In Ashwini Kumar Upadhyay v the Union, the Supreme Court is currently hearing a petition challenging the practice of political parties to promise “irrational freebies” if elected to power. This post examines past instances where courts have been asked to curb identical practices, most notably the distribution of colour TVs and laptops by state governments in Tamil Nadu. However, unlike those cases where the Court was faced with concrete schemes (identifying the exact schemes alleged to be a “freebie”); the petition in Ashwini Kumar Upadhyay is a plea to restrict the practice in the abstract. Indeed, a perusal of the courtroom exchanges suggests substantial disagreement over what constitutes a “freebie”, highlighting the problem with engaging with such issues in the form of public interest litigation. The crux of the issue can be summed up by two observations by the Chief Justice. First, that ‘India is a welfare state and individuals want public distribution schemes, but money should also be spent on building infrastructure’, and second, there is an element of fiscal irresponsibility with such schemes.
The disagreement over what constitutes a “freebie” and the Chief Justices concerns raise two principled issues: (i) how to decide what is ‘good’ and ‘warranted’ public expenditure (e.g., should the government build roads to increase real income by facilitating economic activity, or should it directly give cash to people), and (ii) who should choose amongst competing approaches to ‘good/warranted’ public expenditure. Examining past decisions of the Court it is apparent that what constitutes ‘good’ public expenditure has turned on interpreting the phrase ‘for a public purpose’ in Article 282 of the Constitution (more on that later). On the second question, while it is traditionally the elected government that decides what approach to pursue, the petition in Ashwini Kumar Upadhyay seeks judicial regulation of what kinds of approaches an elected government should be allowed to promise voters, shifting the balance away from elected governments to the judiciary and technocrats. This is demonstrated by the Court’s 3 August order constituting an ‘Expert Committee’ to decide whether parties should be allowed to offer “irrational freebies”.
This post begins by examining how the Court, when confronted with the promises by Tamil Nadu governments of TVs and laptops, effectively refused to engage in this area. Relying on Amartya Sen’s ‘capabilities’ framework, it then argues that deciding what constitutes ‘good’ public expenditure is not a technical problem, but rather a value judgement by each citizen on whether a governmental measure will help them achieve the goals they themselves desire in the circumstances they face. Given this, the answer to the second question of ‘who decides’ must be – the citizens. The post concludes by suggesting approaches the Court could adopt that are consistent with its constitutional role and past decisions.
Colour TVs in Tamil Nadu
As recently as 2013, the Supreme Court in Subramaniam Balaji v Tamil Nadu heard a challenge to the practice of both DMK and AIDMK governments promising to distribute (at government expense) inter alia colour TVs, grinders, and laptops to citizens if elected to power. Among several issues, the Court had to determine: (i) whether such promises were “corrupt practices” (namely bribery) under Section 123 of the Representation of the People Act, 1951 (“RPA”); and (ii) whether these schemes were for a “public purpose” under Article 282. This was because Article 282 provides that the Union or States can make a grant (i.e., expenditure) on any subject, even if not empowered to pass laws on the subject, if the expenditure is for a “public purpose”. Prior to Subramaniam Balaji, a Constitution Bench in Bhim Singh had interpreted the term “public purpose” broadly, as anything that furthered the Directive Principles of State Policy or the goals of political, social, and economic justice found in the Constitution’s Preamble. However, the petitioners in Subramaniam Balaji argued that the distribution of household appliances did not further these objectives and thus expenditure on these items fell foul of Article 282.
On the question of bribery under Section 123 of the RPA, the Court in Subramaniam Balaji ruled that the promise to distribute goods if elected did not constitute bribery. The Court noted that almost every promise in an election manifesto (even if not promising “freebies”) was a promise of some benefit to induce an elector to vote in a particular way (¶53). For example, the Court noted that even a promise to develop a particular locality was effectively a promise to induce a voter. Noting that Section 123 was a penal provision that to be interpreted strictly, the court ruled that manifesto promises were not hit by Section 123 of the RPA. This highlights the definitional problem of what constitutes a “freebie”. Almost every promise by a political party, from loan waivers, to grain distribution, to distributing TVs, results in a benefit to someone, and the Court was unwilling to effectively criminalise the promise of a better, future government.
However, this raises the issue of whether there is a material difference between building roads or simply handing over TVs, which was dealt with under the framework of Article 282’s “public purpose”. Is building roads expenditure for a “public purpose” while handing over TVs not for a “public purpose”. The Court ruled that an elected government was within its rights to choose amongst competing ways to improve individuals’ livelihoods. Justice Sathasivam for the Court,
“The concept of State largesse is essentially linked to Directive Principles of State Policy. Whether the State should frame a scheme, which directly gives benefits to improve the living standards or indirectly by increasing the means of livelihood, is for the State to decide […] The concept of livelihood and standard of living are bound to change in their content from time to time. It is factual that what was once considered to be a luxury has become a necessity in the present day. (¶¶ 57, 61) (emphasis added)”
To recap, on the question of what constitutes ‘good’ or ‘warranted’ public expenditure, the Court in Subramaniam Balaji tied “public purpose” in Article 282 to the broad concept of improving livelihoods but held that the provision did not discriminate between competing approaches to improving livelihoods.
On the question of who decides, the Court was perhaps even more emphatic – not it.
“Judicial interference is permissible when the action of the Government is unconstitutional and not when such action is not wise or that extent of expenditure is not for the good of the State. We are of the view that all such questions must be debated and decided in the legislature and not in the court (¶62).”
Capabilities
The Court’s approach to the two questions of what constitutes ‘good’ expenditure and who decides finds strong support in Amartya Sen’s, Development as Freedom. Sen notes that different philosophical theories offer competing answers to maximising public welfare. For example, utilitarianism may argue that public expenditure should maximise the ‘utility’ or ‘well-being’ of citizens (often translated into real income). However, Sen notes that such singular metrics fail to capture the diversity of individuals and the circumstances they face. The classic example provided is that of a bicycle: if the government were to distribute bicycles to all citizens, the value (or ‘utility’) derived from the bicycle would be radically different for an abled bodied and a disabled person. However, diversity is not limited to personal characteristics, but the physical and social environments individuals face (e.g., a rural and urban dweller), the relational diversity amongst citizens (e.g., as hinted by Justice Sathasivam, a laptop may be a necessity for some and not for others), and the diversity in family structure (e.g., improved roads may not result in added utility to a woman if her husband does not let her drive).
Faced with this diversity, Sen argues that public welfare must be evaluated by the extent a measure enhances the freedom of individuals to pursue outcomes the individuals’ themselves value in the circumstances they face (i.e., an individual’s capabilities). From this lens, the answer to whether public expenditure is ‘good’ or ‘warranted’ is not a static conception of “public purpose” or maximising utility, or long-term economic growth, but whether the expenditure enhances the ability of individuals to pursue outcomes they value. This may be different for a disabled person, an urban dweller, and a woman. This inescapably has a bearing on the second question of who decides what types of public expenditure should be undertaken.
Because the touchstone for public expenditure is whether it enhances an individual’s ability to pursue goals they themselves value, Sen argues that deciding amongst competing governmental measures is not a mathematical or technical question, but rather question of “valuation and judgement”. He thus rejects placing such decisions in the hands of technocrats (like the Supreme Court’s Expert Body). Further, because this judgement has a social element, the “acceptability to others” of any decision arrived at is crucial. As individuals are best placed to decide if roads or cash will help them pursue the goals they desire, the process of deciding must be one where all individuals have their say. Democratic process ensure that this decision making is divided equally across the electorate and thus the outcome sufficiently legitimate that individuals are willing to accept the result even if it isn’t exactly what they wanted. As Subramaniam Balaji notes, this discussion is best had in legislatures, and in the case of poll promises, amongst and by the electorate.
Conclusion
Perhaps most troubling of all is that we have been here before. In the aftermath to Subramaniam Balaji, while dismissing the petition the Court requested the Election Commission of India to frame certain guidelines on the types of promises that could be included in election manifestos. These guidelines, now an annexure to the Model Code of Conduct state that: (i) manifestos cannot contain anything repugnant to the ideas and principles of the Constitution; (ii) while no objection may be taken to the promise of welfare schemes, promises which contravene the ‘purity of the election process’ should be avoided; and (iii) manifestos should reflect the rationale of welfare promises and indicate the manner in which they will be finances.
It is submitted that these guidelines offer a direction the present hearings in the Supreme Court should take. Promoting scrutiny and enhancing public reasoning of public expenditure is a valuable goal the Court is equipped to undertake. This would also combat the risk of fiscal irresponsibility highlighted by the Chief Justice. The Supreme Court (minus the farce that is now Electoral Bonds) has a long history of empowering the Election Commission to compel disclosure and aid informed decision making by voters. Rather than enter the quagmire of whether “freebies” are a waste of public expenditure, the Court could focus on enforcing the Election Commission’s guidelines on explaining the financing for welfare schemes. For example, the Congressional Budget Office in the United States provides independent analyses of budgetary and economic proposals. The Office is set up by statute, has strict rules on independence, and does not make policy recommendations because (in words Sen would approve off) ‘public policy inevitably involves value judgements that the agency does not and should not make.’ This represents an elegant balance between enhancing public scrutiny of government expenditure while letting citizens choose amongst competing approaches to their own welfare.
Constitutional Law and Philosophy 