The Supreme Court decided to put off the formation of an expert committee to look into freebies offered by political parties to voters, but said a new three-judge bench would take up pleas to review a 2013 Supreme Court judgment that said some freebies were related to the directive principles guiding a state’s policies.
Freebies will continue to destroy the economy unless there is a conscious decision taken by all political parties to stop such hand-outs, the Supreme Court observed on Wednesday, calling the issue of regulating electoral promises “unmanageable” .
“Unless there is a conscious unanimous decision to stop (hand-outs), freebies will continue to destroy the economy…Whatever a committee says or we pass an order, no party will agree. It’s unmanageable. Therefore, all parties will have to discuss this and that’s why we (originally) proposed a committee,” said a bench, led by Chief Justice of India NV Ramana.
The CJI indicated that the new three-judge bench will consider the plea for reconsidering the 2013 Supreme Court judgment, which termed distribution of free gifts such as gold plates, fans, TVs, mixers-grinders and laptops expenses for public purposes and directly related to directive principles of state policy. The next date of hearing or the composition of the new bench however remain unclear.
CJI Ramana, who has frequently expressed his mind in the last few weeks in support of a committee for examining the issue of freebies, may not finally get to take the matter to a logical end as he retires on August 26. The court is hearing a PIL by advocate and former BJP spokesperson Ashwini Upadhyay for issuance of stringent guidelines to deregister errant political parties and seize their election symbols for offering “irrational freebies”.
On Tuesday, the bench, which also comprised justices Hima Kohli and CT Ravikumar, remarked that it wants to facilitate a dialogue in the parliament, which could consider framing a law with the assistance of the suggestions that the proposed committee appointed by the court may make.
But on Wednesday, the court was warned against getting caught in a political quagmire by setting up a committee, which the Aam Aadmi Party (AAP) argued was an exercise beyond judicially manageable standards. Senior counsel Kapil Sibal, who was assisting the bench, also cautioned the court against forming a committee without a comprehensive debate, adding the Supreme Court may land in a morass it will not be able to handle.
The Union government, however, pressed for a constitution of a committee, only to be asked by the bench why the Centre does not commence a deliberation on its own if they also want it.
Calling it “the way forward, Solicitor General Tushar Mehta, representing the Centre, urged the bench to set up the committee comprising experts and representatives of political parties in the larger interest of voters being able to make informed decisions when they are promised freebies.
“If that is the case, why doesn’t the Government of India set up a committee on its own? Why doesn’t the government call for an all-party meeting to discuss this?” the bench asked the S-G, who replied that there are already some parties (AAP and DMK) before the court that are opposing any discussion on it.
To this, the court responded that there are several issues, including the terms of reference and head of the panel, to be ascertained before a committee could be formed but till such time the political parties decide to stop freebies, the economy will keep getting the hit.
At this point, senior counsel Vikas Singh, appearing for the petitioner, and senior advocate Arvind Datar, representing the Election Commission of India (ECI), emphasised on the need to reconsider the 2013 judgment in the case of S Subramaniam Balaji vs Government of Tamil Nadu & Ors.
Singh and Datar complained that a two-judge bench in Supreme Court had in the 2013 judgment declined to interfere in schemes under which gold, TVs, laptops, mixers-grinders, electric fans, milch animals and goats were promised on the grounds that their distribution was directly related to directive principles of state policy.
Both lawyers implored the CJI to set up a three-judge bench to reconsider this view by the two judges, stating a lot of legal problems could be resolved by a successful review of the 2013 judgment.
Mehta, however, requested the court to reconsider the 2013 judgement after having the report from the proposed committee. “How can we reconsider the judgment after the report? That’s not possible,” retorted the bench.
Accepting the request of Singh and Datar, the CJI then said: “Alright, we will constitute a three-judge bench.”
On August 3, the bench for the first time suggested initiating a dialogue by forming a committee, and asked for the views of all parties. While the Centre backed the court’s views, AAP, DMK and YSR Congress Party asserted the rights of the legislature, elected governments and voters to take a call on the issue.
ECI, which has taken a position that the poll body cannot regulate distribution of freebies, welcomed the constitution of a panel but said it would rather stay away as a participant due to its role as an arbiter of political disputes.
On August 11, the bench commented that all freebies cannot be couched as welfare schemes and advocated for “some financial discipline” to tackle the “serious issue” of hand-outs as electoral promises.
The court again considered the matter on August 17, August 23 and August 24 but failed to bring about a consensus either on the formation of the committee or on the scope of the judicial review, even though it attempted to clarify several times that the court cannot pass any direction on electoral promises and that the idea is to help the parliament with a report by the proposed panel.
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