Freebies in Elections Day #6: CJI Reiterates 3-Judge Bench Reference

Freebies in Electoral Democracy and Welfare State

Judges: U.U. Lalit CJI, B.M. Trivedi J

On November 1st, 2022, a Bench comprising Chief Justice U.U. Lalit and Justice Bela M. Trivedi continued to hear BJP leader Ashwini Kumar Upadhyay’s petition to bar promises of freebies by political parties during election campaigns. They reiterated the 3-Judge Bench reference, and refused to split the issues in the case to different benches. 

In the previous hearing on August 24th, Former Chief Justice N.V. Ramana and Justices C.T. Ravikumar and Hima Kohli referred the case to a 3-Judge Bench. Parties had argued that the 2013 decision in Subramaniam Balaji v State of Tamil Nadu needed reconsideration. In Subramaniam Balaji, the Court held that promises made by a party during elections did not amount to a corrupt practice. As Subramaniam Balaji was decided by a 2-Judge Bench, the SC referred the case to a 3-Judge Bench. 

Background

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.

Key Questions Discussed

  • Should Subramaniam Balaji be heard by a separate Bench?

What Should the 3-Judge Bench Decide?

In the hearing today, Mr. Upadhyay argued that the 3-Judge Bench reference was only required to reconsider Subramaniam Balaji (2013). Other issues in the case, such as constituting a committee to create a standard election manifesto format, must be considered by this Bench. Chief Justice U.U. was keen to ensure that the case is heard comprehensively by the 3-Judge Bench, and advised against ‘getting into it in a truncated fashion’. 

Mr. Upadhyay insisted. He stated that this Bench could form a committee that would look into creating a standard manifesto, and suggest rules for making promises in elections The Committee would consist of the Chief Election Commissioner of India as Chairman, Governor of Reserve Bank of India, Chairman of Finance Commission of India, Vice Chairperson of NITI Ayog, Controller and Auditor General, Secretary of GST Council and presidents of Institute of Chartered Accountants of India and the Institute of Cost Account. 

The Bench remained unconvinced and referred the case to a 3-Judge Bench.