Freedom from freebies must not come from judicial diktat or executive fiat

The Supreme Court should stick to its normal posture of not getting embroiled in political thickets

Brigadier (later Field Marshall) KM Cariappa was required to address his troops on August 15, 1947. As a pucca angrez from Coorg, his Hindustani was rather weak. He, therefore, asked his adjutant the Hindustani word for free. Resultantly he told the assembled soldiers, "Is waqt aap muft, ham muft, mulk muft hai." Perhaps the Indian habit of getting things for free stems from misconceptions similar to Cariappa's.

Translated into electoral politics, the politician or party that promises freebies is likelier to clamber first past the post at the hustings. In the 1960s, K Kamaraj's promise to make rice available for sale at one rupee a kilo earned him political dominance. Two decades later, in 1983, NT Rama Rao stormed into power, promising rice at two rupees a kilo. Both Kamraj and Rao faced questions about financial viability but held firm on their promises for a few years during their administrations. Later their successors dropped or whittled down these schemes as fiscally imprudent. However, a transactional electoral pattern got set, where voters traded their votes for promises of reasonably proximate financial benefits.

The representation of people's act has provisions against direct bribery of voters. Among the corrupt practices detailed in Section 123 of the Representation of Peoples Act is bribery which is defined as -" (A) any gift, offer or promise by a candidate or his agent or by any other person with the consent of a candidate or his election agent of any gratification, to any person whomsoever, with the object, directly or indirectly of inducing— … (b) an elector to vote or refrain from voting at an election, or as a reward to—(ii) an elector for having voted or refrained from voting...". It could be argued that promises such as Kamraj's or NTR's were like a bribe or inducement to voters. However, the remedy under electoral laws was setting aside elections at constituency levels after courts decided on an election petition. This remedy did not necessarily apply to state-wide promises. They were often defended as policy decisions likely to be implemented by the new government.

While state-wide political promises could be termed as policies, no matter how fiscally imprudent, voters got used to the targeted distribution of tangible goodies. Some politicians offered mixers, and others distributed television sets. In the north-Indian states, families with school-going children were targeted by the distribution of laptops for students of higher classes or by giving bicycles to girls to enable them to come to school. There is now no Indian election without financial promises, and as yet, no Indian politician has taken the Rishi Sunak line of, "I would rather lose than win on a false promise."

Not every financially unviable promise is a freebie. A freebie is sometimes a promise fulfilled in advance of the vote. Governments sometimes introduce welfare measures just before elections are due, leaving the next government holding the baby. In 2011 Ashok Gehlot, as Chief Minister of Rajasthan, announced a scheme for free medicines in the state. His government was voted out in 2013, but he regained power in 2018 and launched a bigger medical scheme in 2021.

Thus, a freebie is the only way a poor voter gets to know how much his vote is worth. Some argue that bank write-offs to select corporates and political donors are more lethal to Indian democracy than untargeted freebies to poor voters at large.

It is in this background that one must consider the Supreme Court's orders in a petition filed in the public interest by BJP leader Ashwini Upadhyay. The court has sought to form a committee with all stakeholders, including representatives of the election commission.

As a constitutional body, the election commission has rightly declined to be part of this recommendatory body. Any recommendation that its representatives give or refrain from adopting might set a precedent for the commission in its constitutionally mandated task of conducting free and fair elections.

The Supreme Court, too, should stick to its normal posture of not getting embroiled in political thickets. The court may, at best, nudge all stakeholders into a new model code of conduct which defines freebies and regulates their use in elections. The existing model code was also adopted with the assent of all political parties, and there is no reason to suppose that political parties cannot formulate a similar agreement on the usage of freebies in elections.

Freedom from freebies must not come from judicial diktat or executive fiat. Both are likely to be disobeyed or observed in the breach. It may yet come from voluntary self-regulation by political parties who know the price of making, keeping and breaking promises.

The author is a lawyer who practises in the Supreme Court