By Dr. Santosh Kumar Mohapatra*
A bizarre drama is unfolding in front of our eyes. When a nation is plagued by grueling problems of price rise, poverty, hunger, inequality, and unemployment, a lot of valuable time was wasted debating trivial issues like freebies. The Supreme Court should have ignored the issue and should have exposed how the media’s independence is curbed, democratic values are thrashed, and hatred is created against critics.
What is important is that the pendency of cases in various courts is so high and the judge-to-population ratio is so low that 500 years is not enough to clear backlogs if every case has to be fought till the end. The judicial system in India is under tremendous pressure. At present, India has a sanctioned strength of 25,628 judges. As of May 2022, over 4.7 crore cases are pending in courts across different levels of the judiciary. Of them, 87.4% are pending in subordinate courts, 12.4% in High Courts and nearly 1,82,000 cases have been pending for over 30 years.
Let us examine how much time is wasted. The controversy relating to freebies can be stressed in the course of events started in 2006, during the run-up to the Tamil Nadu Assembly elections. The Dravida Munnetra Kazhagam (DMK) released its election manifesto announcing a scheme of free distribution of colour television sets (CTVs) to “each and every household” which did not have one if the party was voted to power.
The party justified that the TV would “provide recreation and general knowledge to household women, more particularly, those living in the rural areas”. The party swept to power in the polls and decided to implement its scheme and portioned off Rs 750 crores from the budget for the project. The government finally distributed 30,000 TV sets across the State. In 2006, the DMK government in Tamil Nādu was challenged in Madras High court for distributing colour TV sets as promised before assembly polls. In 2007, the High Court dismissed the petition.
In 2011, rival All India Anna Dravida Munnetra Kazhagam (AIADMK) and its alliance also announced its election manifesto with free gifts to “equalise” the gifts offered by the DMK. AIADMK promised grinders, mixies, electric fans, laptop computers, four-gram gold thalis, a cheque of Rs 50,000 for women’s marriage, greenhouses, 20 kg of rice to ration card holders (even to those above the poverty line), and free cattle and sheep.
S.Subramaniam Balaji, a resident of Tamil Nadu, challenged the schemes introduced by the parties in the Madras High Court. He said the expenditure to be incurred by the State from the exchequer was “unauthorised, impermissible and ultra vires the constitutional mandates”. The High Court dismissed his case, following which he moved to the apex court.
In 2013, the Supreme Court said the distribution of freebies “shakes the root of free and fair election” to a large degree” but held that promises of freebies in election manifestos are not bribery or corruption. The apex court directed the Election Commission to frame guidelines. In 2014, a new chapter was added to the Election Commission’s model code of conduct to regulate manifestos.
In January 2022, advocate and BJP member Ashwini Upadhyay who was earlier in Aam Aadmi Party (AAP) filed a public interest litigation (PIL) in the Supreme court seeking directions against parties promising “irrational freebies”. Distribution of freebies from the public fund influences voters disturbs the level playing field, impacts “free and fair elections” and vitiates purity of the process, Upadhyay has submitted. The petition has emerged as a major point of controversy between political parties; with the Centre claiming that schemes such as ‘free electricity’ affect the economy.
The debate on freebies again started in the wake of the economic crisis in Sri Lanka and the global economic slowdown that prompted the Union government to advise fiscal prudence. The issue was first flagged on April 4, 2022, when top bureaucrats are reported to have briefed Prime Minister Modi that some states could become like cash-strapped Sri Lanka or Greece due to the freebies they have announced.
The bureaucrats are reported to have said that announcements made by Punjab, Delhi, Telangana, Andhra Pradesh, and West Bengal are unsustainable. They were so biased that they did not utter the name of BJP-ruled states.
Actually, bureaucrats failed to distinguish between the debt problems of states and that of Sri Lanka and Greece, which failed to import goods and repay external debt due to lack of foreign exchange -a case of a sovereign debt default. But neither states have to pay any external debt in foreign exchange nor can they fall into a debt trap like Sri Lanka or Greece. If states can go the Sri Lankan way by an increase in debt, why did it not happen when states had higher debt-GSDP ratios than what is today?
However, the Sri Lankan crisis was not due to freebies but due to a shortage of foreign exchange triggered by dollar hegemony.
On July 16, 2022, at the inauguration of the Bundelkhand Expressway in Uttar Pradesh, the PM Narendra Modi used the colloquial term revdi to drive home his point and start a national debate. He cautioned against the culture of distributing freebies for votes and said that it would take the new India towards darkness. “There are some governments which are indulging in revri culture to secure votes, while the double engine government is working towards creating new expressways and rail routes,” Mr. Modi said.
The PM described infrastructure development in backward areas as a form of social justice as industrial development and connectivity should not remain a priority only for big cities. “When the double engine government creates expressways, power projects, provides gas, toilets and pucca houses in the backward areas like Bundelkhand, it leads to true social justice,” he said.
Three days later, during an all-party meeting in Sri Lanka, the economic affairs secretary made a presentation on freebies. The Reserve Bank also studied the issue of public debt and freebies in its June report.
On August 3, 2022, coming out in support of public interest litigation seeking to curb the menace of freebies announced by political parties by Ashwini Upadhyay, the Narendra Modi government told the Supreme Court that such “populist announcements distort the informed decision of the voter”. Asking the court to “please do something about it”, solicitor general Tushar Mehta said “we are heading towards an economic disaster” if the freebie culture was not curbed. The Election Commission of India can apply its mind, relook at its previous decision and submit suggestions to the court, he said.
Mr. Mehta said the court should allow the Election Commission of India (ECI) to “apply its mind” to the problem. But senior advocate Kapil Sibal said the ECI should be “kept away” from the discussion on freebies as “ECI is MFI (Most Favoured Institution).” He said the issue was political and economical in nature and did not just concern elections.
The Supreme Court said the Parliament may not be able to effectively debate the issue of doing away with “irrational freebies” offered to voters during elections, saying the “reality” is that not a single political party wants to take away freebies.
A bench led by erstwhile Chief Justice of India NV Ramana, however, proposed setting up of an independent forum to examine the matter. The bench orally observed that it was not inclined to allow “a lengthy debate” on the subject in the court. CJI Ramana observed that the issue was “serious” and of “public importance where different stakeholders should be involved”.
The court recommended that an independent body be constituted, which may comprise different stakeholders such as the Reserve Bank of India, political parties including the opposition, Niti Aayog, and others, to brainstorm on the issue and come up with constructive suggestions. It can then submit a collective report, giving suggestions to the court. The top court asked the Centre and all the parties involved in the PIL to submit suggestions, within a week, for the composition of such a panel.
The court also urged senior lawyer Kapil Sibal for his suggestions on the matter.
The Supreme Court on August 11, 2022, refused to consider the question of derecognising political parties that resort to freebies. “Derecognition of parties is an undemocratic thing… I will not go into all that, “the erstwhile Chief Justice of India N.V. Ramana, heading a Bench, orally observed. But the court said ‘freebies’ are different from the welfare schemes of the government.
It said care-free promises and distribution of freebies by political parties and actual government welfare schemes were as different as chalk and cheese. One leads to sheer loss to the national economy while the other feeds the poor in drought-ridden areas and distributes care during COVID-19, the Supreme Court said.
Senior advocate Vikas Singh, for petitioner Ashwini Upadhyay, said states have Rs 15 lakh crore debts. “Public money should not be misused by political parties whose only intention is to gain and retain power,” Mr. Singh said. Senior advocate Arvind Datar, also for the petitioner side, said “giving laptops, TVs and gold chains cannot be to promote Directive Principles of State Policy”.
Solicitor General Tushar Mehta, for the Centre, agreed with the court’s proposal to form an expert body to recommend guidelines against freebies. He said the “freebie culture” has been “elevated to an art” by some parties.
Chief Justice Ramana said the court is striving for a balance between the welfare requirements of the people, especially the poor and the downtrodden, and the need to avert a national economic loss through the unbridled distribution of largesse by political parties to hold on to power.
The CJI referred to how political parties when they come into power use freebies to regularise the illegal acts of sections of society.”People who violated the law gain through freebies while people who chose to abide by the law are punished… What is the message being given when freebies include regularisation of illegal acts?” the erstwhile Chief Justice Ramana asked.
Mr. Mehta said ordinary taxpayers, when face-to-face with crumbling public infrastructure, would wonder where their money had gone. “They will not understand if freebies become a norm,” the Solicitor General said. The court said it is time to trigger a debate on the issue which raises “serious concern”. “Financial restrictions” need to be debated. The Bench asked the parties to give written suggestions.
On 23 August 2022, during the hearing in the Supreme Court on a petition challenging “irrational freebies” offered by political parties, the erstwhile Chief Justice of India (CJI) N.V. Ramana, heading a three-judge Bench, observed that the parties were “all on one side and everybody wants freebies” to continue.
The court’s intervention, especially a proposal to form an expert broad-based committee to look into the “problem” of freebies, has been met with a furious political backlash from across the political spectrum in the States, many saying that welfare measures undertaken for the people are being misinterpreted in court as “freebies”.
The erstwhile Chief Justice Ramana said the court’s primary concern is that largesse dressed as freebies should not bleed the national economy dry and put more and more burden on the taxpayer. He explained that the purpose behind the proposed formation of a committee was to collect the “experience and wisdom” of the ordinary citizen, and the rural poor, and place the study before the Parliament as a background to debate on a law on freebies.
On August 24, a Supreme Court bench headed by erstwhile Chief Justice of India N.V. Ramana agreed to constitute a bench to take a relook at its 2013 judgment which had held that the promise of benefits made by political parties in election manifestos — or freebies — cannot be said to be a corrupt practice. However, ‘Freebies not bribes but shake the root of fair polls’ — what SC said in 2013 order.
On 26 August 2022, the Supreme Court bench again said that freebies are extended utilising taxpayers’ money and may push the State towards “imminent bankruptcy”, as it directed that the pleas against the practice of political parties promising pre-election handouts be listed before a three-judge bench.
Observing that issues raised before it requires an “extensive” hearing, the top court said though all promises cannot be equated with freebies as they relate to welfare schemes or measures for the public good, fiscal responsibility cannot be dispensed with under the guise of electoral promises. It said these schemes are not only part of the Directive Principles of State Policy but are also a responsibility of the welfare state.
“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 utilising taxpayers’ money only for increasing the popularity of the party and electoral prospects,” a bench headed by erstwhile Chief Justice N V Ramana said.
On August 26, 2022, the court order on Justice Ramana’s last day in office comes against the backdrop of the freebies versus welfare scheme debate that has sparked a political slugfest in recent weeks. The Supreme Court referred a plea seeking to stop political parties from offering freebies to entice voters, to a three-judge bench in view of the “complexity of issues” involved in adjudicating the matter.
The Supreme Court comprising a CJI-led bench, also comprising Justices Suryakant and Hima Kohli, said that there can be no denying the fact that in an electoral democracy, 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 may be noted that on August 9, 2022, erstwhile Vice President M Venkaiah Naidu cautioned against the announcement of populist measures by political parties on the eve of elections, and said the “freebie culture” has led to the deteriorating financial health of many states. However, on Aug 24 he said the issue should be decided by elected representatives and not by the Supreme Court or judiciary. It means the Supreme Court unnecessarily wasted time by entertaining an extraneous issue.
A general concern over ‘freebies’ pushing the economy to ruin or unviable pre-election promises adversely affecting informed decision-making by voters seems unreasonable. A few will be able to distinguish what constitutes ‘freebies’ and what are legitimate welfare measures to protect the vulnerable sections of societies.
The author is an Odisha-based eminent columnist/economist and social thinker. He can be reached through e-mail at [email protected]
DISCLAIMER: The views expressed in the article are solely those of the author and do not in any way represent the views of Sambad English.