Revadi is a very popular sweet in Haryana but the phrase "free ki revadi" is more popular these days. A Public Interest Litigation (PIL) was filed in the Supreme Court asking to declare that promise of irrational freebies made before elections to be accorded for later from public fund unduly influences voters, disturbs level playing field, shakes roots of free-fair election and also tantamount to misuse of public fund which is analogous to bribery before the elections.
The apex court, taking cognizance of the issue, has directed an expert body consisting of stakeholders such as NITI Aayog, Finance Commission, Law Commission, Reserve Bank of India, members of ruling party and Opposition parties to come forth and give suggestions to address the issue of promise of freebies during the election campaigns.
No one can raise a grievance that the state is using funds for any welfare scheme; only the irrational freebie paid from public funds which influences elections would come under the scanner. The Supreme Court has tasked an expert committee to give suggestions as to what all would be deemed 'irrational freebies'.
The said committee would have to ascertain the sway it may hold on the outcome of the elections in light of these schemes. Expert panel has to identify whether only irrational use of public funds can unduly influence an election or perhaps welfare measures which provide free of cost benefits are also 'unduly' influencing the voters.
Political parties in power have the right to frame policy and schemes to benefit citizens, but can these be said to be unduly influencing the voter or amounting to bribery?
Taking for example the Covid vaccination programme. Can it be called an irrational freebie? If no, then why was the booster dose of the same vaccination programme not free? What about polio and other vaccination programmes -- are those not welfare measures? Where does one draw a line between welfare measure and freebie?
By strict standards, any free of cost provision of the government would tantamount to a freebie. Having said that, is it not the job of the welfare state to look after its citizens and specially those who are socially and economically marginalised?
Article 38 of the Constitution of India directs the State to strive to promote the welfare of the people by securing and protecting as effectively as it may a social order in which justice -- social, economic and political may prevail. Welfare schemes strive to provide a free service with an intent to secure social and economic justice and to minimise inequalities in income, status, facilities and opportunities.
Such benefits may be "free", but these free benefits cannot be considered irrational or illegal in the eyes of law. Such schemes have been introduced to help the poor; and the capable taxpaying citizens have been tasked to share the burden of their fellow underprivileged countrymen.
The state has to ensure that a fine balance has to be maintained so that the growing burden on the taxpaying citizen does not also become insufferable.
Back in 2015, the Supreme Court had refused to entertain a PIL which sought to make the political parties liable for the poll promises mentioned in their manifesto. It meant that all promises made by political parties in their election manifestos cannot be enforced by a common voter.
The voter is well aware that he cannot tie down any political parties for any rational or irrational freebies they may have been promised during the election. As a corollary, no question can arise that the voter is being unduly influenced by these grandiose promises.
The Election Commission of India is the statutory body whose sole objective is to look after the affairs of conducting an electoral exercise.
Even so, it has refrained from regulating parties making certain poll promises. It took a clear stand that offering freebies is a policy decision of a party and that the commission cannot regulate state policies and decisions which may be taken by the winning party when they form the government.
The Central government is of the view that "freebies" distort the informed decision-making of the voters and can lead to economic disaster. But since these promises are not enforceable by the common voter, how can it be said that it will distort the decision making of a voter?
Any political party which comes in power after winning an election has the support of its people as much as the concomitant duty to maintain balance between economy of the state and welfare of the people.
As of today, the court cannot prevent political parties from making promises nor can they be made enforceable on the parties. As free and fair elections form a tenant of the basic structure of our Constitution, the courts also have a Constitutional duty to ensure that the elected government runs per the provision of the Constitution.
Any irrational, arbitrary misuse of public funds which may affect the elections can very well be checked by the Courts, and so the question that requires due deliberation is what constitutes an irrational promise? Will the promise of free education be a freebie? Can free drinking water, mid-day meal, minimum essential units of powers etc. be described as freebies? Can consumer products and free electronics pass off as welfare?
The concern of courts should not be what is the best mechanism of spending public money but to check the arbitrary misuse. In India, every State has different needs and priorities and no court can issue guidelines as to how to use public money universally. The expert body constituted by the Supreme Court has to identify common malpractice across India regarding the misuse of public funds.
Having said that, it's fair to add that an elected government is better placed to decide what benefit/welfare scheme should be introduced. In today's times, even a skewed narrow capitalist outlook will cater to some measures of social security by indulging in some free and supportive schemes.
Let's not belittle the electorate and its common sense to decide what is 'welfare' for its people.
(Yasharth Kant is an Advocate on Record, Supreme Court. His Twitter handle is @yasharthkant and he can be reached on email at yasharthkant@gmail.com. Tanvi Saran Srivastava is a Law Officer in a central PSU. Her twitter handle is @tanvisaran and she can be reached on email at tanvisaransrivastava@gmail.com.)