Election Freebies Issue : Why Can't Centre Call For An All Party Meeting To Discuss? Supreme Court Asks

The Supreme Court on Wednesday asked the Centre why it cannot it call for an "all party meeting" to determine issues pertaining to election freebies. In its last hearing, the court while acknowledging the complex nature of the issue, had stated that the intention of the Court was to initiate a wider public debate on the issue, and it is for that purpose the constitution of an expert body was mooted.

What transpired in Court today?

At the outset, Senior Advocate Vikas Singh, appearing for the petitioner, stated that as per him, a retired judge of the Supreme Court, such as Justice Lodha, should be the chairman of the expert committee proposed to be constituted by the Court to study the issue. In response, CJI Ramana commented in a lighter vein "a person who has retired or was going to retire has no value in this country".

The hearings also saw Adv. Prashant Bhushan (appearing for CPIL) endeavour to define the term "Freebies" by arguing that there existed three kinds of freebies which were illegal– First, the one which violate Fundamental Rights; second, the ones which were violative of public policy and were given to corporations among other things, even though such bodies were guilty of willful loan defaults and; third, pre-poll freebies as giving promise before elections, as per Adv. Bhushan, was like "bribing" the voters. He further stated that the main problem was when actual freebies were given just before the elections, such as 6 months before the polls. 

Senior Advocate Kapil Sibal, on the other hand, argued that political parties don't have access to financial records of the state before getting elected to offence and expressed reservations about the proposal that they should disclose the source of funds for promises in the manifesto. According to him, the solution was in implementing the Fiscal Responsibility and Budget Management Act 2003. He stated that if the deficit exceeded 3%, the Finance Commission could look at it and the allocation could be reduced from the next year

Solicitor General of IndiaMehta highlighted that there are parties, who may not be power, who were rolling out promises to influence the voters unduly. He highlighted the issue with an example and stated–

"For example, someone says- for all of you I will not charge electricity. People can be lured. I don't even know from where the money will come. Electricity is one example... Would the voter have an atmosphere where he can take informed decision. Can you promise the moon to get elected?",the SG asked.

At this juncture, the CJI asked the Solicitor General "why does the Government of India call for an all-party meeting?".

The Solicitor General replied that political parties have already approached the Court opposing the control on freebies and in that background, an all-party meeting may not be productive. "There are some political parties who think it is their fundamental right to offer freebies and have come to power by only offering freebies", the SG said.

The CJI said :

"Biggest problem is, who will head the committee? Ultimately it is the political parties which make promises and contest elections, not individuals. Suppose if I contest I won't even get ten votes. Because individuals do not have much importance. That is how our democracy is...Who is in opposition today can come into power tomorrow and so they will come and have to manage this. So things like freebies etc which can destroy the economy has to be looked at and I just cannot pass a mandamus. Thus there needs to be a debate."

Senior Advocate Dr Abhishek Manu Singhvi, appearing for AAP, took objection to the SG's statement that voters can be lured by freebies. "Not everyone can fool public all the time. We had universal adult suffrage even in 1947 when our literacy rate was around 12%. It is wrong to think that our voters are gullible", he submitted.

Senior Advocate Arvind P Datar, who had appeared in the Subramaniam Balaji v. State of Tamil Nadu case, submitted that the 2013 decision given in that case required reconsideration. Datar wondered how offers like free televisions, grinders, gold chains etc., be regarded as welfare measures.

"In 2006, party x offered free televisions and they came to power. In 2011, party Y offered free laptops, gold chains etc., and they came to power. So it can't be said there is no correlation between freebies and results", Datar submitted.

Datar further said that Subramaniam Balaji made an erroneous conclusion while holding that an offer made in an election manifesto cannot be a corrupt practice. "If I as a candidate offer some price for votes, I will be disqualified. But if a party makes it in a manifesto, it is legal? This dichotomy is not reasonable", Datar argued.

Senior Adv Singh argued that the judgement of Subramaniam Balaji v. State of Tamil Nadu was to be reviewed as its first part was not correct. He stated that the judgement stated that DPSPs could control Fundamental Rights and the same was not right. Further, stating that the Vishakha principle would not apply was also not right, as the RP Act did not address election freebies. He stated that the second part of the judgement stating that the ECI and central government had a power to act was correct. 

Towards the end of the hearing, the CJI indicated that a bench might be constituted to reconsider Subramaniam Balaji v. State of Tamil Nadu

 Background

The petition, filed by BJP leader Ashwini Upadhyay, has urged the court to declare that–

i) Promise of irrational freebies from the public fund before the election unduly influences voters, disturbs the level playing field, shakes the roots of a free-fair election and vitiates purity of election process.

ii) Promise/distribution of private goods/services, which are not for public purposes, from public funds before the election, violates Articles 14, 162, 266(3) and 282 of the Constitution.

iii) Promise/distribution of irrational freebies from the public fund before election to lure voters is analogous to Bribery and Undue Influence under S.171B and S.171C of the IPC.

In its earlier hearings, political parties like AAP, Congress and DMK had sought to intervene in the matter. The CJI had noted that the issue of what constituted freebies was a complicated one. Before that, the ECI had submitted that it was not within the ECI's mandate to regulate the policies which a party might adopt after getting elected. 

In fact, in a later affidavit, the ECI even expressed its unwillingness to be a part of the expert body to adjudge upon the issue of freebies proposed by the Supreme Court.

Case Title: Ashwini Upadhyay v Union of India| Writ Petition (Civil) 43 of 2022

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