Chief Justice of India DY Chandrachud on Wednesday agreed to hear a plea raising the issue of political parties promising electoral freebies. The Chief Justice agreed to retain the case on board and termed it to be an important matter.

Appearing for petitioner, Senior Advocate Vijay Hansaria requested an urgent listing of the pending matter of the distribution of freebies from public funds by political parties. The counsel noted the issue of the absence of any provision in the Representation of The People Act, 1951 (RPA) bestowing powers to the Election Commission (EC) to de-register a political party.

The Chief Justice, agreeing to the urgency of the matter, said that the bench yesterday discussed that the election freebies is an important matter and that they need to look at it. Subsequently, the counsel urged the bench to list and hear the petition tomorrow itself. To this, CJI DY Chandrachud reverted that they will keep the matter on board and the moment little infructuous matters on board get cleared they will keep it. 

The case relates to a plea filed by lawyer and former BJP Delhi Spokesperson Ashwini Upadhyay seeking directions to the Election Commission of India (ECI) to not permit political parties to promise freebies during election campaigns.

The plea argued that political parties make promises during elections, without any assessment on financial implication on state economy, merely to attract vote banks. Hence, the tax-payers’ money is used by political parties to remain in power and this adversely affects free and fair elections, the plea added.

The petition, filed by Ashwini Upadhyay, has urged the court to declare that promise of irrational freebies from the public fund before the election unduly influences voters, disturbs the level playing field, shakes the roots of a free-fair election and vitiates purity of election process.

Additionally, it also asked the court to declare that distribution of private goods and services, which are not for public purposes, from public funds before the election, violates Articles 14, 162, 266(3) and 282 of the Constitution. It further urged the court to rule that distribution of irrational freebies from the public fund before election to lure voters is analogous to Bribery and Undue Influence under S.171B and S.171C of the IPC.

Earlier in 2022, a bench led by the then Chief Justice of India NV Ramana referred the matter to a three-judge bench.

The Bench headed by Justice DY Chandrachud will now be hearing the case before the Supreme Court on freebies promised by political parties before the elections.

The Chief Justice of India (CJI) NV Ramana, who was hearing the matter in the case so far has officially handed the order for Juatice DY Chandrachud to take the matter further.  

During the hearing today, in continuation with previous suggestions for the formation of a committee to deliberate on the issue, Senior Advocate Vikas Singh suggested  a retired Supreme Court judge should  head the committee which decides on this matter  like that under Justice Lodha…”

The Solicitor General of India  Tushar Mehta replied,

“I think a Constitutional body should head the committee to deliberate.”

The CJI NV Ramana who was part of the hearing sad that “Why doesn’t the Government of India form a committee to study this issue?”

The Solicitor General said that the Central government will extend every possible help in the case and that the committee can submit a report on the issue in three months.

On behalf of the Election Commission Advocate Arvind Datar questioned what can be defined as a freebie?

“If something is there in manifesto, can it be called a freebie? There is enough material available to judge the economic impact of freebies.”

As it was a pertinent question , CJI Ramana went on to observe,

“Who is in opposition today can come into power tomorrow and they will have to manage this. So things like freebies etc which can destroy the economy. It has to be looked at and I just cannot pass a mandamus. Thus, there needs to be a debate.”

Vikas Singh presented in court then submitted a Supreme Court’s 2013 judgment of Subramanian Balaji Vs Govt of Tamil to be reconsidered. In that judgment, the Court had held that promises made by political parties in the election manifesto would not amount to ‘corrupt practices’ as per Section 123 of the Representation of People Act.

The Order in the above also said that the Comptroller and Auditor General of India (CAG) cannot dictate how governments spend their money, and that the Court cannot make guidelines or laws on what election promises should be allowed.

Listening to what Vikas Singh had to say, the CJI Ramana said,“I will be constituting a three judge bench to hear this led by Justice DY Chandrachud.”