It’s ‘pot calling the kettle black’

By Abdul Bari Masoud

The ongoing debate on ‘freebies or giveaways’ triggered by Prime Minister Narendra Modi’s remark should now be put to rest since the Supreme Court has ruled that political parties cannot be denied recognition due to their distribution of freebies.

The court ruling came on the plea filed by lawyer Ashwini Upadhyay who himself is a Bharatiya Janata Party (BJP) member and known for filing such PILs. The issue has become a political slugfest between the ruling party and the opposition following the PM’s repeated attacks on ‘freebies’.

Meanwhile, hearing the Upadhyay plea, the bench led by Chief Justice of India NV Ramana stated that a distinction between welfare measures and freebies should be made.

Ramana said that as a “traditional” judge, he often avoids cases in which the government needs to pass legislation, but that he chose to take on the ‘free-gift’ case because of its severe implications and the discussion that has started about it in the public and in the media.

In his observation, Justice Ramana referred to the economic unrest in neighbouring Sri Lanka, which has been experiencing a crisis that some have attributed to the free-gift culture.

“Welfare schemes are different, giving freebies is different…Some financial discipline has to be there. We can see some other countries having problems because of similar things.”

The bench noted that while it would not “go by emotions” and “make mistakes,” it is obvious that there are issues with freebies that demand an in-depth discussion. The court was clear that it cannot legislate and that it cannot order the Parliament to draft a specific statute.

“We should not go by emotions but we feel there are issues. People keep asking what this government is doing. Why are roads like this? All this needs debate,” it observed.

Upadhyay’s plea filed on August 3 after the PM spoke against ‘giveaways’ sought directions for issuance of instructions to deregister political parties who violate these rules and take their electoral emblems for giving out “irrational freebies” prior to elections.

He also begged for guidance from the EC to add a new clause to the Election Symbols Order of 1968 that states that “political parties shall not promise/distribute unreasonable giveaways from the public purse before election.”

While intervening into the matter, Arvind Kejriwal’s Aam Aadmi Party (AAP) filed a petition on August 8 asking to be heard. The party argued in opposition to Upadhyay’s petition that political pledges like free water, electricity, or public transportation are not “freebies” but rather examples of the state fulfilling its “constitutional duty” to foster a more just society.

AAP was represented by senior attorney Abhishek Manu Singhvi, who argued, “No doubt, the issues are important. But every issue that is important cannot be susceptible to judicially manageable standards. The court should not even embark on a journey to set up a committee which will not lead anywhere.”

However, the argument was overruled by the judges. “Don’t you agree there has to be a distinction between freebies and welfare measures? We are being very cautious. But you cannot say ‘don’t examine the issue at all’. That can’t be…Ultimately in this country, its effect on the public and on the economy requires some debate. We cannot say ‘don’t do this’,” the bench told Singhvi.

At this juncture, the Centre’s solicitor general, Tushar Mehta, intervened and said it was sad that some parties equated freebies with welfare initiatives.

“This understanding is completely unscientific and will lead to an economic disaster…Distribution of freebies has been elevated to the level of an art by some parties recently. Elections are fought only on this plank,” said Mehta, imploring the bench to issue some ‘Dos and Don’ts’ for political parties in the larger national interest.

Senior attorney Vikas Singh, who is representing the petitioner in the case, questioned why the government, which is capable of enacting legislation to control giveaways, is requesting that the court set rules instead of a law. He urged that provisions involving giveaways be added to the Representation of People Act and that parties who violate them be deregistered.

Senior counsel Maninder Singh, who spoke on behalf of the Election Commission of India (ECI), also drew attention to the fact that the electoral body had previously suggested deregistering political parties for breaking specific rules. It is to be noted that the Election Commission had previously taken a position on giveaways, stating that they can be a lifeline in difficult circumstances

However, the bench made it clear that it will not take into consideration any petitions calling for the deregistration of political parties. “That is an anti-democratic thing. We won’t entertain that,” it declared.

The bench criticised ECI throughout the hearing for failing to submit its affidavit to the court despite the information being widely publicised.

In light of the top court’s 2013 ruling in the matter of S Subramaniam Balaji vs. Government of Tamil Nadu & Ors, the poll body also emphasised its limitations. The Supreme Court declined to become involved in schemes wherein gold, TVs, laptops, mixer-grinders, electric fans, dairy animals, and goats were promised in the 2013 verdict, according to ECI, on the grounds that their distribution was directly tied to directive principles of state policy.

Upadhyay, a BJP spokesperson, claimed in his petition that the ECI’s mandate to conduct free and fair elections is violated by arbitrary promises of goodies. The argument used the recently concluded elections in Punjab as an example, citing the Aam Aadmi Party’s pledge to pay every woman over the age of 18 `1,000 a month, the Shiromani Akali Dal’s (SAD) pledge of `2000 per woman, the Congress pledge of `2000 a month, 8 gas cylinders a year to every housewife, a Scooty to every college-bound girl, `20,000 upon passing Class 12, `15,000 upon passing Class 10, `10,000 upon passing Class 8.

Similarly, he refers to the promises made by the Congress prior to the UP Assembly elections, including the promise of a smartphone for every girl enrolled in Class 12, a Scooty for every girl pursuing a graduate degree, free public transportation for women, eight free gas cylinders a year for every housewife, and free medical care up to `10 lakh per family.

Ironically, free rations are being given out in Uttar Pradesh by the BJP itself. The BJP’s “Sankalp Patra,” or election manifesto, made a number of freebies in the 2020 Delhi election promises, including grain at “2 per kg, electric scooters for college girls, and bicycles for schoolgirls of Classes 9–10.

But the BJP member has conveniently failed to mention these facts in his petition.  It is just like the pot calling the kettle black.

Joining the issue, Vice President Jamaat-e-Islami Hind Prof. Mohammad Salim Engineer said there should be a clear distinction between welfare schemes and populist measures. “Despite the country’s big stride on the economic front, a vast majority of the population are still reeling under myriad socio-economic problems and India is the place where the largest people live below the poverty line,” he told Radiance.

We are not in favour of freebies culture but want to continue affirmative measures including MGNREGA and others, he added.

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