FREEBIES CASE | ASHWINI KUMAR UPADHYAY VS UNION OF INDIA AND ANR Case

FREEBIES CASE | ASHWINI KUMAR UPADHYAY VS UNION OF INDIA AND ANR Case

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले



IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
    WRIT PETITION (CIVIL) NO. 43 OF 2022
ASHWINI KUMAR UPADHYAY …PETITIONER
VERSUS
UNION OF INDIA AND ANR. …RESPONDENTS
WITH
    WRIT PETITION (CIVIL) NO. 87 OF 2022
    WRIT PETITION (CIVIL) NO. 474 OF 2022
    WRIT PETITION (CIVIL) NO. 496 OF 2022
    WRIT PETITION (CIVIL) NO. 383 OF 2022
    WRIT PETITION (CIVIL) NO. 121 OF 2022
    ORDER
1. The questions raised in the present set of petitions relates to
promises made by political parties for the distribution of free
goods (‘freebies’) as a part of their election manifesto or during
election speeches. The main contention of the petitioners is that
such pre­election promises, which have a largescale impact on the
economy of the State, cannot be permitted. The petitioners submit
that   such   pre­election   promises   are   being   made   by   political
parties without any assessment of the financial implications on
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REPORTABLE
the State is nothing but an attempt to attract the vote bank. This
goes   against   the   spirit   of   responsible   electioneering   and   is
adversely affecting free and fair elections. This severely affects the
level   playing   field   between   the   different   political   parties.   The
money that is being paid by the taxpayers is ultimately being
misused for political parties/candidates to gain or retain power.  
2. In this batch of petitions there are two sets of writ petitions. The
first batch relates to pre­elections freebies which may influence
voters   at   the   time   of   elections.   The   second   set   of   petitions
challenge the grant of benefits by Governments which do not
relate to any welfare measure or developmental activity but rather
are a ploy to capture vote banks.  
3. The learned Solicitor General of India has responded to the above
submissions by stating that the Union has a very limited role
when it comes to this issue and suggested that this Court may
constitute a Commission to consider the same. 
4. The   Election   Commission   of   India   has   consistently   taken   the
stand before this Court that it has limited scope to interfere in
such   promises   which   are   being   made   by   political
parties/candidates.
5. Additionally,   some   political   parties   have   filed   intervention
applications in this batch of petitions and have challenged the
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very maintainability of these petitions. The main thrust of their
submissions is that the issues raised in these petitions relate to
policy or fiscal decisions of the State, which decisions are clearly
outside the scope of the Court’s jurisdiction. They submitted that
it is unimaginable that any Government or Court can prescribe or
curtail the rights of political parties to make such promises or
announcement of schemes as is sought for in the present case.
The political  parties which  are responsible for running of the
Governments are conscious and aware of the problems of the
people. It was, therefore, contended by the interveners to leave the
issue open to the political parties.
6. When these matters were taken up on 03.08.2022, we had also
sought   the   opinion   of  learned  Senior  counsel  Mr.   Kapil  Sibal
regarding the issues being raised. He was initially of the opinion
that this is a serious issue which needs to be tackled in some
manner. However, subsequently, he has expressed his doubts
about the appropriateness of judicial intervention on this issue.
7. Freebies may create a situation wherein the State Government
cannot provide basic amenities due to lack of funds and the State
is pushed towards imminent bankruptcy. In the same breath, we
should remember that such freebies are extended utilizing tax
payers money only for increasing the popularity of the party and
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electoral prospects.
8. We have considered the issues raised in these batch of petitions
from various angles, as well as the stands taken by the Union of
India, the Election Commission of India and some political parties
who have filed intervention applications before us. 
9. There can be no denying the fact that in an electoral democracy
such as ours, the true power ultimately lies with the electorate. It
is the electorate that decides which party or candidate comes to
power,   and   also   judges   the   performance   of   the   said   party   or
candidate at the end of the legislative term, during the next round
of the elections. It is also necessary to highlight herein the point
raised by some of the intervenors, that all promises cannot be
equated   with   freebies   as   they   relate   to   welfare   schemes   or
measures for the public good. Not only are these a part of the
Directive Principles of State Policy, but are also a responsibility of
the   welfare   state.  At   the   same  time,  the   worry  raised  by  the
petitioners herein, that  under the  guise of electoral promises,
fiscal   responsibility   is   being   dispensed   with,   must   also   be
considered.
10. This Court has generally stayed its hand when confronted with
issues relating to policy or fiscal matters concerning the State, as
the   same   falls   outside   the   ambit   of   the   Court’s   jurisdiction.
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Initially, with the objective of initiating a discussion about the
issues   highlighted,   we   were   of   the   opinion   that   it   might   be
appropriate to constitute an expert body to prepare a report or
white paper which could suggest a way forward. To this end, vide
order   dated   03.08.2022   we   sought   for   suggestions   from   the
parties before us regarding the possible composition of such a
body. Additionally, during the course of the last hearing, we had
suggested to the Union of India that an All Party Meeting be called
to consider this issue.  
11. 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?
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12. Apart from the above preliminary questions, many of the parties
before us have also submitted that the judgment of this Court in
S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC
659  requires   reconsideration.   In  S.   Subramaniam   Balaji
(supra), this Court was called upon to determine whether preelection 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. 
13. It is submitted by some of the parties herein that the reasoning in
the above judgment is flawed as it has not considered various
provisions of the Representation of the People Act, 1951. It was
also  submitted  that  the  judgment  incorrectly implies  that  the
Directive Principles of State Policy can override the fundamental
rights under Part III of the Constitution, which is against the law
settled by a Constitution Bench of this Court in  Minerva Mills
Ltd. v. Union of India, (1980) 3 SCC 625. 
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14. 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), we direct listing of these set
of petitions before a three­Judge Bench, after obtaining the orders
of the Hon’ble the Chief Justice of India. 
15. List the matter after 4 weeks.  
...........................CJI.
(N.V. RAMANA)
…...........................J.
(HIMA KOHLI)
      
                …...........................J.
(C.T. RAVIKUMAR)
NEW DELHI;
AUGUST 26, 2022.
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