels, deshmukhs or by
B any other name, whose duty is to collect land revenue and
who are remunerated by a share of, or commission on, the
amount of land revenue collected by them but who do not
discharge any police functions; and] ,(,

c (g) such other class of persons in the service of the
Government as may be prescribed: -.
Provided that where any person, in the service of the
Government and belonging to any of the classes aforesaid,
in the discharge or purported discharge of his official duty,
D makes any arrangements or provides any, facilities or
does any other act or thing for to or in relation to any
candidate or his agent or any other person acting with the
consent of the candidate or his election agent, (whether
by reason of the office held by the candidate or for any
E other reason), such arrangements, facilities or act or thing
shall not be deemed to be assistance for the furtherance
of the prospects of that candidate' s election.

(h) class of persons in the service of a local authority, -+ -·
F university, government company or institution or concern
or undertaking appointed or deputed by the Election
Commission in connection with the conduct of elections.

(8) Booth Capturing by a candidate or his agent or other

G
person.
>- -
Explanation.- (1) In this Section the expression" agent"
includes an election agent, a polling agent and any person
who is held to have acted as an agent in connection with
the election with the consent of the candidate.
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 715
TAMIL NADU [P. SATHASIVAM, J.]
t (2) For the purposes of clause (7), a person shall be A
... deemed to assist in the furtherance of the prospects of a
candidate' s election if he acts as an election agent of that
candidate.

(3) For the purposes of clause (7), notwithstanding anything B
cont~ined in any other law, the publication in the Official
Gazette of the appointment, resignation, termination of
service, dismissal or removal from service of a person in
.__ )_ the service of the Central Government (including a person
serving in connection with the administration of a Union

-- territory) or of a State Government shall be conclusive
proof-
c

(i) of such appointment, resignation, terminatio·n of service,
dismissal or removal from service, as the case may be,
and D

(ii). where the date of taking effect of such appointment,
resignation, termination of service, dismissal or removal
from service, as the case may be, is stated in such
publication, also of the fact that such person was
E
appointed with effect from the said date, or in the case of
resignation, termination of service, dismissal or removal
from service, such person ceased to be in such service
y ~ with effect from the said date.]

(4) For the purposes of clause (8)," booth capturing" shall F
have the same meaning as in Section 135A."

49. Keeping the parameters fixed in the above Section,
we have to analyze the claim of both the parties hereunder. A
-t. perusal of sub-sections 1-8 of Section 123 makes it clear that G
it speaks only about a candidate or his agent or any other
person. There is no word about political parties. Taking note
of the conditions mandated in those sub-sections, let us test
the respective stand of both the parties.

50. For deciding the issue whether the contents of the H
~

716 SUPREME COURT REPORTS [2013) 13 S.C.R.

A political manifesto would constitute a corrupt practice under 'f
Section 123 of RP Act, it is imperative to refer to the intention 'y

of the legislature behind- incorporating the respective section.
The purpose of incorporating Section 123 of the RP Act is to
ensure that elections _are held in a free and fair manner.
B
51. The object of provisions relating to corrupt practices
was elucidated by this Court in Patangrao Kadam vs. Prithviraj
Sayajirao Yadav Deshmukh and Ors. (2001) 3 SCC 594 as
follows:- .(.
c 14. " .... Fair and free elections are essential requisites to
maintain the purity of election and to sustain the faith of
....
the people in election itself in a democratic set up. Clean,
efficient and benevolent administration are the essel').tial
features of good governance which in turn depends upon
D persons of competency and good character. Hence those
indulging in corrupt practices at an election cannot be
spared and allowed to pollute the election process and this
purpose is sought to be achieved by these provisions
contained in the RP Act."
E
52. With this background, let us analyze the contention of
the appellant. The gist of appellant's argument is that promises
of freebies such as colour TVs, mixer-grinders, laptops, etc.,
are in form part of an election manifesto of a political party but
-t -.
in substance is a bribe or inducement under Section 123. Thus,
F it is the stand of the appellant that the promise of this nature
indeed induces the voters thereby affecting the level playing field
between the candidates, which in turn disrupts free and fair
election. Therefore, the appellants suggested for construing the
promises made in the election manifesto as a corrupt practice ...__ •
G under Section 123 of RP Act. He mainly relied on the principle
that one cannot do indirectly what it cannot do directly.

53. As appealing this argument may sound good, the
implementation of this suggestion becomes difficult on more
H than one count. Firstly, if we are to declare that every kind of
S. SUBRAMANIAM BALAJI v
GOVERNMENT OF 717
TAMIL NADU [P. SATHASIVAM, J.]
promises made in the election manifesto is a corrupt practice, A
this will be flawed. Since all promises made in the election
manifesto are not necessarily promising freebies per se, for
instance, the election manifesto of a political party promising
to develop a particular locality if they come into power, or
promising cent percent employment for all young graduates, or B
such other acts. 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. c
54. Secondly, the manifesto of a political party is a
statement of its policy. The question of implementing the
manifesto arises only if the political party forms a Government.
It is the promise of a future Government. It is not a promise of
an individual candidate. Section 123 and other relevant D
provisions, upon their true construction, contemplate corrupt
practice by individual candidate or his agent. Moreover, such
corrupt practice is directly linked to his own election irrespective
of the question whether his party forms a Government or not.
The provisions of the RP Act clearly draw a distinction between E
an individual candidate put up by a political party and the
political party as such. The provisions of the said Act prohibit
an individual candidate from resorting to promises, which
..- t constitute a corrupt practice within the meaning of Section 123
of the RP Act. The provisions of the said Act place no fetter on F
the power of the political parties to make promises in the
election manifesto.

55. Thirdly, the provisions relating to corrupt practice are
penal in nature and, therefore, the rule of strict interpretation G
must apply and hence, promises by a political party cannot,
constitute a corrupt practice on the part of the political party as
the political party is not within the sweep of the provisions
relating to corrupt practices. As the rule of strict interpretation
-i applies, there is no scope for applying provisions relating to H
\.
<'
718 SUPREME COURT REPORTS [2013) 13 S.C.R.

A corrupt practice contained in the said Act to the manifesto of a
political party.

56. Lastly, it is settled law that the courts cannot issue a
direction for the purpose of laying down a new norm for
B characterizing any practice as corrupt practice. Such directions
would amount to amending provisions of the said Act. The
power to make law exclusively vests in the Union Parliament
and as long as the field is covered by parliamentary enactments,
no directions can be issued as sought by the appellant. As an ~-,
outcome, we are not inclined to hold the promises made by the
c political parties in their election manifesto as corrupt practice
under Section 123 of the RP Act.

Issue No. 2

D Whether the schemes under challenge are within the
ambit of public purpose and if yes, is it violative of Article
14?
57. The concept of State largesse is essentially linked to
Directive Principles of State Policy. Whether the State should
E frame a scheme, which directly gives benefits to improve the
living standards or indirectly by increasing the means of
livelihood, is for the State to decide and the role of the court is
very limited in this regard. -t . .
F 58. It is not in dispute that television is a widely used tele-
communication medium for receiving moving images. Today,
television has a lot of positive effects and influences on our
society and culture. Television gives helpful hformation and it
is not an equipment aimed for entertainment alone. The State
G Government has also asserted that the purpose of distributing
,!,..

colour television sets is not restricted for providing recreation
but to provide general knowledge to the people, more
particularly, to the household women.

59. On behalf of the State of Tamil Nadu, it was explained
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 719
TAMIL NADU [P. SATHASIVAM, J.]
that in order to promote the welfare of the people by securing A
and protecting, as effectively as it may, a social order in which
social and economic justice can be achieved, the Government
of Tamil Nadu has announced certain welfare schemes for
raising the standard of living of the people by providing
assistance to the deserving ones as envisaged under the B
Directive Principles of the Indian Constitution. In order to
implement those schemes effectively, the Government of Tamil
Nadu had exclusively formed a Special Programme
Implementation Department. Guidelines for each Scheme were
framed to identify the beneficiaries and mode of distribution. c
60. It is pointed out by the State that the Government has
issued necessary orders for the following schemes:

(i) Marriage Assistance Scheme;
D
(ii) Distribution of Milch Animals and Goats;

(iii) Solar Powered Green House Scheme;

(iv) Laptop Computer to students;
E
(v) Free Rice Scheme; and

(vi) Free distribution of Electric Fans, Mixies and
Grinders to women.

The Schemes are as under: F
"Marriage Assistance Scheme

(1) The economic status of a family plays a vital role
in· enabling the poor parents who have daughters
to fulfill the social obligation of marriage. Various G
Marriage Assistance Schemes being implemented
by the Government of Tamil Nadu are in vogue to
benefit the poor and the downtrodden for whom the
marriage ceremony of their daughters impose a
H
720 SUPREME COURT REPORTS (2013] 13 S.C.R.

A heavy burden. There are at present 5 marriage
assistance schemes and they are as follows:

(i) Moovalur Ramamirtham Ammaiyar Ninaivu
Marriage Assistance Scheme for poor girls
B (ii) Dr. Dharmambal Ammaiyar Ninaivu Widow Re-
marriage Assistance Scheme to encourage the
remarriage of young widows

(iii) E.V.R. Maniammaiyar Ninaivu Marriage
c Assistance Scheme for daughters of poor widows

(iv) Annai Theresa Ninaivu Marriage Marriage
Assistance Scheme for Orphan Girls.

(v) Dr. Muthulakshmi Reddy Minaivu Inter-caste
D Marriage Assistance Scheme

(2) With the extraordinary rise in the price of gold,
poor families and the abovementioned vulnerable
categories find it difficult to buy even a small quantity
E of gold for the traditional 'Thirumangalyam' (Mangal
Sutra). To mitigate the hardship of the poor families
and vulnerable sections, the State Government has
ordered the provision of 4 gms (1/2 sovereign) 22
ct. gold coin for making the 'Thirumangalyam' in
addition to the already existing financial assistance
F
of Rs.25,000/-. Moreover, with the aim of
encouraging higher education among women, the
present Government has also introduced a new
scheme of providing financial assistance of
Rs.50,000/- for graduates/diploma holders along
G with the four grams 22 carat gold coin for making
the 'Thirumangalayarn'.

(3) The guidelines for sanction of assistance
under the various Marriage Assistance Scheme
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 721
.TAMIL NADU [P. SATHASIVAM, J.]
include that the annual income of the family should A
not exceed Rs.24,000/- and the minimum age limit
for the girls should be 18 years. The detailed
guidelines have been issued in G.O.(Ms.) No. 49,
l SW & NMP Dept. dated 26.07.2011. The details
pertaining to each scheme are as follows: B

(A) Moovalur Ramamiratham Ammaiyar Ninaiyu
Marriage Assistance Scheme

1. Objectives of the Scheme To help the poor parents
financially in getting their c
daughter's married and to
I
promote the educational
status of poor girls.

. 2. Assistance provided and Rs.25,000/- along with 4 D
Educational Qualification gms. gold coin (for those
who have studies up to
10th std., Vth Std, for
Scheduled Tribes)

3. To whom the benefit is due Girls belonging to poor E
families

4. When the benefit is due Before marriage

5. Eligibility Criteria
F
a) Age Limit Bride should have
completed 18 years of
age

b) Income Limit Not exceeding Rs.24,000 G
per annum

c) Other criteria Only one girl from a famil)
is eligible

H
722 SUPREME COURT REPORTS [2013] 13 S.C.R.

A (B) Dr. Dharmambal Ammaiyar Ninaivu Widow Re-
marriage Assistance Scheme

'I . Objectives of the Scheme To encourage widow
remarriage and
B rehabilitate widows

2. Assstance provided and Rs.25,000/- along with 4
Educational Qualification gms. gold coin (for those
who have studies up to
10th std., Vth Std, for
c Scheduled Tribes)

Rs. 50,000/- along with •
gms. gold coin (for
Graduate and diploma
D holders)

3. To whom the benefit is due To the couple

4. When the benefit is due Within 6 months from the
date of marriage
E
5. Eligibility Criteria

a) Age Limit Minimum age of 20 year~
for the bride and below 4( -+ •
years for the bridegroom
F
b) Income Limit No income ceiling.

(C) E.V.R. Maniammaiyar Ninaivu Marriage Scheme
for daughters of poor widows
G 1. Objectives of the Scheme To help the poor widows
by providing financial
assistance for the
marriage of their
daughters
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 723
TAMIL NADU [P. SATHASIVAM, J.]
, t 2. Assistance provided and Rs.25,000/- along with 4
A
Educational Qualification gms. gold n coin (for
those who have studies
up to 10th std., Vth Std,
for Scheduled Tribes)
B
Rs. 50,000/- along with 4
gms. gold coin (for
Graduate and diploma
holders)
3. To whom the benefit is due Daughter of poor widow c
4. When the benefit is due Before marriage
5. Eligibilib'. Criteria
a) Age Lim!t 18 years
D
b) Income Limit Not exceeding Rs.24,0001
per annum
c) Other Criteria Only one daughter of a
poor widow is eligible
E
(D) Annai Theresa Ninaivu Marriage Assistance
Scheme for Orphan Girls
1. Objectives of the Scheme To help the orphan girls
financially for their
marriage F
2. Assistance provided and Rs.25,000/- along with 4
Educational Qualification gms. gold coin (for those
who have studies up to
10th std., Vth Std, for
Scheduled Tribes) G

Rs. 50,000/- along with 4
gms. gold coin (for
Graduate and diploma
holders)
H
724 SUPREME COURT REPORTS [2013) 13 S.C.R.
•
-
A 3. To whom the benefit is due Orphan girls
4. When the benefit is due Before marriage
5. Eligibilib'. Criteria
a) Age Limit 18 years
B
b) Income Limit Not exceeding Rs.2{qoo1
per annum ..
(E) Dr. Muthulakshmi Reddy Ninaivu Inter-Caste J.,~
Marriage Assistance Scheme
c 1. Objectives of the Scheme To abolish caste and
community feelings based
on birth and wipe out the
evils of untouchabiity by ,_
encouraging inter-caste ...
D marriage
2. Assistance provided and Rs.25,000/- (Rs.15,000/-
Educational Qualification DD/Cheque, Rs.10,000/-
NSC Certificate) along
with 4 gms. gold coin (for
E
those who have studies
up to 10th std., Vth Std,
for Scheduled Tribes)
Rs. 50,000/- (Rs.30,000/-
F DD/cheque, Rs.20,000/-
NSC Certificate) along
•
with 4 gms. gold coin (for
Graduate and diploma
holders)
G 3. To whom the benefit is due Inter-caste married couple
4. When the benefit is due Considering the special
constraints in such
marriages the facility will
be extended up to two
H years.
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 725
TAMIL NADU [P. SATHASIVAM, J.]
A
5. Eligibilitv Criteria

a) Age Limit Minimum 18 years

b) Income Limit No Income limit
B
II. Distribution of Milch Animal and Goats

(i) It is highlighted by the State that with the growing
-..). population and shrinking land resources, the
nutritional requirement of the State cannot be met
,.,. by increasing the agricultural production alone. c
Moreover vagaries of monsoon, availability of water
have added to the pressure on increasing the
agricultural production. To compensate this, it is
necessary to improve the animal production.
_,
D
>- (ii) As per the Indian Council for Agriculture Research
(ICAR) norms, the per capita requirement of milk
and meat per individual per day is 260 gms per day
and 15gms. per day respectively. At present, the
• _ per capita availability of milk and meat in Tamil
Nadu is below the recommended requirement. E
Hence, it is the need of the hour to increase the milk
and meat production in the State to the State's
•+ human population requirements. Moreover, still a
large population in the State live below the poverty
... F
line.

(iii) Hence, it has been proposed to improve the
standard of living by providing the needy poor with
_,. a Milch cow (to 60000 families) ·and sheep/goats
to about poorest of the poor (7 lakh families) spread G
across the State. The main aim of the above
Schemes will be to improve the standard of living
of the poorest of the poor.

(iv) Under the Scheme of free distribution of Milch
H
726 SUPREME COURT REPORTS [2013] 13 S.C.R.

A Cows, it has been envisaged to distribute Milch
Cows to the poor people selected by the Grama
Sabha based on norms in such villages/districts
which do not have adequate availability of milk.
Likewise, the poorest of the poor living in the rural
B areas will be identified democratically by the Grama
Sabha and will be given 4 sheep/goats in order to
sustain their livelihood by rearing these sheep/
goats.

A. The scheme for distribution of 60,000 lactating
c cows free of cost in rural village panchayats

(i) The Government of Tamil Nadu have planned to
launch a Scheme to distribute 60,000 free Milch
Cows to the poor beneficiaries in the rural areas
D in the next 5 years in order to give boost to the milk
productivity of the State. This scheme will be called
"Scheme for free distribution of Milch Cows".

2. Selection of Villages for the Scheme
E (i) The Commissioner of Animal Husbandry and
Veterinary Services (CA&VS) will select the Village
Panchayats to be taken for implementation during
each of the 5 years in such a way that in a year,
approximately 12,000 beneficiaries are distributed
F free Milch Cows in order to complete the
distribution of 60,000 Milch Cows in 5 years.

(ii) The free Milch Cows will be distributed to the poor
beneficiaries on a priority basis in such District~ that
have lesser number of Co-operative Societies than
G
the total number of revenue villages. In such
Districts. the distribution will be undertaken in those
Village Panchayats where there are no Primary
Milk Cooperative Societies at present. Consequent
upon the distribution of the cows, action will be
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 727
TAMIL NADU [P. SATHASIVAM, J.]
taken to form Primary Cooperative Societies of the A
beneficiaries in these villages and render the
beneficiaries necessary hand-holding assistance by
the Dairy Development Department. The Co-
operative network has the following advantages for
the beneficiaries: B

(a) Availability of immediate opportunity of sale
of milk through the Milk Cooperative Society
~) at good prices.

(b) Availability of Breeding services as well as c
Veterinary care at the door steps through the
Society as well as Milk Union.

(c) Opportunity to tap the benefits of various
Central/State funded Schemes meant for the D
co-operative sector.

(iii) Out of the villages to be selected within the
Districts concerned, the smaller village
Panchayats will be prioritized by the
Commissioner of Animal Husbandary & E
Veterinary Services for the implementation of ·
the Scheme since it will be easier to form the
Primary Milk Societies of smaller and
• '/ cohesive units. Further, t-he Village
Panchayats to be taken up each year will be F
'' grouped in appropriate ·geographical
Clusters as to facilitate the economical
collection of milk.

3. Breed of Milch Cows to be procured G
(i) The breeding policy of the State envisages rearing
of the Cross Bred Jersey Cows in the plains and
Cross Bred Holstein-Friesian cows in the hilly areas
of the State and the Cross Bred Cows yield, on an
H
728 SUPREME COURT REPORTS [2013] 13 S.C.R.

A average, 2.5 times the milk yield of indigenous
cows. It is, hence, proposed to supply Cross bred
cows as per the Breeding Policy of the State.
Further, in most of the cases, farmers prefer rearing ·
of cows as compared to buffaloes. Hence, it is
B proposed to distribute only cows in this Scheme.
Amongst the Cross Bred cows too, it is proposed
to supply lactating cows that are in their firsUsecond
lactation so as to ensure a continuous production A_,
for next five lactations. The age of the animal should
c not be more than 5 years.

4. Identification of Beneficiaries

(i) The free Milch Cows will be distributed at the rate
of one Cow per eligible household. In order to
D empower the women, it has been decided that the ,ii..
actual beneficiary will be the Woman of the
household. In case there are any transgender
residing in the Village Panchayat, who are
otherwise eligible as per the criteria given below,
E they will also be considered to be eligible for the
SchemE;!.
~
(ii) Criteria for eligibility The beneficiaries should
satisfy the following criteria: --If I

F Women Headed households are to be given
priority, (Widows, Destitutes and the
Disabled women to be given priority within
this group).

G Are below 60 years of age.

Do not own land over 1 acre in their own
name or family members' name (However,
owning some land is preferable, since it will
enable production of green fodder in own
H land).
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 729
TAMIL NADU [P. SATHASIVAM, J.]
Do not own any cows/buffaloes at present. A

Are not employees of Central/State
Government or any Organisation/cooperative
or member of any Local Body (nor should
their spouse or father/mother/parents-in-law/ 8
son/daughter/son-in-law/daughter-in-law be
so).

Have not benefited from the free Goats/
Sheep Scheme of the Government.
. c
Should be permanent resident of the Village
Panchayat.

At least 30% beneficiaries from the Village
Panchayat should necessarily belong to SC/ D
ST (SC 29% and ST 1%) Communities.

(iii) In order to form a viable and successful
procurement of milk by the Primary Milk
Cooperative Societies, it is preferable that at least
50 members within a village Panchayat should E
pour the milk to the Milk Cooperative Society.
Hence, ordinarily around 50 beneficiaries should be
• .y provided with cows in each of the selected Village
Panchayats.
F
(iv) In the District, the District Collector will be
overall in-charge of the process of identification of
beneficiaries. The Regional Joint director (Animal
Husbandry) (RJAD), Project Officer (Mahalir
Thittam) and Assistant Director (Panchayats) will
assist him in this regard. The District Collector will G
form a village Level Committee consisting of (i)
Village Panchayat President, (ii) Vice-President,
(iii) the senior most Ward member (by age)
representing SC/ST Community, (iv) the Panchayat
H
730 SUPREME COURT REPORTS [2013] 13 S.C.R.

A Level Federation (PLF) Coordinator, (v) an active
SHG representative (vi) the Veterinary Assistant
Surgeon (VAS) of the area and (vii) the Deputy,
Block Development Officer (ADW) to identify and
shortlist the list of beneficiaries per the norms
B specified. The District Collector should also ensure
that necessary support is rendered to the
Committee by the Village Panchayat Assistant
concerned. The purpose of adding the Veterinary
Assistant Surgeon and Deputy Block Development
c Officer is to ensure that the short listed
beneficiaries are conforming to the prescribed
norms.

(v) After constituting the Village Level Committee
for the selected Village Panchayats concerned, the
D District Collector should arrange to convene a
meeting of all the members concerned and in that
~meeting, the details of the Scheme and the
eligibility conditions are to be explained in detail.
Since, the number of Village Panchayats per
E District will be ordinarily only about 10 per District ..
per year, the District Collector should himself
convene this meeting and convey the details.

(vi) The District Collector should, thereafter, fix a
F Special Meeting of the Grama Sabha in the Village
Panchayat concerned to inform the details of the
Scheme to the villagers. The Veterinary Assistant
Surgeon and Deputy Block Development Officer
(ADW) will explain the salient features of the
Scheme and the eligibility details of the
G
beneficiaries in the meeting. Applications for the
free Milch Cows will be sought for in this Special
Gram Sabha Meeting from the interested
beneficiaries.

H
S., SUBRAMANIAM BALAJI v GOVERNMENT OF 731
TAMIL NADU [P. SATHASIVAM, J.]
l )-
(vii) A period of one week will also be given for A
further receipt of Applications. The Applications
can be given to any of the village Level Committee
members or directly to the Village Panchayat.
Thereafter, the Veterinary Assistant Surgeon and
Deputy Block Development Officer (ADW) will B
arrange a meeting of the village level Committee
in the office of the Village Panchayat to scrutinize
.,, ) and list out the names of all the eligible
beneficiaries for the Scheme.

-
<
(viii) The list prepared should also be got verified
by the Veterinary Assistant Surgeon and Deputy
c
Block Development Officer (ADW) with the Village
Administrative officer concerned, with regard to the
land ownership details and the community details.
~ (No certificate is however to be insisted upon and D
the scrutiny of the Village Level committee and
subsequently the Gram Sabha will be considered
to be final). Only after ensuring the eligibility of the
proposed beneficiaries, the list will be approved by
the village Level Committee. E

(ix) The finalized list should be placed before the Gram
,.. )'
Sabha for approval. The Gram Sabha should again
ensure that 30% of the beneficiaries belong to SC/
ST communities.
F
(x) The District Collector should also arrange to send
the Veterinary Assistant Surgeon/Deputy Block
Development Officer or another official of the rank
4 of Deputy Block Development Officer (in case the
Deputy Block Development Officer is unable to G
attend) to participate in the Gram Sabha meeting
and facilitate the discussion and finalization of the
beneficiaries list.

H
732 SUPREME COURT REPORTS (2013] 13 S.C.R.

A (xi) The list finalized by Gram Sabha will be displayed -{
in the Village Panchayat, Notice Board and other
prominent places in the Village Panchayat.

B. Scheme for free distribution of goats/sheep to the
poorest of the poor
B
The Government of Tamil Nadu have proposed to
launch a "Scheme for free distribution of Goats/
Sheep" for the poorest of poor in the rural areas in ~ •'
~-
order to enhance their standard of living.
c ..J
2. Implementation of the Scheme

(i) The- Goats/Sheep can be procured within the State
and also from outside the State. However, the
procurement of Goats/Sheep in larger numbers
D from the other States is not preferable since this
category of animals (also called 'small ruminants'
in veterinary terminology) are fragile or prone to
diseases when transported enmasse from long
distances and different climatic zones. Hence,
E unlike the Scheme for procurement of free Milch
Cows wherein cows only from other States are
proposed to be procured, it has been decided to
procure Goats/Sheep predominantly from the local
market shandies available within the State in the
~ ..
F proximity of the beneficiaries. If good 'quality
animals are brought and supplied by the breeders
in the village itself, the supply of Goats/Sheep
through such breeders will be permitted.

(ii) It is presumed that about 6- 7 lakh Goats/Sheep can
G
be procured from the shandies within the State or
from the neighbouring State shandies without
causing shortage of availability of Goats/Sheep for
meat purpose and without causing impact on the
price of Goats/Sheep in the area.
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 733
TAMIL NADU [P. SATHASIVAM, J.]
(iii) In view of the availability of about 6-7 lakh Goats/ A
Sheep in a year, the number of families to be
assisted in each year wilt be 1.5 lakh and in the
current year, approximately one lakh families can
be assisted since the first quarter of the year is
already over. The Gram Sabha will be utilized to 8
identify the poorest of the poor beneficiaries within
each village.

• J.. 3. Eligibility Norms

.. The beneficiaries will be the poorest of the poor c
families living in Village Panchayats (rural areas)
who are identified by the village Level Committee
as per the norms and whose name is approved by
the Gram Sabha as the poorest of the poor in the
village. D
-~
The free Goats/Sheep will be distributed. at the rate
of 4 Goats/Sheep per household. In order to
empower the women, it has been decided that the
actual beneficiary will be the Woman of the
E
household. In case there are any transgender
residing in the Village Panchayat, who are
otherwise eligible as per the criteria given below,
~
~ they will also be considered to be eligible for the
Scheme.
F
The beneficiaries under this Scheme should satisfy
the following eligibility criteria

Must be the landless Agricultural labourers.
-4 G
Should be a permanent resident of the Village
Panchayat.

The beneficiary household should have at least one
member between the age of 18 and 60 to effectively
H
734 SUPREME COURT REPORTS [2013] 13 S.C.R.

A rear the Goats/Sheep.

Should ·not own any Cow/Goat/Sheep at present.

Should not be an employee of Central/State
Government or any Organisation/Cooperative or
B member of any local body (nor should their spouse
or father/mother/parents-in-law/son/daughter/son-in-
law/daughter-in-law be so).

Should not have benefited from the free Milch Cows
c Distribution Scheme of the Government.

(2) Atleast 30% beneficiaries from the Village
Panchayat should necessarily belong to SC/ST (SC
29% and ST 1%) community.

D (i) The target number of beneficiaries for each District
will be decided by the Commissioner of Animal
Husbandry and Veterinary Services (CAH&VS)
based on the strength of the rural population of the
District. The Village Panchayat as well as the Block
E target within the District will also be based on the
proportionate rural population.

(ii) Within each District, the Village Panchayats will be
selected in such a manner that approximately one-
fifth of the beneficiaries will be covered in ea.ch
F
Block in a year and the beneficiaries of a particular
Village Panchyat will be fully covered within the year
itself. The Commissioner of Animal Husbandry and
Veterinary Services will ,work out the detailed Action
Plan in this regard and convey to the District
G Collectors for implementation. In case of difficulties
in implementation of the Scheme in some of the
Village Panchayats having urbanized characters,
the District Collector will, in consultation with the
Commissioner of Animal Husbandry and
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 735
.. TAMIL NADU [P. SATHASIVAM, J.]
Veterinarv Services, re-allocate the surplus target A
to other deserving Village Panchayats.

(iii) In the District, the District Collector will be the
overall in-charge of the process of identification of
beneficiaries. The Regional Joint Director (Animal
B
Husbandry) (RJAD), Project Officer (Mahalir
Thittam) and Assistant Director (Panchayats) will
assist him in this regard. The District Collector will
~· j_
form a Village Level Committee consisting of (i)
Village Panchayat President, (ii) Vice-President,
(iii) the senior most Ward member (by age) c
representing SC/ST Commu~ity, (iv) the Panchayat
Level Federation (PLF) coordinator (v) an active
SHG representative (vi) the Veterinary Assistant
Surgeon (VAS) of the area and (vi) the Deputy
Block Development Officer (ADW) to identify and D
~
shortlist the list of beneficiaries as per the norms
specified. The District Collector should also ensure
that necessary support is rendered to the
Committee by the Village Panchayat Assistant
concerned. The purpose of adding the VAS and E
Deputy BDO(ADW) is to ensure that the shortlisted
beneficiaries are conforming to the prescribed

•
,, norms.

(iv) After constituting the Village Level Committee for F
the selected Village Panchayats concerned, the
District Collector should arrange to convene a
meeting of all the members concerned and in that
meeting, the details of the Scheme and the
--I eligibility conditions are to be explained in detail.
G
The District Collector should himself convene this
meeting in one or more sessions in order to convey
the details and the seriousness of the selection
process.

H

iiiiil,
736 SUPREME COURT REPORTS [2013) 13 S.C.R.

A (v) The District Collector should, thereafter, fix a
Special Meeting of the Gram Sabha in the Village
Panchayat concerned to inform the details of the
Scheme to the villagers. The Veterinary Assistant
Surgeon and Deputy Block Development Officer
B (ADW) will explain the salient features of the
Scheme and the eligibility details. of the
beneficiaries in the meeting. Applications for the
free Goats/Sheep will be sought for in this Special
Gram Sabha Meeting from the interested
c beneficiaries.
'
..
(vi) A period of one week will also be given for further
receipt of applications. The applications can be
given to any of the Village Level Committee
members or directly to the Village Panchyat. •
D Thereafter, the Veterinary Assistant Surgeon and
Deputy Block Development Officer (ADW) will
arrange a meeting of the Village Level Committee
in the office of the Village Panchayat to scrutinize
and list out the names of all the eligible
E beneficiaries for the Scheme.

(vii) The list prepared should also be got verified by the
Veterinary Assistant Surgeon and Deputy Block
Development Officer (ADW) with the village
F Administrative Officer concerned, to confirm the
'landless' status of the proposed beneficiaries and
the community details. (No certificate is however to
be insisted upon and the scrutiny of the Village
Level Committee and subsequently the Gram
Sabha will be considered to be final). Only after
G
ensuring the eligibility of the proposed
beneficiaries, the list will be approved by the Village
Level Committee.

(viii) The finalized list should be placed before the Gram
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 737
TAMIL NADU [P. SATHASIVAM, J.]
Sabha for approval. The Gram Sabha should again A
ensure that 30% of the beneficiaries belong to SC/
ST (SC 29% and ST 1%) communities.

(ix) The District Collector should also arrange to send
the Vete"rinary Assistant Surgeon/Deputy Block B
Development Officer (ADW) or another official of
the rank of Deputy Block Development Officer (in
" ,. case the Deputy Block Development Officer (ADW)
is unable to attend) to participate in the Gram
Sabha meeting and facilitate the discussion and c
finalization of the beneficiaries list.

Ill. Solar Powered Green House Scheme

• 1. The Government proposed to construct "Solar D
"~ Powered Green House Scheme" for the benefit of
the poor in the rural areas and measuring about
300 square feet with unit cost of Rs.1.80 lakhs by
meeting the entire cost by Government. The
scheme aims a~ providing Solar Powered Green E
House for the poor living below poverty line in rural
areas. Accordingly, it is proposed to construct
60,000 Solar Powered Green House of 300 sq. ft.
.~ r each year for the next five years from 2011-2012
.- totalling 3 lakh house. F

2. Eligibility Criteria :

1. The beneficiary under Solar Powered Green House
-I Scheme should reside within the Village Panchayat
G
and find a place in the below poverty line list.

2. He/she should own a site of 300 sq. ft. with clear
title and patta.

3. Should not own any pacca concrete house and not H
738 SUPREME COURT REPORTS [2013] 13 S.C.R.
• -.( .
A benefited by any other housing scheme.

4. Rs.1.50 lakhs will be earmarked for construction of
house and Rs.30,000/, for installing solar Powered
Home Lighting System.
B
5. The scheme will be implemented by the District
Collector so as to ensure that the construction of
houses are completed in time.
~~

c IV. Laptop Computers to students . ,

The State of Tamil Nadu have emerged as a favoured
destination both for the domestic and multinational IT
companies. This has opened new vistas of job

D
opportunities for youth in Tamil Nadu. Further the students ..
from lower rungs of the socio-economic pyramid also need +
to be equipped to participate in the emerging market. To
provide level playing field by bridging the digital divide,
develop skills and improve human resources in
consonance with the millennium development goals, the
E
Government of Tamil Nadu have decided to provide Laptop
computers at free of cost to all students studying in
Government and Government aided Higher Secondary
~
Schools, Arts & Science colleges, Engineering Colleges ~

F and polytechnic colleges. -.
Accordingly the Government have issued order in G.O.(Ms)
No.1, Special Programme Implementation Department
dated 03.06.2011 for distribution of Laptop Computer at ~

}>-
free of cost.
G
Under this scheme, the students studying in Government
and Governmen't aided schools, Arts and Science
Colleges, Engineering Colleges and Polytechnics-will be
eligible. These students will be covered as follows:
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 739
TAMIL NADU [P. SATHASIVAM, J.]

Year Schools Arts/Science Engineering Polytechnics A
Science Colleges

2011-12 Plus Two 1st & 3rd 2nd & 4th 1st & 3rd
(12th std.) years year year students
students students B
2012-13 Plus Two 3rd year 2nd & 4th 1st & 3rd
(12th std.) students Year year students
students

2013-14 Plus Two - -- 1st year c
(12th std.) student

During the year 2011-12, laptop computers will be
distributed to 9.12 lakh students studying in 12th standard,
1st and 3rd year of Arts and Science Colleges, 2nd and D
4th year of Engineering Colleges and 1st and 3rd year of
Polytechnic colleges. The concerned Heads of Institutions
will ensure that the dropouts/discontinued/transferred
students are not included in the list of eligible students.

V. Free Rice Scheme E

Note on the Scheme of Distribution of free rice under
Universal Public Distribution System in Tamil Nadu
. r
In Tamil Nadu Universal Public Distribution System is being
followed and there is no differentiation as APL/BPL F
categories based on income criteria for supply of essential
commodities to family cardholders under Public
Distribution System. Hence, there is no differentiation like
BPL/APL family cards in this State. Instead family cards
have been issued on the basis of option exercised by the G
card holders under self-selection process to receive eit'1er
rice with all commodities or to receive additional sugar in
lieu of rice with other commodities after verifying the
genuiness of the residence in this State.
H.

'
740 SUPREME COURT REPORTS [2013) 13 S.C.R.

A Features of Universal Public Distribution System in
Tamil Nadu

(1) Universal Public Distribution System is the heart
and soul of State Food Policy. It is built on the
principles of non-exclusion, easy access to Public
B Distribution System shops and adequate
availability of food gain at an affordable price.

(2) Though Government of India advocates Targeted
Public Distribution system(TPDS), Government of
c Tamil Nadu is not in favour of rigid targeting, as it
may lead to exclusion of large number of genuine
Below Poverty Line (BPL) families and vulnerable
Above Poverty Line (APL) families due to
enumeration errors and improper bench marking.
D
·.
(3) Poverty is a dynamic and relative concept and
hence, it is difficult to design acceptable criteria
and methodology to measure poverty. Thus any
method used for identifying BPL families is bound
to result in some amount of exclusion of deserving
E families. Further, due to unforeseen natural
calamities like droughts, floods and disaster etc.,
a large number of vulnerable APL families may be
forced into poverty trap again.

F · (4) Rigid government system will not be able to •,
respond quickly to such situation. Thus targeted
public distribution system approach will always
have some families outside the Public Distribution
system at any point of time in defeating the
G objective of total food security and elimination of
hunger.

(5) On the other hand Universal Public Distribution
System is based on principle of self selection. Only
those who need subsidized food articles will go to
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 741
TAMIL NADU [P. SATHASIVAM, J.]
the Public Distribution System shops and not the A
entire population.

(6) Based on these principles and out of years of
experiences, Government of Tamil Nadu is
convinced that Universal Public Distribution System 8
assures better food security to the people and
therefore has decided to continue with it.

, }- Process for issue of family cards

. On application for issue of family cards in the form
prescribed (available in the website of the Department of
c
Civil Supplies and Consumer Protection and can be
downloaded and used - No cost for application), the Civil
Supplies authorities verify the genuiness of the application
and recommend for issue for family card or for rejection D
+ of cards as the case may be.

No income details are collected from the individual and
this information is not entered in the family card also. As
income, except in the case of persons employed in the
organized sector, is a dynamic variable susceptible to E
undergo charges in sync with any unexpected events in the
employment market, these details are not being collected
' . ~ for the purpose of the existing Universal Public Distribution
System.
F
On the other hand, option is given to the applicant to
choose whether he would like to draw rice or not. If he
selects not to draw rice, he is given the benefit of drawing

. ~
3kgs. extra sugar in lieu of rice in addition to the normal
entitlement of Yi kg. per person per month subject to the G
maximum of 2kg per month per card.

VI. Free Distribution of Electric Fans, Mixies &
Grinders to Women

This scheme is introduced as a welfare measure for H
742 SUPREME COURT REPORTS [2013] 13 S.C.R.

A women and intends universal coverage of women
beneficiaries belonging to families holding family cards
which are eligible for drawing rice. To make women more
effective participants in the economy, it is imperative to
relieve them from the domestic drudgery. Therefore, the
B Government have decided to distribute a package of
electric Fan, Mixie and Grinder to all the women from the
families holding family cards which are eligible to draw rice.
This scheme is expected to improve the standard of living
of the poor women apart from providing equal
c opportunities.

In pursuance to above, the Government have issued
Orders in G.O. Ms. 2 Special Programme Implementation
Department, Dated 03.06.2011 for free distribution of 25
lakh packages of electric fans, mixies and grinder during
D 2011-12. In total about 1.83 crore women beneficiaries will
be covered in a phased manner.

2. Eligibility Criteria

All households having a family card which is eligible for
E
. drawing rice are eligible for electric fans, mixies and
grinders, at free of cost, under this Scheme. The benefits
will be distributed only to a woman member of these
households.

F In case, a household having family card which is eligible
for drawing rice, does not have any woman member it will
be given to the head of the family.

The family cards as on 30.06.2011 will be considered for
G distribution of the items during the current year (2011-12).

The benefits will be distributed to an eligible family only
once.

While distributing the benefits, priority should be given to
H rural areas within the Assembly Constituency followed by
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 743
TAMIL NADU [P. SATHASIVAM, J.]
Town Panchayats, then Municipalities and Municipal
-·
A
Corporations, if any."

61. The concepts of livelihood and standard of living are
bound to change in their content from time to time. It is factual
that what was once considered to be a luxury has become a
B
necessity in the present day. It is well settled that the concept
of livelihood is no longer confined to bare physical survival in
terms of food, clothing and shelter but also now necessarily
• >· includes basic medicines, preliminary education, transport, etc .
Hence, the State distrusting largesse in the form of distribution
c
-· of colour TVs, laptops, etc. to eligible and deserving persons
is directly related to the directive principles of the State policy.

62. As a result, we are not inclined to agree with the
argument of the appellant that giving of colour TVs, laptops,
mixer-grinders etc. by the Government after adhering to due D
+ process is not an expense for public purpose. Judicial
interference is permissible when the action of the government
is unconstitutional and not when such action is not wise or that
the extent of expenditure is not for the good of the State. We
are of the view that all such questions must be debated and E
decided in the legislature and not in court.

63. More so, the functioning of the Government is controlled
,. by the Constitution, the laws of the land, the legislature and the

-'
Comptroller and Auditor General of India. As per Article 73 of
the Constitution, the executive power of t~e Union of India is
co-extensive with its legislative power. Similarly, the executive
F

power of the State is co-extensive with its legislative power
(Article 162). In Bhim Singh (supra), this Court has held that
the Government can frame a scheme in exercise of its executive
'~ powers but if such a scheme entails any expenditure, then it is G
required to be backed by law. Article 266 of the Constitution
lays down that all monies received by the Central Government
or by the State Government by way of taxes or otherwise must
be credited to the Consolidated Fund of India. Article 267 also
H
744 SUPREME COURT REPORTS [2013) 13 S.C.R.

A constitutes Contingency Fund of India. If any money (except
which is charged on the Consolidated Fund) is to be withdrawn
for any governmental purpose, then there has to be an
Appropriation Act under Article 266(3) read with Article 114 of
the Constitution. Every department of the Government presents
B its demand to the legislature concerned and the legislature
.
-

votes on the same, and thereafter, the Appropriation Act is
passed which authorizes the Government to withdraw the
money from the Consolidated Fund. There are similar
provisions relating to the State. The Contingency Fund can be -<I. '

c established only by enacting a law in that behalf and not by an
executive fiat. The law creating the Contingency Fund authorizes
the purposes for which the amount in it can be spent. This is
·-
how the money is being spent by the Government on its
schemes under the control of the Legislature.

D 64. In Bhim Singh (supra), Article 282 of the Constitution
in the context of Government expenditure on various projects +
was considered. In that case, the Government in question had
framed the scheme empowering the Members of Parliament
to recommend works and projects in their respective
E constituencies. The said Scheme was challenged on the ground
that the same has been formulated without enacting any law in
that behalf. This challenge was negatived by this Court
principally on the ground that any expenditure which the
Government incurs on the said Scheme is authorized by the
, ,
......
F Appropriation Act and the Appropriation Act is a law as
contemplated by Article 282. This Court also negatived the
challenge on the ground that the same is not for public purpose.

65. In addition to the legislative control by way of
Appropriation Acts, the rules framed by the Parliament under ~ ·-
G Article 118 and by the State Legislatures under Article 208 of
the Constitution of India, also create a mechanism to keep a
check on the expenditure incurred by the Government.

66. As far as State of Tamil Nadu is concerned, the
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 745
TAMIL NADU [P. SATHASIVAM, J.]
"Ir
Legislature has framed rules under Article 208 of the A
Constitution and these rules are known as The Tamil Nadu
Legislative Assembly Rules. Under Chapter XX of the said
Rules, a Public Accounts Committee is set up and usually such
Public Accounts Committee is headed by a Member of the
Opposite Party. The Public Accounts Committee scrutinizes the B
Government accounts and submits its report to the Legislature
for its consideration. So, apart from the Appropriation Act,
• >- there is also effective control over the Government accounts and
expenses through the Public Accounts Committee.
~
67. In addition to the Legislative control, the founding
c
'
fathers of the Constitution have also thought it fit to keep a
check on Government accounts and expenses through an
agency outside the Legislature also. Article 148 has created a
constitutional functionary in the form of the Comptroller and
_} D
Auditor General of India (CAG). CAG examines the propriety,
legality and validity of all expenses incurred by the Government.
The office of CAG exercises effective control over the
Government accounts.

68. If we analyze the abovementioned articles and the rules E
of procedure, it is established that there are various checks and
balances within the mandate of the Constitution before a
..-· ,. scheme can be implemented. As long as the schemes come
within the realm of public purpose and monies for the schemes
is withdrawn with appropriate Appropriation bill, the court has F
-.
limited power to interfere in such schemes.

69. Further, the appellant contended by referring to various
foreign cases to highlight the principle that public money cannot
'. -4, be used to create private assets. In our opinion, there is no
merit in this contention also. The purpose of the schemes is to G
enforce the directive principles of state policy. In what way the
state chooses to implement the directive principles of state
policy is a policy decision of the State and this Court cannot
interfere with such decisions. Ordinarily, this Court efannot
interfere with policy decisions of the government unless they are H
746 SUPREME COURT REPORTS [2013] 13 S.C.R.

-I
A clearly in violation of some statutory or Constitutional provision
or is shockingly arbitrary in nature. In Ekta Shakti Foundation
vs. Government of NCT of Delhi (2006) 10 SCC 337, it was
held:-

10 "While exercising the power of judicial review of
B
administrative action, the Court is not the appellate
authority and the Constitution does not permit the Court to
direct or advise the executive in matter of policy or to
sermonize any matter which under the Constitution lies
-"' '
c
within the sphere of the Legislature or the executive, .._
provided these authorities do not transgress their
constitutional limits or statutory power. The scope of judicial
enquiry is confined to the question whether the decision
taken by the Government is against any statutory provisions
or is violative of the fundamental rights of the citizens or is
D opposed to the provisions of the Constitution. Thus, the +
position is that even if the decision taken by the
Government does not appear to be agreeable to the Court
it cannot interfere. The correctness of the reasons which
prompted the Government in decision making, taking one
E course of action instead of another is not a matter of
concern in judicial review and the Court is· not the
appropriate forum for such invest!gation.
~ ~·

In the light of settled principle and observing that in the
F given case no such circumstances prevail as envisaged for
judicial enquiry; we are not persuaded to interfere with the policy
decision.

70. With regard to the contention that distribution of State
largesse in the form of colour TVs, laptops, mixer-grinders, etc., ;.-- .
G violates Article 14 of Constitution as the unequals are treated
equally. Before we venture to answer this question, we must
recall that these measures relate to implementation of Directive
Principles of State Policy. Therefore, the principle of not to treat
unequals as equal has no applicability as far as State largesse
H
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 747
TAMIL NADU [P. SATHASIVAM, J.]
'\ is concerned. This principle applies only where the law or the A
State action imposes some ·burden on the citizen either
financial or otherwise;· Besides, while implementing the
directive principles, it is for the Government concerned to take
into account its financial resources and the need of the people.
There cannot be a straight jacket formula. If certain benefits are B
restricted to a particular class that can obviously be on account
of the limited resources of the State. All welfare measures
cannot at one go be made available to all the citizens. The State
.. >--
can gradually extend the benefit and this principle has been
recognized by this Court in several judgments. c
Issue No.·3

Whether this Court has inherent power to issue
guidelines by application of Vishaka principle?
D
-t 71. It is the stand of the appellant that there is legislative
vacuum in the given case. Hence, the judiciary is warranted to
legislate in this regard to fill the gap by application of Vishaka
principle. However, learned counsel for the respondent made
a distinction between the Vishaka (supra) and the given case.
E
While highlighting that in Vishaka (supra), there was no
legislation to punish the act of sexual harassment at work place,

'·
,, therefore, the judiciary noting the legislative vacuum framed
temporary guidelines until the legislatures passed a bill in that
regard. However, in the case at hand, there is a special
legislation, namely, the Representation of People Act wherein F
Section 123 enumerates exhaustively a series of acts as
"corrupt practice". Therefore, this is not a case of legislative
vacuum where the judiciary can apply its inherent power to
' --I frame guidelines.
G
Issue No. 4:

Whether Comptroller and Auditor General of India has a
duty to examine expenditures even before they are
H ..
748 SUPREME COURT REPORTS [2013] 13 S.C.R.

A deployed?

72. As reiterated earlier, the Comptroller and Auditor
General of India is a constitutional functionary appointed under
Article 148 of the Constitution. His main role is to audit the
income and expenditure of the Governments, Government.
8
bodies and state-run corporations. The extent of his duties is
listed out in the Comptroller and Auditor General's (Duties,
Powers etc.) Act, 1971. The functioning of the Government is
controlled by the Constitution, the laws of the land, the
C legislature and the Comptroller and Auditor General of India.
CAG examines the propriety, legality and validity of all
expenses incurred by the Government. The office of CAG
exercises effective control over the government accounts and
expenditure incurred on these schemes only after
implementation of the same. As a result, the duty of the CAG
D will arise only after the expenditure has incurred.
-+-
Issue No. 5

Whether the writ jurisdiction will lie against a ~political
E party?

73. Learned senior counsel for the respondent (State of
Tamil Nadu) raised the issue of jurisdiction stating that political
parties are not State within the meaning of Article 12 of the
Constitution of India and therefore, no writ of any nature can be
F issued against them either under Article 226 or Article 32 of
the Constitution of India or any other provision of the Constitution
or any other law. The correct forum is the Election Tribunal and
not writjurisdiction.

G 74. Admittedly, the respondents never raised any objection
relating to the jurisdiction in the High Court or even in the
pleadings before this Court. It is only in the oral submissions
that this issue has been raised.

75. In the matters relating to pecuniary jurisdiction and
H territorial jurisdiction, the objection as to jurisdiction has to be
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 749
TAMIL NADU [P. SATHASIVAM, J.]
,.
taken at the earliest possible opportunity. But, this case relates A
"' to the jurisdiction over the subject matter. This is totally distinct
and stands on a different footing. As such, the question of
subject matter jurisdiction can be raised even in the appeal
stage. However, as this petition is fit for dismissal de hors the
jurisdiction issue, the jurisdiction issue is left open. B

76. Summary:

~ .:.,.., (i) 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 c
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. A reference to a decision of this Court
will be timely. In Prof. Ramchandra G. Kapse vs. Haribansh
Ramakbal Singh (1996) 1 SCC 206 this Court held that " .. Ex D
-t- facie contents of· a manifesto, by itself, cannot be a corrupt
practice committed by a candidate of that party."

(ii) Further, it has been decided that the schemes
challenged in this writ petition falls within the realm of fulfilling
E
the Directive Principles of State Policy thereby falling within the
scope of public purpose.

~ (iii) The mandate of the Constitution provides various
checks and balances before a Scheme can be implemented.
Therefore, as long as the schemes come within the realm of F
public purpose and monies withdrawn for the implementation
.... of schemes by passing suitable Appropriation Bill, the court has
limited jurisdiction to interfere in such schemes.

~ (iv) We have also emphasized on the fact that judicial G
interference is permissible only when the action of the
government is unconstitutional or contrary to a statutory
provision and not when such action is not wise or that the extent
of expenditure is not for the good of the State.
H
750 SUPREME COURT REPORTS [2013] 13 S.C.R.

-;
A (v) It is also asserted that the schemes challenged under
this petition are in consonance with Article 14 of the
Constitution.

(vi) As there is no legislative vacuum in the case on hand,
B the scope for application of Vishaka principle does not arise.
(vii) The duty of the CAG will arise only after the
expenditure has incurred.

(viii) Since this petition is fit for dismissal dehors the """ ~
c jurisdiction issue, the issue of jurisdiction is left open.

Directions:

77. Although, the law is obvious that the promises in the
election manifesto cannot be construed as 'corrupt practice'
D under Section 123 of RP Act, the reality cannot be ruled out
that distribution of freebies of any kind, undoubtedly, influences
+
all people. It shakes the root of free and fair elections to a large
degree. The Election Commission through its counsel also
conveyed the same feeling both in the affidavit and in the
E argument that the promise of such freebies at government cost
disturbs the level playing field and vitiates the electoral process
and thereby expressed willingness to implement any directions
or decision of this Court in this regard.
-+
78. As observed in the earlier part of the judgment, this
F
Court has limited power to issue directions to the legislature
to legislate on a particular issue. However, the Election ,..
Commission, in order to ensure level playing field between the
contesting parties and candidates in elections and also in order
to see that the purity of the election process does not get
G vitiated, as in.past been issuing instructions under the Model
Code of Conduct. The fountainhead of the powers under which
the commission issues these orders is Article 324 of the
Constitution, which mandates the commission to hold free and
fair elections. It is equally imperative to acknowledge that the
H Election Commission cannot issue such orders if the subject
S. SUBRAMANIAM BALAJI v GOVERNMENT OF 751
TAMIL NADU [P. SATHASIVAM, J.]
'f
matter of the order of commission is covered by a legislative A
measure.

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
B
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
c
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 D
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,

80. We hereby direct the Election Commission to take up E
this task as early as possible owing to it~ utmost importance.

-
We also record the need for a separate legislation to be passed
t
by the legislature in this regard for governing the political parties
/ in eiur democratic society.

81. In the light of the above discussion, taking note of F
statutory provisions of the RP Act, which controls only candidate
or his agent, mandates provided under the directive principles,
various guidelines such as income limit. preference to women,
agricultural labourer etc as detailed in the counter affidavit by
the State, we find no merit in the appeal as well as in the G
transferred case. With the above observation as mentioned in
paragraph Nos. 77-80, the appeal and the transferred case are
dismissed. No order as to costs.

Bibhuti Bhushan Bose Appeal & Transferred Cases dismissed. H