Does promising freebies amount to bribing voters

Despite pathbreaking work on information and voting, there is still uncertainty about how voters
interpret and respond to campaign information, especially in consolidating democracies where policy
promises are rarely the currency of electoral competition. Although campaign promises and their
fulfillment are central to foundational models of electoral accountability, our understanding of how
voters process this information and incorporate it into their vote choice is limited. Results from
pathbreaking field experiments providing information to voters reinforce this conclusion: while some
interventions significantly affect voter behavior, others do not.1 Furthermore, there is no consensus
on the precise mechanisms through which information interventions affect vote choice.

Further, CJI Ramana insisted that voters are not easily enamoured
by freebies. He stated that voters choose to have a dignified
source of income. Schemes such as MGNREGA, offered a
dignified livelihood and created public assets in rural India. He
pointed out that many political parties who have made attractive
promises or distributed freebies have lost elections. The voter’s
concerns go far beyond promises of freebies.
Solicitor General Tushar Mehta, representing the Union
government, argued that freebies were being used to ‘lure’ voters
during elections and deprive them of the ability to make an informed
decision.
Sr. Adv. Prashant Bhusan appeared on behalf of the Centre for
Public Interest Litigation as an intervenor in the case. Mr. Bhushan
submitted that there were three kinds of freebies that must be seen
as illegal—those which were discriminatory and violated
fundamental rights, those that violated public policy, and those
which were handed out immediately before elections were
conducted. Mr. Bhushan argued that the last are akin to bribing
voters.
Sr. Adv. Prashant Bhusan appeared on behalf of the Centre for
Public Interest Litigation as an intervenor in the case. Mr. Bhushan
submitted that there were three kinds of freebies that must be seen
as illegal—those which were discriminatory and violated
fundamental rights, those that violated public policy, and those
which were handed out immediately before elections were
conducted. Mr. Bhushan argued that the last are akin to bribing
voters.
Section 123 of ROPA defines “bribery” as a “gift, offer or promise” by a
candidate, candidate’s agent or “any other person” to an elector inducing a
vote in the elections. In Subramaniam Balaji, the Supreme Court held that
the provision only extends to individual candidates and not political
parties, which can include many individuals. Hansaria argued that this
reasoning was flawed and that “persons” under Section 123 must include a
political party.
Hansaria then referred to Section 100(b) of ROPA which includes “corrupt
practices” as a ground for declaring an election as void. Presumably,
Hansaria was pointing out that electoral freebies—if declared as a “corrupt
practice”—are grounds for challenging an election.

Hansaria: The decision in Subramaniam Balaji allowed those engaging in

corruption to subvert the law

Hansaria relied on the definition of “person” under the General Clauses

Act, 1897, to argue that a “person” includes a company, a body of persons,
or an association. According to him, a political party can also be
considered as a “person” under this definition.
CJI Chandrachud observed that Section 123, which defines “corrupt
practices”, states that the act must have been carried out by some
“individual”, and not necessarily a “person” in its juristic sense. This
reasoning was adopted by the Supreme Court in Subramaniam
Balaji when it considered freebies outside of “corrupt practices”. Hansaria
responded that this rationale could have deleterious implications. To
buttress his point, he submitted that 2,732 political parties in India did not
contest elections, or have any offices, as per data from the Election
Commission of India (ECI). Such parties were set up by candidates to
attain immunity from Section 123. Hansaria reasoned that, along similar
lines, candidates engaging in corruption can also give “gift” through
NGOs or associations of persons, established by the candidate’s “consent”
and attain immunity from prosecution for “corrupt practices”. This would
defeat the purpose of the provision, he said.

Hansaria claimed that the ECI is unable to keep check on these political
parties due to the decision in Indian National Congress (I) v Institute of
Social Welfare (2002). Indian National Congress (I) had laid down three
exhaustive grounds for deregistering a political party but did not include
freebies as valid grounds.
CJI Chandrachud asked whether including political parties as “any other
person” under Section 123 would consequentially include contesting
individual candidates within the political party.
Hansaria stated that electoral freebies in the form of promises within the
manifesto are construed as an “inducement to bribery.” Senior Advocate
Arvind Datar and Hansaria iterated the fundamental principle that “what
cannot be done directly, could also not be done indirectly.” They claimed
that freebies by political parties were essentially an indirect inducement of
bribery by a candidate.

 Arguments in Favor of Freebies:

o Essential for Fulfilling Expectations: In a country like
India where the states have (or don’t have) a certain
level of development, upon the emergence of the
elections, there are expectations from the part of
people which are met by such promises of freebies.
 Moreover, there are also comparative
expectations when the people of the
adjoining/other states (with different ruling
parties) get freebies.
o Helps Lesser Developed States: With the states that
have comparatively lower level of development with a
larger share of the population suffering from poverty,
such kind of freebies become need/demand-
based and it becomes essential to offer the people
such subsidies for their own upliftment.
 Associated Issues With ‘Freebies’:
o Economic Burden: This places a huge economic
burden on the exchequer of the state as well as centre.
o Against Free and Fair Election: The promise of
irrational freebies from public funds before elections
unduly influences the voters, disturbs the level playing
field and vitiates the purity of the poll process.
 It amounts to an unethical practice that is just
like giving bribes to the electorate.
 o Against Equality Principle: Distribution of private
goods or services, which are not for public purposes,
from public funds before the election violates several
articles of the Constitution, including Article 14
(equality before law).
 ntry and there is still a huge set of people who are below the poverty
line.
o It is also important to have all the people accommodated in the
development plan of the country.
o The judicious and sensible offering of freebies or subsidies
that can be easily accommodated in the states’ budget do not
do much harm and can be leveraged.
 Differentiating Subsidies and Freebies: There is a need to
understand the impacts of freebies from the economic sense and
connect it with the taxpayers money.
o It is also essential to distinguish between subsidy and freebies
as subsidies are the justified and specifically targeted benefits
that arise out of demands.