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It’s High Time For Legislation On Freebies

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By: Seema Sindhu | NEW DELHI
Updated: August 20, 2022 19:26
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During a rally on 17th July, Prime Minister Narendra Modi said that “revdi culture” (culture of distributing freebies) is very dangerous for development of the country and needs to be removed from politics in the country. On 26th July, hearing a PIL on rampant culture of freebies, the Supreme Court called the issue “serious” one and asked the Centre, which is respondent number 1, to take a clear stand on the issue. Respondent number 2, the Election Commission of India (ECI) intends to steer away from the contentious issue calling it a policy decision of a party and want of legislative competence in this regard. However, the court seems to be keen to “review” its stand on the issue.

Before discussing the ongoing debate on this issue, it’s important to give the background of a case of 2013 – S Subramaniam Balaji vs Govt of Tamil Nadu & Others to the readers to understand why the consideration of the PIL in question is akin to review.

Subramaniam Case

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In the Subramaniam case, the key issue before the SC was: whether the promises made by the political parties in the election manifesto would amount to “corrupt practices” as per Section 123 of the Representation of Peoples (RP) Act, 1951 which deals with corrupt practices like bribery, undue influence, threat and inducement by individual candidate or his agent. This was in relation to the 2006 Assembly elections in Tamil Nadu where the DMK had promised a bevy of freebies, including free distribution of color TV to the public if the party forms government.

The court had reasoned that Section 123 and other relevant provisions contemplate corrupt practice by individual candidates or his agent and clearly draw a distinction between an individual candidate put up by a political party and the political party as such. It further observed: if we are to declare that every kind of promise made in the election manifesto is a corrupt practice, this will be flawed. Since all promises made in the election manifesto are not necessarily promising freebies per se, for instance, the election manifesto of a political party promising to develop a particular locality if they come into power, or promising cent per cent employment for all young graduates, or such other acts. Therefore, it will be misleading to construe that all promises in the election manifesto would amount to corrupt practice. Likewise, it is not within the domain of this court to legislate what kind of promises can or cannot be made in the election manifesto.

The court had dismissed the appeal holding that “judicial interference is permissible when the action of the government is unconstitutional and not when such action is not wise or that the extent of expenditure is not for the good of the State”. However, the court opined: “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”, and thus it passed a direction in the Subramaniam case to the effect that “….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 as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, party in power, etc. In the similar way, a separate head for guidelines for the election manifesto released by a political party can also be included in the Model Code of Conduct for the guidance of political parties and candidates.” It is noteworthy here that the RP Act has no provision of Model Code of Conduct; the EC derives this power from Article 324 of the Constitution.

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The court in that case also said: “We also record the need for a separate legislation to be passed by the legislature in this regard for governing the political parties in our democratic society.” Now, the legal question which arises here is: can the court ask the legislature to legislate on a particular subject? Yes, it can under Article 142 of the Constitution, provided there’s a legislative vacuum on that subject which is the case here. The court has done that in the past in the case of Vishakha and Triple Talaq.

Current political slugfest

The issue seems to be heading towards finalisation this time as the court has asked the Centre to take a clear stand on the issue and suggested formation of an expert committee to deliberate on the subject. Solicitor General Tushar Mehta has filed an affidavit on behalf of the Centre reflecting on the perils of freebies. It is pertinent to mention here that unlike the Subramaniam case where the parties to the case — DMK and AIADMK — which didn’t find anything wrong with the freebies culture, the Centre which is respondent number 1 in the PIL is critical of this culture.

It is in this backdrop that Aam Aadmi Party (AAP) has filed an intervention application wherein it questioned the bonafides of the PIL and the Centre’s stand on the issue. AAP is targeted by political opponents and poll pundits for spearheading the freebies culture and taking it to a superlative level for electoral gains. In its affidavit, it has stated that it is “affront” to call socialist and welfare programs freebies. Now, the government of Andhra Pradesh has also filed an impleadment application in the PIL.

Interestingly, AAP has used the term “socialist and welfare” instead of public purpose as in the Subramaniam case. The word “socialist” finds its place in the Preamble of the Constitution; welfare is mentioned in Directive Principles of State Policy Part IV of the Constitution. Public purpose finds no mention under Part IV. The term “public purpose” plays in a much bigger circumference than words “socialist” and “welfare”. It is to be seen how the court interprets these terms and discern between welfare measures and freebies/revdi.

Hitting back at the Centre, AAP has said the real discussion on freebies should begin with the perks given to political classes, bureaucrats and industrialists and not the welfare schemes given to the vulnerable sections. Pertinently, only a few days back, the AAP government in Punjab amended the Punjab State Legislature Members (Pension and Medical Facilities Regulation) Act, 1977 to curtail MLAs’ pension to one MLA, one pension instead of pensions corresponding to the number of terms one gets elected.

While these benefits to politicians would not be disturbed by the court as it has legislative backing and Article 50 bars the court from interfering in matters of state policy backed by legislation, AAP has certainly launched a full-fledged debate on unreasonable and unrealistic benefits provided to political class vis a vis legislative deliberation on freebies to public.

With the Centre taking a stern stance against freebies, the court set to form an expert committee, PM embarking a debate on revdi culture and AAP and the government of Andhra Pradesh intervening, it seems a legislation on goodies is inevitable now for good.

(The writer is lawyer at Supreme Court.)

Disclaimer: Views expressed above are the author’s own

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