"Balance between loss of money to exchequer and welfare schemes needed”: CJI remarks while hearing PIL on freebies

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The plea filed by Ashwini Kumar Upadhyay alleges that the declaration of distribution of irrational freebies from public fund before elections unduly influences the voters, shakes the roots of free-fair election, disturbs level playing field, vitiates the purity of election process and also violates Articles 14, 162, 266(3) and 282 of the Constitution.

The Chief Justice of India NV Ramana today while hearing a plea pertaining to the issue of irrational distribution of freebies from public funds before elections, observed that there is a need to balance between the loss to exchequer owing to freebies and welfare schemes for the benefit of the people. 

When the matter was called for hearing, CJI lashed out at the counsel for the Election Commission of India as the counter filed by them in the matter reached the press before it reached the court. He said, “If it can reach newspapers first, why can’t it reach us?”

The court then debated with the senior counsels as to what extent it can interfere in an issue such as this. CJI said, “Election Commission is an independent body, the political parties are there. So, to what extent can we interfere in this?” CJI further informed the counsels that this being a serious issue, emotional arguments or decisions will not be of any avail.

CJI Ramana further said, “I am orthodox when it comes to the roles of judiciary and legislature. However, this is a serious issue. It is not an easy thing and opinion of all parties must be considered.”

Senior Counsel Dr. Abhishek Manu Singhvi, appearing for the Aam Aadmi Party(AAP), argued that there is a confusion between freebies and welfare schemes. He added that the word freebies is being used in a wrong manner.

The CJI however indicated that no orders could be passed as only two judges were sitting in the bench, owing to Justice Hima Kohli’s absence.

Solicitor General Tushar Mehta, appearing for the Union of India, said, “Freebies culture has been elevated so much that elections are fought only on that ground.” SG informed the court that if the freebie culture becomes a norm, the court may intervene and lay down certain norms. He further urged the court to lay down certain dos and don'ts in relation to freebies, till the legislature steps in and frames rules.

Pursuant to the order of the court on the last hearing, SG informed that a note has been circulated suggesting a committee to hold a discussion in this regard.

SG suggested that this committee should consist of a representative from beneficiaries of freebies (though he made it clear that it would be difficult to identify), persons opposing freebies, central government, political party, finance commission, Reserve Bank, Industry representative and one representative from the stressed sector such as electricity generation & distribution companies.

Senior Counsel Kapil Sibal opined that this is a complicated issue that can be decided only based on solid data.

Upon hearing the parties, the CJI asked the counsels to apply their minds and submit their proposals by the time he retires on August 26, 2022. The CJI further made it clear that the court will not consider the prayer of de-recognizing the parties as it is un-democratic. 

On the last date of hearing, CJI had suggested that stakeholders such as RBI, NITI Aayog, opposition parties and those who are for and against freebies should be involved in this process of engaging in constructive brainstorming and they suggest the court about the formation of body, which can be constituted by the court to examine the issue.

On an earlier hearing, Court had asked the Government to consider involving the Finance Commission in the issue pertaining to the distribution of freebies by political parties in the vicinity of elections.

The Supreme Court issued notice in the plea in January 2022. 

Case title: Ashwini Kumar Upadhyay Vs Union of India