AFFIRMATIVE ACTIONS BY STATES [‘Freebies’]

Every person is a Tax-payer
Recently ‘a tax payer’ has filed a Public Interest Litigation in the Supreme Court challenging the ‘freebies’ given by the State Governments. There is also a plea to de-recognize all the political parties that promises any freebie to the people in their election manifestos. It appears that the prayer in the PIL is for a writ of mandamus to abolish all freebies, given by the Union and the State Governments.It is surprising to note that, when no fundamental right of the petitioner was violated, how such a petition could be filed in the Supreme Court.

Misconceptions
The petitioner seems to be under misconception of the constitutional scheme. The first and foremost misconception is, that the word ‘State’ includes political-parties. Only against State action a writ petition can be filed. Secondly, a policy of a government can be challenged only if that is violative of the Constitution. Thirdly the assumption that only the income tax payers are the tax payers and the non- income tax assesses are all non- taxpayers. The petitioner seems to be oblivion of the fact that every individual is a taxpayer under the GST Regime.

Executive answerable only to Assembly
As mandated by the Constitution, by Article 164(2), the executive, the government headed by the Council of Ministers “Shall be collectively responsible to the Legislative Assembly of the State”. That is the government is answerable only to the Legislative Assembly of the State.

Opinion of Supreme Court
The Supreme Court was consistent in its view that courts will not interfere in the matters of policy of a government. That was due to the fact that the courts were aware that they do not have the wherewithal to determine the needs of the people. Further the courts were aware of the concept of separation of powers embedded in the Constitution. Hence the courts did not want to act either as a super legislature or a super executive. Later that policy was diluted. Presently, a policy decision of the government is subject to judicial review ONLY if it is unconstitutional or if the executive policy is contrary to the statutory or a larger policy.When that be so, it is difficult to comprehend that such a PIL could be filed before the Supreme Court, especially where there is no violation of any statutory or fundamental right. Probably that was the reason for the surprise of the Finance Minister of Tamil Nadu, as to how the courts could interfere in a policy matter of a State.

Directives in the Constitution
The directive principles of the State policy as mandated by the Constitution are as ‘fundamental in governance of the country’. It shall be duty of the state to apply while making laws.According to Supreme Court the Directive Principles are positive aspects.Some such mandates are

i) to secure a social order for the promotion of welfare of the people; ii) ‘Duty to raise the level of nutrition and standard of living’; iii) promotion of welfare of the people’; iv) eliminate the inequalities………….in facilities and opportunities amongst the groups of people etc. One of the principles to be followed as per Art 39, is ‘to control the material resources are so distributed to subserve the common good’. Preamble also specifies that the State must secure to all its citizens equality of opportunity.

Affirmative actions are positive aspects
All the ‘freebies’ given by the States are implementing one or other such Directive principles. Giving free meals to the students is to raise the level of nutrition among the students. Free school uniforms, books, stationaries, bus-pass are all ‘affirmative actions’ taken by the State. They are Positive aspects.Giving cycles and lap-tops to students bridged the gap between ‘haves and have-nots’, thus eliminating the inequality between the students in a class room. Free color TVs increased the dissemination of information to all sections of people. Free electricity to farmers is to reduce the production costs for the farmers. Free electricity to the hut dwellers is to reduce the gap of inequalities in the society. All these are implemented after studying those aspects carefully and on application of mind. By no stretch of imagination these affirmative actions can be considered as violation of any fundamental right or any statutory right, of any section of people, much less of an individual income tax payer.In USA free meals are given to needy students even during vacations. All such policies cannot be considered as violation of the constitutional provisions. On the other hand, they are positive acts of implementing the Directive Principles of State policies.

Cascading or ripple effect:
On the other side, such acts of benevolence of State have a cascading or ripple effect on the industry and labour force. In these days the manufacturer of cycles and the lap tops are able to sell their products, thereby it helps provide employment opportunities to the labour forces. Agriculturists are able to sell their produces at a fair price when government procures from the farmers for their free meal schemes; Poultry farms sell their eggs in lakhs. That is, on the one side it benefits the recipients and on the other side it helps the manufacturers. Thus, the industries are also helped to sustain. Hence it results in a cascading or a ripple effect.It is a chain reaction.

Investment for future resources.
The affirmative actions taken by the State is not a wasteful expenditure. It is a future investment by the State on its people. This has been proved already. The combined effect of all these positive aspects had in fact produced the required human resources that caters the industrial workforces in Tamil Nadu. Many other States feel the paucity of such skilled workforce because they did not make such investment on their people. Further due to these positive actions the percentage of students pursuing higher education of both genders, is very much higher than the All-India average and more than almost all the States in India. In fact it is higher than the such percentage of USA.
All Stake holders view must be heard:

These aspects cannot be understood or realised by persons sitting in air condition rooms. Of late Courts do not want to refuse admission to any PIL. Even such publicity-oriented litigations, at times,goes undefended or nor effectively defended. Stake holders, even when they move to intervene their arguments are not heard. When one section of public views in a particular manner, equally there will be another section of people having a different view.

No doubt, the Hon’ble Supreme Court will consider all these aspects while deciding the matter. Further all the views of all stake-holders must be heard before deciding such issue. Also it is time that the court reviews the concept of Public Interest Litigation. The PIL may be confined only when it is related to violation of Human Rights.