Freebies Issue : Election Commission Declines To Be Part Of Expert Panel Proposed By Supreme Court

The Election Commission of India has declined to be the part of the expert body proposed to be constituted by the Supreme Court to examine the issues relating to the promise of "freebies" by political parties during elections.

Saying that it is a Constitutional Body, the ECI has expressed unwillingness to be part of the expert panel.

"The Answering Respondent respectfully submits that it may not be appropriate for the Commission, being the Constitutional Authority to offer to be part of the Expert Committee especially if there are Ministries or Government Bodies in the expert body. Further there are continuous elections in the country and any opinion/view / comment during deliberations in a multi member body might, in the event of being publicized, amount to pre-deciding the issue and disturb the level playing field. The Answering Respondent respectfully submits that it will be greatly benefitted by the recommendations of the expert body that the Honorable Court may deem appropriate to set up and commits to give its highest consideration to the same, while strengthening/modifying its existing guidelines in the interest of purity of electoral process. The Answering Respondent respectfully further submits that it would abide by any direction which this honorable court considers appropriate to pass," the affidavit states.

On August 3, the Court had opined that an expert body consisting of various stakeholders such as Niti Aayog, Finance Commission, Law Commission, Reserve Bank of India, members of ruling and opposition parties would be required to give suggestions to address the issue of promise of freebies during election campaigns. To enable the Court to pass an order for the constitution of such a body, the bench directed the petitioner, Central Government and the Election Commission of India to give suggestions.

Terming the model manifesto as empty formality and issue in the plea as "serious one", CJI NV Ramana said that the ECI and the Government cannot say that they can't do anything.

On July 26, the Court had termed freebies a "serious issue" and asked the Central Government to take a clear stand on the issue. The Court had also expressed reservations with respect to the ECI stand that offering freebies is a policy decision of a party and that the Commission cannot regulate state policies and decisions which may be taken by the winning party when they form the government.

In the supplementary affidavit filed by Mr Vijay Kumar Pandey, Director, Election Commission of India, it was also stated that the oral observations made by the bench against the ECI had caused irreparable damage to the institution's reputation.

"The oral observations made by this Court against the Election Commission during the previous hearing in the matter and which dame to be widely reported in the media has caused irreparable damage to the reputation of this institution build over the years. The reputational damage of this magnitude does not augur well for the country which is relatively younger but the largest and stable democracy in the world," the affidavit stated.

The ECI also stated that in the judgment in Subramaniam Balaji vs State of Tamil Nadu (2013) 9 SCC 659, the Supreme Court had held that promises made by political parties in election manifesto cannot be construed as a "corrupt practice" under the Representation of Peoples Act 195. The poll panel further said that as per the direction in Subramaniam Balaji case, it has framed guidelines in the Model Code of Conduct requiring the political parties to explain the rationale for the promises made and the ways and means to finance them.

Asserting that there is no precise definition of the word "freebies" and "irrational freebies" and that the terms are subjective and open to interpretation, it has been stated in ECI's affidavit that for taking a holistic and comprehensive view broader appreciation of and due weightage to multiple factors is required.

On April 10, 2022 the ECI in its affidavit had told the Top Court that offering any freebies either before or after the election is a policy decision of the party and that the Commission cannot regulate state policies and decisions which may be taken by the winning party when they form the government.

Case Title: Ashwini Upadhyay v UOI| WP (Civil) 43 of 2022