ASHWINI KUMAR UPADHYAY versus UNION OF INDIA AND ANR. on 26 August 2022

ORDER

1. The questions raised in the present set of petitions relates topromises made by political parties for the distribution of free goods(‘freebies’) as a part of their election manifesto or during electionspeeches. The main contention of the petitioners is that such pre-electionpromises, which have a largescale impact on the economy of the State,cannot be permitted. The petitioners submit that such pre-election promisesare being made by political parties without any assessment of the financialimplications on the State is nothing but an attempt to attract the votebank. This goes against the spirit of responsible electioneering and isadversely affecting free and fair elections. This severely affects thelevel playing field between the different political parties. The money thatis being paid by the taxpayers is ultimately being misused for politicalparties/candidates to gain or retain power.

2. In this batch of petitions there are two sets of writ petitions.The first batch relates to pre-elections freebies which may influencevoters at the time of elections. The second set of petitions challenge thegrant of benefits by Governments which do not relate to any welfare A

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Ameasure or developmental activity but rather are a ploy to capture votebanks.

3. The learned Solicitor General of India has responded to theabove submissions by stating that the Union has a very limited role whenit comes to this issue and suggested that this Court may constitute aBCommission to consider the same.

4. The Election Commission of India has consistently taken thestand before this Court that it has limited scope to interfere in suchpromises which are being made by political parties/candidates.

5. Additionally, some political parties have filed interventionCapplications in this batch of petitions and have challenged the verymaintainability of these petitions. The main thrust of their submissions isthat the issues raised in these petitions relate to policy or fiscal decisionsof the State, which decisions are clearly outside the scope of the Court’sjurisdiction. They submitted that it is unimaginable that any GovernmentDor Court can prescribe or curtail the rights of political parties to makesuch promises or announcement of schemes as is sought for in the presentcase. The political parties which are responsible for running of theGovernments are conscious and aware of the problems of the people. Itwas, therefore, contended by the interveners to leave the issue open tothe political parties.E

6. When these matters were taken up on 03.08.2022, we had alsosought the opinion of learned Senior counsel Mr. Kapil Sibal regardingthe issues being raised. He was initially of the opinion that this is a seriousissue which needs to be tackled in some manner. However, subsequently,he has expressed his doubts about the appropriateness of judicialFintervention on this issue.

7. Freebies may create a situation wherein the State Governmentcannot provide basic amenities due to lack of funds and the State ispushed towards imminent bankruptcy. In the same breath, we shouldremember that such freebies are extended utilizing tax payers moneyGonly for increasing the popularity of the party and electoral prospects.

8. We have considered the issues raised in these batch of petitionsfrom various angles, as well as the stands taken by the Union of India,the Election Commission of India and some political parties who havefiled intervention applications before us.

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9. There can be no denying the fact that in an electoral democracysuch as ours, the true power ultimately lies with the electorate. It is theelectorate that decides which party or candidate comes to power, andalso judges the performance of the said party or candidate at the end ofthe legislative term, during the next round of the elections. It is alsonecessary to highlight herein the point raised by some of the intervenors,that all promises cannot be equated with freebies as they relate to welfareschemes or measures for the public good. Not only are these a part ofthe Directive Principles of State Policy, but are also a responsibility ofthe welfare state. At the same time, the worry raised by the petitionersherein, that under the guise of electoral promises, fiscal responsibility isbeing dispensed with, must also be considered.

10. This Court has generally stayed its hand when confrontedwith issues relating to policy or fiscal matters concerning the State, asthe same falls outside the ambit of the Court’s jurisdiction. Initially, withthe objective of initiating a discussion about the issues highlighted, wewere of the opinion that it might be appropriate to constitute an expertbody to prepare a report or white paper which could suggest a wayforward. To this end, vide order dated 03.08.2022 we sought forsuggestions from the parties before us regarding the possible compositionof such a body. Additionally, during the course of the last hearing, wehad suggested to the Union of India that an All Party Meeting be calledto consider this issue.

11. Ultimately, it appears to us that the issues raised by the partiesrequire an extensive hearing before any concrete orders can be passed.Certain preliminary issues that may need to be deliberated upon anddecided in the present set of petitions are as follows:

a. What is the scope of judicial intervention with respect to thereliefs sought in the present batch of petitions?

b. Whether any enforceable order can be passed by this Court inthese petitions?

c. Whether the appointment of a Commission/Expert Body bythe Court would serve any purpose in this matter? Additionally,what should be the scope, composition, and powers of the saidCommission/Expert Body?

12. Apart from the above preliminary questions, many of the partiesbefore us have also submitted that the judgment of this Court in S.

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ASubramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659requires reconsideration. In S. Subramaniam Balaji (supra), this Courtwas called upon to determine whether pre-election promises amountedto corrupt practices under Section 123 of the Representation of the PeopleAct, 1951. The Court in that case held that such promises do not fallwithin the ambit of corrupt practices as specified under Section 123 ofBthe Representation of the People Act, 1951, and issued directions to theElection Commission of India regarding framing of certain guidelines, inthe absence of any legislative enactment covering the field.

13. It is submitted by some of the parties herein that the reasoningin the above judgment is flawed as it has not considered various provisionsCof the Representation of the People Act, 1951. It was also submittedthat the judgment incorrectly implies that the Directive Principles of StatePolicy can override the fundamental rights under Part III of theConstitution, which is against the law settled by a Constitution Bench ofthis Court in Minerva Mills Ltd. v. Union of India, (1980) 3 SCCD625.

14. Looking at the complexity of the issues involved, and the prayerto overrule a judgment rendered by a two-Judge Bench of this Court inS. Subramaniam Balaji (supra), we direct listing of these set of petitionsbefore a three-Judge Bench, after obtaining the orders of the Hon’bleEthe Chief Justice of India.

15. List the matter after 4 weeks.

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Nidhi Jain

Directions issued.

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