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

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NC: 2024:KHC:16704

11. A perusal of the aforementioned Section discloses that, a practice shall be considered as a corrupt practice when the same is done by a candidate or his agent or by any other person with the consent of the candidate or his agent, and not otherwise. A declaration by a party as to the policy that they intend to bring about cannot be considered as a corrupt practice. Whether the said policy is sound or not and whether it has the effect of dolling out freebies or appeasing a section of the society to the detriment of others, is a matter to be debated and it is for the voters to enlighten themselves about the viability of the said promises and vote for a particular party. The same cannot be considered as a corrupt practice for the purpose of Section 123 of the RP Act.

60. 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 in substance is a bribe or inducement under Section 123. Thus, 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 under Section 123 of RP Act. He mainly relied on the principle that one cannot do indirectly what it cannot do directly.

61. As appealing this argument may sound good, the implementation of this suggestion becomes difficult on more than one count:

61.1 Firstly, if we are to declare that every kind of promises made in the election manifesto is 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 promising to develop a particular locality if they come into power, or promising cent percent employment for all young graduates, or

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NC: 2024:KHC:16704 84.7 The duty of the CAG will arise only after the expenditure has incurred.

84.8 Since this petition is fit for dismissal dehors the jurisdiction issue, the issue of jurisdiction is left open.

85. Although, the law is obvious that the promises in the election manifesto cannot be construed as 'corrupt practice' under Section 123 of the 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 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.