FREEBIES CASE | ASHWINI KUMAR UPADHYAY VS UNION OF INDIA AND ANR Case
FREEBIES CASE | ASHWINI KUMAR UPADHYAY VS UNION OF INDIA AND ANR Case
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO. 43 OF 2022
ASHWINI KUMAR UPADHYAY …PETITIONER
UNION OF INDIA AND ANR. …RESPONDENTS
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
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
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
5. Additionally, some political parties have filed intervention
applications in this batch of petitions and have challenged the
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
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
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.
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
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?
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
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.
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.
AUGUST 26, 2022.