“May God save the Election Commission of India (ECI) if it can only wring its hands when electorates are sought to be bribed through freebies,” said a Supreme Court bench led by Chief Justice of India NV Ramana. The apex court made this observation on Tuesday, while asking the Finance Commission whether revenue allocation to states can take into account unnecessary spending on handouts.
The top court was forced to turn to the Finance Commission for assistance after the ECI asserted that it was unable to control promises of freebies, despite the central government having charged it with adopting all reasonable measures under the law.
The SC bench declared unrealistic electoral promises and freebies to be a “serious” concern. The court said that the contentious practice must be curbed and that it seeks the views of the Finance Commission about if anything can be done.
“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… We are suggesting that this has to be controlled. How it is going to be done needs to be examined,” the bench, which also included Justices Krishna Murari and Hima Kohli, made the statement.
The ECI had said that it cannot oversee the distribution of freebies, and that it is up to the electorate to decide whether to elect leaders despite the possibility that such handouts could impair a state’s economy. The statutory body submitted the affidavit in response to a public interest lawsuit brought by Advocate Ashwini Kumar Upadhyay in April, earlier this year. Upadhyay had requested that strict guidelines be issued to deregister political parties that violate the law, and seize their election symbols for giving out “irrational freebies” before elections. The petitioner is also a member of the Bharatiya Janata Party’s Delhi unit.
Recently, on July 16, Prime Minister Narendra Modi criticised the culture of free giveaways while speaking at a gathering in Uttar Pradesh. “The ‘revadi culture’ is very dangerous for the development of the country,” he said, while urging people to not be duped by this culture.
The prime minister used the term ‘revadi’, a popular north Indian sweet often distributed during festivals, as a metaphor for freebies being promised by various parties to grab power. “Those behind this ‘revadi culture’ do not believe in building expressways, airports and defence corridors. Together we have to defeat this thinking and remove this culture from politics,” added the PM.
Earlier this week, in response to the PM’s comments, the BJP asked the state government to unite on the issue and refrain from offering freebies during elections. Reportedly, during a review in April, a group of senior bureaucrats cautioned PM Modi that the culture of giveaways could cause the state exchequer to go bankrupt.
On Tuesday, when Upadhyay’s PIL was being discussed, Attorney Amit Sharma representing the ECI informed the SC bench that their affidavit had culled out pertinent laws and cases regarding the release of manifestos by political parties, and that numerous advisories had also been issued. Sharma added that under the current legislation, the EC is unable to seize election symbols or supervise the way that a winning party distributes goodies.
At this point, the bench expressed its dismay at the ECI’s stand, and proceeded to enquire from the Union government about the latter’s views. Additional Solicitor General KM Nataraj, representing the Centre, said that the onus was on the ECI. “There cannot be a general direction in matters like these. This will have to be done on a case-by-case basis and the Election Commission will have to decide it,” argued the law officer.
Irked that the central government has not submitted any formal reply to convey its stand on the issue, although the notice was issued in January this year, the bench told ASG Nataraj, “Why have you not said this on an affidavit if this is your stand? Should we record your stand that you don’t have any problem if the Election Commission does this? Why don’t you take a stand? First of all, tell us whether it’s a serious issue or not.”
Responding, the ASG admitted that it is a serious issue. “Then why don’t you take a categorical stand and then we can decide whether freebies can continue or not,” replied the bench.
Advocate Upadhyay, on his part, argued that the ECI can insert an additional condition in the electoral laws and rules, which say that a party may lose its registration and election symbol for making irrational promises of freebies. However, the bench told the lawyer-petitioner that it may not be possible to stop political parties from making poll promises, and that the issue of what is a reasonable promise and what is not would also crop up in such cases.
Drawing a parallel with Sri Lanka, which is in the middle of a severe political and economic crisis, Upadhyay added that India could be soon on its way to becoming Sri Lanka if freebies were not controlled. To this, the bench said, “How? The government of India will control it here. It’s not that any state can take loan without prior approvals of RBI and the government of India. There are limits on allocations of loans. Don’t worry!”
The bench, at this juncture, spotted senior advocate and Rajya Sabha MP Kapil Sibal present in the court, and decided to elicit his views on a possible solution. Sibal said, “It’s a serious matter. The solution is very difficult but the problem is very serious. You cannot expect the government of India to issue direction because that will create political issues. One way to explore a possible solution is to involve the Finance Commission. The Finance Commission, when it makes its allocation to the states from the total taxes, can take into account whether such allocations can take into account the money spent on unnecessary freebies.”
Accepting Sibal’s suggestion, the bench asked ASG Nataraj to enquire from the Finance Commission if a discussion on the subject and possible modalities can be initiated, and revert in a week. Fixing the hearing for Wednesday next week, the court directed the Centre to come back with clear instructions on the issue.
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On January 25, the bench had asked for explanations from the Centre and the ECI on steps taken by them since the court’s 2013 judgement to regulate electoral promises and distribution of freebies by political parties using public funds. “This is no doubt a serious issue. Budget for freebies is going above the regular budget. As the Supreme Court said before, this disturbs the level playing field,” the bench had observed then.
The Supreme Court’s 2013 decision in S Subramaniam Balaji vs Government of Tamil Nadu & Ors had addressed the issues of election manifestos and freebies. “It shakes the root of free and fair elections to a large degree. The Election Commission through its counsel also conveyed the same feeling both in the affidavit and in the argument that the promise of such freebies at government cost disturbs the level playing field and vitiates the electoral process and thereby expressed willingness to implement any directions or decision of this Court in this regard,” held the judgement.
The ECI further said that it cannot stop political parties from making promises of freebies, nor act against them unless a law is passed to de-register them for making unreasonable promises to the voters.
