SC forming panel to examine issue of freebies by political parties is ‘burial by committee’: Experts

“The question before SC and committee is, what will be the effect of these freebies on elections. How is the committee going to answer that question?” senior counsel Rajeev Dhavan wondered

Supreme Court of India
Supreme Court of India
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Ashlin Mathew

Most senior law experts and advocates believe that the Supreme Court’s decision to form a committee to look into the issue of freebies by political parties is, in effect, ‘burial by committee’.

The Supreme Court, on August 3, decided to set up an expert group comprising members from the government, Opposition parties, Niti Aayog, Election Commission, Finance Commission and Reserve Bank of India (RBI) to study the impact of freebies being announced by political parties during elections on the economy.

The matter has been posted for August 11.

A bench of Chief Justice NV Ramana and Justices Krishna Murari and Hima Kohli asked the Centre, Election Commission, senior advocate and Rajya Sabha MP Kapil Sibal, and the petitioners to submit their suggestions within seven days on the composition of the expert body that will examine the issue of how to regulate freebies. It was hearing a Public Interest Litigation (PIL) petition filed by Ashwini Upadhyay seeking directions to regulate freebies by political parties.

However, most senior law experts believe that the issue will end with the formation of the committee. “The question before the committee and the court is, what will be the effect of these freebies on elections. How is the committee going to answer that question?” senior counsel Rajeev Dhavan wondered.

“The committee can’t say ban this and ban that because for any recommendation to come into force, the electoral law has to be changed and it will be difficult to enforce,” he added.

“The reason is that it is a political party which is announcing these freebies, so will they go after the party or the politician announcing it. They can’t disqualify parties. The impact of this committee on electoral law and disqualification are the real issues,” said Dhavan.

Senior Supreme Court advocate Sanjay Hegde had a similar opinion. “There is only a committee that is being formed. No report has come yet. The issue of jurisdiction will arise only if the apex court decides to act on the recommendations of the committee. As of now, it seems like it will be a burial by committee,” he maintained.

“The Supreme Court will be better informed on the issue once the committee gives its report as it can then decide if they want to answer the problem or not,” he added.

Indian Civil Liberties Union (ICLU) founder and Supreme Court lawyer Anas Tanwir asserted that if the Supreme Court is concerned with electoral reforms, the first step would be to take up the Electoral Bonds case pending before it since 2019.

“The issue of Electoral Bonds affects free and fair elections far more than freebies can ever do. We are a welfare State and it is but necessary that the subsidies and the so called ‘freebies’ are announced and continued. A majority of the population requires it,” he observed.

Petitioner Ashwini Upadhyay’s counsel Vikas Singh suggested that a model code of conduct be drafted by the EC. In his plea, he had claimed that political parties announce freebies to lure voters. He wanted political parties to consider public debt too.

Appearing for the Union government, Solicitor General Tushar Mehta claimed that populist freebies distort informed decision making of the voter and if unregulated, it would lead to an economic disaster.

The grant of the so called ‘freebies’ is not an affront on the taxpayers’ money, noted Tanwir, which, he said, was being used for making statues and a new Central Vista.

Sibal, who was invited to give suggestions on the matter, said that the Election Commission should be kept away from the discussion as the issue was political and economic in nature and did not concern elections. He also suggested that Parliament should discuss the issue.

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