SEKAR REPORTER

Court News from Madras High Court

WRITTEN SUBMISSIONS BY P.WILSON SR. ADVOCATE ON BEHALF OF DRAVIDA MUNNETRA KAZHAGAM PARTY(DMK)

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IN THE SUPREME COURT OF INDIA

WRIT JURISDICTION

IA No. 116711 OF 2022

IN

WRIT PETITION (CIVIL) No. 43/2022

 

IN THE MATTER OF:-

ASHWINI UPADHYAY ….PETITIONER
Vs.
UNION OF INDIA & Ors. ….RESPONDENT
 

AND IN THE MATTER OF:-

 

DRAVIDA MUNNETRA KAZHAGAM

  

 

 

…APPLICANT

 

WRITTEN SUBMISSIONS BY P.WILSON SR. ADVOCATE ON BEHALF OF DRAVIDA MUNNETRA KAZHAGAM PARTY(DMK)

 

  1. WRIT PETITION IS AN ASSAULT ON BASIC FEATURE OF CONSTITUTION

The Constitution Bench of this Hon’ble Court in the case of Minerva Mills Ltd and others Vs Union of India 1980 (3) SCC 625 has held at para 61 that Parts III and IV together constitute the core of commitment to social revolution and they, together, are the conscience of the Constitution. They are like two wheels of a chariot, one no less important than the other. You snap one and the other will lose its efficacy. They are like a twin formula for achieving the social revolution, which is the ideal which the visionary founders of the Constitution set before themselves. This harmony and balance between fundamental rights and directive principles is an essential feature of the basic structure of the Constitution

The present Writ Petition is an assault on the Directive Principles of State policy and is an attempt to change the fabric of this nation from socialist country to capitalist country and an attempt to tinker with basic feature of the constitution which is impermissible in law.

 

  1. WRIT PETITION IS POLITICALLY MOTIVATED

It is humbly submitted that the background of the present Writ Petition arises out of political motivation i.e. the Assembly elections in State of Punjab. The Petitioner herein belongs to a political party which, at the time of filing the election petition was locked in a political battle during elections in Punjab and therefore is attempting to espouse the ideology of his political party. Hence the present writ petition lacks bonafides and filed to settle political scores with another rival political party in Punjab.

 

  • NON-JOINDER OF NECESSARY PARTIES

The Petitioner seeks to injunct political parties promising and implementing welfare measures for the lower economic strata of society. That being the case, the Petitioner ought to have impleaded all the registered political parties and State Governments as well. However, the Petitioner has only impleaded the Union of India and Election Commission when the issues involved relate to the Directive Principles of State policies enshrined in Part IV of the Constitution which both the Union and State Governments are competent to implement. Hence the present Writ Petition is liable to be dismissed for non-joinder of necessary parties. In Prabodh Verma & Ors. v. State of Uttar Pradesh & Ors. 1985 AIR SC 167 and Chief Conservator of Forests v. Collector and Ors. (2003) 3 SCC 472 (para 12), this Hon’ble Court has held that a writ petition should be dismissed for non-joinder of necessary parties.

 

  1. DIRECTIVE PRINCIPLES OF STATE POLICY (DPSP) AND EMBARGO ON JUDICIAL ASSESSMENT OF SUCH POLICIES

 

  1. In the case of MRF Ltd Vs Inspector Kerala Govt and others 1998 (8) SCC 227 at paragraph 16 this Hon’ble Court while dealing with the DPSP has held that “they have to be regarded as the wisdom of the nation manifested in the paramount law of the country”.

 

  1. In the case of The UP-State Electricity Board and another Vs Hari Shankar Jain and others 1978(4) SCC 16 at para 5 held that “courts are bound to evolve, affirm and adopt principles of interpretation which will further and not hinder the goals set out in the Directive Principles of State Policy. This command of the Constitution must be ever present in the minds of judges when interpreting statutes which concern themselves directly or indirectly with matters set out in the Directive principles of State Policy”

 

  1. In the case of B Krishna Bhat Vs Union of India 1990 (3) SCC 65 para 4 has held thus “Article 32 is not the machinery through which policy preferences or priorities are determined and this court is not the forum where the conflicting claims of policies or priorities should be debated”. At paragraph 5 this court further held that “To make the state accept a particular policy, desirable and necessary as the policy might be is not the function of Article 32 of the constitution. Article 32 is not the nest for all the bees in the bonnet of Public-Spirited persons”

 

  1. Further, this Hon’ble Court in the case of Minerva Mills Ltd and others Vs Union of India 1980(3) SCC 625 has held “there can be no doubt that the State is under a constitutional obligation to carry out this mandate contained in Article 37. The non-compliance with the Directive Principles would be unconstitutional on the part of the State and it would not only constitute a breach of faith with the people who imposed this constitutional obligation on the State but it would also render a vital part of the Constitution meaningless and futile”

 

  1. Therefore, no Writ Petition would lie before this Hon’ble Court to render a vital part of the Constitution meaningless and futile. No writ can be issued against the representatives of the people making promises or against a law-making body from making laws to comply with the Part IV of the Constitution. Be that as it may, when Article 37 prohibits the enforceability of the principles by any Court including this Hon’ble Court, this complete embargo equally applies to cases attempting to restrain the Union and State Governments from implementation of Part IV principles. Thus, the writ petition which is in the nature of injuncting representatives and governments from implementation of Part IV rights is not maintainable in view of embargo under Art 37 and is therefore liable to be dismissed.

 

 

  1. PIL TO BE DEALT WITH GREAT CARE AS WRIT PETITIONER IS NOT AN EXPERT

 

This Hon’ble Court has held that a PIL is a weapon which has to be used with great care and circumspection. The court has to be satisfied that (a) the credentials of the applicant; (b) the prima facie correctness or nature of information given by him; (c) the information being not vague and definite.  Please see Kushum Lata vs. Union of India and Ors. (2006) 6 SCC 180, (para 5, 12, 13, 15, 16, 17) Rajeev Suri vs. Delhi Development Authority and Ors. 2021 SCC Online SC 7 paras 532, 533, 535)

 

  1. CONSTRUCTIVE RES-JUDICATA

It is further submitted that the issues raised in the present Writ Petition have already been authoritatively decided by this Hon’ble Court in the case of SM Subramaniam Balaji vs. State of Tamil Nadu and Ors. (2013) 9 SCC 659 wherein this Hon’ble Court has held that

  1. The promises made in the election manifesto cannot be read into Section 123 for declaring it to be a corrupt practice.
  2. The mandate of the Constitution provides various checks and balances before a scheme can be implemented and the Court had limited jurisdiction to interfere in such schemes.
  3. Judicial interference is permissible only when the action of the Government is unconstitutional or contrary to a statutory provision and not when such action is not wise or the extent of the expenditure is not for the good of the State.

It is humbly submitted that in view of SM Subramaniam Balaji, the present Writ Petition is barred by the principles of constructive res judicata. The Writ Petitioner herein is seeking similar directions which were sought and rejected in SM Subramaniam Balaji.

 

  • NOMENCLATURE AS FREEBIES FOR WELFARE MEASURES IS GREAT INSULT TO THE PEOPLE OF THIS COUNTRY.

 

  1. The applicant strongly objects to the usage of the word “freebies” to describe welfare measures flowing from Part IV of the Constitution. If the Petitioner is concerned with burden on the public exchequer, the Petitioner would have been equally concerned with tax breaks and loan waivers given to affluent corporates and high net worth individuals. However, the Petitioner has remained blissfully ignorant of these waivers, which are 3-4 times bigger than the budget spent on welfare measures.

 

  1. It is submitted that the Governments hold and spend public funds and resources in trust for the citizens. The purpose of taxation is to enable the Government to provide infrastructure and work for the welfare of the society as a whole, and to ensure that the entire population grows. Calling welfare schemes as “freebies” would render every other amenity provided by the Government a freebie.

 

 

  1. According to the petitioner, at paragraph 34 electoral promises of opening more schools, colleges, hospitals and bus stand are freebies which shows that the writ petition has thoroughly misunderstood the constitutional ideals, objects and goals. This country is certainly is not for the rich alone but for people of all sections of society. The right to life is more than mere animal existence or vegetable subsistence. The State has to assure for all citizens a life of dignity, which includes basic amenities like food, clothing, education, health care and transport. These amenities cannot be called “freebies” but are welfare schemes to ensure inclusive growth.

 

  1. The yardstick to be applied for classifying a welfare scheme to be a “freebie” cannot be so rigid that every service provided by the Government to its citizens be termed as a freebie. If such a meaning is applied, it would render all Government facilities such as education, healthcare to be freebies, which is unconscionable.

 

  1. The Petitioner has not realised that due to centuries of caste discrimination, where access to education and employment was restricted to a vast majority of this nation, and subsequent colonial rule, a vast majority of this nation are poor and downtrodden. They do not have access to basic amenities which the persons from generational wealth do. It is the State’s duty to equalise wealth to provide for inclusive growth.

 

  1. It is further submitted that the representatives of the Parliament/State Legislature have been elected by the people. India with its population of 133 crores has people belonging to different religions, languages, dialects and with different economic conditions. It is the State’s duty to provide for the needs of the population in each State. The demography of each State, its requirements, economic conditions, locational disadvantages varies from State to State. In each State, these needs are totally different. Such welfare measures initiated for the population cannot be banned or injuncted by this court as sought for by writ petitioner. People living in ivory towers like the Writ Petitioner cannot be allowed to decide the needs of an individual or a household situated in a remote village in a different State. The needs of the 133-crore population have to be understood before classifying any welfare schemes as a freebie.

 

  1. That apart, the Writ Petitioner has not understood the basis of a democracy. When a policy is made by a majority of a Legislature or elected Government, it is deemed that it is made by the entire people, which includes the tax payers. Therefore, when these welfare measures are enacted by a majority of a House of elected representatives, it is deemed as having the approval of the popular sovereign – the people which incudes the Tax payers.

 

  • MANAGEMENT OF STATE FINANCES BY THE PEOPLE THROUGH ELECTED GOVERNMENTS

 

  1. It is respectfully submitted that the Constitution provides several checks and balances to ensure that the State does not mismanage the finances. The Article 283 (2) mandates that the laws made by the State Legislature would regulate the custody of the Consolidated Funds of the State, payment of moneys into such funds, the withdrawal of moneys from such account and all other connected matters. Under the Article 293 (3), A State cannot, without the consent of the Government of India raise any loan if a part of loan taken by the State Government from Government of India is still outstanding, or in respect of which a guarantee has been given by the Government of India. Therefore, if a State Government makes any grants for any public purpose, it has to do so within the limits prescribed by the Articles 283 and 293. Articles 197, 198, 199, 200, 202, 203 to 207 are checks and balances of the fund utilisation which shows that the people through their elected representatives decide on the spending of consolidated funds. Art 212 restrains Courts from interfering with the validity of proceedings in the State Legislatures.
  2. Therefore, this Hon’ble Court cannot wade into policy making by the Legislatures and elected representatives and implemented by Governments. To do so would be a gross breach of the demarcation of separation of powers.

 

 

  1. ISSUES PREVALENT IN THE PRESENT WRIT PETITION CAN BE FAIRLY ANSWERED IN THE FOLLOWING MANNER:

 

  1. Whether the upliftment of lower economic class of society is the constitutional duty of the State?

 

  1. The Writ Petitioners have to understand why the State gives what they uncharitably term as “Freebies”. The word is harsh and has negative connotation. The welfare measures are to uplift socially and economically weaker sections of society who remain weak due to centuries of social and economic oppression by upper castes. A person from an upper caste cannot empathise with them because neither they nor their families have not seen the oppression and felt its sting.
  2. Today the affluent sections, who come from generations of wealth are asking why a child or groups of people from the downtrodden, and oppressed weaker sections should have free education, free books, free travel, free medicine, free food? Answer is because for hundreds of years, their families were not given the same opportunity as the upper echelons of society. It is not a freebie but a tool to bring social and economic equality.
  3. The State has a duty under the directive principles of the state policy to promulgate welfare schemes for the upliftment of the lower economic class of society
  4. Article 38(1) contemplates that the State shall strive to promote the welfare of the people by securing and protecting a social order in which social, economic and political justice is protected.
  5. Article 38(2) contemplates that the State to minimise the inequalities in income, eliminate inequalities in status, facilities and opportunities to individuals and as wells as groups of people residing in different areas.
  6. Article 39 contemplates that the State shall take actions to provide adequate means of livelihood and for distribution of material resources of the community on an egalitarian principle.
  7. Article 39A contemplates the State to secure a legal system which promotes justice in basis of equal opportunity, provide free legal aid.
  8. Article 41 contemplates that the State shall render assistance to citizens to secure right to work and education and also in cases of undeserved want. Article 39 and Article 41 also bestows the state with the power to govern, regulate and distribute economic resources for purposes of work, education, public assistance and also ensuring that citizens are treated equally. Article 39 (b) in specific allow for states to utilise economic and material resources of the community are so distributed to best subserve the common good.
  9. The term “material resources of the community” was also clarified in Assam Sillimante Ltd v. Union of India 1992 Supp (1) SCC 692 at para 34 in include anything and everything that can be utilised to create wealth or economic prosperity as a whole in the economy.
  10. Article 43 directs that the State shall “endeavour to secure to all workers, by suitable legislation or economic organisation or any other way to ensure decent standard of life and full enjoyment of leisure and social and cultural opportunities to the workers”.
  11. Similarly, Article 45 contemplates that the State shall endeavour to provide early childhood care and education to all children below the age of 6 years and Article 46 says that the State shall promote educational and economic interests of the weaker sections of the people including SCs and STs.
  12. Article 47 contemplates that the State shall take steps to raise the level of nutrition and the standard of living.

 

  1. Therefore, the Constitution under Directive Principles of State Policy confers duties on the State to uplift the people and eliminate inequalities in status, facilities and opportunities not only among individuals but amongst groups of people. The fiscal and welfare measures taken by the State to achieve these objectives cannot be termed as “freebies” and are not unconstitutional.

 

  1. As an illustration, providing free electricity to poor households not only complies with the Article 38(2), 39(b), (c) and (f) but also Article 47 as its raises the standard of living of those people who cannot afford electricity are devoid of heating in winters, cooling in summers and lighting. Without this, many may perish in peak summer or winter. Therefore, the activity of the State in protecting human health and wellbeing through welfare measures cannot be found fault with.

 

  1. Furthermore, with the advancement of technology, the standards for living have been raised. What was considered earlier to be luxury is being considered to be a necessity now. No yardstick could be envisaged to define the term “freebies” without realising the broader effect.

 

  1. The State of Tamil Nadu has been at the forefront of social justice and social welfare measures. One of the reasons Tamil Nadu ranks amongst the highest in school and collegiate education is the incentives and subsidies given by the State in the field education to the people in the state which has made the literacy rate high. The free health care in Tamilnadu is absolutely unlatching compared to whole of the country and all because of absolute planning and implementation.

 

  1. The following are the some of the welfare measures introduced by the Tamil Nadu Government for removing social inequality:

 

  • Midday noon meal programme for school children started in the year 1956 which change the dynamics of the country as well globally. This mid day noonmeal scheme was extended to primary schools and later to students in urban schools. In 1989 boiled eggs were given and later variety meals were included and today about 48.27 lakhs students are fed every day in 43,243 noon meal centers every day.

 

  • Widow remarriage 2.5 lakhs given to remove social stigma
  • Free electricity connection for agricultural purposes.
  • Free house site for adi dravidars – remove social ostracisation of entire community
  • Marriage assistance of Rs. 5000 given to a girl child who completed eight standard – this is woman empowerment
  • Caste marriage assistance of Rs. 5000 – to help intercaste couples – eradicate caste segregation
  • World renowned samathuvapuram scheme – free house sites to members of lower economic caste to eradicate caste segregation – to help social integration
  • Varumun Kappom and Vazhvoli – insurance schemes for lower economic strata – people who had never had insurance in their entire life was brought under subsidised insurance
  • Free health care in govt hospitals
  • Free colour TV to poor households.
  • 1000 Rs. Per month for girl child joining degree and Diploma courses from Govt Schools
  • 100% funding for students joining IIT UG from govt schools

 

  1. It is humbly submitted that all these welfare measures have not made the State of Tamil Nadu a poorer state. Instead, it has contributed to its development and reduced the high gap in income equality. These welfare schemes have been instrumental to propel the State of Tamil Nadu to be amongst the top 3 states in terms of GDP and industrialisation. 18 of the top 100 education institutions are located in the State of Tamil Nadu. Due to such prosperity, inward migration from other states as increased to 8.3% which highlights the fact that the people from other states want to migrate to Tamil Nadu.The free health care facilities in Tamil Nadu are unparalleled in this country. Perhaps the Petitioner needs to live in Tamil Nadu for a few years to understand how social welfare schemes can uplift a society as a whole and contribute to the happiness of the people.

 

  1. It is needed to be understood that these welfare schemes are instrumental for prosperity, as it fixes the fundamental flaws of the State and provides upliftment of weaker sections to enable them to compete with the privileged class and ultimately will make them self-sufficient to improve their standards of living.

 

  1. The mid-day noon meal scheme, which was pioneered by the State of Tamil Nadu in 1956, by then Chief Minister Thiru K. Kamaraj has become the norm not only in this country but also globally. In order to bring them out of their destitute state of poverty, the mid-day meal scheme was introduced so that they could attend the school and study without worrying for food. With the introduction of the mid-day-meal scheme, a high number of children started attending school which improved their literacy rates and the levels of nutrition in Tamilnadu.

 

  1. The said scheme was introduced formally as Mid-Day Meal Scheme (MDMS) by the Central Government after a long gap of 40 years in 1995. The scheme was recently lauded by the World Food Programme in its Draft Report titled Endline Assessment of Fortification of Mid-Day Meal programme. The Unites States followed the same and legislated “United States National School Lunch Act”. The United Nations Convention on the Rights of the child inserted Art 24(2c) committing to provide of adequate nutritious food for children. Furthermore, in its Working Paper titled as COVID-19: Missing More Than a Classroom tracing the impact of school closures on the children’s nutrition had highlighted in its report that the school feeding programmes can increase enrolment and attendance, especially for girls and disadvantages children and they play a key role in getting the children back to school.

 

  1. This Hon’ble Court had appreciated the scheme and had directed all the State Governments to implement the scheme in every Government School and Government assisted primary schools in People’s Union for Civil Liberties vs. Union of India & Ors. Writ Petition (Civil) No. 196 of 2001 dated 28.11.2001. Therefore, the Tamil Nadu model has been directed to be implemented across India.

 

  1. Furthermore, this Hon’ble Court has repeatedly reprimanded and even fined such States who were not able to implement MDMS properly. During the COVID-19 crisis in 2020, this Hon’ble Court took suo motu cognizance vide order dt. 18.03.2020 wherein this Hon’ble Court had directed all States to come out with a uniform policy to ensure that the schemes providing nutritional food to the children and nursing and lactating mothers are not adversely affected. Therefore, this Court itself has recognised the importance of welfare measures.

 

  1. The TN Government has distributed free laptops and books to students, thereby equipping the students from lower economic strata to compete with urban rich. However, the petitioner wants to maintain and increase the huge gap between the poor and the privileged.

 

  1. The Dravidian model government in Tamilnadu under the Hon’ble Chief Minister Thiru M.K. Stalin has made State Corporation owned bus travel free for all women. Data has shown that upto 12% of the household income is saved by this measure in the homes of the lowest economic strata. This makes a huge difference to their quality of living as they are able to spend that money elsewhere. Woman are now able to compete with men and earn a living, which contributes to their empowerment.

 

  1. In a country like India which ranks 101 out of 116 countries in the Global Hunger Index, it has to be understood that the large section of our population is poor and underprivileged. Providing such welfare measures are necessary to decrease the ever-widening income gap in the wake of inflation cannot be construed to be handing out a freebie.

 

  1. What is the meaning of a socialist country? Is the State bound to only make policy with profit motive?

 

  1. The Petitioner aims to convert India from a socialist country into a capitalist country which is not possible through a judicial process. That would require the seal of approval of the popular sovereign.
  2. Money cannot be spent with a mathematical precision towards the welfare of the people. India is a country with unity in diversity. What is good for the people and how money has to be spent is certainly with in the domain of State and State legislature and petitioner under garb of Writ Petition cannot seek this court to lay down uniform yardsticks.

 

  1. Socialism is part of the basic structure of this country. It is part of the preamble and the DPSPs are all socialist goals. This can be further substantiated in the landmark judgement Vikram Deo Singh Tomar v. State of Bihar, 1988 (Supp) SCC 734 at para 2.
  2. It is submitted that welfare schemes categorised as “freebies” is a pathway to achieve economic justice and to promote and protect public purpose as envisaged in the judgment Bhim Singh v Union of India 2010 (5) SCC 538 which declared that the term public purpose must be given its widest interpretation thereby ensuring that the economic and social welfare and justice is achieved both by the Union and the States and also allowing for the advancement Directive Principles of State policy. (see para 49)
  3. This would imply that under Article 282 of the Constitution the term public purpose is expanded to inculcate welfare measures which is styled as freebies by petitioner as it not only protects and uplifts public purpose but also does not drain the economy as, in India’s Quasi federal system, states are put in positions of responsibility and accountability with respect to their fiscal policies as they deeply understand the operation of intricate economic dynamics within a state and distribute economic resources accordingly. This distribution and fiscal management of economic capital often differs from state to state depending on the needs and requirements of each state. Hence having one method approach to the fiscal management will lead to catastrophic consequences.
  4. It is submitted that the weakest section of the society only stands to benefit from such economic welfare schemes labelled “freebeis”. In an interesting analysis, Nobel prize winning economist Esther Duflo during her Ted Talk discusses the social experiment to fight poverty which only goes to prove that giving citizens resources for free does not make them dependent on free resources but incentivizes them to buy them in the future. This was done through a randomized controlled trial of buying bed nets where she discovered that making people buy these bed nets made them significantly lowered the number of people using them but that giving such nets for free made it more likely for the people to buy them in the future. This only goes to show that the concept of free welfare schemes and measures that have been carelessly termed as “freebies” is not foul in the economic realm but is a proven and successfully product of fiscal policy that only enriches and ensures equitable economic conditions throughout the country.
  5. India’s status as a socialist economy means we need to prioritise public welfare by continuing schemes for the benefit of the weakest section of society. To equate welfare spending to freebies culture is flawed analysis as the fiscal costs outweigh the larger societal benefits that these schemes have had over the years. The Fiscal responsibility and Budget Management Act 2003 exists and is exercised to look into deficits of governments and works as a legislatively sanctioned recourse to the superficial issue of healthy fiscal management of recourses among of Union and the States
  6. Another concern is that the Petitioner has not taken into account, the massive loan waivers and tax holidays which were granted to corporates.
  7. In first 3 years of this Union Government, Rs. 72000 crore of loans of Adani Group were written off.
  8. In last five years, ₹92 lakh crore loans were written off by banks out of which, ₹7.27 lakh crore is the share of public sector banks alone. Is this not freebies for corporates? What is the justification for wanting to prevent welfare measures like food, education and travel subsidies for the poor and downtrodden but continuing to give large tax breaks for corporates?
  9. The failure to recover dues to banks from corporates between 2014-2019 is as below

 

  1. This is the culture we need to end, not target the hungry stomach of the farmer or the educational aspirations of a child from the poor and downtrodden people.

 

  1. Whether the fiscal policy such as free education, health care, financial incentives etc. afforded to the weaker sections of society is constitutional?

 

  1. This Hon’ble Court has already considered the legality of such welfare measures in many cases.

 

SM Subramaniam Balaji vs. Union of India 2013 9 SCC 659

  • The State distrusting largesse in the form of distribution of colour TVs, laptops, etc. to eligible and deserving persons is directly related to the directive principles of the State policy. (Para 67)
  • The purpose of these schemes are to enforce directive principles of the State policy. In what way the State chooses to implement the directive principles of State policy is a policy decision of the State and the Court cannot interfere with such decisions. (Para 75)
  • “With regard to the contention that distribution of State largesse in the form of colour TVs, laptops, mixer-grinders, etc. violates Article 14 of the Constitution as the unequals are treated equally. …If certain benefits are restricted to a particular class that can obviously be on account of the limited resources of the State. All welfare measures cannot at one go be made available to all the citizens. The State can gradually extend the benefit and this principle has been recognised by this Court in several judgments.” (Para 78)
  • As observed in the earlier part of the judgment, this Court has limited power to issue directions to the legislature to legislate on a particular issue. However, the Election Commission, in order to ensure a level playing field between the contesting parties and candidates in elections and also in order to see that the purity of the election process does not get vitiated, as in past been issuing instructions under the Model Code of Conduct. The fountainhead of the powers under which the Commission issues these orders is Article 324 of the Constitution, which mandates the Commission to hold free and fair elections. It is equally imperative to acknowledge that the Election Commission cannot issue such orders if the subject-matter of the order of the Commission is covered by a legislative measure. (Para 85)

 

  1. The DPSP articles are interconnected and provide an overarching set of duties of the State.

 

  1. As per the Preamble to the Constitution, India is a Sovereign Socialist Secular Democratic Republic and to secure to all its citizens.

 

  1. The term Socialist Democratic Republic was explained by this Hon’ble Court in Samatha vs. State of AP and Ors. (1997) 8 SCC 191 Para 79

 

  1. The basic framework of socialism is to eliminate inequality in income and status and standards of life. DS Nakara and Others vs. Union of India (1983) 1 SCC 305, (Paras 32,33,34)

 

  1. The implication of the introduction of the word “socialist”, which has now become the centre of the hopes and aspirations of the people — a beacon to guide and inspire all that is enshrined in the articles of the Constitution — is clearly to set up a “vibrant throbbing socialist welfare society” in the place of a “feudal exploited society. Atam Prakash vs. State of Haryana (1986) 2 SCC 249 (Para 5)

 

 

  1. Whether the Court can examine the desirability of a policy or direct legislature to make or not to make a particular policy? Can Courts control the aspirations of the people and the requirements they demand from elected representatives? Is this not a direct intrusion into the separation of powers?

 

  1. Judicial intervention against welfare schemes/ financial policy will have disastrous consequences. It will open the floodgates to test fiscal policies of the Governments in Courts and create a breach of Constitutional lakshman rekha between the Judiciary and the Legislature.
  2. Any intervention by this Hon’ble Court would be a direct violation of Article 50 as separation of powers is a part of the basic structure of the Constitution.
  3. Framing policy, especially financial policy is the prerogative of the elected governments, the Court cannot enter this domain.
  4. The whole point of elections is for the people to elect a representative who will bring about their aspirations.
  5. How can the petitioners or this Court determine which aspiration of the public should be accepted and which should be rejected? That is within the sole prerogative of the legislative and executive branch.
  6. The Constitution vests on the people. The spending of the Government is authorised by the legislature through various Articles in the Constitution. Therefore, the spending of the government is authorised by the people through elected representatives in State Legislatures. The Court cannot direct how to spend the money or supervise with the statutory or constitutional authorities as desired by the Petitioner.
  7. How can the Petitioner dictate which spending is acceptable and which is not? If the definition of freebie is a financial benefit conferred by the Government, with the government getting no benefit in return, how does the Petitioner justify loan waivers to corporates? In fact, this definition would lead to perversity as even relief measures after disasters would fall under this definition as well.
  8. Therefore, there cannot be any straight jacket definition of freebies.

 

  1. Court cannot interfere with the Government’s Policy

 

  1. In the following cases, this Hon’ble Court has held that Courts cannot interfere with Government policy, especially financial policy
  2. Ekta Shakti Foundation vs. Govt of NCT of Delhi (2006) 10 SCC 337 (Para 10)

 

  1. Federation of Railway Officers Association and Ors. vs. Union of India (2003) 4 SCC 289, (Para 12)

 

  • Shailendra Kumar Singh Vs Govt Of NCT Delhi WP(C) No. 4621/2020 (Delhi High Court) (Para 54)

 

  1. Gobarbhai Mahadevbhai Thesia Vs State of Gujarat and Ors, (2014) SCCOnline Guj 12128 (Para 6)

 

  1. Directorate Of Education and Ors Vs Educomp Datamatics Ltd and Ors, (2004) 4 SCC 19 (Para 9 to 12)

 

  1. Union of India and Ors Vs Dhinesh Engineering Corporation, (2001) 8 SCC 941 (Para 12)

 

  • BALCO Employees Union (Regd) v. Union of India, 2002 2 SCC 333 (Para 92)

 

  1. Even recently, this Hon’ble Court, in the case of Rajiv Suri DDA 2021 SCC Online SC 7 held that the Court cannot interfere with the Government’s determination of how to spend its money, when the Government’s spending on the Central Vista project was questioned.

 

  1. It is humbly submitted that the petitioner in his written submissions has proposed to constitute a Committee of Experts comprising of:

 

  1. Chief Election Commissioner or a former CEC
  2. Chairman, Finance Commission of India;
  3. Governor, Reserve Bank of India or a former RBI Governor;
  4. Comptroller and Auditor General of India (CAG) or a former CAG;
  5. Chief Executive Officer, Niti Aayog;
  6. Chairman of the National Institute of Public Finance and Policy;
  7. Chairman of the Law Commission of India or a former Law Commission Chairman

 

  1. However, it is humbly submitted that it is beyond the scope of the power of the Election Commissioner to be a part of the Expert Committee as under Article 324. The other statutory/constitutional authorities proposed cannot test the correctness or the policies falling under the Directive Principles of State Policies and cannot act as advisory bodies or usurp the functions of the law making bodies. No such directions can be issued under Art 32 superseding the powers and functions of the Legislative bodies specifically entrusted under Art 37 of the Constitution when particularly there is an embargo on the courts.
  2. The proposal to set up an expert committee to dictate policy making effectively means that this Hon’ble Court is setting up a super-Parliament, to usurp the functions of Parliament and State Legislatures and dictate policy to the elected representatives. Such a measure is unprecedented and will spell death knell to democracy.
  3. This Hon’ble Court must uphold and maintain the separation of powers envisaged under Art 50 between the Legislature, Executive and the Judiciary.

 

It is therefore prayed that this Hon’ble Court may be pleased to dismiss the above Writ Petition as devoid of merits and pass such or further orders as this Hon’ble Court may deem fit to pass and thus render justice.

 

SETTLED BY:

Mr. P. Wilson, Senior Advocate                                                FILED BY:

 

 

(R. Nedumaran)

Counsel for Impleading Petitioner

 

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