Terming as "serious" the promise of "irrational freebies" made by political parties during elections, the Supreme Court on Tuesday wondered why the Centre was hesitant about taking a stand on the issue.
The court also asked the Centre whether the view of the Finance Commission can be sought to deal with the issue after the Election Commission said it cannot regulate political parties on it.
"Why don't you say that you have nothing to do with it and the Election Commission has to take a call? I am asking whether the Government of India is considering it a serious issue or not?
"Why are you hesitating to take a stand? You take a stand and then we will decide whether these freebies are to be continued or not. You file a detailed counter (affidavit)," Chief Justice of India N V Ramana told Additional Solicitor General K M Natraj.
The bench, also comprising Justices Krishna Murari and Hima Kohli, was hearing a PIL against the practice of political parties promising freebies during elections. The petitioner wanted the Election Commission to invoke its powers to freeze their election symbols and cancel their registration.
The bench, during the brief hearing, sought the views of senior advocate and Rajya Sabha MP Kapil Sibal, who was in the courtroom in connection with another matter, on the issue of freebies made during and after polls.
"This is a serious matter. Truly serious! The solutions are very difficult but the issue is extremely serious. It is the Finance Commission which gives out allocation to the states... they can take into account the debt of a state and the quantum of freebies.
"Finance commission is the appropriate authority to deal with it. Maybe we can invite the commission to look into this aspect. We cannot expect the Government of India to issue directions to states. This is not possible and this will create a political issue," Sibal said.
Sibal said the Finance Commission can take an informed view with regard to freebies, their quantum and the financial condition of the state where the promises are sought to be implemented.
"Please find out from the Finance Commission as to whether this takes place. You find out who is the authority where we can initiate a debate or something. I will list it next week. We direct the Government of India to get instructions in this matter...," the CJI told the ASG.
At the outset, the counsel for the Election Commission referred to the reply filed in the matter and said that offering freebies before polls and their execution after the results are the policy decisions of political parties, and the central government and not the poll panel, will be the best suited for dealing with this issue.
The poll panel cannot regulate state policies and decisions which may be taken by the winning party when they form the government, the counsel for the EC said.
On the other hand, the ASG insisted the issue needed to be dealt with by the EC.
Calling the matter ”serious”, the bench asked the government not to hesitate from taking a stand.
Lawyer Ashwini Upadhyay, who has filed the PIL, said the poll panel has the power to de-recognise and seize the symbol of political parties and they can be used to stop doling out of irrational freebies.
He referred to the recent Punjab assembly election and said the state, which is precariously placed financially, has to bear the burden of the promises.
"We are on our way to becoming Sri Lanka," he warned.
The top court had on January 25 sought replies from the Centre and the Election Commission on the PIL seeking direction to seize the symbol or deregister a political party that promises or distributes "irrational freebies" before polls, saying it is a "serious issue" as sometimes ”freebie budget is going beyond regular budget”.
The plea, which was filed ahead of the assembly polls in five states including Punjab, said there should be a total ban on such populist measures to gain undue political favour from voters as they violate the Constitution, and the EC should take suitable deterrent measures.
While issuing the notice, the bench had taken note of the submissions of senior advocate Vikas Singh, appearing for Upadhyay, that a law was required to be framed and steps taken for seizure of party symbols or cancellation of registration of parties or both as ultimately it is the citizens who have to pay up.
The plea urged the court to declare that the promise of irrational freebies from public funds before elections unduly influences the voters, disturbs the level playing field and vitiates the purity of the poll process.
"Petitioner submits that the recent trend of political parties to influence voters by offering freebies with an eye on elections is not only the greatest threat to the survival of democratic values but also injures the spirit of the Constitution," said the plea.
"This unethical practice is just like giving bribes to the electorate at the cost of the exchequer to stay in power and must be avoided to preserve democratic principles and practices," it said.
The petition has also sought a direction to the EC to insert an additional condition in the relevant paragraphs of the Election Symbols (Reservation and Allotment) Order 1968, which deals with conditions for recognition as a state party, that a "political party shall not promise/distribute irrational freebies from the public fund before the election".
The petitioner has urged the apex court to declare that the promise or distribution of private goods or services, which are not for public purposes from public funds, before the elections, violates several articles of the Constitution, including Article 14 (equality before law).