The Freebies Case the Supreme Court Keeps Deferring

New Delhi, July 17: The Supreme Court's brush-off on Friday of a plea to urgently list the Ashwini Upadhyay PIL on political freebies, "We are flooded with cases now. This matter can wait," Chief Justice of India Surya Kant told the petitioner, is not an isolated moment of docket congestion.

It is the latest data point in a jurisprudential arc that stretches back thirteen years, through one squarely decided case, one significant reference to a larger bench that appears to have gone nowhere, and a proliferating body of state-level welfare-scheme litigation that the higher judiciary has consistently declined to use as an occasion to draw a hard constitutional line. Read together, these episodes suggest not judicial indifference but something more structurally revealing: a court that has repeatedly identified freebie culture as a serious constitutional concern in its rhetoric while declining, at nearly every turn, to translate that concern into an enforceable standard.

The starting point remains S. Subramaniam Balaji v. State of Tamil Nadu, (2013) 9 SCC 659. The case originated in the 2006 Tamil Nadu Assembly election, when the DMK's manifesto promised free colour television sets to every household, a promise honoured after the party's victory; the AIADMK matched it in 2011 with its own manifesto of household gifts, grinders, mixies, fans, laptops, sheep and cattle, and cash for marriages, to "equalise" the presents provided by its rival. Balaji, a Tamil Nadu resident, challenged the schemes, first before the Madras High Court and then before the Supreme Court, on the footing that manifesto promises of non-essential commodities amounted to an electoral bribe under Section 123 of the Representation of the People Act, 1951.

A bench led by Justice P. Sathasivam rejected that contention outright: the Court held that pre-election promises do not fall within the ambit of corrupt practices under Section 123, and issued directions to the Election Commission on framing guidelines in the absence of any legislative enactment on the subject.

Even while declining to treat manifesto promises as corrupt practice, the bench accepted that freebies create an uneven electoral playing field, and directed the ECI to consult political parties and incorporate manifesto guidelines into the Model Code of Conduct. The Balaji verdict is, in that sense, a foundational compromise: a refusal to criminalise the promise, paired with an acknowledgment that the practice distorts electoral fairness, an acknowledgment left to the ECI's soft-law instruments rather than to statute or binding constitutional doctrine.

That compromise held for nearly a decade until August 2022, when a bench encountered fresh public interest petitions, including Upadhyay's, the same plea now before the Court this week,  pressing for a stricter judicial standard. It was argued that the reasoning in the Balaji judgment required reconsideration, and the Court obliged, referring the question to a three-judge bench rather than deciding it itself.

The bench's language at that stage was markedly more alarmed than the 2013 verdict's: it observed that parties who form the government riding the wave of pre-poll promises of "free gifts" are bleeding state finances dry, and its order recorded a foreseen risk that freebies could leave state governments unable to provide basic amenities, pushing the states toward "imminent bankruptcy." The Court wanted, in its own words, a transparent debate before the larger bench on whether an "enforceable" judicial order could stop political parties from promising and distributing "irrational freebies." That framing, enforceable, judicial, order, was a meaningfully higher ambition than anything in Balaji.

Notice went out to the Centre and the Election Commission in January 2022 on Upadhyay's connected petition. Four and a half years later, as Friday's proceedings show, that enforceable order has not arrived, the larger bench reference has not been finally heard, and the case has instead cycled through mentionings, one in February this year that yielded an assurance of a March hearing that did not materialise, and Friday's, which yielded only the CJI's observation that the docket is full.

The doctrinal vacuum left by that decade of non-resolution has not stopped freebie politics from escalating; if anything, the absence of a binding standard appears to have accelerated a race among states to design schemes just adjacent to the line the Court has never drawn. The shift from physical goods, television sets, mixers, sheep, to direct benefit transfers has been especially pronounced.

Delhi's free electricity scheme is widely credited with triggering a wave of imitation: Madhya Pradesh's Ladli Behna scheme of monthly cash to women, Karnataka's five-guarantee package under Congress including the Gruha Lakshmi cash transfer, and Maharashtra's Mukhyamantri Majhi Ladki Bahin Yojana, offering ₹1,500 a month to women aged 21 to 65, are among the schemes that emerged in rapid succession across party lines in what political scientists studying the pattern describe as rational escalation for individual state actors even where it proves collectively fiscally damaging.

The centrally sponsored PM-KISAN scheme, offering ₹6,000 annually to 12.5 crore farmers, was itself launched within weeks of the 2019 general election, with its first instalment timed days before polling began, evidence that the pattern crosses the Centre-state divide and is not confined to any single party or level of government.

It is the litigation around these DBT schemes, not the pending Supreme Court reference, that has generated the only concrete judicial rulings on the freebies question in the interim, and the outcomes have been uniform in one respect: courts have declined to intervene. When a Navi Mumbai chartered accountant challenged the Ladki Bahin scheme before the Bombay High Court in 2024, arguing it would impose an unsustainable burden on the state exchequer, the Court dismissed the petition, holding that it was a policy decision the Court could not interfere with absent a violation of fundamental rights. The Supreme Court's own subsequent engagement with the scheme, later that year, illustrates the same reluctance to treat the fiscal-inducement question as a matter for direct constitutional adjudication: rather than examining Ladki Bahin's electoral timing or design, the Court instead warned Maharashtra that it would halt disbursements under the scheme only as a coercive measure to compel the state to pay outstanding compensation to landowners over reserve forest land, freebies invoked not as the substantive legal issue but as leverage in an unrelated compliance dispute. Meanwhile, the fiscal anxieties the 2022 bench voiced in the abstract have begun showing up in hard audit numbers: a CAG review found Maharashtra's actual Ladki Bahin expenditure exceeded its sanctioned budget by over ₹3,541 crore, with the state's Women and Child Development Department unable to furnish a specific justification for the overrun, precisely the kind of budget-versus-promise gap the 2022 bench had warned could push states toward the edge of their fiscal capacity, arising in a scheme no court examined on those terms.

What this decade-long record shows is a judiciary that has been willing, repeatedly and in strong language, to name the problem, uneven playing fields in 2013, bleeding state finances and imminent bankruptcy in 2022, while consistently declining the harder task of constructing a judicially administrable test to separate a state's legitimate welfare expenditure, which Articles 162 and 282 empower it to undertake, from an electoral inducement that Upadhyay's petition argues offends Article 14's equality guarantee.

Every forum that has had the opportunity to draw that line has instead deferred it: the 2013 bench deferred to the ECI's soft-law guidelines; the 2022 bench deferred to a larger bench that has yet to hear the matter; the Bombay High Court deferred to legislative and executive policy discretion; and the Supreme Court, in the one instance where it did act against a freebie scheme, did so as budgetary leverage in a land-compensation dispute rather than as a ruling on the freebies question itself.

Friday's exchange, in that light, reads less like a fresh setback than confirmation of an established institutional pattern, one in which the doctrinal question the 2022 bench itself called for a "transparent debate" on remains, going into a fresh election cycle, exactly where it was left four years ago.