Supreme Court likely to form a committee to examine freebies, even as counsel advice caution

As the Union Government proposed a committee comprising representatives of all political parties and stakeholders to give a time-bound report, it is not clear why it cannot limit freebies, if it wanted to, through the legislative route.


EARLIER today, a Supreme Court division bench comprising Chief Justice of India (‘CJI’) N.V. Ramana and Justice Krishna Murari said it wanted a debate and dialogue on the issue of political parties promising ‘freebies’ as the issue is very serious, and financial discipline needs to be maintained. The bench claimed that it is also conscious of the ground reality that India is a country where there is poverty, and the governments have an obligation to feed the hungry.

The bench said though it was not passing any substantive orders, it would want to know to what extent the court could interfere in the matter. It also made it clear that it was not interested in the de-registration of political parties for promising ‘freebies’ as the same, said CJI Ramana, is undemocratic.

The bench adjourned the matter to August 17, when the parties to the petition are expected to give their suggestions about the composition of a body that the court proposes to constitute to take a holistic and comprehensive view of the matter, and make their recommendations.

On the previous hearing last week, the bench had proposed setting up of an expert body with representatives of all the stakeholders: the beneficiaries, those opposing freebies, the Union Government, state governments, opposition parties, the Finance Commission, the Reserve Bank of India (‘RBI’), the Niti Ayog, and the Law Commission, among others.

The bench was hearing a public interest litigation (PIL) filed by Bharatiya Janta Party (‘BJP’) leader Ashwini Upadhyay against political parties promising freebies during election campaigns.

When the matter was taken up for hearing today, the bench, at the outset, expressed its displeasure at the Election Commission of India’s (‘ECI’) affidavit on freebies appearing in newspapers even before it could be seen by the judges.

“Should we read the affidavit by EC in newspapers”, CJI Ramana asked the counsel for the ECI, adding that till 10 p.m. last night, he had not received it. Senior advocate Maninder Singh, for the ECI, told the bench that the affidavit was already filed in the court. The bench, however, retorted: “If you want to give the same to the newspapers, please give it. If it reaches the newspapers, why can’t it reach the court?”

Election Commission’s stand

The bench did not hear much from the ECI on Thursday. Its affidavit, accessed by The Leaflet, reveals that the commission, while welcoming the court’s inclination to form an experts’ panel to examine the issue of ‘freebies’, said it would stay away from such a panel.

The ECI claimed that it would not be appropriate for it to be part of the panel, especially if there are Ministers or government bodies in it. It took the stand that as there are continuous elections in the country, any opinion/view/comment during the deliberations by it, in the event of being publicised, might amount to pre deciding the issue and disturb the level playing field.

It added that the commission would consider the suggestions of the committee to be formed by the court to strengthen its existing guidelines in the interest of purity of the electoral process.

The ECI also stated that the court’s remark against it has caused irreparable damage to its reputation built over the years. On July 26, the court had observed“May God save the Election Commission of India if it can only wring its hands when electorates are sought to be bribed through freebies”.

The ECI also flagged the subjectivity of the word ‘freebies’. It said that it was difficult to define ‘irrational freebies’. It urged the court not to underestimate the benefits of cross-subsidization in addressing differential vulnerabilities of certain sections.

 “”Freebies” can have different impact on society, economy, equity depending upon the situation, context and time period. The benefits of cross subsidization or situation / sector specific relief as a policy instrument in addressing differential vulnerabilities of certain sections cannot be underestimated. For instance, during natural disasters/ pandemic, providing life- saving medicine, food, funds etc. may be a life and economic savior but in normal times, the same could be termed as “freebies””, its affidavit stated.

The affidavit also relies upon the decision of the Supreme Court in S. Subramaniam Balaji versus State of Tamil Nadu & Ors. (2013), in which it had declined to interfere in public schemes under which goods such as gold, TVs, laptops, mixers-grinders and electric fans, in addition to the distribution of solar-powered greenhouses, and milch animals and goats to targeted beneficiaries was to be done free of cost by the respondent government therein.

It was held that promises made by the political parties and candidates in their manifestos could neither be construed as a “corrupt practice” under the Representation of the People Act, 1951 (‘RPA’) nor as violative of Article 14 of the Constitution.

The Solicitor General of India, Tushar Mehta, however, argued that the decision in S. Subramaniam Balaji was a two-judge bench decision, and if the three-judge bench thinks fit, it can reconsider the same.

The freebies matter is being heard by a bench comprising CJI Ramana, and Justices Murari and Hima Kohli. Justice Kohli was unavailable today.

Petitioner’s submission

Turning to merits, senior advocate Vikas Singh, for the petitioner, sought to argue that the RPA need to be amended to impose an obligation on political parties to submit a manifesto on financial implications of the promises they made to distribute ‘freebies’. The bench, however, said it could not get into the domain of the legislature. Singh submitted that there is a legislative vacuum, and the court can recommend to the Union Government to bring in legislation for the purpose.

Union Government’s stand 

The Solicitor General, Tushar Mehta, for the Union Government, supported the case of the petitioner. He submitted that ‘freebies’ are not the only way to achieve the welfare of society. He added that there has to be a scientific way to it. Mehta further submitted that most freebies are not part of parties’ manifestos, but are made during rallies. He also contended that irrational freebies are a road to economic disaster.

Mehta also proposed a committee which may comprise Secretaries in the Union Government and state governments, representatives of each political party, the RBI, the NITI Aayog, the Finance Commission, the National Taxpayers Association, the ones who support freebies, and representatives from those sectors which are under stress. Mehta also urged the court to lay down guidelines till the time the Parliament steps in, to bring in a law to regulate freebies.

Senior advocates Arvind Datar and Vijay Hansaria supported the formation of the committee, which can be asked to give its report in a time-bound manner. Senior advocate, Kapil Sibal, however, argued that it is a complicated issue.

“I have an employee who works and yesterday she had no money to travel by metro. I gave her money and then she told me she takes a free bus. It’s free for women. Is it a freebie?”, Sibal asked.

AAP opposes petition

The Aam Aadmi Party (‘AAP’) has opposed the petition by Upadhyay tooth and nail. Senior advocate, Dr. Abhishek Manu Singhvi, for the AAP, said the word ‘freebies’ is being used in a pejorative manner. He claimed that the issue is not susceptible to judicial review.

“Welfare measures are a political bargain which is done between the electorate and the elected. Thus, we have formulated the universal adult franchise. Judicial reassessment makes the court enter into a political thicket which courts have refused to do earlier”, Singhvi submitted. He also disfavoured the formation of any committee, since the issue is not judicially manageable.

In its intervention application, the AAP has contended that a socialist and welfarist economic agenda is a constitutional mandate. It has also questioned the locus of Upadhyay to file a PIL.

“Upadhyay’s petition is not an instance of non-partisan litigation as he himself has strong links to the ruling BJP”, the AAP said.