By Prof Upendra Baxi
It is not, nor can it be a legitimate and legal purpose to comment on a pending case, let alone offer a guess on the outcome of yet to be fully heard case. Accordingly, I offer no comments on the merits of the ongoing election freebie case, but this article ventures a glimpse in courtcraft that raises several issues of public import.
The case was brought on January 22, 2022, by lawyer-petitioner Ashwini Kumar Upadhyay against the Union of India, Election Commission of India. And later among the chief interveners were: Aam Aadmi Party, DMK, All India Mahila Congress, Taxpayers Association of Bharat, and Centre for Public Interest Litigation. Senior lawyer Kapil Sibal was appointed amicus curiae for the Court.
The then Chief Justice of India (CJI) NV Ramana and Justices Krishna Murari and Hima Kohli on August 26, 2022, appointed an unusual committee drawing members of major institutions of the State to “dispassionately” consider the problem of freebies from among some members from the Finance Commission, Niti Aayog, Law Commission, the Reserve Bank of India, and all political parties and directed them to submit suggestions on the composition of the expert committee. On November 2, the bench of two Supreme Court Justices—then CJI UU Lalit and Justice Bela M Trivedi—asked that the bench of three justices be convened early. Finally, the matter was heard on August 24, 2024, by a bench comprising CJI DY Chandrachud and Justices JB Pardiwala and Manoj Misra.
One knows that the Supreme Court has a very heavy workload and more important matters which cannot withstand any leisurely queuing; even so, one may flag off the concern as to when “evasive jurisprudence” arises—a form of administration justice where judicial coup de état reflected in the bouts of hyper-activism heighten the social expectation that the summit courts shall not enervate the significance of the case by very late scheduling the case (see, on various aspects in Europe, the study by Jochen MBernstorff and his colleagues—available at ResearchGate, 2018).
At the threshold of this debate lies the question: How legitimate and legal is the insistence by lawyers, litigants, media, and the activists that particular types of disputes and controversies shall always get a priority in the exercise of the prerogative of Master of Rolls exercised by the CJI or chief justices of the High Courts? Does jurisdiction of evasion exist in the first place, and second, if it does, how does it operate—within (or outside) the intricacies of discretion of the chief justice acting as a Master of Rolls? True, difficulties surround the exercise and evaluation, but the question persists: do principles of administrative and constitutional law apply to (what I have named as) adjudicative demosprudential leadership, or do these extend only to the realm of hermeneutic adjudicatory leadership? How may we interrogate discretionary acts as “manifestly arbitrary” while accepting in principle the prerogative of chief justice?
The questions that concern us the most from the perspective of administration of justice at the summit level, are first, why was the reconsideration of an earlier two-bench decision ordered; second, when the fully formed committee report will arrive; third, the final decision by the Supreme Court. Or, is the entire process a “burial” by a committee as Senior Advocate Sanjay Hegde recently characterized it!
Animating these issues is a wider structural concern: namely, the structure and function of Indian democracy. Are the offerings (mostly via party manifestoes to the electors), and actual delivery post-elections, to be considered as a democratic and constitutional party-political performance, or be regarded as outright bribery (under Section 123 of the Representation of the People Act)?
The two-judge Supreme Court bench, comprising Justices P Sathasivam and Rajan Gogoi, on July 5, 2013, held that “the promises in the election manifesto do not constitute as a corrupt practice under the prevailing law” and that the Court had “limited powers” to issue additional guidelines under all party endorsed model code of conduct (para 79). Did CJI NV Ramana and Justices CT Ravi Kumar Hima Kohli give anxious consideration to the Madras High Court judgment, where Arvind Datar and many other eminent lawyers had advanced the following argumentative strategies?
Datar argued, first, that a “gift”, “offer” or “promise” by a candidate or his agent to induce an elector to vote in his favour would amount to “bribery” under Section 123 of the Representation of the People Act; second, the “distribution” is made for a public purpose and is not misused, and third, Article 282 of the Constitution only permits defraying of funds from the Consolidated Fund of the State for “public purpose”.
The questions that concern us are both vast and limited, and it may not be justly said that the 2013 bench ignored altogether the constitutional law and the provisions of the Representation of the People Act.
From the perspective of the administration of justice at the summit level, these relate to the following. First, was it efficient and just that a three-judge bench lay aside a two-judge bench decision, to “reconsider” such a major matter, even when that decision was considered just and efficient for the period 2013 till today, till the new freebie case admitted in 2022? Second, the Balaji case is challenged in a very summary way on the ground that the Court’s reasoning and outcome were “flawed” because it decided that the Directive Principles of State Policy can override the fundamental rights under Part III of the Constitution,… against the law settled by a Constitution bench of this Court in Minerva Mills case.
We will not come to know whether this is actually the case till the expert body the Court seeks to form views on these matters and the Supreme Court gives its own judgment. The Court is hesitant, too: it is fully cognizant of “the worry raised… that under the guise of electoral promises, fiscal responsibility is being dispensed with”. The Court has “generally stayed its hand” when “confronted with issues relating to policy or fiscal matters concerning the State, as the same falls outside the ambit of the Court’s jurisdiction”. The Supreme Court also raises the general question: “Whether any enforceable order can be passed by this Court in these petitions?”
The words “enforceable order” are extremely crucial to any ongoing proceedings, especially regarding freebies. There is no all-party consensus on what may be considered as “freebies”, though it is well recognised that these may cause fiscal deficit, well beyond prudential state debt and credit flows (floors and ceilings) of governance. One wonders, in this context, what more workable standards of adjudication may be further made available by such a heterogeneous although talented committee? Why has the Supreme Court decided to reconsider its own decision in 2013? Did it not provide sufficient constitutional conception of freebies as those promises relatable to progressive implementation of Part IV prescribed in Directive Principles? And what if Parliament declines, ultimately to go to the length of amending the Representation of the People Act and share the wisdom of the Court in this matter? Will the Court then proceed to determine certain types of freebies unconstitutional and void, thereby also reversing a wealth of contrary judicial pronouncements and observations? Rather than undertake to device new juridical standards, may it not be constitutionally appropriate to leave the problems of representation to parliamentary spheres, in the first instance?
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer