The Supreme Court on Wednesday, while considering a plea seeking directions to the Election Commission of India to not permit political parties to promise freebies during election campaigns, orally opined that the issues raised in the matter were getting increasingly complicated.
The matter was listed before the bench of Chief Justice of India NV Ramana, Justices J.K. Maheshwari and Hima Kohli. The plea has been filed by former BJP Spokesperson Ashwini Upadhyay and political parties like AAP, Congress and DMK have sought to intervene in the matter.
In the oral hearings before the court today, CJI Ramana underscored that the issues pertaining to what constituted freebies and what did not, were becoming increasingly complicated. He stated that–
"We cannot prevent political parties from making promises. The question is what constitutes right promises! Can we describe promise of free education as a freebie? Can free drinking water, minimum essential units of powers etc. be described as freebies? Can consumer products and free electronics, described as welfare? The concern right now is what is the right way of spending public money. Some people say money is wasted, some say it is welfare. The issues are getting increasingly complicated. You give your opinions, ultimately, after debate and discussion, we'll decide. Please allow me to read."
He also opined that promises given by political parties did not alone form the basis of the said parties being elected. Here, the CJI gave an example of schemes such as MNREGA, which gave citizens "dignity of living". He stated that even after making promises to the electorate, some parties were still not elected.
It was decided that the matter would be listed next week.
Senior Advocate P Wilson informed the bench that Dravida Munnetra Kazhagam(DMK) party has filed an application to implead itself in the case. He said that the petitioner is trying to convert India from a "socialist country to a capitalist country" and that the PIL will frustrate the objectives of the Directive Principles of State Policy. The senior counsel further said that the DMK is objecting to the Court's proposal to constitute an expert committee to examine the issue of "freebies".
While deliberating upon what constituted social welfare, the Solicitor General of India, Tushar Mehta stated that-
"If our understanding of social welfare is to distribute everything for free, then I am sorry to say but that is is an immature understanding"
Senior Advocate Vikas Singh, appearing for the PIL petitioner, raised a complaint that DMK's impleading application has not been served on the petitioner but has been given to the media. "The applications are first filed in the media before the Court", Singh submitted.
To this, the CJI stated–
"Let us not use this for publicity and ensure that parties are supplied with copies of applications".
The bench asked all the parties in the case to give their suggestions by Saturday evening and said that it will pass orders on Monday.
On its last hearing, on August 11, 2022, the court, while hearing the matter, had stressed upon the importance of creating a balance between the welfare of the State and the economic strain on the public exchequer.
On August 3, a bench led by the Chief Justice of India, saying that the issue of "freebies" was a serious one, observed that an expert body should be constituted to examine the matter. The bench suggested that the expert panel could comprise representatives of the Central and State Governments, opposition political parties, Election Commission of India, Finance Commission, Reserve Bank of India, NIT Aayog etc.
Before the Court, the ECI has taken a stand that it is not within its mandate to regulate the policies which a party might adopt after getting elected. "That offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse affect on the economic health of the State is a question that has to be considered and decided by the voters of the State. The Election Commission of India cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action, without enabling provisions in the law, would be an overreach of powers," the affidavit of ECI stated.
The Central Government, through the Solicitor General of India, told the Court that the "freebies" distort the infored decision making of the voters and can lead to economic disaster.
In a later affidavit, the ECI expressed its unwillingess to be a part of the expert body proposed by the Supreme Court.
The petition, filed by 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.
Case Title: Ashwini Upadhyay v Union of India| Writ Petition (Civil) 43 of 2022