“Derecognition and all is an anti-democratic thing, which I don’t like…It’s a democratic country,” the CJI, presiding over a two-judge bench, said while hearing a plea on the issue.

“Nobody is saying this is not an issue. This is a serious issue. People who are getting benefits may say this is a welfare state, and we are entitled to this. People who are opposed may say we are paying tax…and it has to be spent on developmental activities, and not for distributing it in whatever way parties want,” the CJI said.

“Nobody can say this cannot be discussed, or debate cannot be initiated….The suggested committee can look into these issues,” he said while referring is anti-democratic to the court’s suggestion last week about the setting up of a panel to make recommendations.

The court also expressed its reservations on how far it can go into the issue. “I can’t ignore the amount of debate or exchange of views permeating in social media, newspapers, etc. The question is to what extent we can interfere?…The reason is that there is an Election Commission under the Constitution, an independent body, and the political parties are there…It is the wisdom of all those people I want to have a thought about,” he said.

“We seriously feel it is definitely an issue of concern. Some financial discipline has to be there. We are actually experiencing it in other countries…Definitely, there is an issue. But in a country like India, there are issues of poverty, etc. We can’t ignore those issues also. The Government of India introduces certain schemes, state governments also introduce certain schemes, like feeding of people in drought areas, sometimes in Covid situations…,” the CJI said.

“I am very reluctant to interfere in issues, which have to be decided by the Legislature. I’m a strict orthodox man, you can say. I don’t want to encroach the areas which are meant for the Legislature or the Executive…,” he said.

On Thursday, the Centre suggested that the proposed committee may comprise a member of a national taxpayers’ association or a retired Comptroller and Auditor General (CAG), the Union Finance Secretary, finance secretaries of all states, a representative from every recognised national political party, the chairman of the 15th Finance Commission, an RBI representative, the NITI Aayog CEO, a representative nominated by the Chief Election Commissioner, FICCI or CII representatives and those from “stressed sectors”.

Solicitor General Tushar Mehta, appearing for the Government, said that “distributing things free can never be the only way of welfare”. “There are always scientific ways of people’s welfare. Elected governments must follow scientific methods…So far as welfare schemes are concerned, every government does and every government should do. Now this freebie culture, distribution of something free, has been elevated to the level of an art and sometimes elections are fought only by some sections on that,” Mehta said.

He said that “if it’s the understanding of any political section of our country that distributing freebies is the only way of welfare of the people, that makes a dangerous situation. We are leading the country to disaster”.

Mehta urged the court to issue directions in the interim till the issue is examined. “The question is not only the exercise of Your Lordship’s power but your Lordship’s Constitutional desire to ensure how the mandate of the Constitution should be implemented. Do something till either Legislature steps in, or the Election Commission or whichever body Your Lordships decide examines it and places it before the court,” submitted the SG.

“(If) the government has understood the welfare of the people to be the distribution of free things to a certain section… in a given set of circumstances, there may be justification. But if it becomes a norm, then Your Lordships may step in and lay down guidelines…Welfare scheme every responsible government must understand, but distributing everything free and taking it to the level of an art is not welfarism,” Mehta said.

Appearing for the petitioner Advocate Ashwini Upadhyay, Senior Advocate Vikas Singh referred to the court’s July 2013 judgment in the case “S. Subramaniam Balaji Vs State of Tamil Nadu and Others”. “Your earlier judgement says there is a legislative vacuum, that a model code of conduct can be framed, which the ECI has not done for all these years,” he said.

Pointing out that today, states have a cumulative debt of Rs 15 lakh crore, he said parties should specify in their manifesto where the money for the promises will come from. He said that the purpose can’t be to get power regardless of what happens to fiscal discipline.

Also representing the petitioners, Senior Advocate Arvind Datar, who had appeared in the Subramaniam Balaji case, explained the background. “The DMK promised to give colour TVs to all those who didn’t have one…They came to power. In the next election, AIADMK promised laptops, grinders, etc… We challenged it on a Constitutional principle, under Article 282, money must be for a public purpose and we cited international judgments which say where money is not spent for public purpose, courts have judicial power to stop the payment,” he said.

Datar said that at the time, “the SC had said that giving freebies is to implement directive principles”. “Giving a laptop or goldchain can’t be to promote directive principles,” he said, adding that he did not think the proposed committee will achieve any result.

Datar said when the Supreme Court has held free and fair elections to be part of the basic structure of the Constitution, it can consider issuing directions on freebies, too. But the CJI said, “That is a different issue…confined only to a person contesting the election”. “In the anxiety of going to do something, we can’t commit a blunder,” he said.