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‘Not appropriate’ for poll panel to be part of expert body on freebies: EC tells SC

The top court wanted a team of all stakeholders to look into handouts, after criticising the Election Commission for not taking 'remedial steps on time'.

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New Delhi: The Election Commission told the Supreme Court Wednesday that “it may not be appropriate” for it to be a part of the high-powered panel proposed by the apex court to examine the issue of political parties promising and distributing freebies during election campaigns.

“…there are continuous elections in the country and any opinion/view/comment during deliberations in a multi-member body might, in the event of being publicised, amount to pre-decide the issue and disturb the level playing field,” it told the apex court.

The affidavit was filed in response to a PIL by advocate and BJP spokesperson Ashwini Kumar Upadhyay. The petition, filed in January, sought a declaration that “promise of irrational freebies from public fund before election unduly influences voters, disturbs level playing field, shakes roots of free-fair election & vitiates purity of election process”.

During a hearing last Wednesday, the Supreme Court proposed setting up an expert body with representatives of all stakeholders, including the central government, state governments, Opposition parties, the Finance Commission, the Reserve Bank of India, the Niti Ayog and the Election Commission, “to take a holistic and comprehensive view of the matter (related to freebies) and making their recommendations”.

However, in response, the Election Commission has now told the court that while it “welcomes setting up of any such Expert Body… it may not be appropriate for the Commission, being the Constitutional Authority, to offer to be part of the Expert Committee especially if there are Ministries or Government Bodies in the expert body”.

During the last hearing, the Supreme Court had also remarked that “if EC had taken timely remedial steps, this problem would not have arisen”. In another hearing last month, the court said, “God save the Election Commission of India if it’s saying that we can’t do anything when the electorates are sought to be bribed through freebies.”

In response, the Commission has now submitted that “the oral observations made by this Court against the Election Commission… has caused irreparable damage to the reputation of this institution built over the years.”

“The reputational damage of this magnitude does not augur well for the country which is relatively younger but the largest and stable democracy in the world,” it said.

‘Irrational freebies’ a subjective term

The affidavit, filed on Wednesday, said there is no precise definition of the term “freebies” in the existing legal or policy framework — and that it is difficult to define “irrational freebies” — because the words “freebie” and “irrational” are “subjective and open to interpretation”.

It further said freebies can have a different impact on society, economy and equity, depending on the situation, context and time period.

“For instance, during natural disasters/pandemic, providing life-saving medicine, food, funds etc. may be a life and economic saviour but in normal times, the same could be termed as ‘freebies’,” it explained.

It also said it could “visualise situations where political parties make such promises that they know would be banned or adversely commented by the regulatory authority”. This, it said, “might in fact serve their purpose better by giving more publicity and mileage than actual implementation post-election”.

The Commission also relied on the Supreme Court’s 2013 judgment, which had held that while such promises in an election manifesto cannot be called a “corrupt practice”, “the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people”. The Supreme Court had then directed the Election Commission to frame guidelines on election manifestos.

Citing this judgment in April, the EC filed another affidavit saying it was not within its powers to regulate state policies and decisions which may be taken by the winning party when they form the government, in the absence of any legal provisions for this purpose.

In the new affidavit, the EC reiterated that in response to the Supreme Court’s 2013 judgment, it had duly complied and issued guidelines in 2014. The guidelines, made a part of the Model Code of Conduct, required manifestos to “reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it”. Citing these guidelines, the EC now told the court that it has complied with the court’s directions.

In response to the same PIL, the Modi government had, last week, urged the Supreme Court to stop political parties from promising and distributing “irrational freebies” during election campaigns.

Coming out in support of the PIL, Solicitor General Tushar Mehta — appearing for the central government — had told the court that populist promises “distort the informed decision-making process of a voter”.

Mehta then pushed for the EC to “take a relook” at the issue, saying, “Let the ECI take a relook. The voter does not realise that by the end of five years, it (freebies) is taken back from him. It is like getting something in the right pocket and then taking it back from my left pocket later.”

Also read: “Zero at grassroot level, hero in distributing revdis”: BJP slams AAP over ‘freebies culture’



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