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Synopsis

On Friday, while the Supreme Court referred the case concerning the issue of Freebies during elections to a three-judge bench, the Court also noted that freebies may create a situation wherein the state government cannot provide basic amenities due to lack of funds and the state is pushed towards imminent bankruptcy.

"In the same breath, we should remember that such freebies are extended utilizing taxpayers money only for increasing the popularity of the party and electoral prospects", a CJI Ramana led bench added.

A bench also comprising Justices CT Ravikumar and Hima Kohli observed that "there can be no denying the fact that in an electoral democracy such as ours, the true power ultimately lies with the electorate and they decide which party or candidate comes to
power, and also judge the performance of the said party or candidate at the end of the legislative term, during the next round
of the elections".

Court also highlighted the point raised by some of the intervenors that all promises cannot be equated with freebies as they relate to welfare schemes or measures for the public good. "Not only are these a part of the directive principles of state policy, but are also a responsibility of the welfare state," the Court said.

Accordingly, Court held that there are certain preliminary issues that may need to be deliberated upon and decided. Those issues are as follows:

a. What is the scope of judicial intervention with respect to the reliefs sought in the present batch of petitions?
b. Whether any enforceable order can be passed by this Court in these petitions? 
c. Whether the appointment of a Commission/Expert Body by the Court would serve any purpose in this matter? Additionally, what should be the scope, composition, and powers of the said Commission/Expert Body?

Apart from the above preliminary questions, the judgment of the Supreme Court in S. Subramaniam Balaji v. State of Tamil Nadu will also be reconsidered wherein it was held that pre-election promises did not amount to corrupt practices under Section 123 of the Representation of the People Act, 1951. 

The case has now been listed after 4 weeks.

The above transpired in a Public Interest Litigation (PIL) filed by Advocate Ashwini Kumar Upadhyay alleging that declaration of distribution of irrational freebies from public funds before elections unduly influences the voters, shakes the roots of a free-fair election, disturbs level playing field, vitiates the purity of election process and violates Articles 14, 162, 266(3) and 282 of the Constitution.

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

On the last date of hearing, Solicitor General Tushar Mehta pointed out that there are some political parties that rely solely on freebies in order to get elected. He was responding to the Chief Justice of India's suggestion that the central government may call for “an all-party meeting” to deliberate on the freebies issue. 

Notably, an application of intervention has been filed by the General Secretary, M.P Mahila Congress, Dr. Jaya Thakur in this matter stating that according to India's Constitutional Doctrine, ruling parties are duty bound to frame policies for the welfare and upliftment of the weaker sections, so they are rightly giving subsidies which cannot be called freebies.

Moreover, recently, the Aam Aadmi Party (AAP) also filed an application of intervention contending that this PIL is a “non-partisan litigation” and alleged petitioner Ashwini Upadhyay’s strong ties to the ruling Bharatiya Janata Party (BJP).

Case Title: ASHWINI KUMAR UPADHYAY vs. UNION OF INDIA AND ANR