Ask finance panel if possible to check freebies: SC to government

The bench, also comprising Justices Krishna Murari and Hima Kohli, said it will see to what extent it can or cannot intervene to stop political parties from distributing irrational freebies and asked the ASG to inform it, which authorities should be prodded to at least start a debate on the subject.

“Let us see. Primarily we will see if there is something which we can do or not. Next week, sometime, I will list. In the meanwhile, you just find out what/who is the authority where we can initiate a debate or something,” the CJI said.

The Supreme Court had issued notice to the Centre and Election Commission of India on the plea by Advocate Ashwini Upadhyay in January this year.

Responding to the notice, the ECI said it has no power to regulate the same or take action against parties making such poll promises. In an affidavit, the poll body said “offering/distribution of any freebies either before or after election is a policy decision of the party concerned, and whether such policies are financially viable or its adverse effect on the economic health over the state is a question that has to be considered and decided by the voters… The Election Commission of India cannot regulate state policies and decisions which may be taken by the winning party when they form the government.”

The Centre did not file any response in the matter.

A similar petition challenging freebies, filed by Pentapati Pulla Rao who contested as a candidate of the Janasena Party from Eluru Parliamentary constituency in Andhra Pradesh in 2019, has also been pending in the Supreme Court since 2019. In that matter too, while the ECI took a similar stand, the Centre is yet to file a response.

On Tuesday, during the hearing of the plea by Upadhyay, ASG Nataraj told the bench “these are issues to be dealt only by the ECI in appropriate proceedings depending on the facts. There can be no generality of the declaration as such. Now they are seeking a general declaration… from the court, which cannot be made.”

The CJI said, “Why don’t you put in writing that we have nothing to do, let ECI take a call?”.

When the ASG repeated that the ECI should decide depending on facts, the CJI said, “I am asking, does the Government of India feel it’s a serious issue or not?”

“No doubt, it’s a serious issue,” the ASG said, to which the CJI remarked, “I don’t understand… to spell out your stand, why are you hesitating?…You take a stand. Then we will decide whether these freebies can be continued or not.”

The ASD agreed to file a detailed counter affidavit.

Upadhyay urged the court to direct the Law Commission to come up with a report in the meanwhile on how to control freebies.

He said he does not agree with the ECI’s stand that it cannot do anything to control promises and distribution of freebies.

Pointing to the debt situation of various states, he said the country would be headed the Sri Lanka way if something is not done urgently.

“But here, the Government of India will control it,” the CJI said, pointing out that states cannot borrow as they wish without clearance from the Centre and RBI. He turned to Sibal who was present for another case and asked him “What is your view about these freebies?” and “How to control” it.

“It’s a serious matter. It’s truly serious. The solutions are very difficult, but the issue is extremely serious,” Sibal said. He said “the Finance Commission, when it makes allocations to various states, can take into account the debt of the state and in the context of that find out whether the state’s economy will be sustainable over the years in the context of the freebies… That’s a procedure that can be adopted. You can’t expect the Government of India to issue directions. That’s not possible.”

“But at least somebody has to think of a way,” the CJI said.

“Yes, so the Finance Commission is probably the appropriate authority to deal with it. That’s an independent body. Maybe, you should invite the Finance Commission to look into it,” suggested Sibal, following which the bench asked the ASG to check with the Commission and inform it.