Freebies in Elections Day #5: Bench Considered Referring Balaji Case To A 3-Judge BenchFreebies in Electoral Democracy and Welfare State
On August 24th, 2022, a Bench comprising Chief Justice N.V. Ramana and Justices C.T. Ravikumar and Hima Kohli continued to hear BJP leader Ashwini Kumar Upadhyay’s petition to bar promises of freebies by political parties during election campaigns. The Bench heard submissions on whether the Supreme Court was the correct forum to decide the freebies issue, and whether the Court’s decision in Subramaniam Balaji v State of Tamil Nadu (2013) needed reconsideration.
In the previous hearing on August 23rd, the Court heard submissions from Senior Advocate and Member of Parliament, Kapil Sibal and Sr. Adv. Vikas Singh. The Bench asked Mr. Sibal to share his views as amicus curie due to his wealth of legislative and political experience. While Mr. Singh argued that the freebies issue was about political parties’ fiscal responsibility as well, he instead suggested that political parties should disclose how they plan to pay for the promises in their manifesto. Sr. Adv. Gopal Shankaranarayanan appeared as well to challenge the Court’s decision in Subramaniam Balaji.
Today, the Bench heard a carousel of lawyers representing various political parties, public institutions and NGOs.
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.
Union and Ashwini Kumar Upadhyay Push for Expert Committee to be Constituted
Senior Advocate Vikas Singh, representing Mr. Upadhyay suggested that Former CJI R.M. Lodha should lead an SC constituted Expert Committee to examine and give suggestions on the freebies issue. CJI Ramana dismissed this suggestion, stating that there would be no value in having a retired judge lead the committee. However, Mr. Singh pushed forward with his suggestion, stating that it was the ‘personality’ of the person in charge that mattered. He submitted that they had given a comprehensive list of people to lead the Expert Committee to the Court and argued that dismissing the case without a report from an Expert Committee would be erroneous.
Solicitor General Tushar Mehta, representing the Union government, argued that freebies were being used to ‘lure’ voters during elections and deprive them of the ability to make an informed decision. CJI Ramana suggested that the Union government should constitute a committee themselves or call for an ‘all-party’ meeting to discuss the freebies issue instead of asking for the Court to create an Expert Committee. Mr. Mehta responded that there were political parties who believe that it is their fundamental right to offer freebies, as it was their primary method to acquire power.
Sr. Adv. A.M. Singhvi, appearing on behalf of the Aam Aadmi Party, vehemently opposed Mr. Mehta’s submissions. He argued that literacy rates have risen significantly since all adult citizens were given the right to vote and that the Court should not assume the public is gullible. He suggested that the Union’s arguments boiled down to them stating that, ‘I will support the petition, but I will take no action on my own’.
Kapil Sibal Recommends SC Not to Intervene
Amicus Sr. Adv. Kapil Sibal appeared today as well. He repeated his arguments from August 23rd, 2022, and stated that the Fiscal Responsibility and Budget Management Act, 2003 must be applied so that governments could be held accountable by the Finance Commission. He stated that the Commission could reduce the allocation of funds to the government if their deficit crossed 3%.
However, Mr. Sibal cautioned the Court from venturing further into the freebies issue as political parties do not have access to state financial records before getting elected. He argued that the SC risked entering a ‘legal morass’ which it won’t be able to handle without a robust system in place to regulate the issue.
Prashant Bhushan Explains the Types of Illegal Freebies
Sr. Adv. Prashant Bhusan appeared on behalf of the Centre for Public Interest Litigation as an intervenor in the case. Mr. Bhushan submitted that there were three kinds of freebies that must be seen as illegal—those which were discriminatory and violated fundamental rights, those that violated public policy, and those which were handed out immediately before elections were conducted. Mr. Bhushan argued that the last are akin to bribing voters.
Should the SC Reconsider Their Decision on What Constitutes a Corrupt Practice?
Sr. Adv. Arvind Datar, representing advocate and activist Mr. Chandra Shekhar, argued that the SC’s ruling in Subramaniam Balaji v State of Tamil Nadu (2013) required reconsideration. In this case, the SC upheld the Dravida Munnetra Kazzagham’s (DMK) scheme from their election manifesto for the 2006 Tamil Nadu Assembly elections. The scheme promised free distribution of colour televisions and other household appliances to those who did not already possess them. The Court held that such promises would not amount to a ‘corrupt practice’ under the Representation of People Act, 1951 as it was included in the DMK’s election manifesto.
Mr. Datar argued that this distinction between promises made in the manifesto and those which were not was unreasonable. Mr. Singh challenged this Judgment as well and echoed Sr. Adv. Gopal Shankaranarayanan’s Arguments from August 23rd, 2022. He argued that it allowed Directive Principles of State Policy, contained in Part IV of the Constitution, to incorrectly influence the application of fundamental rights. Further, Mr. Singh argued that the Court incorrectly decided not to apply the principle from Vishaka v State of Rajasthan (1997) which allows the Court to issue directions on a topic that is not governed by any existing law.
CJI Ramana seemed amenable to reconsidering the SC’s decision in Subramaniam Balaji and suggested referring the case to a 3-Judge Bench led by Justice D.Y. Chandrachud, before closing the hearing.