The Supreme Court on Tuesday asked the Central government to engage with the Finance Commission on the issue of political parties inducing voters through freebies, and examine if there is a possibility to regulate it by taking into account money spent on freebies.

A bench headed by Chief Justice N.V. Ramana and comprising Justices Krishna Murari and Hima Kohli told Additional Solicitor General K.M. Nataraj, representing the Central government, “please find out from the Finance Commission. Will list this sometime next week…what is the authority to initiate debate…”

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During the hearing, Justice Ramana asked senior advocate Kapil Sibal, who was present in the courtroom for some other matter, his views on a PIL questioning freebies announced during polls by political parties. The Chief Justice said: “Mr. Sibal is here as a senior parliamentarian. What is your view?”

Sibal replied that freebies are a serious matter but it is difficult to control politically and the Finance Commission, while making allocations to various states, should take this into account — debt of states and then freebies. “Centre cannot be expected to issue directions,” Sibal said, adding that the Finance Commission is the appropriate authority to examine this issue. The bench said: “We direct the government of India to get instructions in this matter…”

The Election Commission of India counsel submitted that it was held in previous judgments that a manifesto was part of the promises of a political party. The bench replied, “We are on freebies to bribe the electorate. Now if you say it’s hands off for you, then what is the purpose of the Election Commission of India?” The ECI counsel suggested that the Central government could bring a law to deal with the issue, however Nataraj suggested that it falls under the domain of the ECI.

The bench responded that under this scenario, it will record that the Central government has nothing to say on this, and queried, “Why is the Centre hesitating to take a stand?”

The top court was hearing a PIL by advocate Ashwini Kumar Upadhyay against the announcements made by political parties for inducing voters, through freebies, during elections. During the hearing, Upadhyay contended, “If I’m a citizen of UP, I have a right to know as to how much debt we have…”

Upadhyay argued that ECI should debar state and national parties from making such promises. After hearing arguments, the top court scheduled the matter for further hearing next week.

In April this year, the ECI told the Supreme Court that offering freebies either before or after the elections is a policy decision of the political party, and it cannot regulate state policies and decisions taken by the parties.

In an affidavit, the ECI said: “Offering/distribution of any freebies either before or after the election is a policy decision of the party concerned and whether such policies are financially viable or its adverse effect on the economic health of the state is a question that has to be considered and decided by the voters of the state.”

It further added, “The Election Commission cannot regulate state policies and decisions which may be taken by the winning party when they form the government. Such an action without enabling provisions in the law, would be an overreach of powers.”

Upadhyay’s PIL claimed that the promise or distribution of irrational freebies from public funds before polls shakes the roots of a free and fair election, and vitiates the purity of the election process. The plea sought a direction from the top court to declare that the promise of irrational freebies, which are not for public purposes, from public funds before election, violates Articles 14, 162, 266(3), and 282 of the Constitution.

The plea contended that a condition should be imposed on the political party that they would not promise or distribute irrational freebies from the public fund. The EC responded that it “may result in a situation where the political parties will lose their recognition even before they display their electoral performance”. On January 25, the top court had issued notice on the plea.