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Legislation or court guidelines? Who will put freebies in a box?

Experts dwell on whether or not there can be a legal definition of the term 'freebies'

Supreme COurt

It was also suggested to the court that the court itself can make guidelines for the parties to adhere to just like the Vishaka guidelines

Bhavini Mishra New Delhi
In yet another brainstorming session in the Supreme Court on how to regulate freebies, the new question that was raised on Tuesday was if there can be a legal definition of the term 'freebies'.

Chief Justice of India N V Ramana said balance is of utmost importance while debating this issue. “Suppose tomorrow a particular State says they are giving out freebies or launching a scheme, do we say it is the prerogative of the State government and leave it as it is? There has to be a balance,” he said.

Senior Advocate and Legislator Kapil Sibal informed the court that when a State’s deficit increases beyond 3 per cent, it could be regulated. “If the States exceed their budget allocation, then the next allocation can be reduced,” he said.

Solicitor General Tushar Mehta pointed out that people cannot be mere spectators when the Chief Minister of a particular State offers freebies. “Voters have the right to informed choices, and false promises are destroying the economy,” he said.

Senior advocate Vikas Singh, for petitioner Ashwini Upadhyay, said the real problem is the legal definition. He said freebies can be controlled before the elections when parties announce their manifesto. It(freebies) creates an unlevel field. “Voters have the right to know where their tax money is going and for what purpose it is being used. How do you plan to pay for the freebies should be included in the manifesto,” he said.

The Court also expressed its displeasure over remarks made by Tamil Nadu Finance Minister Palanivel Thiaga Rajan. CJI Ramana told DMK MP and Senior Advocate P Wilson: “I want to say so many things, but I don’t want to, being a Chief Justice, talk about your party or minister.”

Earlier, the DMK Minister had, in a television debate, asked the central government “on what basis” state governments should change their policies on freebies. “Do you have a constitutional basis? No. Are you a financial expert? No. Do you have a Nobel prize? No. Have you performed better than us? No. On what basis should I change my policy for you? Is this some extra-constitutional diktat coming from heaven?” he had asked in the debate.

Taking the court discussion further, a definition of what doesn’t constitute a freebie was put before the court by Senior Advocate Gopal Sankaranarayanan, appearing for the petitioner, which is as follows:

1. Freebies are not a constitutional obligation.

2. Freebies are not for the entire population but only for a section of people

3. They do not have a direct link to public purpose

4. They are not for crisis or emergency

The court, however, said that the concept should not be put in such a volatile compartment. “Free houses and bicycles in rural areas have changed the lives of many people. It makes a lot of difference for people there. So is this a freebie or given for the upliftment of people?” the court asked.

Senior Advocate Abhishek Manu Singhvi, appearing for the Aam Aadmi Party(AAP), said the court cannot restrict pre-election promises as it will affect the freedom of speech and expression. “In the pre-election stage, curtailing the parties from saying something doesn’t sit right. In the legal sense, Parliament can make a law,” he said.

It was also suggested to the court that the court itself can make guidelines for the parties to adhere to just like the Vishaka guidelines.

Opposing this, Singhvi said if the court does so the remedy for political parties to move the court would be exhausted in that case. “If the parliament makes a law I can approach the court but if the apex court makes the guidelines, where do I go?” he asked.

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First Published: Aug 23 2022 | 3:42 PM IST

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