The cost of freebies and the legal quagmire

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The cost of freebies and the legal quagmire

Tuesday, 09 July 2024 | Uttam Gupta

The cost of freebies and the legal quagmire

Despite a Supreme Court ruling highlighting the impact of freebies on election fairness, political parties continue to leverage public funds for electoral gain

In the Maharashtra Budget for 2024-25 presented by Deputy Chief Minister Ajit Pawar, the BJP-led MahaYuti has announced financial assistance of Rs 1,500 per month for eligible women between 21 to 60 years of age, a stipend up to Rs.10,000 per month for youth in industrial and non-industrial sectors, electricity bill waiver for farmers etc. Unambiguously, these are freebies - an acronym for something given by the State free of charge – aimed at garnering votes during the State assembly elections later this year.

In a July 2013 order in S Subramaniam Balaji vs Government of Tamil Nadu & Ors, the Supreme Court (SC) had said that the distribution of freebies of any kind influences all people; that “It shakes the root of free and fair elections to a large degree”. Yet, it had held that promises in the election manifesto cannot be construed as “corrupt practice” under the Representation of People Act (RPA), or any other prevailing law and, hence, distribution of freebies can’t be stopped when the ruling party uses public funds for this purpose through the passage of Appropriation Acts in the state assembly.In the same order, it directed the Election Commission of India (ECI) “to frame guidelines that could govern the contents of the election manifesto of all the recognized political parties as when it had acted while framing guidelines for general conduct of the candidates, meetings, processions, polling day, etc”. Further “this can also be included in the model code of conduct – under a separate head for guidelines for election manifesto – for guidance of political parties and candidates”.The ECI never came out with any such guidelines.Emboldened by ECI inaction, the political parties who in the past, were placing freebies in a corner of their manifestos, have started catapulting them to the centre stage.

Now, freebies hold the key to winning elections. In February 2020, the Aam Aadmi Party (AAP) led by Arvind Kejriwal mesmerized Delhi, voters, by promising free or heavily subsidized electricity and free water, free bus rides for women, free Wi-Fi, and so on. In 2022 in Punjab, AAP promised free electricity to each household for consumption up to 300 units per month, waiver of all outstanding power bills, Rs 1000 per month to every woman aged 18 or above etc. The party won the state with a thumping majority. In Uttar Pradesh also in 2022, BJP promised 20 million smartphones for poor students, two free LPG cylinders every year, Rs 100,000/- for the marriage of girls from poor families, and so on.Meanwhile, the matter came up before the SC through a public interest litigation (PIL).

On January 25, 2022, it observed “This is no doubt a serious issue. Budget for freebies is going above the regular budget”. It also reiterated that “this disturbs the level playing field”. On August 3, 2022, it gave a sense that it is for Parliament, besides the ECI, to take the initiative to enact a law on curbing freebies. It also sought suggestions on the composition of a committee that could go into the issue “dispassionately” and make recommendations.

But, the above decisions haven’t been acted upon. Although, on its part, the ECI had sent out questionnaires asking parties to give ‘specifics’ of what they intend to promise voters, financial impact and how this will be funded, there hasn’t been any follow-up.  Meanwhile, the freebies continue to proliferate. In Karnataka elections in May 2023, the grand old party (GOP) promised five guarantees viz. Gruha Jyoti, Gruha Lakshmi, Sakhi programme, Yuva Nidhi, and Anna Bhagya. The trend continued during elections in Madhya Pradesh (MP), Rajasthan, Chhattisgarh and Telangana held in November/December 2023.  While, in Rajasthan, Congress promised Rs 10,000 every year to the female head of the family under the Gruha Lakshmi Yojana, in MP, BJP increased the grant to Rs 1,250 per month under Ladli Behna Yojana; the amount to be hiked to Rs 3,000 per month. Additionally, in MP, under Ladli Lakshmi Yojana, the BJP promised girls Rs 200,000/- till they get married. In Chhattisgarh, it promised Rs 12,000 per year to married women under the ‘Mahtari Vandan Scheme’.

In Telangana, the GOP beat all promising 10 grams of gold besides Rs 100,000/- cash to women getting married. In the run-up to the general elections, even as Prime Minister Narendra Modi announced on December 23, 2023 supply of free foodgrain under the Pradhan Mantri Garib Kalyan Anna Yojana (PMGKAY) to over 800 million persons, Congress gave ten guarantees in its manifesto “Nyay Patra" released in April, 2024. Meanwhile, in Delhi, Kejriwal promised Rs 1000 per month to all women above the age of 18 years under the Mukhyamantri Mahila Samman Yojana (MMSY). For State elections later this year, parties are readying to give another round of big doles.

As mentioned earlier, the BJP-led MahaYuti has already announced a bountiful package for Maharashtra. For others viz. Haryana, and Jharkhand, parties will follow suit.       The SC assertion on January 25, 2022 “Budget for freebies is going above the regular budget” is confirmed by facts on ground zero. Whereas, in Delhi, these cost the exchequer around Rs 12,500 crore annually, in Punjab the impact is close to Rs 20,000 crore.

In Karnataka, at over Rs 60,000 crore, the cost of five guarantees exceeds the existing fiscal deficit. Redeeming the guarantees promised in GOP’s “Nyay Patra" could cost the Central Government a mammoth around Rs 46,00,000 crore.

In Maharashtra, Rs 1,500 per month to eligible women alone would cost Rs 46,000 crore a year.          When the top court says freebies are bad, why doesn’t it ban them?   A big deterrent is none other than the SC order of July 2013 which says “… it can’t be construed as corrupt practice…”

Within the meaning of section 123(1)(A) of the RPA, 1951, the expression ‘bribery’ has been defined to mean 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 with the object of inducing an elector as a reward to his candidature. The irony is, that when a candidate uses his own pocket money to bribe the voter, it is treated as corrupt practice, but when the party on whose symbol he is seeking election bribes voters using ‘public money’, the top court doesn’t treat it that way.

The Union Government’s standards of financial propriety lay down inter alia that “no authority shall exercise its powers of sanctioning expenditure to pass an order which will be directly or indirectly, to its advantage; and the expenditure from public moneys should not be incurred for the benefit of a particular person or a section of the people unless a claim for the amount could be enforced in a court of law or the expenditure is in pursuance of a recognized policy or custom”.

The reckless spending of the taxpayer’s money on freebies is neither a recognized policy/custom nor it is sanctioned in a court of law. It is a blatant financial irregularity that amounts to bribing voters using public money solely to gain electoral advantage. The SC should change its stance to recognize this and force the Parliament to enact a law if it feels existing laws don’t provide for it.

(The writer is a policy analyst; views expressed are personal)

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