Supreme Court Scrutiny of Election Freebies: Judicial Concerns and Policy Implications

The Supreme Court of India has recently intensified its scrutiny of the practice of political parties promising freebies during election campaigns, raising profound questions about fiscal responsibility, democratic integrity, and socio-economic impact. In a series of judicial observations and ongoing legal proceedings, the Court has challenged the sustainability of such promises, questioning whether they foster economic dependency rather than empowerment. These developments reflect a growing judicial concern that the unregulated distribution of freebies could impose unsustainable burdens on public finances while potentially disincentivizing productive economic participation among citizens. The discourse has evolved into a complex debate distinguishing between legitimate social welfare schemes and populist electoral promises that may compromise long-term fiscal health.

Judicial Observations and Concerns

The Supreme Court’s recent interventions have been marked by strong observations regarding the societal effects of election freebies. During a hearing on July 31, 2024, concerning the right to shelter for homeless individuals in urban areas, a bench comprising Justices B.R. Gavai and Augustine George Masih expressed disapproval of the practice of offering freebies just before elections. Justice Gavai observed, "Unfortunately, because of these freebies... the people are not willing to work. They are getting free rations." The bench further questioned the long-term impact of such measures, asking, "Rather than promoting them to be a part of the mainstream of the society by contributing to the development of the nation, are we not creating a class of parasites?" This analogy, while stark, underscores the judiciary’s apprehension that freebies might cultivate a culture of dependency, thereby undermining the workforce participation essential for national development. The Court specifically referenced schemes like "Ladki Bahin" as examples of pre-poll promises that could contribute to this phenomenon.

These observations were made in the context of a case related to homeless individuals, yet the Court expanded the discussion to address the broader implications of freebie promises on the economy and social fabric. The judiciary’s concern is not merely about the financial cost but about the potential distortion of economic behavior and the erosion of the work ethic. The Court’s questioning—“Are we not creating a class of parasites?”—highlights a critical evaluation of whether such policies integrate citizens into the mainstream economy or create a parallel class dependent on state largesse. This judicial perspective suggests a need to re-evaluate the nature of state support, advocating for schemes that promote self-reliance over indefinite dependency.

Legal Proceedings and Pending Petitions

The judicial scrutiny is not limited to oral observations but is actively embedded in ongoing litigation. Multiple petitions have been filed challenging the constitutional and legal validity of promising freebies during elections. A significant case is Ashwini Kumar Upadhyay v. Union of India, which is currently pending before the Supreme Court. This Public Interest Litigation (PIL) seeks to address the practice of offering and distributing freebies during election campaigns. The petitioner, Ashwini Kumar Upadhyay, is represented by lawyers Vikas Singh and Ashwani Kumar Dubey, while the respondents include the Union of India and the Election Commission of India, represented by Tushar Mehta and Maninder Singh, respectively.

The case has attracted considerable interest, with several intervenors joining the proceedings. These include political parties such as the Aam Aadmi Party (represented by Abhishek Manu Singhvi, Kapil Sibal, and P. Wilson), the Dravida Munnetra Kazhagam (DMK), and the All India Mahila Congress. Other intervenors are the Taxpayers Association of Bharat and the Centre for Public Interest Litigation (represented by Prashant Bhushan). The key legal questions before the Court are multifaceted: 1. Does promising freebies amount to bribing voters? 2. Are all freebies wasteful, or can some be considered social welfare schemes? 3. What kind of election promises amount to inefficient utilisation of public funds? 4. Who decides whether a party is using funds for a ‘public purpose’?

These questions were highlighted after Prime Minister Narendra Modi’s July 2022 remark warning against the "revdi culture," which he described as dangerous for the country’s development. This political commentary set the stage for judicial intervention, framing the debate around the balance between welfare and fiscal prudence.

In a separate but related development, the Supreme Court issued notices to the Union of India and the Election Commission on October 14, 2024. This was in response to a fresh petition filed by Bengaluru resident Shashank J Sreedhara, represented by Advocate Balaji Srinivasan. The petition argues that the unchecked offer of freebies places a substantial and untracked financial burden on the public exchequer and that there is no mechanism to ensure the fulfillment of pre-poll promises used to secure votes. The petition seeks a direction to the Election Commission to take effective steps to restrain political parties from making such promises during the pre-election period. A bench comprising Chief Justice D.Y. Chandrachud, Justice J.B. Pardiwala, and Justice Manoj Misra tagged this matter with other similar pending pleas, indicating a consolidation of these legal challenges.

The Judiciary’s Stance on Intervention

While the Court is actively hearing these matters, it has also exhibited caution regarding the extent of its intervention in policy matters. During an earlier hearing on August 8, 2022, a bench led by Chief Justice N.V. Ramana (as he then was) and Justice Krishna Murari considered whether the Court was the appropriate forum to adjudicate on what is essentially a legislative and policy issue. CJI Ramana took a strictly textual and conservative judicial view, acknowledging that political freebies are an important concern but stressing that a balance must be struck between social welfare and the burden on the public exchequer.

Significantly, CJI Ramana noted that questions regarding the regulation of freebies might be better answered by the Election Commission or other independent bodies responsible for maintaining fiscal discipline. He was careful to mention that de-registration of a party as a penalty for promising freebies would be undemocratic. This hesitation reflects the principle of separation of powers, suggesting that while the judiciary can interpret laws and constitutional validity, the formulation of policy on election promises and fiscal management rests with the legislature and executive. However, the Court has not shied away from issuing notices and seeking responses from government bodies, signaling that it remains a crucial forum for addressing the legal and constitutional dimensions of the issue.

Distinguishing Freebies from Social Welfare

A recurring theme in the judicial discourse is the need to differentiate between "freebies" and legitimate "social welfare schemes." This distinction is critical for determining which promises are permissible and which are detrimental. Intervenors in the Ashwini Upadhyay case, notably the Aam Aadmi Party, emphasized this differentiation, arguing that not all freebies are wasteful. The Court has acknowledged that some level of state support is necessary for a welfare state, but the challenge lies in defining the limits.

The core of the debate is whether a promise serves a genuine public purpose or merely acts as an inducement to vote. For instance, providing free rations or financial aid to vulnerable sections of society could be seen as essential welfare. However, when such promises are made indiscriminately or without a sustainable financial plan, they risk being categorized as populist freebies that drain the exchequer. The judiciary is tasked with navigating this fine line, ensuring that constitutional values of equality and economic justice are upheld without endorsing fiscal irresponsibility.

Conclusion

The Supreme Court’s engagement with the issue of election freebies represents a critical juncture in Indian democracy, where the judiciary is probing the boundaries between electoral promises, welfare obligations, and fiscal sustainability. Through its observations in cases like Ashwini Kumar Upadhyay v. Union of India and the petition by Shashank J Sreedhara, the Court has highlighted the risks of creating a dependency culture and the need for fiscal accountability. While the judiciary has expressed reluctance to encroach upon policy domains, it has firmly established that the legality and constitutional validity of freebies are subject to judicial review. The ongoing proceedings underscore the necessity for a structured framework—potentially involving the Election Commission and fiscal oversight bodies—to regulate election promises. Ultimately, the Court’s intervention aims to safeguard the public interest, ensuring that the democratic process is not compromised by short-term populism at the expense of long-term economic health and social empowerment.