God save EC if it can’t stop poll freebies: SC
The top court found itself constrained to seek the help of the Finance Commission after ECI said that it cannot regulate promises of freebies even as the Union government assigned the responsibility to ECI for taking all possible steps under the existing legal regime.
May God save the Election Commission of India (ECI) if it can only wring its hands when electorates are sought to be bribed through freebies, the Supreme Court observed on Tuesday, as it sought to know from the Finance Commission if revenue allocation to states can take into account unnecessary expenditures on hand outs.
The top court found itself constrained to seek the help of the Finance Commission after ECI said that it cannot regulate promises of freebies even as the Union government assigned the responsibility to ECI for taking all possible steps under the existing legal regime.
Terming unrealistic poll promises and freebies a “serious” problem, a bench, headed by Chief Justice of India NV Ramana, said that the contentious practice has to be controlled and that the court will, therefore, seek the views of the Finance Commission if something can be done in this regard.
“God save the Election Commission of India if it’s saying that we can’t do anything when the electorates are sought to be bribed through freebies...We are suggesting that this (freebies) has to be controlled. How it is going to be done needs to be examined,” said the bench, which also included justices Krishna Murari and Hima Kohli.
The court’s remarks on ECI came after the statutory body took the position that it cannot regulate distribution of freebies and that it is for the voters to decide whether they should elect leaders even if such hand-outs could harm the economic health of a state.
ECI’s affidavit was submitted in April in response to a public interest litigation by advocate Ashwini Kumar Upadhyay, who sought a direction for issuance of stringent guidelines to deregister errant political parties and seize their election symbols for offering “irrational freebies” ahead of polls.
On July 16, while speaking at an event in Uttar Pradesh, Prime Minister Narendra Modi hit out at the culture of freebies.
“The ‘revadi culture’ is very dangerous for the development of the country,” Modi said, calling on people to not fall for this culture.
The Prime Minister used the term ‘revadi’, a popular north Indian sweet often distributed during festivals, as a metaphor for freebies being promised by various parties to grab power.
“Those behind this ‘revadi culture’ do not believe in building expressways, airports and defence corridors. Together we have to defeat this thinking and remove this culture from politics,” he added.
Earlier this week, in response to the PM’s comments, his Bharatiya Janata Party asked state unite to refrain from offering freebies during elections.
In April, a team of senior bureaucrats warned PM Modi during a review that the culture of freebies could bankrupt state exchequers.
When Upadhyay’s PIL was taken up on Tuesday, advocate Amit Sharma, appearing for ECI, informed the bench that their affidavit has culled out relevant regulations and cases on issuance of manifestos by the political parties and various advisories have also been issued. At the same time, Sharma said that there is not much that EC can do to control distribution of freebies by a winning party nor can it seize election symbols under the existing laws.
At this point, the bench expressed its dismay at ECI’s stand and proceeded to enquire from the Union government about the latter’s views.
Additional solicitor general KM Nataraj, representing the Centre, said the onus was on ECI. “There cannot be a general direction in matters like these. This will have to be done on a case-by-case basis and the Election Commission will have to decide it,” argued the law officer.
Irked that the central government has not submitted any formal reply to convey its stand on the issue although the notice was issued in January this year, the bench told Nataraj: “Why have you not said this on an affidavit if this is your stand? Should we record your stand that you don’t have any problem if the Election Commission does this? Why don’t you take a stand? First of all, tell us whether it’s a serious issue or not.”
Responding, the ASG admitted that it is a serious issue. “Then why don’t you take a categorical stand and then we can decide whether freebies can continue or not,” replied the bench.
Upadhyay, on his part, argued that ECI can insert an additional condition in the electoral laws and rules that a party may lose its registration and election symbol for making irrational promises of freebies.
But the bench told the lawyer-petitioner that it may not be possible to stop political parties from making poll promises and that the issue of what is a reasonable promise and what is not would also crop up in such cases.
Drawing a parallel with Sri Lanka which is in the middle of a severe political and economic crisis, Upadhyay added that India could be soon on its way to becoming Sri Lanka if freebies were not controlled.
To this, the bench said: “How? The government of India will control it here. It’s not that any state can take loan without prior approvals of RBI and the government of India. There are limits on allocations of loans. Don’t worry!”
The bench, at this juncture, spotted senior advocate and Rajya Sabha MP Kapil Sibal present in the court, and decided to elicit his views on a possible solution.
Sibal said: “It’s a serious matter. The solution is very difficult but the problem is very serious. You cannot expect the government of India to issue direction because that will create political issues. One way to explore a possible solution is to involve the Finance Commission. The Finance Commission, when it makes its allocation to the states from the total taxes, can take into account whether such allocations can take into account the money spent on unnecessary freebies.”
Accepting Sibal’s suggestion, the bench asked ASG Nataraj to enquire from the Finance Commission if a discussion on the subject and possible modalities can be initiated and revert in a week. Fixing the hearing on Wednesday next week, the court directed the Centre to come back with clear instructions on the issue.
On January 25, the bench asked for explanations from the Centre and ECI on steps taken by them since the court’s 2013 judgment to regulate electoral promises and distribution of freebies by political parties using public funds.
“This is no doubt a serious issue. Budget for freebies is going above the regular budget. As the Supreme Court said before, this disturbs the level playing field,” the bench observed then.
The 2013 judgment of the Supreme Court in S Subramaniam Balaji vs Government of Tamil Nadu & Ors delved on the issues of election manifestos and freebies. In this judgment, the top court said that distribution of freebies of any kind, undoubtedly, influences all people.
“It shakes the root of free and fair elections to a large degree. The Election Commission through its counsel also conveyed the same feeling both in the affidavit and in the argument that the promise of such freebies at government cost disturbs the level playing field and vitiates the electoral process and thereby expressed willingness to implement any directions or decision of this Court in this regard,” the 2013 judgment held.
In response to the court’s move, ECI filed its affidavit in April, expressing its inability to impose restrictions on electoral promises and freebies. ECI said that it can neither stop the political parties from making promises of freebies nor act against them in absence of a law to de-register political parties for making any unreasonable promises to the voters.