By: Prakhar Bajpai
The fundamental feature of modern jurisprudence is that for a democracy to be successful, voters must be prepared to make their decisions wisely. A democratic system that does not honor the normative values represented by modern jurisprudence runs the risk of eroding its own public legitimacy and trust. A political conception of the democratic system would not limit itself merely to free and fair elections but would also consider that the purity of elections be maintained. One such process that amalgamates this political structure is the “freebies” that impinge on the functioning of the rule of law in contemporary India. The issue of freebies is so glaring that the Supreme Court [HEREINAFTER as SC] of India directed the Election Commission of India (HEREINAFTER as ECI) to bring the issue of election-related “freebies” under the ambit of the Code of Conduct. The Supreme Court has ordered a three-judge bench to deal with the issue of freebies.
It is a serious issue and the freebies budget goes beyond the regular budget as regarded by NV Ramana. There is a lack of any judicial precedent regarding the distribution of freebies, which has prompted political parties to misuse the lacuna that has been created. As the issue awaits deliberation before the Supreme Court, the author seeks to fill gaps in academic literature and provide the meaning and scope of “freebies.” ECI, in its statement, has escaped its responsibility by contending that it is up to the voters that they are rational to decide whether the policies given by a party will be damaging to the state’s economy or not. The article seeks to counter this contention by stating that voting behavior is influenced by various factors. Additionally, it will also suggest the much-sought solution to the glaring problem of freebies by suggesting the ways through which the Finance Commission of India [HEREINAFTER as FCI] can distribute the grants-in-aid in an appropriate manner. For a basic definition of freebie- it is something that is given free of charge, however to limit and restrict it to this criterion and give the judgment will lead to this topic of losing its essence, the author through this article seeks to explore the complexities and nitty-gritty of the term “freebies” and how the issue can be solved by dividing it into two categories.
GENESIS OF FREEBIES ISSUE
India has opted for an electoral system which is called the First Past the Post System (FPTP). In FPTP, all you need is one more vote than your nearest rival; the struggle for marginal votes is evident in the various elections that take place from Panchayat to Parliament elections. This system induces the astute Indian political parties to influence voting behavior and it is quite convenient for political parties to mobilize voters by promising freebies.
Although the issue of freebies is not new, it was only brought to the court’s attention when the writ petition was filed, in the case of Subramaniam Balaji, which contained that financing such freebies through the State Exchequer amounts to “electoral bribes” as it influenced the voters. Therefore, the Apex Court reached the conclusion to direct ECI to frame guidelines for general conduct of the political parties. Also, it was noted that there is a need for separate legislation to be passed by the legislature. In this regard, the Government came up with a Constitution (Amendment) Bill in 2015, stating in its objective and reason that parties mentioning freebies in their election manifestos try to fulfill them at the cost of the overall economic interests of the country. The bill sought to add the clause in the Articles 112 and 202 stating and putting a ceiling of 10 percent on the amount of the total expenditure in a financial year (FY) that can be used by Central and State governments on freebies. Which was again destructive taking the example of Delhi the total expenditure in 2021-22 FY was 62,785 Crore, the 10 percent of which would be 6,278 Crore and Delhi spent 5,238 Crore on Urban Development so to say that it could become legal to spend more on freebies than on development. According to the report by the Comptroller and Auditor General of India, the state government’s total expenditure on subsidies grew by 12.9% and 11.2% during 2020-21 and 2021-22, respectively.
Additionally, the directions given to the ECI to guide and direct the political parties to explain the rationale behind giving such freebies and the means through which the party seeks to achieve such pledges through state expenditure, this follows an attempt by SC to create a level- playing field before elections. However, political parties started escaping this essential condition by hiding under the blanket of Directive Principles of the State Policy, which aims to establish a social and economic democracy through a welfare state. Thus, contending that these freebies are for the common good of the public. For a quantifiable idea of how the politics of Tamil Nadu has been expected and it has been a cultural politics of Tamil Nadu to provide freebies, check these out in the statistics: Successive governments in the state have spent nearly $2 billion (Rs.11,561 crore ) on just three freebie schemes- laptops, color television sets and household appliances. Providing these in no way falls under the directive policies of providing social and economic justice.
Since then, till the past year, there was “no” hue and cry about the freebies in the legal system until a Public Interest Litigation petition was filed earlier this year before the SC sought directions to ECI to size election symbols and de-register such parties promising freebies using public funds before elections. This prompted SC to issue a notice to the Central Government and ECI on a plea seeking directions to ECI to urgently look into the matter of pre-election freebies promised by political parties. In return, ECI stated, “Offering any freebies either before or after the election is a policy decision of the party concerned and it cannot regulate state policies and which may be taken by the winning party when they form the government.” Further, submitting that the people of the state must analyze and determine if such measures are financially sustainable or whether they would have a negative impact on the state’s economic health.
ANALYSING WHETHER JUDGING THE ECONOMICALLY DRAINING POLICIES SHOULD BE LEFT AT SOLE DISCREATION OF VOTERS
The contention by ECI that voters are rational and responsible people and would vote in the public interest; hence, it is for the voters to decide whether they would vote for the parties that have promised to give irrational freebies using the state exchanger that could otherwise hurt the state’s economy, is incorrect. In his book The myth of the rational voter: Why democracies choose Bad policies, which was reviewed in the popular press, including in (The Wall Street Journal) economist Bryan Caplan argued against the notion that voters are responsible and rational citizens who should be trusted to enact legislation. Instead, he argues that political voters are irrational and have deliberately distorted views of the economy.
When it comes to choosing a company strategy or employing workers, people are generally sensible. They could be mistaken, but systematic prejudice is extremely uncommon. They are justifiable since it costs money to be wrong. For example, a casteist will nevertheless recruit a talented Dalit since the cost to the business of choosing the second-best alternative is higher. A protectionist will nevertheless outsource because, in order to remain competitive, he has to get as many advantages over his rivals as possible. Voters in lower economic brackets believe that supporting certain politicians or parties may change their lifestyle because those individuals and organizations are engaged in alluring campaign tactics like making freebie promises.
Caplan also emphasizes that it is their political advisors, who know what kinds of policies their party needs to win an election that would be generally beneficial to gather the vote bank. Thus, in this way they maintain their vote share balance, so they do not get voted out of office because of unpopular policies.
Another economist Anthony Downs, in his book An Economic Theory of Democracy which is regarded as one of the authoritative works for referring to the Rational Choice Model for studying voting behaviour, arguing that voters would assess candidates and vote for the party based on the promises they made to deliver. This is in line with a Swedish research that demonstrated that voters may and will respond to explicit promises of personal economic gains. The proponents of this concept assert that voters alter their political party identification during each election while taking the state of the economy and how the parties are responding to it into account. Voters take their interests into account when selecting a party or candidate, and these interests may also be personal.
As a result, the argument that voters should negotiate how their money should be spent between themselves and the government is flawed. Parties through various political analysts’ firms, try to target as many larger vote banks as possible, seeing the future election prospects. Therefore, the proponents’ say that if enough voters feel that the government is wasting their tax resources, the voters will eventually express that sentiment on the EVM is nullified.
 European Scientific Journal September 2014 /SPECIAL/ edition
 Stegmaier, M., Lewis-Beck, MS, & Park, B. (2017). the SAGE Handbook of Electoral Behavior, Vo. 2 (pp. 584-605). London: SAGE Publications.
 Antunes, R. “Theoretical models of voting behavior. Exedra” (2010), pg. 145-70.
 Downs, A. “An economic theory of democracy” (1957), Harper Collins Publishers.
(Prakhar Bajpai is a law undergraduate pursuing from Rajiv Gandhi National Law University, Punjab. He may be contacted via mail at [email protected]).
Cite as: Prakhar Bajpai, ‘Free-Freebies or Paid-Freebies: Who Pays for it?’ (The Rmlnlu Law Review Blog03 October 2022)