Freebies in Elections Day #3: CJI Lays Out the Scope of the Case, Seeks Suggestions From Parties

Freebies in Electoral Democracy and Welfare State

On August 17th, 2022, a Bench comprising Chief Justice N.V. Ramana, Justices J.K. Maheshwari and Hima Kohli continued to hear a plea to bar political parties from promising freebies in their election campaign. CJI Ramana read out a small brief explaining that a clear distinction between promises that provide social welfare and those that offer wasteful freebies should be clearly defined. He directed the parties to file written submissions with suggestions on who the appropriate authority is to decide the questions in the case.

The Court is deciding whether electoral promises of freebies are an unlawful misuse of public funds. Specifically, the Court is seeking comments from all the parties on two questions. First, what types of welfare schemes or freebies should be considered as wasteful and unlawful expenditure, distinct from expenditure for ‘public purpose’ allowed under Article 282? Second, can the SC set guidelines on the legislative issue of how public funds can be utilised to provide the promised freebies? 

Tensions Rise as Parties Oppose the Petition

A group of warring lawyers clamoured for the Bench’s attention today, displaying the heated contrasting interests that were being represented before the Court. Lawyers argued simultaneously, interrupting one another throughout the chaotic hearing. A visibly irked CJI Ramana reminded the counsels that their behaviour in Court was improper and would force the Bench to adjourn the matter. 

Mr. P. Wilson, appearing for the DMK, seemed eager to make his mark on the Court. While the Court was planning its next steps in the case, Mr. Wilson passionately exclaimed that he opposed the formation of the Committee, and that this was an attempt to ‘change a socialist country into a capitalist country’. Solicitor General Tushar Mehta stated that the merits of socialism and capitalism were for a discussion at another forum. Mr. Mehta argued equating freebies with social welfare schemes was ‘immature’.

Chief Justice Ramana Sets out a Framework for the Case

Quelling commotion on what the key concerns of the freebies issue was, Chief Justice Ramana read out a note explaining his thoughts on the case. 

He stated that ‘freebies’ should not be confused with genuine welfare schemes. He pointed to Article 38(2), which mandates the State ‘to strive to minimise the inequalities in income, and endeavour to eliminate inequalities in status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations’. Further, he stated that a political party or individual could not be prevented from making promises in furtherance of Article 38(2), if elected to power. 

CJI Ramana framed questions that would guide the arguments around the issues in this case. The fundamental question of what qualifies as a valid promise must be answered first. Would the promise to provide free and compulsory education be considered a freebie? Would subsidies on electricity, seeds, and fertilisers that are designed to facilitate earning for small farmers, be considered as a freebie? Would the promise of healthcare, drinking water, or minimum units of electricity fall under the ‘freebie’ category? In contrast, how would the distribution of ornaments, television sets and consumer electronics free of cost to voters be justified as welfare measures? 

Further, CJI Ramana insisted that voters are not easily enamoured by freebies. He stated that voters choose to have a dignified source  of income. Schemes such as MGNREGA, offered a dignified livelihood and created public assets in rural India. He pointed out that many political parties who have made attractive promises or distributed freebies have lost elections. The voter’s concerns go far beyond promises of freebies. 

Chief Justice Ramana, referring to concerns about the efficient utilisation of public money, asked if the Court was the competent authority to examine the issue. He said that ultimately, ‘there is no free lunch’. 

The CJI then instructed the parties to submit suggestions and inputs on who should decide the freebies matter. The Court will hear the matter next on Monday (August 22nd, 2022).