SC issues notices to Centre, EC on PIL against poll freebies

The Supreme Court on Tuesday sought replies from the Centre and the Election Commission on a PIL seeking direction to seize the symbol or deregister a political party that promises or distributes “irrational freebies” before polls, saying it is a “serious issue” as sometimes “freebie budget is going beyond regular budget”.

A bench comprising Chief Justice N V Ramana and Justices A S Bopanna and Hima Kohli sought the response in four weeks on the PIL filed by BJP leader and lawyer Ashwini Upadhyay.

The plea, filed ahead of assembly polls in five states, said there should be a total ban on such populist measures to gain undue political favour from voters as they violate the Constitution and the EC should take suitable deterrent measures.

The bench took note of submissions of senior advocate Vikas Singh, appearing for Upadhyay, that a law need to be framed on the issue and steps like seizure of party symbols or taking back the registration of parties or both may be thought of as ultimately it is the citizens who have to pay up.

“Let us see. For the time being, we will issue notice and let the Government of India and the Election Commission come back with some response,” the bench said after hearing brief arguments.

The bench said that political parties may be included as parties to the plea later.

“Legally, I am asking some legal questions in the debate. We want to know how to control all this. It is a serious issue, no doubt. Freebie budget is going beyond regular budget and sometimes, as observed by the Supreme Court in this paragraph (of an earlier judgment), it is not the level playing field.

“The parties who make more promises have the advantage and chance of winning the elections even though it does not amount to corrupt practices under the law,” the bench said.

It took note of the fact that the poll panel has conducted only one meeting on the issue of promise of freebies during the polls after the apex court's judgment on the issue.

“The apex court had directed the Election Commission to frame guidelines on this. They have framed guidelines but without any teeth,” the senior lawyer responded.

At the outset, Singh said in states, having huge debt, parties are promising freebies and please see, ultimately it is the public, whose money is promised to be given.

Every party is doing the same thing and there has to be some legislation on this aspect, he said, adding “I do not want to name any party”.

“If every party has been doing the same thing then why in the affidavit you have named only two (political) parties,” the bench said and asked Singh to read the judgment of the apex court on the issue.

“I do not understand. You enlighten us about the second part of it that is legislation and legislation for what purpose,” the CJI asked.

The law is needed for controlling activities like promises or distribution of “irrational freebies” from public funds before the polls, the lawyer said.

“Pease see, Article 282 of the Constitution and every expenditure has to be approved by the legislature. If the legislature passes the law then it will have to be followed....When some party offers Rs 1,000 to every woman, the other says FRs 2,000. If this is how the elections are being held then ultimately who will pay this money... look at Punjab, the debt was 1.82 thousand crore is,” the lawyer said.

The bench asked the lawyer not to name a state and refer to the pleadings to suggest the remedy to control the menace.

“Assuming for a minute, we will issue notice and ask the Centre and the Election Commission to file affidavits. For us, we must know how we are going to control all this,” the bench said.

Some order can be passed to take away the poll symbol or recognition or not to grant the recognition to a particular party who engages in this kind of activity, the lawyer said.

Referring to upcoming polls, the bench said that the elections will be over the time some orders are passed.

There will be at least something for the next election, Singh said.

The plea urged the court to declare that the promise of irrational freebies from public funds before elections unduly influences the voters, disturbs the level playing field and vitiates the purity of the poll process.

The petition filed through advocate Ashwani Kumar Dubey has, as an alternative, sought a direction to the Centre to enact a law in this regard.

“Petitioner submits that recent trend of political parties to influence voters by offering freebies with an eye on elections is not only the greatest threat to the survival of democratic values but also injures the spirit of the Constitution,” said the plea.

“This unethical practice is just like giving bribes to the electorate at the cost of the exchequer to stay in power and must be avoided to preserve democratic principles and practices,” it said.

The petition has also sought a direction to the ECI to insert an additional condition in the relevant paragraphs of the Election Symbols (Reservation and Allotment) Order 1968, which deals with conditions for recognition as a state party, that a "political party shall not promise/distribute irrational freebies from the public fund before the election".

The petitioner has urged the apex court to declare that promise or distribution of private goods or services, which are not for public purposes from public funds before the elections, violates several articles of the Constitution, including Article 14 (equality before law).

The plea has referred to the promises being made by certain political parties in the ongoing assembly poll process in some states.

The fulcrum of democracy is the electoral process and the distribution of money and promise of freebies have reached alarming levels with elections being countermanded several times, it said.

“Petitioner submits that arbitrary promises of irrational freebies violate the ECI's mandate for free and fair elections and distributing private goods-services, which are not for public purposes, from public funds clearly violate Articles 14, 162, 266(3) and 282 of the Constitution,” it said.