S. Subramaniam Balaji S-42, TNHB Golden Enclave
Advocate 180, Luz Corner, (Behind
Navasakthi Vinayakar
Temple, Mylapore
Chennai – 600 004.
ssubramaniambalaji@gmail.com Ph: 098405 66877
through E-mail and Speed post Ack. Due
22-3-2011
To
The Election Commission of India
Nirvachan Sadan,
New Delhi – 1.
C.C. to the Chief Electoral Officer,
Tamil Nadu.
Respected Sir,
Sub: Complaint – (a ) Against the promise / offer of (1) free Grinder or Mixie (2) Rs. 2 Lakhs free grant to women self help groups (3) free laptops to college students (4) free bus travel for senior citizens and (5) Rs. 25,000 additional grant to the Kalaignar housing scheme to the Electorate of Tamil Nadu by the Dravida Munnetra Kazhagam in its manifesto – Describing the freebies as the Heroine of the election and the previous free colour television promise as the Hero of the 2006 election – (b) Against the promise / offer of a cash purse of Rs. 1,500 per month to poor families by the Pattali Makkal Katchi, (an alliance partner with DMK) - Bribery amounting to Corrupt Practice under sec 123 (1) of the Representation of the People Act, 1951 read with section 171-B(2) of the Indian Penal Code –– seeking Disqualification ab initio even at the time of filing their nominations as it is a violation of the oath under Schedule III (VII A) as enumerated under Article 173 (a) of the Constitution of India on two counts, namely (1) as a private gift is not a public
purpose and therefore Ultra vires the Article 282 of the Constitution of India and (2) an express bribe under section 123 of the R.P. Act cannot become a Sovereign function of the State even under the garb of Legislative sanction- request immediate penal action – Regarding.
Ref: (1) My earlier complaint dated 24-4-2006 and sent to you through Email and also registered post on the subject of free colour television (bribe) promise at the Tamil Nadu Assembly Elections 2006.
(2) My earlier complaint dated 10-12-2007 on the subject of free colour television (bribe) promise at the Gujarat Assembly Elections 2008.
(3) Your reply dated 1st February 2008 in No. 4/RTI/01/2008/JS II/ 1535.
(4) My earlier complaint dated 10-4-2008 on the subject matter of free colour television (bribe) promise at the Karnataka Assembly Elections 2008.
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1. I am a practicing Advocate at Chennai and am lodging this complaint as a sequel to my above referred complaints dated 24-4-2006, 10-12-2007 and 10-4-2008, which may be read as part and parcel of this complaint.
2. The issue of offering / promising a household accessory of Grinder / Mixie as a free gift to all women therefore falls squarely within the definition referred above. Even presuming that the section 123 does not exist in the Representation of the Peoples Act, is it not a bribery under the common law to woo the electorate with a blatant free gift of considerable worth as a quid pro quo for votes? Mixie / grinder is a household accessory and definitely not an inherent right to be sought by the people from the Government. The Government is not duty bound to provide life style accessories to the people, not in any form, and more so definitely with a mixie / grinder.
3. The whole sale promise / offer of monetary benefits / gratification estimable in money to all voters on behalf of the candidate by the nominating party / anybody on behalf of the candidate is blatantly unconstitutional since it is a bribe and corrupt election promise for the sake of promoting a party / alliance prospects. Transferring the consolidated funds of India / State to individuals is unconstitutional and illegal and void ab initio as it is ultra vires Article 282 of the Constitution of India. An Unconstitutional promise at an election by anybody on behalf of the candidates, in this case by the Party, therefore would entail the disqualification of all the contesting candidates of the Party, since he is promising an unconstitutionality apart from attracting the punishment for attempted bribery. The DMK alliance along with Congress, PMK, Dalit Panthers and other parties are indulging in this flagrant violation of the Constitution of India, since they have tasted earlier electoral victory based on the corrupt promise of free colour televisions in the Tamil Nadu Assembly Elections 2006. It is because of your Commission’s lethargy and disregard for my complaint dated 24-4-2006 against the promise of free colour television by the D.M.K. party / D.P.A Alliance in Tamil Nadu that this cancer has been spreading and has stooped to the present situation of mixie / grinder etc. Kindly read the above referred complaints also as a part and parcel of this complaint and in it I had stated that in the future it would not be surprising in the future elections in all States if the rival candidates promise through their Manifesto household items like Refrigerator, Mixie, Fan, Air cooler, Iron Box, Mobile phones, two wheelers and after all this is satisfied even cars and after that even helicopters with illogical and imaginary purposes so as to hoodwink the Constitutional provisions. Of course for your Commission it would be an even contest, if rival parties promise such Unconstitutional freebies!
The duty of a Government is to only carry out primarily Governmental functions like Law and Order, Military, taking care of the essential services including food, clothing, shelter, electricity, infrastructure, communications etc and not transfer the consolidated funds of India / State through private and whole sale gift / charity / providing alms of household accessories to the public! It would therefore precede that at an election for the formation of a Government such Unconstitutional promises ought not to be made, be it by a Political party or an independent. If all political parties are allowed to take umbrage under their manifesto, then any and every unconstitutionality would be promised and your commission shall not question that in the future also. Economic Unconstitutionality / election bribe has not been viewed seriously by your commission till date. The following substantial questions arise for your kind consideration and action : -
a. Why did not the Election Commission of India take suo moto cognizance of a gift / offer / promise of a blatant future bribe of a free gift / gratification whose value is estimable in money, and is directly aimed at inducing a voter, knowing fully well that such a gift would vitiate the atmosphere of a free and fair poll, and give undue advantage to the promisor and which squarely falls under Sec 123 (1) of the Representation of the People’s Act ?
b. Can a political party for the benefit of their alliance and the victory of its candidates promise / offer wholesale household items/ appliances / luxury goods to the general masses, which is impermissible under the Constitution and therefore void ab inito , but couched on irrational / colourable premises such as entertainment and general knowledge / saving of labour / improving the standard of life of women / common man / BPl families and term it as “Promise of public action” which is not a corrupt practice ?
c. Would it create equilibrium if the other parties too announce freebies of such accessories like fans, mixie, two wheelers, mobile phones, computers, gas stoves, electric room heaters, coolers, helmet, chairs, cots, newspaper and magazine subscriptions, light bulbs and fittings, and cash incentive etc on such other similar irrational premises ?
d. Will not making an Unconstitutional poll promise / offer on behalf of the candidate by the political party nominating him, of a lifestyle accessory / gift to the general masses, which itself is unconstitutional (as it serves no public purpose and whose objectives are irrational and imaginary and does not satisfy the requirement under Article 282 of our Constitution) disqualify the candidates for whom it is made and their elections liable to be set aside?
e. If an electoral bribe under section 123 of the Representation of the People’s Act by a political alliance brought in through a political party’s manifesto not amount to a corrupt practice, will the same by an independent candidate amount to and would be seen as a bribe? If not then can Independent candidates also promise such free gifts to be given in future? And in case an Independent who had promised a gift of Mobile Phones, becomes an important member of the Legislative Assembly then will mobile phones be distributed from out of the funds of the exchequer by the Government so as to fulfill his electoral promise?
f. Now that the PMK has promised a free purse of Rs. 1,500 will a family assured by the ruling DMK front would get (1) a concrete house worth Rs. 1Lakh + (2) grant to its women folk of a sum of Rs. 5,000 – Rs. 10,000 through the women self help group + (3) Rs. 1,500 per month as promised by PMK + (4) a mixie / grinder as promised by DMK + (5) a laptop computer worth Rs. 20,000 or more for the children of the family + (6) free bus travel to its senior citizens worth atleast Rs. 2,000 Per annum presently + (7) 35 Kgs of rice worth atleast Rs. 175 ( purchase price of Rs.5 per kg) thus totalling an approximate sum of over Rs. 2,00,000 over the next 5 years per family thus entirely vitiating the electoral atmosphere with such promise / offer of unconstitutional transfer of public money held in trust by the Government. If the promise of a “gift” which squarely falls under the definition of Bribe in common law be considered active bribe then the expectation by the intended receiver group to receive ought to be considered as passive bribe and consequentially would it not therefore in spite of it being present or future gift would still fall under the definition of a bribe under the Representation of the People’s Act ?
g. Will an electoral malpractice/ corruption like the present case where a free gift of a lifestyle accessory is promised to the general masses, which is primarily aimed at boosting the party / alliance’s image and ensuring a victory in an impending election, is subsequently funded at the cost of the State exchequer, (and not opposed even by the opposition for the fear of antagonizing a very large section of the society to which it is distributed) become constitutionally / legally valid?
h. Is not an Unconstitutional promise void ab initio under the Contract Act and therefore a promise of a void contract to induce / offer to gain pecuniary gain at an election not a bribe?
i. Is not a Government a “Trustee” of the consolidated funds of India, be it the Union
or a State and therefore What right has a Party / candidate, at an election to form
a Government, got to promise to “Gift” it to private individuals under whatever pretext
they deem it to be?
I therefore state that the DMK and PMK has cleverly framed a corrupt practice that entails a future gift to induce the large segment of the lower income group people to vote for them, is (1) a corrupt electoral practice amounting to bribery (2) a common law offence of bribery under the Criminal law and (3) blatantly Unconstitutional as it is violative of Article 282 of the Constitution of India, since the said gift is a private gift devoid of any “Public Purpose”. The consequence of such an offence and also a common law crime is disqualification and suitable punishment of all contesting candidates of the Alliance candidates contesting the Tamil Nadu Assembly Elections 2011 whether they emerge victorious or not. They also have to reimburse the election expenses incurred by your Commission.
Your Commission has been created by the “Sovereign”, the Constitution of India and your Commission ought to only protect it, against such blatantly corrupt politicians, and initiate severe action immediately. Our country could ill afford such Unconstitutional, illegal, illogical, crude and perverse joke on the people, who are being hoodwinked by such blatant corruption sugar coated in polity, maneuvered craftily without the knowledge that it is a sure economic disaster.
Kindly go through the commentary in the “Halsbury’s laws of England” volume “ Election”
and you can find that such promise / offer is a direct bribe. I had also come across a citation
in the ECI Handbook 2006, a case law decided by our Court which was directly on the point
of charity / offers at the time of elections. The issue of the unconstitutionality of freebies and its
illegality and a corrupt electoral practice has been challenged by me and is pending in the
Hon’ble Supreme Court of India in Special Leave to Appeal (Civil) No(s).21455/2008 and
is re-posted to July 2011.
As the Constitutional body in charge of the General Elections in the State of Tamil Nadu, I therefore request you to step in compellingly by initiating immediate action against the DMK and PMK parties for their free gift offers / promises and also initiate appropriate Criminal proceedings accordingly, in the interests of Democracy as enshrined in the Constitution of India.
Thanking you
Yours Sincerely,
S. Subramaniam Balaji
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