‘Political Parties Cannot Be Prevented From Making Promises To The Voters’: SC On ‘Freebies’

‘Political Parties Cannot Be Prevented From Making Promises To The Voters’: SC On ‘Freebies’
A bench headed by CJI NV Ramana has sought written suggestions from all stakeholders on the issue of promising "freebies" during poll speeches | Image source: Legal Bites

Earlier today, the Supreme Court adjourned the hearing of a plea against the practice of candidates promising ‘freebies’ during elections, and asked political parties to present a definition of what a “freebie” actually means. Meanwhile, a bench headed by Chief Justice of India NV Ramana also sought written suggestions from all the stakeholders on the issue, by August 20.

The central government has opposed and continued to argue against the so-called ‘freebies’. Meanwhile, parties like the Aam Aadmi Party (AAP) and the Dravida Munnetra Kazhagam (DMK) have moved the apex court and filed petitions as the former has asked the SC to refrain from imposing curbs on the practice. The DMK has sought clarification over what constitutes a “freebie”, arguing that the “scope of a freebie is very wide and there are a lot of aspects that need to be considered”. 

What Happened At Today’s Supreme Court Hearing?

On Wednesday, the apex court held a hearing for the PIL filed by Bharatiya Janata Party (BJP) leader Advocate Ashwini Upadhyay, which opposed the practice of political candidates promising ‘freebies’ during elections. The plea also sought the intervention of the Election Commission of India to invoke its powers to freeze the party’s election symbols and cancel their registration in such an event. The PIL was filed earlier this year in January, during the campaigning phase of state assembly elections in Uttar Pradesh, Punjab, Goa, Manipur and Uttarakhand. 

Meanwhile, the central government has continued to argue and oppose the practice of handing out ‘freebies’, also termed it as revadi culture” by Prime Minister Narendra Modi. “We are not opposed to socialism but if social welfare means distributing everything for free… then it’s an immature understanding of the term,” said the PM. 

On Wednesday, the SC bench headed by CJI NV Ramana observed, “Some say political parties cannot be prevented from making promises to their voters… Now, it has to be defined what is (a) freebie.” Meanwhile, the CJI also brought up schemes like the Mahatma Gandhi National Rural Employment Guarantee Act (MNREGA), which gives dignity of living, also mentioning that promises alone are not the basis of parties being elected. “Some make promises and even then they are not elected. All of you give your opinions and then after the debate only we can come to a conclusion,” added the top judge who is heading the bench for this hearing. The bench further questioned, “Can universal healthcare, access to drinking water, access to consumer electronics be treated as freebie? There has to be debate and discussion.” 

“Concern here is the right way of spending public money. This matter is very complicated. There is also the question of whether the court is competent to examine these issues,” said the court. The next hearing will be held on Monday, August 22, prior to which the court has directed all the parties concerned with the issue to submit their opinions. The CJI added that all parties to the case must be supplied with copies of the applications.

Earlier this month, the Centre had also told the SC that the distribution of ‘freebies’ could inevitably lead to an “economic disaster” in the future, and that the voters cannot make an informed decision which also affects their right to choose. In light of this argument, on August 11, the bench had observed that while ‘freebies’ and social welfare schemes are two different things, there needs to be a balance between the economy losing money and welfare measures. “Freebies and the social welfare scheme are different… Economy losing the money and the welfare of people, both have to be balanced and that is why, this debate. There must be someone who can put their vision and thoughts. Please submit something before my retirement,” said the CJI at the time.

The bench had also reportedly indicated the idea of de-recognising political parties for making promises and handing out irrational ‘freebies’ during the elections as “undemocratic”. The apex court, in late July, had also described this issue as a “serious” concern.

Regulating Electoral Speeches Is ‘Nothing More Than A Wild-goose Chase’: AAP To SC 

A day prior to this hearing, the Arvind Kejriwal-led AAP submitted a plea asking the apex court to refrain from considering imposition of any curbs on speeches made by candidates, as it would also curtail the freedom of speech guaranteed by the Indian constitution. 

In reference to the Supreme Court’s consideration of setting up a panel of experts to suggest measures of controlling the ‘freebies’, the plea said that since there is no law that prohibits or regulates a political party from making such promises it would violate the fundamental right of freedom of speech and expression as the proposed committee may not “encompass the regulation, let alone prohibition, of certain types of electoral speech”.

“Such a restriction or prohibition, executively or judicially imposed, would amount to a curtailment of the freedom of speech guaranteed under Article 19(1)(a) without the backing of legislative sanction,” stated the plea. The plea also argues that any decision taken by the court will be constitutional without authority. The AAP reportedly also said that electoral promises are an “important democratic function”. The plea argued, “Trying to address issues of fiscal deficit by attacking electoral speech will both hurt the democratic quality of elections by prohibiting parties from communicating their ideological stances on welfare, while also making no progress in achieving fiscal responsibility.” 

“Further, if concerns over fiscal deficit and responsibility are indeed the point of the present proceedings (in the PIL), targeting and regulating electoral speech will amount to nothing more than a wild-goose chase,” said the party. The plea also said that electoral speeches made by unelected candidates cannot be seen as intent about the future government’s budgetary plans.

The AAP asked the SC to exclude considerations of electoral speeches and promises which would infringe on the freedom of speech, and said, “This court’s intervention, if any, in the interests of fiscal responsibility should instead focus on the point of actual outgo of funds from the public exchequer, that is budgetary actions of already elected governments and their fiscal planning processes.”

“Once such a process leads to an elected government, it is the elected government’s task to modulate, accept, reject, or substitute various schemes proposed during elections (or not proposed during elections at all), to fit the needs of the electorate as well as the government budget, and incorporate feedback received from the electorate and other experts,” it added. 

Reportedly, the party also went on to suggest that the proposed panel should consist of one representative each of the central government, states and Union Territories. This would be in addition to representation from every recognised political party in the country, and one representative each of the Reserve Bank of India, Finance Commission, and Niti Aayog. Furthermore, the AAP suggested including representatives from planning bodies of every state/UT and NGOs with disadvantaged groups such as SC/STs, EWS, minorities, and so on.  

Earlier this month, the AAP had also moved the SC following the filing of an intervention plea opposing the PIL filed by Advocate Upadhyay, and said that the socio-economic welfare of the deserving and disadvantaged people cannot be termed as “freebies”. They had added that promises of free water, electricity or public transport are not “freebies”, but “constitutional responsibilities of the State” to create a more equitable society. 

DMK Challenges The Definition Of ‘Freebies’ 

On Tuesday, Tamil Nadu CM MK Stalin-led DMK government had also filed a plea in the Supreme Court regarding the issue, and joined the AAP in opposing the central government’s stance. They have argued that given the wide scope of what constitutes a ‘freebie’, the SC needs to consider “a lot of aspects”. Furthermore, the DMK reportedly said that a welfare scheme intended to ensure social and economic justice announced by the state government cannot be categorised as a ‘freebie’. 

“This Hon’ble Court cannot have a restrictive approach for classifying any scheme or act by the Union/State Legislature to be a ‘freebie’ without considering the magnitude of resultant consequences and social welfare at both micro and macro level,” said the DMK petition. The party further argued that such schemes have been introduced to provide basic necessities. Citing the example of free or subsidised electricity, the plea said, “Electricity can provide lighting, heating and cooling, resulting into a better standard of living. It can facilitate a child in his education and studies. A welfare scheme therefore, can have a wide reach and multiple intentions behind its introduction and the cascading effect arising from it cannot be defined in a restrictive meaning as a freebie.” 

The DMK petition also said that in a welfare state, free services are introduced in an attempt to secure social order and economic justice under Article 38 of the Indian Constitution, “to minimise the inequalities in income, status, facilities and opportunities, not only amongst individuals but also amongst groups of people residing in different areas or engaged in different vocations”. It added that in “no imaginable reality” can this be construed as a freebie. 

Taking a shot at the central government, the petition added, “The ruling government at the Union giving tax holidays to foreign companies, (waiving) bad loans of influential industrialists, granting crucial contracts to favoured conglomerates, etc also have to be considered and cannot be left untouched.”

Senior Advocate and Rajya Sabha DMK MP P Wilson, during today’s SC hearing, echoed a similar sentiment following the AAP, and reportedly said, “We have filed an intervention application. India is a socialist welfare state. There have to be welfare measures. We are opposed to setting up a committee.”


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