The Supreme Court of India has decided to set up a committee with representation from the Niti Aayog, the Finance Commission, the Election Commission, the Reserve Bank of India (RBI) and political parties to study the impact of ‘freebies’ on taxpayers and economy and recommend measures to regulate it. The court wanted an independent expert body to study the pressing issue, interact with stakeholders and the general public and give a report containing concrete suggestions that can be sent to the government.
Invited by the court to give his independent suggestion, senior advocate Kapil Sibal wanted the Election Commission (EC) to be kept out of the issue of freebies, which are political and economic in nature, and wanted Parliament to decide appropriate remedial measures. But the court disagreed and asked, “Do you seriously think Parliament will debate regulating freebies? Which political party will debate this issue? No political party would agree to curbs on freebies ahead of polls. Each of them wants it.”
The SC has decided to set up a committee with representation from the Niti Aayog, the Finance Commission, the Election Commission, the RBI and political parties to study the impact of ‘freebies’ on taxpayers and the economy.
But the committee may be a clumsy mechanism that would only complicate the issue.
While the Supreme Court is treating “freebies” as a constitutional issue, the EC is suggesting a political solution. Unfortunately, both would not work.
Parliament is controlled by political parties and as rightly pointed out by the CJI, no political party would agree to curbs on freebies ahead of polls.
The EC has stated that its proposal to the Union Law Ministry sent in 2016 to amend the rules and enable it to de-register a political party for gross electoral malpractices is gathering dust. The SC can issue directions to the Centre to expedite this.
If the EC genuinely feels that it does not have adequate powers, it is for the Supreme Court to examine this and issue a decree vesting EC with the required authority and powers.
The S Subramaniam Balaji Case
Making a loaded political statement, that the country’s economy is heading towards disaster because of the mindless announcement of freebies by opportunists, Solicitor-General Tushar Mehta wanted the Election Commission to revisit the issue and propose remedial measures for the court's scrutiny. Intriguingly, EC counsel Amit Sharma retorted that the poll body’s hands were tied because of a 2013 judgment. The Chief Justice of India, NV Ramana, countered by saying:
“We are aware of the Subramaniam Balaji judgment and if needed, we will reconsider it. But, if the EC had taken timely remedial steps, this problem would not have arisen.”
This takes us to the S Subramaniam Balaji Vs Govt of Tamil Nadu and Others case judgment of 2013 and the measures that followed. In this case, after ruling that announcing freebies was not an act of corrupting the electorate, the Supreme Court observed, “The reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree.” Then, the court gave this directive:
“Therefore, considering that there is no enactment that directly governs the contents of the election manifesto, we hereby direct the Election Commission to frame guidelines for the same in consultation with all the recognised political parties that can also be included in the Model Code of Conduct (MCC) for the Guidance of Political Parties & Candidates.”
Recognising that political parties release their election manifesto on the eve of the announcement of the election and that the EC will not have the authority to regulate any action done before that, the court was in favour of an exception in this case.
In compliance with the above direction, the EC issued the following guidelines in 2014, which were made part of the Model Code of Conduct (MCC):
“(ii)…Political parties should avoid making those promises which are likely to vitiate the purity of the election process or exert undue influence on the voters in exercising their franchise. (iii) In the interest of transparency, level playing field and credibility of promises, it is expected that manifestos also reflect the rationale for the promises and broadly indicate the ways and means to meet the financial requirements for it. Trust of voters should be sought only on those promises which are possible to be fulfilled.”
In continuation thereof, the EC issued directions to political parties in May 2015, asking them to furnish a hard and soft copy of the manifesto to the Commission as and when issued.
EC Has Powers, But Does It Exercise them?
So, a Supreme Court judgment on freebies, guidelines issued by the EC as part of the Model Code of Conduct and directions thereof are in place. And to reboot, EC had assumed full powers to implement and enforce the MCC by giving it teeth in 1994 via amending The Election Symbols (Reservation and Allotment) Order, 1968 and incorporating Section 16A, which gives power to the EC to suspend or withdraw the recognition of a recognised political party for its failure to observe the MCC or follow lawful directions and instructions of the Commission. It’s another matter that the EC has rarely exercised this power.
Now, a question arises as to why the court should appoint a committee circumventing the constitutional institution of EC on a slippery issue like ‘freebies’. Is it because in the affidavit filed in the Supreme Court, the EC has washed off its hands in the manner of Pontius Pilate, saying that they can’t regulate poll-eve freebies? This is what the poll panel said in the affidavit:
“…that offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse effect on the economic health of the State is a question that has to be considered and decided by the voters of the state… The Election Commission of India cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action, without enabling provisions in the law, would be an overreach of powers.”
This is typical of the nervous and ostrich-like behaviour this body has displayed in the last few years.
Both the EC and the Supreme Court's Approach May Fail
While the Supreme Court is treating “freebies” – plain misuse of public resources for electoral gains – as a constitutional issue, the EC is suggesting a political solution. But unfortunately, both would not work. The only constitutional argument in support of ‘freebies’ is that as per the mandates in the Directives Principles of State Policy in Part IV of the Constitution, it is incumbent upon the state government to promote the welfare of people who are below the poverty line or are unable to progress without support.
But this argument is untenable considering the kind of promises being made in election manifestos, which are not confined to those below the poverty line: opening of bank accounts, free water and electricity across the board, free gas cylinders, free television sets, free laptops with internet for students, a 50% subsidy for women to buy mopeds or scooters, one sovereign gold for women ahead of marriages, free cell phones for all ration card-holders, free cycles, free cooking gadgets, Deepavali or Pongal gifts, and many others. Besides, the Directive Principles are not enforceable through writ petitions or public interest litigation (PILs) like Fundamental Rights, for which specific provisions (Articles 32 and 226) are available in the Constitution. So, it is not a constitutional issue.
Politically, too, it is a no-go because parties resort to freebie culture to cover up the failure of their governments in providing enough job opportunities to the voting public. Instead, they splurge public funds in mass procurement of ‘goodies’ for free distribution and, in the process, make big money as commissions and kick-backs.
Parliament is controlled by political parties and as rightly pointed out by the CJI, no political party would agree to curbs on freebies ahead of polls. And a committee with representation from Niti Aayog, Finance Commission, Election Commission (EC) and RBI is a clumsy mechanism that would only complicate the issue and resolve nothing.
Stop Wasting Time
Under Article 324 of the Constitution, the Election Commission has the mandate of conducting free and fair elections with integrity. As rightly observed by the Supreme Court in the Subramaniam Balaji case, the distribution of freebies of any kind, undoubtedly, influences all people and shakes the root of free and fair elections. This evil, therefore, needs to be curbed by the Election Commission, which is equivalent in status to the Supreme Court. If the Commission genuinely feels that it does not have adequate powers for the purpose, it is for the Supreme Court to examine this and issue a decree vesting EC with the required authority and powers. Since this involves financial and budget monitoring, the Comptroller and Auditor General of India could be tasked to assist the Election Commission.
The EC has stated that its proposal to the Union Law Ministry sent in 2016 to amend the rules and enable it to de-register a political party for gross electoral malpractices is gathering dust. The Supreme Court can issue directions to the Centre to expedite this. A court-appointed omnibus and time-consuming committees are no options.
(The author is a former IAS officer and editor of the book “Electoral Democracy: An Inquiry into the Fairness and Integrity of Elections in India”. This is an opinion article and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
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