Responding to a PIL that freebies distort electoral processes and should be stopped, the CJI and two other Supreme Court Judges have observed, “We must think about taxpayers and the national economy. And to what extent the courts can regulate, given its constitutional limits?”
It has constituted an expert body with members from the Finance Commission, Niti Ayog, Election Commission, RBI and political parties to study the pressing issue and report to the Government and take appropriate action. Interestingly, the verdict has come close on the heels of PM warning the youth in an election rally not to be carried away by the freebies culture. Quite clearly, Supreme Court’s latest diktat smacks of judicial hyper activism and seems to upset the apple cart of separation of powers, a principle so beautifully enunciated by the French philosopher Montesquieu.
Montesquieu in his seminal book, The Spirit of the Laws (1748), advised that each power, be it legislative, executive or judiciary, should exercise its function. When legislative and executive powers are united in one person, there can be no liberty. There will be no liberty if judicial power is not separated from legislative and executive authorities. If it were combined with the legislative authority, power over the life and liberty of the citizens would be arbitrary, for the Judge would be the legislator.
No wonder, Chief Justice Marshall who inked the concept of judicial review in the Marbury vs Madison Case (1803) and struck down a federal law as arbitrary if it is in conflict with the Constitution, had given thumbs up to Montesquieu’s principle of separation of power. Marshall had famously said that the Supreme Court was an independent and co-equal branch of the Government. The concept of the Supreme Court initiating law-making was a bit of heresy.
In India, however, the Supreme Court took a more people-friendly approach in the 80s, with Justice Bhagawati entertaining applications by public-spirited organizations and individuals on behalf of hapless citizens. In SP Gupta vs UOI Case 1981, Justice Bhagawati did away with the concept of locus standi, which mandated that only affected individuals can approach the court. However, in the Vishaka Rani Case (1997) when a woman was paraded naked in the public, CJI Varma went one step ahead and suggested a set of guidelines as to how women can be protected against sexual harassment in public places. Judicial activism has its firm roots since then.
Freebies to garner votes have been the political tool of all parties. When MGR introduced the Mid-Day Meal Scheme on July1 1982 at Trichy, he said: Let’s provide a hot meal akin to lunch served in a middle-class home by the mother. DMK leader Murasoli Maran made the unfeeling statement that ‘MGR is using State machinery and finance to project his own image by distributing alms.’ Carrying a budget of Rs 133 crore, this scheme provided hot mid-day meals to 56.9 lakh children and provided employment to 1.8 lakh, of whom 1.58 lakh were destitute women. Attendance in primary schools improved to 96.2%. The Supreme Court in November 2001, responding to a PIL, decreed that Government and Government assisted public schools should provide cooked mid-day meals. The scheme which was decreed as a freebie has become a marquee programme of all political parties with different ideological hue. Given the fact that India is home to 34% of its children being stunted due to persistent food deprivation and 57% of its girl children anaemic (NFHS V report), MGR’s public policy to provide 400 calories to school-going children has been a watershed transformative public policy.
Competitive politicking for reaching out to the votes of the farmers took a different turn when Chandra Sekhar Rao, CM Telangana, unveiled the Ryot Bandhu Scheme in February 2018 to provide cash support to 5.8 million farmers of Rs 5,000 per acre per season to support farm investment. With Rs 12,000 crore allocated for this, it had a catalytic impact on voting in favour of the TRS. Not to be left behind, Naveen Patnaik in Odisha launched the KALIA scheme with an allocation of Rs 10,000 crore to relieve the farmers from the debt trap and help the marginal cultivators and landless labourers financially to improve agricultural productivity. Modi followed suits in the Interim Budget 2019 providing Rs 6,000 as minimum income support with a budget support of Rs 69,000 crore. The PM in May 2022 distributed the eleventh tranche of the PM Kissan Scheme to 10 crore farmers. In our country, close to 85 % of farmers are small and marginal, with 47% engaged in agriculture and allied services, contributing only 17% of GDP. Low productivity and perennial indebtedness are their perpetual bed mates. As per the NABARD report, nearly 80% of those engaged in the farm sector have an average debt of Rs 80,000. In this backdrop, no wonder DBT schemes like KALIA and PM KISAN will bring some succour to the beleaguered farmers.
In a perceptive study of Ryth Bandhu Scheme in Telengana in 2020, Padmini Ramesh has found out that between input subsidy and cash transfer, the farmers prefer the latter. Between income support and price support, the preference is for DBT. This is not surprising as large farmers look only for high MSP as the farmer’s agitation press for high procurement prices. Padmini’s study, however, very clearly reveals that it did not contribute to productivity. I also found the same conclusion in a study of the KALIA scheme in 2020.
Where the Government is floundering is not providing enough allocation for irrigation, in which most States in the East are critically deficient. Only 30% of the land has assured irrigation in Odisha as against 95% in Punjab. Yield and irrigation are positively correlated. Measures like prudent management of water, provision of agricultural credit to small and marginal farmers, consolidation of holdings, more remunerative cropping patterns, and contract farming where the farmers can have assured prices remain the troubling script of India’s agricultural sector. While DBT is necessary to resuscitate debilitated farmers, the durable solution will be to improve productivity. Populism and productivity can be close cousins in schemes like Mid-Day-Meals. Sadly, freebies do not have the same symbiotic relationship with small and marginal farmers. It’s a pity that the Supreme Court has picked up an area where a more nuanced understanding of the freebies is called for. A more developed public policy architecture will require political consensus rather than a stick from the Supreme Court.
(Dr Misra is a Professor Emeritus)
