Supreme Court’s Refusal To Hear Direct Cash Transfer To Voters Case Is Flawed

By Dr. Gyan Pathak

The Supreme Court’s refusal to entertain a petition challenging the direct cash transfer to voters while Model Code of Conduct (MCC) for election was in operation, the Election Commission of India’s turning blind eye to the violation of MCC in this way, and deploying beneficiaries on election duty on the polling day is flawed because it has identifiable legal weaknesses and also political overtone bullying a petitioner political party for its failure in election while making it one of the grounds without going into the merit of the allegation.

While refusing to hear the petition on Friday February filed by Jan Suraaj Party founded by a well known political strategist Prashant Kishor, the Supreme Court Bench comprised of the Chief Justice of India (CJI) Surya Kant and Justice Joymalya Bagchi directed the petitioner to approach the Patna High Court. The petitioner had sought annulment of the 2025 Bihar Legislative Assembly Election and appropriate guidelines and direction to ensure free and fair elections by stopping the corrupt practice resorted to by the ruling establishments to win elections.

The most disturbing was the political comment of the CJI, “How many votes did your political party get? People reject you and they you use judicial platform to get popularity. … We cannot issue an omnibus direction for the entire state that too at the instance of a political party.”

It is unfortunate that CJI took this view while ignoring the issue that was raised in the petition. JSP had moved the petition alleging that the Bihar government violated the MCC by transferring Rs 10,000 to women beneficiaries under the Mukhya Mantri Mahila Rojgar Yojna that was launched virtually by the Prime Minister Narendra Modi. The petitioner had alleged that the debt-ridden state disbursed Rs 15,600 crore influencing voters in violation of the Article 324 of the Constitution of India, and Section 123 of the Representation of the People Act.

Supreme Court erred while it resorted to bullying the petitioner merely because its failure in the election. How many votes did you get? – the court asked and added in the same breath – Once people reject you, you use the judicial forum to get relief! It was only a partial and one-sided view of looking at the matter. Though we know that JSP could not win any single seat and most of its candidate forfeited their deposits, it is also a fact that JSP has got over 16 lakh votes which was 3.34 per cent of the total valid votes polled. It means JSP is the voice of so many people of the state, and therefore it can’t be summarily dismissed.

Courts reference to the petitioner’s electoral failure and perceived search for publicity has other flaws also, such as Constitutional jurisprudence does not recognize electoral success as a criterion for legal standing, or failure as forfeiture of their right to demand justice. Historically speaking, many transformative constitution cases were brought by those who were politically marginal actors.

Therefore, to weigh a petitioner’s electoral popularity while deciding entertainability of a legal petition risks introducing a subjective and extra-legal standard into constitution adjudication. Judiciary is expected to adjudicate claims, not motives. How can a court decided about the motive without hearing the merit of the case? Politically unsuccessful parties have also right to raise issues like violation of MCC during election, since they are victims of the distortion of the level playing field vitiating free and fair election.

Another question is raised by the critics about other observations of the court, such as “Somebody should have challenged the scheme itself then. That is not the prayer before us. You just want the election to be declared null and void.” CJI also said, “We will consider the freebies issue. But we have to see the bona fide also… we cannot look at that at the behest of a party which has just lost. When you come to power, you will do the exact thing.”

Take the last comment first. Telling a political party that when you come to power, you will do the exact thing, is just imagination of the court, and it is like an astrological prediction, to sound legal consideration. The court has no business to use such speculative language. It is just running down someone even before they commit something wrong.

A political party is a stakeholder in a democracy, and perhaps CJI can’t justifiably says “we cannot look at that (the issue of freebies) at the behest of a party which has just lost.” Then we have to see the bona fide also, the court said. One fails to understand how raising an issue that is prima facie violation of MCC by a political party that lost election is not bona fide. Any citizen of the country is bona fide, and he must be heard, even he is a total failure.

The petition was filed under Article 32 of the Constitution of India, which allows direct access to the Supreme Court for enforcement of fundamental rights), but the court said the appropriated remedy was to file petitions in the High Court because it was “state specific”. However, simply being state-specific doesn’t automatically make article 32 unavailable, especially where constitutional rights like free and fair election under Article 324 and equality under article 14 are allegedly violated.

Court did not examine whether the alleged violation of the MCC might constitute corrupt practice. It is precisely for this reason, the Supreme Court decision of refusal to entertain the petition is seen to have done on political consideration, that is party’s lack of electoral success, and procedural technicalities such as jurisdiction rather than an assessment of the legal merits of the allegations.

Taking the view by the Supreme Court that it looked like an election dispute and hence to be decided by High Courts in only partially current, and may be not wrong in principle. However, when the allegations like systemic violation of free and fair election, misuse of state machinery, mass inducement or bribery of voters, breach of equality under Article 14, and distortion of electoral choice under Article 19(1)(a) are involved, Supreme Court’s refusal is not sound. It is especially when the Supreme Court has already decided that free and fair elections are part of the basic structure of the Constitution of India.

The Court has flawed when mixed political commentary with legal jurisdiction while referring to electoral defeat, loss of seats, or seeking publicity. Courts are expected to separate political popularity from constitution justiciability. Refusal to entertain the petition without testing “systemic impact” is flawed also because the petitioner raised systemic distortion of electoral choice which is a constitution issue, and it is not individual corrupt practice that should be handled by election petitions. Court’s refusal is not aligned with its own constitutional precedents and decisions.

The strength of constitutional democracy lies not in protecting electoral outcomes, but in safeguarding the integrity of the electoral process itself. Even weak or unpopular petitioners can expose constitutional fault lines. By declining to examine those fault lines at the threshold, the Court may have missed an opportunity to reinforce, rather than retreat from, its role as the guardian of free and fair elections. (IPA Service)

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