Election Freebies Issue: Supreme Court Refers Matter To 3-Judge Bench

The Supreme Court has referred the issues pertaining to promises made by political parties and election freebies to a three-judge bench.

The bench led by CJI NV Ramana observed,

"The issues raised by parties require extensive hearing. Certain preliminary hearings need to be determined, such as what is the scope of judicial intervention, whether appointment of expert body by court serve any purpose, etc. Many parties also submitted that judgment in Subramaniam Balaji requires reconsideration. The Court in the said case held such practices would not amount to corrupt practices. Looking at the complexity of issues and the prayer to overrule Subramaniam Balaji, we refer the matters to a 3-judge bench."

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.

Though the Supreme Court agreed with the stand taken by the Respondents that in an electoral democracy, the true power lies with the electorate, which judges the parties and candidates; however, in the same breath, it added,

"The worries raised by the Petitioner that under the guise of welfare, fiscal responsibility is dispensed with, must also be considered."

The bench observed in the order as follows :

"Ultimately, it appears to us that the issues raised by the parties require an extensive hearing before any concrete orders can be passed. Certain preliminary issues that may need to be deliberated upon and decided in the present set of petitions 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?"

Looking at the complexity of the issues involved, and the prayer to overrule a judgment rendered by a two­Judge Bench of this Court in S. Subramaniam Balaji (supra), the Court directed listing of these set of petitions before a three­Judge Bench, after obtaining the orders of the Hon'ble the Chief Justice of India.

In S. Subramaniam Balaji (supra), this 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.

In the last hearing of the matter, the court had asked the Centre why it cannot call for an "all party meeting" to determine issues pertaining to election freebies and discussed who could possibly head a committee constituted to determine the issue of freebies. The counsel for petitioners had also argued that the judgement of Subramaniam Balaji v. State of Tamil Nadu required reconsideration and the CJI had indicated that a bench might be constituted for the same.

Earlier, the CJI had mooted the constitution of an expert commission including stakeholders like Finance Commission of India, Election Commission of India Reserve Bank of India, Niti Ayog and political parties to study the issue. The CJI had remarked that freebies was a serious issue and stressed on the need to maintain a balance between welfare and economy.

Political parties like AAP, DMK and Congress have intervened in the matter by saying that freebies must be distinguished from welfare measures for the poor and the downtrodden.

The petition, filed by Ashwini Upadhyay, has urged the court to declare that–

i) Promise of irrational freebies from the public fund before the election unduly influences voters, disturbs the level playing field, shakes the roots of a free-fair election and vitiates purity of election process.

ii) Promise/distribution of private goods/services, which are not for public purposes, from public funds before the election, violates Articles 14, 162, 266(3) and 282 of the Constitution.

iii) Promise/distribution of irrational freebies from the public fund before election to lure voters is analogous to Bribery and Undue Influence under S.171B and S.171C of the IPC.

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

Citation : 2022 LiveLaw (SC) 717

Headnotes

Election Laws - Freebies issue- Supreme Court refers to 3-judge bench -Identifies 3 issues- Petitioners prayed for reconsideration of SC judgment in S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659

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