Can't Sit & Argue Here If A Free Cycle Or A Boat For A Rural Poor Person Is "Freebie" Or "Welfare", Says Supreme Court During Hearing

The Supreme Court on Tuesday continued the debate on the "freebies" matter, acknowledging the complex nature of the issue.

The bench led by the Chief Justice of India observed 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.

"We have to see what is freebie and what is welfare", CJI NV Ramana said. "For example, some state gives cycles to poor and women.  It is reported that by giving bicycles has improved lifestyle. The problem is which is freebie and which can be said a beneficiary for the upliftment of a person. For a rural poverty stuck person, his livelihood may depend on that small boat or bicycle. We cannot sit here and argue on this", CJI Ramana added.

The bench, also comprising Justice Hima Kohli and Justice CT Ravikumar, was hearing a PIL filed by lawyer and former BJP Delhi Spokesperson Ashwini Upadhyay seeking directions to the Election Commission of India (ECI) to not permit political parties to promise freebies during election campaigns.  

What transpired in Court today?

At the outset, the CJI referred to Sr. Adv. Kapil Sibal's written submissions. Sibal, though not directly involved in the case, was invited by the bench to give his suggestions considering his experience as a legislator and a minister.

"We are not against any government policy. We are not against any scheme. Tomorrow, if the Government of India makes a law that states should not make freebies...can we say that government can say whatever and we cannot look into it? In the interest of both welfare of people and the economy, we started looking into this issue. Now a debate has to take place and a committee has to be made. Let us see what all of us have to say", CJI said.

Sr. Adv. Sibal, while conceding to the same stated that–

"In Fiscal Management Responsibility Act, if some freebies is given, then the benefit will go beyond 3% which is the deadline as per the act as the deficit has to be under 3%. This issue needs to be dealt through a system and not politically...If states exceed allocation it will result in beyond 3% deficit and if the deficit exceeds then the next year allocation can be reduced by the finance commission."

The Solicitor General of India, Tushar Mehta, stated that nobody had an issue with social welfare and that difficulty arose when a party distributed non-essentials such as sarees, television sets etc. He stated that–

"The voter has a right to make an informed choice. If you are giving him false promise which your finances do not permit or you are destroying economy- would that be permitted?...It is a serious issue leading to disastrous economic consequences."

This was followed by arguments raised by Sr. Adv. Vikas Singh, appearing for the petitioner, who stated that political parties were deflecting the problem and making a legal problem a political issue. He argued that political parties were hijacking the issue by calling it social welfare, but in reality it was an issue about fiscal discipline, which if not dealt with, would make India a Sri Lanka. He clarified that his case was limited to promises made by political parties during elections and stated that–

"This creates an unlevelled field. No one is saying don't give free water. What we are saying is that there is already governance going on in a state. You are contesting for elections there and saying I will provide additional benefits. These additional benefits will require fiscal support...Where will you get the money from? Voter has a right to know, taxpayer should know that this money is going from my pocket. Election manifestos must provide where the money will be coming from."

In support of his arguments, Singh highlighted the following excerpt from the judgement of S.Subramaniam Balaji v. Govt. of Tamil Nadu–

"Although, the law is obvious that the promises in the election manifesto cannot be construed as 'corrupt practice' under Section 123 of 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...However, the Election Commission, in order to ensure level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. The fountainhead of the powers under which the commission issues these orders is Article 324 of the Constitution, which mandates the commission to hold free and fair elections...Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power etc. In the similar way, a separate head for guidelines for election manifesto released by a political party can also be included in the Model Code of Conduct for the Guidance of Political Parties & Candidates. We are mindful of the fact that generally political parties release their election manifesto before the announcement of election date, in that scenario, strictly speaking, the Election Commission will not have the authority to regulate any act which is done before the announcement of the date. Nevertheless, an exception can be made in this regard as the purpose of election manifesto is directly associated with the election process."

Senior Adv. Vijay Hansaria also echoed similar views and stated that political parties could not be allowed to disturb the fiscal discipline of the country.

The CJI, while noting that that they were running short of time, (particularly in light of his upcoming retirement) asked who was to head the commission. To this, Senior Adv. Gopal Subramaniam stated that the Balaji judgment made two glaring errors and that he had suggestions on defining freebies. Referring to his submissions, he stated that a freebie would be easier to define on what it is not. 

Dr AM Singhvi, appearing for AAP stated that the petitioner are seeking a restriction on election promises, which will amount to an invasion of Article 19(1)(a). If it is done by a law, it can be challenged. Therefore, he asked whether the Court can impose such a restriction on election speeches.

The CJI then noted that the matter would be heard tomorrow. 

Background

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.

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 its affidavit, ECI stated that–

"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."

In fact, in a later affidavit, the ECI even expressed its unwillingess 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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