Calling “freebies” a complex term, the Election Commission of India (ECI) on Wednesday told the Supreme Court that it welcomes constitution of an expert panel for a deliberation on ways to regulate electoral promises on hand-outs, but would rather stay away as a participant due to its role as an arbiter of political disputes.

In an affidavit filed a day before the top court is expected to hear a petition by lawyer Ashwini Upadhyay, the ECI supported the top court’s suggestions last week on initiating a consultative process, stating it will be greatly benefitted by the recommendations of an expert body that the court may deem appropriate to set up and that the statutory body could also accordingly strengthen or modify its existing guidelines in the interest of the purity of the electoral process.

However, the ECI added, it may not be appropriate for the Commission, being a constitutional authority, to be part of the expert committee, especially if there are ministries or government bodies in the panel.

“Further, there are continuous elections in the country and any opinion/view/comment during deliberations in a multi-member body might, in the event of being publicised, amount to pre-decide the issue and disturb the level playing field,” said the poll panel.

Upadhyay has sought directions for issuance of stringent guidelines to deregister errant political parties and seize their election symbols for offering “irrational freebies” ahead of polls.

The ECI further said it is difficult to define “irrational freebies” and that a variety of factors, including nature and contours of promise, its scope of coverage, prevailing context and specific situation will need to be examined to ascertain if any electoral promise could disturb the level-playing field.

“Due regard to varying aspects of social, economic, political equity/inclusion, sustainability of finances and fiscal space in short/medium/long-term and cross sectoral implications, such as environmental sustainability, further add complexity to the understanding of the term freebies,” added the poll body.

Citing the top court’s 2013 judgment in the case of S Subramaniam Balaji vs Government of Tamil Nadu & Ors, the ECI said the court had declined to interfere in schemes under which gold, TVs, laptops, mixers-grinders, electric fans, milch animals and goats were promised on the grounds that their distribution was directly related to directive principles of state policy.

ECI also complained that the oral observations of the court during a previous hearing has caused irreparable damage to the reputation of this institution built over the years.

In a previous hearing on July 26, a bench headed by Chief Justice of India, NV Ramana, observed that “may God save ECI if it can only wring its hands when electorates are sought to be bribed through freebies”.

Before the bench, ECI has taken a position that the poll body cannot regulate distribution of freebies and that it is for the voters to decide whether they should elect leaders even if such hand-outs could harm the economic health of a state.

While considering Upadhyay’s petition on August 3, the court remarked that no political party wants freebies to go, even as the Union government termed such hand-outs the “road to an economic disaster” and urged ECI to devise ways to deal with them. The Centre conveyed its stand to the court days after Prime Minister Narendra Modi hit out at the culture of freebies (calling it the ‘revadi’ culture) while speaking at an event in Uttar Pradesh on July 16.

On that day, the court also indicated that it may consider setting up a panel which can go into the issue “dispassionately” and make recommendations to the Centre and ECI, as it sought suggestions from all parties by August 11.

The bench will on Thursday take up Upadhyay’s petition along with a plea by the Aam Aadmi Party (AAP), which has opposed the petition arguing that electoral promises such as free water, free electricity or free public transport are not “freebies” but examples of discharging “constitutional responsibilities of the State” towards creating a more equitable society.

To be sure, AAP is the only political party that has sought to intervene in the matter to be heard after the Centre sought curbs on electoral promises on freebies.

AAP has stated that litigation in a constitutional court is unsuited to deal with the issues of “freebies” and democratic budgeting, which are in the realm of elected legislature, Union and state governments, adding the Supreme Court may not pass any direction on these “matters of policy”.

If the Supreme Court were to finally decide to constitute a panel to examine the issue, AAP said, the panel must also have representatives from all state governments, all recognised political parties and planning bodies from each state and Union territory, besides representatives of Reserve Bank of India, Finance Commission, ECI and Niti Aayog.

The top court had on January 25 issued notices on Upadhyay’s petition, seeking explanations from the Centre and ECI on steps taken by them since the court’s 2013 judgment.

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