A bitter note crept into the Supreme Court’s hearing on Tuesday of a petition challenging “irrational freebies” offered by political parties, as Chief Justice of India NV Ramana said political parties are “all on one side and everybody wants freebies” to continue.

The court’s intervention, especially a proposal to form an expert broad-based committee to look into the “problem” of freebies, has been met with a furious political backlash from across the political spectrum in the States, many saying that welfare measures undertaken for the people are being misinterpreted in court as “freebies”.

Chief Justice Ramana said the court’s primary concern is that largesse dressed as freebies should not bleed the national economy dry and put more and more burden on the taxpayer. The Chief Justice explained that the purpose behind the proposed formation of a committee was to collect the “experience and wisdom” of the ordinary citizen, the rural poor and place the study before the Parliament as a background to debate on a law on freebies.

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“But we find that in this issue, all political parties are on one side… Everybody wants freebies, Everybody! That was exactly why we wanted a neutral body to look into the issue,” Chief Justice Ramana explained.

At one point, the CJI turned the court’s ire on the DMK counsel, senior advocate P Wilson, saying, “Don’t think you are the only wise party. The way you are talking, giving statements... Don’t think we are ignoring all that is being said”.

Fiscal concerns

Senior advocate Vijay Hansaria, for petitioner Ashwini Kumar Upadhyay, said, “Political parties cannot say ‘who is the Supreme Court’ when freebies they offer may disturb the fiscal discipline of the country”.

But senior advocate Kapil Sibal, who was called on to assist the court in his capacity as a parliamentarian, said a committee, if formed, would be embarking on an “unmanageable exercise”. He cautioned that the court’s intervention should avoid giving itself a “political colour”.

He said the issue should be tackled purely as a financial one. He referred to the Fiscal Responsibility Management Act passed by the Union and the States, by which the deficit cannot go beyond 3 per cent. He said the Financial Commission could look into the problem. “Forty one per cent of the revenue goes to the States. The Finance Commission monitors and allocates the budget. If States exceed the allocation paid to them and if it goes beyond the 3 per cent deficit mark, the allocation for the next year can be reduced. If an expert committee goes out and asks for recommendations, it would not be manageable. This should be a manageable exercise,” Sibal advised the court.

Chief Justice Ramana, heading a three-judge Bench, said the court had never intended to make a judicial law on freebies.

Parliament debate needed

“Ultimately, this is a democracy. The Parliament has to debate and discuss and take a decision… But to have this discussion in the Parliament. There must be some background paper. It is for that purpose that I had initiated this debate to form a committee… I honestly confess I had thought in the beginning that this was an issue in which people were concerned about the economy and public welfare… We thought we could look into the issue and make some suggestions… not a law or recommendations. I thought these could be placed before the Parliament. That is why I thought of a committee… Now, we are running short of time, particularly I (the CJI is retiring on August 26)... The opposition is such that nobody wants to even look into the issue of forming of a committee,” Chief Justice Ramana observed.

Senior advocate AM Singhvi, for Aam Admi Party, said the Supreme Court should not be asked to gag free speech in the political arena. He said the court should not make “advance” preparations for a Parliament debate on an issue.

“Are Your Lordships being asked to make a gag scheme without saying so? In the dialectics of the political arena, all kinds of things happen that even the Supreme Court or a Committee or even the Parliament cannot control… If the Parliament passes a law, even a wrong law, I can come to court and test it. But if the court gives a judgment in advance, where do I go? Can the court decide in advance the extent to which the Parliament should go into an issue,” Singhvi asked.

What constitutes freebies?

Solicitor General Tushar Mehta, for the Centre, however submitted that the court cannot remain a “mute spectator” to outlandish promises of free sarees, TVs, electricity or water.

“What if the parties make false promises burdening the finances in such a way that they destroy the national economy,” Mehta asked.

Senior advocate Gopal Sankaranarayanan, for petitioner, said “freebies” would be “easier to define by what they are not”. He said free education, healthcare, drinking water, sanitation, electricity, etc, were statutory obligations of States and part of people’s rights under Article 21. On the other hand, “freebies” like mixers, TVs, grinders, scooters, cash, etc, do not serve any public purpose and cater to only sections. Freebies could be identified for benefits which were not extended to address a crisis or an emergency.

But Chief Justice Ramana said freebies cannot be classified into such “water-tight compartments”. What may seem like freebies to the urban population may provide for the welfare of the rural poor.

“A shaving kit for a barber, a bicycle for a student, equipment for a toddy tapper or an iron for a washerman change their lifestyle and uplift them… That is why, sorry to say, you elite lawyers cannot understand. These are issues which have to be studied nationwide, across people. We have to learn and experience these things through their knowledge and wisdom. That is the reason for proposing a broad-based committee,” Chief Justice Ramana explained.

Pre-poll promises

Senior advocate Vikas Singh, also for the petitioner, said the petition was focussed on pre-election promises of irrational freebies. The main contention was that a political party making such a “wild” offer should also say where it would get the money from.

“But unless and until the political party making a pre-election promise knows the state of economy of the State, how can it say where it will get the money from?” Chief Justice asked.

“All that information is available in the public domain… and if it does not know the finances of the State and still makes promises, that will be completely irresponsible,” Singh reacted. eom

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