Supreme Court Law Insider

Bhuvana Marni

Published on: November 02, 2022 at 19:08 IST

On Tuesday, a three-judge bench of the Supreme Court, including Chief Justice UU Lalit and Justice Bela M. Trivedi, ordered that the case involving freebies given out during election campaigns be heard.

The court declared that the issue would be listed as soon as feasible, taking into account the nature of the controversy and the submissions made by the parties in the earlier sessions.

The development results from a PIL filed by Ashwini Upadhyay, a lawyer and former BJP Delhi spokesperson, asking the Election Commission of India (ECI) to not prohibit political parties from promising freebies during election campaigns.

The petitioner had stated that political parties make election-related promises without considering their financial implications on the state economy to increase their vote bank.

Advocate Shadan Farasat argued that the Supreme Court’s most recent reference order could require the matter to be heard by a three-judge bench. When the case was last heard, then-CJI NV Ramana had said:

“Looking at the complexity of issues and the prayer to overrule Subramaniam Balaji, we refer the matters to a 3-judge bench.”

However, Advocate Ashwini Upadhyay submitted that only the prayer to overrule the Subramanian Balaji judgement needed reference to a three-judge bench. He submitted,

“We are requesting for a committee to be formed for a standard manifesto. We are proposing an Expert Committee to control irrational freebies in the larger public interest and to ensure a free and fair election.”

“The combination of the Expert Committee may be– the Chief Election Commissioner of India as Chairman, the Governor of Reserve Bank of India, the Chairman of the Finance Commission of India, the Vice Chairperson of NITI Aayog, the Controller and Auditor General, the Secretary of GST Council and presidents of Institute of Charted Accountants of India and the Institute of Cost Accountants of India– as members.”

However, the bench was not convinced. CJI Lalit remarked–

“Once there is a reference order, let it be decided by three judges. Let the instant matter be listed before a three-judge bench of this court.”

Through the petition, the petitioner argued that political parties make election-related promises without considering the financial implications on the state economy to gain support. Political parties utilized taxpayer money as a result to maintain their positions of power, which hurt free and fair elections.

The court had determined during the last hearing that the following preliminary concerns could require consideration:

a. What is the scope of judicial intervention concerning the reliefs sought in the present batch of petitions?

b. Whether any enforceable order can be passed by this Court in these petitions?

c. Whether the appointment of a Commission/Expert Body by the Court would serve any purpose in this matter? Additionally, what should be the scope, composition, and powers of the said Commission/Expert Body?

The Supreme Court had ordered that this batch of petitions be listed before a three-judge bench due to the complexity of the issues raised and the request to overturn a decision made by a two-judge Supreme Court panel in S. Subramaniam Balaji vs. Govt. of Tamil Nadu.

In S. Subramaniam Balaji, the Supreme Court was asked to decide whether pre-election promises qualified as corrupt practices under Section 123 of the Representation of the People Act, 1951.

In that instance, the court ruled that such promises are not considered corrupt practices as defined by Section 123 of the Representation of the People Act, 1951, and it gave the Election Commission of India directions on how to frame guidelines in the absence of any relevant legislation.

Case Title: Ashwini Upadhyay vs. Union of India | Writ Petition (Civil) 43 of 2022

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