As constitutional office, may not be apt to be part of SC panel on poll freebies: EC

It said 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”. The EC said it will be “greatly benefitted by recommendations of the expert body that the Honourable Court may…set up, and commits to give its highest consideration to the same…”

The EC had earlier taken the stand that it has no power to regulate or take action against parties making such poll promises. It said that “…offering/distribution of any freebies either before or after election is a policy decision of the party concerned, and whether such policies are financially viable or its adverse effect on the economic health over the state is a question that has to be considered and decided by the voters…. The ECI cannot regulate state policies and decisions which may be taken by the winning party when they form the government.”

Hearing a petition by advocate Ashwini Upadhyay on August 3, the SC had expressed its displeasure over EC’s stand — Chief Justice of India N V Ramana had stated. “I am [a] little concerned about these issues…. The ECI and the government can’t say we don’t want to do…”

In the supplementary affidavit, the poll body said the oral observations had come to be widely reported in the media and “has caused irreparable damage to the reputation of this institution built over the years”.

It said “reputational damage of this magnitude does not augur well for the country, which is relatively younger but the largest and stable democracy in the world”. The Commission said that in the first affidavit, it had “only reiterated the limitations imposed by” the court in its earlier rulings “and yet, was portrayed in a light that made this institution appear non-serious in tackling the menace of offering freebies”.

On freebies, the EC said, “there is no precise definition of the term “freebies” in the existing legal/policy framework. Furthermore, it is difficult to define the term ‘irrational freebies’, as both `freebie’ and ‘irrational’ are subjective and open to interpretation.”

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The affidavit stated that “freebies can have different impacts on society, economy, equity, depending upon the situation, context and time period”.

The Commission stated that “the benefits of cross-subsidisation or situation/sector-specific relief as a policy instrument in addressing differential vulnerabilities of certain sections cannot be underestimated. For instance, during natural disasters/ pandemic, providing life-saving medicine, food funds etc., may be a life and economic saviour, but in normal times the same could be termed as “freebies”.”

It said, “to take a holistic and comprehensive view of the matter of freebies that has potential to influence a level playing field during the electoral process, a broader appreciation of and due weightage to the multiple factors is required…These, inter alia, include nature and contours of promise, its coverage universal or to a class justified on the touchstone of reasonable classification, prevailing context, specific situation in an area, time of declaration, etc”.