Freebies in Elections #2: CJI Hesitant to Intervene in Policy ConsiderationsFreebies in Electoral Democracy and Welfare State
On August 8th, 2022, the Supreme Court heard BJP spokesperson Ashwini Kumar Upadhyay’s petition seeking a ban on political parties’ promises of freebies during election campaigns. The Bench considered two questions. First, Chief Justice N.V. Ramana and Justice Krishna Murari considered whether the Court was the appropriate forum to hear this predominantly legislative issue. Second, Senior Advocate Abhishek Manu Singhvi, on behalf of the intervening Aam Aadmi Party, emphasised that freebies must be differentiated from social welfare schemes before the Court wades into the issue.
Stating that he would take a strictly textual and conservative judicial view on this issue, CJI Ramana stated that political freebies were an important concern. According to him, a balance must be struck between the need for social welfare and the consequent burden on the public exchequer. CJI Ramana stressed that it is undemocratic to suggest that the penalty for promising freebies should be de-registration of the party. However, he was careful to mention that these questions may be better answered by the Election Commission or other independent bodies responsible for maintaining fiscal discipline in India’s public spending.
On January 22nd, 2022 Former BJP spokesperson and advocate Mr. Ashwini Kumar Upadhyay filed a Public Interest Litigation arguing that the promise of freebies unfairly influences voters. The petition claims that promising freebies amount to bribery (Section 171B) and undue influence (Section 171C) under the Indian Penal Code, 1860. He further argued that using public funds to provide freebies did not serve a ‘public purpose’, and thus violated Articles 162, 266(3) and 282 of the Constitution of India, 1950.
Article 162 sets the extent of executive power of State. Article 266(3) bars misappropriation of funds from the Consolidated Fund of India or the Consolidated Fund of a State. Article 282 allows the Union and State governments to utilise government revenue for a ‘public purpose’.
More importantly, the petition sought the Court’s direction to add a condition to the Election Symbols Order, 1968. The condition would bar political parties from promising or distributing ‘irrational freebies from public funds before election’ and deregister parties that do so.
- Is the Supreme Court the appropriate forum to hear the legitimacy of political freebies?
- What is the distinction between welfare schemes and freebies?
Ashwini Kumar Upadhyay: Political Parties Must Inform EC of Economic Burden of Freebies
Appearing for Ashwini Kumar Upadhyay, Senior Advocate Vikas Singh opened arguments relying on S. Subramanian Balaji v State of Tamil Nadu (2013). In Balaji, the Court considered if the DMK and AIADMK governments’ promise to provide, using public funds, colour TVs and kitchen appliances to voters was a corrupt election practice. Mr. Singh highlighted the Court’s observation that such promises threaten free and fair elections in a democracy.
However, it is noteworthy that despite these observations, the Supreme Court refused to comment on what public expenses are justified in Balaji. The Court maintained that the legislature must take this call.
Mr. Singh further provided a solution—Section 29D should be added to the Representation of People Act, 1951, requiring political parties to submit a manifesto on expenses due to promised freebies to the Election Commission.
CJI Ramana repeated that the Court cannot do the legislature’s job and add provisions to Acts. He further asked how a government can foresee a budget before it comes into power. Solicitor General Tushar Mehta, representing the Union, buttressed Mr. Singh’s point. He argued that the Court must step in to provide an interim solution until the legislature takes up the issue.
How To Define Freebies, Asks Aam Aadmi Party
Senior Advocate Dr. Abhishek Manu Singhvi, appearing for the Aam Aadmi Party, argued that ‘freebies’ must be defined carefully. He suggested that social welfare schemes are distinct from freebies. A ban on freebies should not hamper parties’ ability to promise legitimate social welfare schemes for the public good.
Senior Advocate Kapil Sibal pitched in with a personal anecdote. He shared that a staff member at his office, unable to afford other modes of transportation to get to work, relies on Delhi’s bus services since they are free for citizens. He asked whether the Court would consider this a freebie, suggesting that the questions in this case require close scrutiny.
The Court reiterated its hesitation to wade into these questions of public policy and fiscal discipline over and over again. CJI Ramana restated the Bench’s past suggestion that an expert committee consisting of representatives of the Election Commission, Reserve Bank of India and other bodies should weigh in. The Election Commission has since submitted an affidavit to the Court stating it has no power to supervise what parties do with their promises after the election is over, declining to join any committee in this case.
The Bench will next hear this case on August 17th, when parties will come to Court with suggestions on solving the problems the petition raises.