IN Jammu & Kashmir, which is due to go to the polls next November to elect its legislative assembly, the Election Commission of India asked all political parties last month to submit their manifestos within two days so that they are analysed in the light of the Model Code of Conduct. Its officers will procure the manifestos and send them to EC with their comments.

No election official has any business performing such a task. Neither the EC nor any of its officials has the statutory authority or even the intellectual equipment to scrutinise manifestos.

This episode should prompt reflection. Precisely, what is the legal and moral force of any election manifesto? Does it operate as a mandate to bind the political party which issued it and its candidates who got elected on the pledges embodied in the manifesto?

Sir Ivor Jennings, an authority on constitutional law, opined that “the doctrine of the mandate is part of the political cant. It is a stick used by the opposition to beat the government”. But, he added, “the doctrine is, however, of importance. Though it must necessarily be vague and its operation a matter of dispute, it is recognised to exist”.

A manifesto is not a complete blueprint.

Edmund Burke’s speech on Nov 3, 1774 to the voters of Bristol who had elected him to the House of Commons, is still regarded as a classic on an MP’s duty. “His unbiased opinion, mature judgement, his enlightened conscience, he ought not to sacrifice to you, to any man, or to any set of men living…. Your representative owes you, not his industry only, but his judgement; and he betrays, instead of serving you, if he sacrifices it to your opinion” — a fortiori to that of his party.

In the same spirit, the House of Commons adopted a resolution on July 15, 1947 forbidding its members to “enter into any contract with an outside body, controlling or limiting the member’s freedom of action in parliament”.

Mandates can be overtaken by developments. The government acquires information it never had before. A manifesto is neither a straitjacket nor a complete blueprint. That, of course, is no reason for dismissing the entire doctrine of mandate as irrelevant. Jennings’ characterisation of it as mere ‘cant’ is wide off the mark.

Election manifestos are carefully drafted and are closely studied by persons who follow politics. They have a moral force and it is the solemn duty of the government, elected on the strength of its pledges to the people, to provide convincing reasons as to why they are incapable of fulfilment, wholly or in part. To deny the moral and political significance of a popular mandate is to trivialise the political process itself.

One must hope that in these days of hyper judicial activism judges will not presume to sit on judgement on the legal efficacy of the mandate but leave it to the people themselves to be the sole judge in this matter. That is part of the process of education in democratic governance.

There are two judgements on the subject by England’s highest court, the former House of Lords. They concerned members of local bodies but the principles they enunciated apply to parliamentarians too. Nuances of both judgements differ. In ‘Secretary for Education vs Tameside B.C (1977)’, Lord Wilberforce said that the secretary for education, the Central authority, “failed to take into account that it [the local body] was entitled —– indeed in a sense bound to carry out the policy on which it was elected”. This view was held by others also.

But, in 1983, Lord Diplock took a different view in ‘Bromley LBC vs Greater London Council [GLC]’: “I see no difference between those members of the GLC who are members of what as a result of the election becomes the majority party and those who are members of a minority party.

“In neither case when the time comes to play their part in performing the collective duty of the GLC to make choices of policy or action on particular matters, must members treat themselves as irrevocably bound to carry out pre-announced policies contained in election manifestos even though, by that time, changes of circumstances have occurred that were unforeseen when those policies were announced and would add significantly to the disadvantages that would result from carrying them out.”

Lord Brandon agreed: “It is entirely wrong for such a majority to regard themselves as bound to exercise their discretion in relation to that policy in accordance with their election promises, whatever the cost and other countervailing consideration may turn out to be.”

This ruling holds the field. For a judge to order a government to fulfil its election pledges is to assume a power to dictate legislation and executive orders on matters of public policy. That would destroy democracy.

The writer is an author and lawyer based in Mumbai.

Published in Dawn, July 26th, 2014