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‘Freebies not bribes but shake root of fair polls’ — what SC said in 2013 order it plans to revisit

SC in 2013 held that promises of freebies in election manifestos are not bribery or corruption. CJI NV Ramana agrees to constitute a bench to re-examine the judgment.

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New Delhi: A Supreme Court bench headed by Chief Justice of India N.V. Ramana Wednesday agreed to constitute a bench to take a relook at its 2013 judgment which had held that the promise of benefits made by political parties in election manifestos — or freebies — cannot be said to be a corrupt practice.

The bench referred the matter to a three-judge bench headed by Justice D.Y. Chandrachud.

Terming the promise of freebies to be a “serious” issue, the apex court also questioned why the Centre couldn’t call for an all-party meeting to debate the matter.

The SC’s comments came while examining a public interest litigation (PIL) filed by Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay earlier this year, raising questions on the constitutionality of ‘freebies’ promised by political parties during election campaigns. The petition has emerged as a major point of controversy between political parties, with the Centre claiming that schemes such as ‘free electricity’ affect the economy.

Distribution of freebies from the public fund influences voters, disturbs the level playing field, impacts “free and fair elections” and vitiates purity of the process, Upadhyay has submitted.

He has further claimed that such promises violate various constitutional provisions, including Article 14, 266 (3), and 282 of the Constitution; and that these freebies are akin to bribery and undue influence, which is prohibited under the Indian Penal Code (IPC).

Ramana agreed with senior advocate Vikas Singh, who appeared for Upadhyay, that the 2013 Supreme Court decision regarding freebies may require re-examination.

Senior lawyer and Congress leader Kapil Sibal is assisting the court as amicus-curiae (friend of the court) in the matter.

“We have to see what is freebie and what is welfare. For example, some state gives cycles to [the] poor and women. It is reported that by giving bicycles (it) has improved lifestyle. The problem is which is freebie, and which can be said [to be] beneficiary for the upliftment of a person,” Ramana said while deliberating on the plea.

The Modi government had earlier this month backed Upadhyay’s petition, with solicitor general Tushar Mehta appearing for the Centre and claiming in court, “We are heading towards an economic disaster. Let the Election Commission (EC) of India apply its mind and we can give our suggestions to your lordships. Please do something about it”.

At an event in Uttar Pradesh’s Jalaun last month, Prime Minister Narendra Modi warned people against falling for “revadi (freebie) culture” during polls, calling it “dangerous” for the development of the country.

This was not the first time that the Prime Minister raised this point. At a meeting in April, top civil servants had warned the PM of the drain on resources caused by such measures, citing the possibility of a Sri Lanka-like crisis emerging in some of these states.

Also read: ‘We are cracking down’— how Modi govt plans to make it tougher for states to fund freebies

‘Colour TVs to all: Tamil Nadu’

Appellant S. Subramaniam Balaji had moved the Madras High Court following the 2006 Tamil Nadu assembly elections, challenging the distribution of freebies by the Dravida Munnetra Kazhagam (DMK).

The DMK had announced a scheme for distribution of free colour television sets (TVs) to every household in the state that did not possess one already, if voted to power.

The party had justified the scheme as a means to provide recreation and general knowledge to women, especially those in rural areas. But Balaji claimed that distribution to be unauthorised, impermissible and ultra vires (beyond the powers of) the Constitution.

Tamil Nadu had moved the Madras High Court against the case on freebies, but the HC had dismissed the petition, following which the Tamil Nadu government approached the Supreme Court.

In 2013, the Supreme Court ruled that distribution of such freebies by the DMK, which had won the election, was permitted by law. The court had been confronted with various questions, including whether distribution of such freebies amounted to corruption or bribery.

A division bench of the Supreme Court, comprising Justices P. Sathasivam and Ranjan Gogoi (later Chief Justice), held that the promise or distribution of such freebies cannot be considered bribery or corruption.

The Representation of People Act, 1951, only speaks of such bribery or corruption by candidates. The promise to implement a manifesto arises only if a political party assumes power, and as such, cannot be considered an offence under the 1951 Act, the court had held.

“The question of implementing the manifesto arises only if the political party forms a Government. It is the promise of a future government. It is not a promise of an individual candidate,” the apex court had said.

The bench had also said that it was beyond the court’s domain to legislate what promises can or cannot be made in a manifesto.

‘State largesse, policy decision’

While reaching its decision at the time, the Court had also considered whether distribution of such freebies was for a public purpose.

In the case, the apex court said, because the distribution of freebies would directly enhance the lives of the people, such distribution was in accordance with the Directive Principles of State Policy, the “instrument of instructions” or guidelines which are to be followed during governance. Such Directive Principles, though not enforceable as rights, provide an important direction in decision making.

“The concept of State largesse is essentially linked to Directive Principles of State Policy,” the SC had said in 2013.

The court had additionally said that the benefits of schemes and whether such benefits were necessary, were dynamic concepts and best left to the wisdom of the government.

The petition had also claimed that distribution of such freebies treats those who are “unequals as equals” and was therefore unconstitutional.

Several schemes had been promised by the DMK before forming the government, and as such, benefitted select groups of people. For instance, only those with ration cards were entitled to free fans, mixers and grinders.

To this, the court held that there was no violation of Article 14 of the Constitution (Right to Equality) and that the state was free to consider its financial resources during implementation of the Directive Principles.

‘Lacuna in law’, ‘root of free and fair elections’

Subramaniam Balaji had further urged the court to issue guidelines to regulate distribution of freebies.

Referring to the 1992 Bhanwari Devi gangrape case, which had led the court to issue the landmark Vishakha Guidelines against sexual harassment in the workplace in 1997, Balaji sought similar guidelines in the matter of promises of freebies by political parties.

However, the court said that because the 1951 Representation of People Act thoroughly covered matters governing elections, there was no “legal vacuum” as in the case of Vishakha Guidelines. As such, the court could not step in to issue directions, the bench reasoned.

Moreover, the Supreme Court had also said that the role of the Comptroller and Auditor General (CAG) was only auditory. The CAG cannot issue directions before the expenditure has been incurred, the Court remarked.

The Court had said, however, that distribution of such freebies influences all people and “shakes the root of free and fair elections”.

The EC, in response to the 2013 Judgment, had also developed a Model Code of Conduct which said that “it is expected” that political parties only make promises which are capable of being fulfilled.

Balaji had later accused the EC of abdicating its duty in failing to stop distribution of freebies worth Rs 1 lakh in Tamil Nadu.

The Supreme Court’s decision Wednesday to reexamine its 2013 judgment has again brought the case into focus. It will be interesting to see how this issue develops with Justice Ramana scheduled to demit office Friday.

Akshat Jain is a student of the National Law University, Delhi, and an intern with ThePrint.

(Edited by Poulomi Banerjee)

Also readShun freebie promises, BJP tells state units after Modi’s ‘revadi culture’ jibe at opposition


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