Election Freebies | Supreme Court Directs Matter To Be Listed Before Three Judge Bench At The Earliest

Supreme Court bench comprising CJI UU Lalit and Justice Bela M. Trivedi on Tuesday directed that the plea concerning freebies during election campaigns be listed before a three-judge bench.

The court stated that considering the nature of the controversy and submissions made by the parties in the earlier hearings, the matter would be listed as early as possible.

The development comes in a PIL filed by lawyer and former BJP Delhi Spokesperson Ashwini Upadhyay seeking directions to the Election Commission of India (ECI) to not permit political parties to promise freebies during election campaigns. The Petitioner had argued that political parties make promises during elections, without any assessment on financial implication on state economy, merely to attract vote bank. Thus, tax-payers' money is used by political parties to remain in power and this adversely affects free and fair elections.

At the very outset, Advocate Shadan Farasat submitted that the issue may have to go to three judge bench as per the last reference order passed by the Supreme Court. In the last hearing of the matter, the then CJI NV Ramana had said–

"Looking at the complexity of issues and the prayer to overrule Subramaniam Balaji, we refer the matters to a 3-judge bench."

However, Advocate Ashwini Upadhyay submitted that only the prayer to overrule the Subramanian Balaji judgement needed reference to a three judge bench. He submitted,

"We are requesting for a committee to be formed for a standard manifesto. We are proposing an Expert Committee to control irrational freebies in larger public interest and to ensure free and fair election. The combination of Expert Committee may be– Chief Election Commissioner of India as Chairman, Governor of Reserve Bank of India, Chairman of Finance Commission of India, Vice Chairperson of NITI Aayog, Controller and Auditor General, Secretary of GST Council and presidents of Institute of Charted Accountants of India and the Institute of Cost Accountants of India– as members."

However, the bench was not convinced. CJI Lalit remarked–

"Once there is a reference order, let it be decided by three judges. Let the instant matter be listed before a three judge bench of this court."

Background

Through the petition, the Petitioner had argued that political parties make promises during elections, without any assessment on financial implication on state economy, merely to attract vote bank. Thus, tax-payers' money was used by political parties to remain in power and this adversely affected free and fair elections. In the last hearing, the court had decided that the preliminary issues that may need to be deliberated upon were:

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?

Looking at the complexity of the issues involved, and the prayer to overrule a judgment rendered by a two­ Judge Bench of the Supreme Court in S. Subramaniam Balaji v. Govt of Tamil Nadu, the Court had directed listing of these set of petitions before a three­ Judge Bench.

In S. Subramaniam Balaji, Supreme Court was called upon to determine whether pre­ election promises amounted to corrupt practices under Section 123 of the Representation of the People Act, 1951. The Court in that case held that such promises do not fall within the ambit of corrupt practices as specified under Section 123 of the Representation of the People Act, 1951, and issued directions to the Election Commission of India regarding framing of certain guidelines, in the absence of any legislative enactment covering the field.

Case Title: Ashwini Upadhyay v Union of India| Writ Petition (Civil) 43 of 2022

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