Author: Kause Hrishikesh Eknath, Siddharth College of Law, Mumbai
Electoral “freebies” occupy a grey area in Indian constitutional law: they may be welfare measures grounded in the Directive Principles of State Policy, but untargeted, fiscally unsustainable promises can distort electoral choice and burden public exchequers. The central legal question is whether pre-election promises can be regulated as “corrupt practices,” and if so, by whom—the legislature, the Election Commission of India (ECI), or the courts. The Supreme Court has so far held that manifesto promises donot, by themselves, constitute corrupt practices under Section 123 of the Representation of the People Act, 1951, but the issue remains live before a larger Bench.
The debate involves several distinct legal concepts:
• Corrupt practice: An electoral offence under Section 123 of the Representation of the People Act, 1951, including bribery, undue influence, and appeals on prohibited grounds.
• Electoral manifesto promise: A prospective commitment made by a political party before an election; it is not automatically a legally enforceable contract or a statutory corrupt practice.
• Directive Principles of State Policy (DPSP): Constitutional directives in Part IV guiding the State toward social and economic welfare; they are non-justiciable but fundamental in governance.
• Public purpose and fiscal discipline: The State’s power to expend public funds must be exercised for a legitimate public purpose, subject to budgetary constraints, legislative oversight, and constitutional principles of equality and non-arbitrariness.
• Free and fair elections: A basic feature of the Constitution, protected through Articles 324 to 329 and administered by the ECI under Article 324.
The ECI’s Model Code of Conduct (MCC) prohibits the ruling party from announcing fresh financial grants or promising projects once elections are announced. Its manifesto guidelines also state that parties should avoid promises likely to vitiate the purity of the electoral process, while recognising that manifesto promises are not presently “corrupt practices” under Section 123.
The legal foundation of the controversy lies in the tension between democratic competition and public finance. Political parties compete for votes by offering welfare benefits—such as free electricity, subsidisedfood, cash transfers, laptops, or loan waivers. Some of these measures may advance Articles 38, 39, 41, and 47 of the Constitution, which direct the State to reduce inequality, secure adequate means of livelihood, provide public assistance, and raise nutrition and public health standards.
However, a promise becomes constitutionally problematic when it is not linked to any identifiable welfare objective, lacks fiscal assessment, or is designed solely to induce voters. The difficulty is that Indian electoral law currently addresses bribery at the level of individual candidates and voters, not broad policy promises made by political parties. The Supreme Court recognised this gap in S. Subramaniam Balaji v. Government of Tamil Nadu, holding that manifesto promises do not fall within Section 123 and directing the ECI to frame guidelines in consultation with recognised political parties.
The ECI has consistently taken the position that it lacks statutory power to deregister or broadly regulate political parties for making freebie promises, absent a specific law. Its MCC nevertheless seeks to protect the level playing field during the election period by restricting announcements of financial grants and new schemes by the party in power.
In 2022, the Supreme Court referred petitions challenging electoral freebies to a three-Judge Bench, observing that indiscriminate freebies could push a State toward financial crisis. The Court framed issues including whether an ECI-led body should be constituted to make recommendations, whether freebies should be distinguished from legitimate welfare measures, and whether the 2013 decision in SubramaniamBalaji requires reconsideration.
This article examines the constitutional and statutory framework governing pre-election promises of freebies in India. It argues that the law must distinguish between targeted welfare expenditure, which may be constitutionally legitimate, and unqualified electoral inducements, which may impair informed voting and fiscal stability. While the Supreme Court in S. Subramaniam Balaji held that manifesto promises are not corrupt practices under Section 123 of the Representation of the People Act, 1951, the absence of a comprehensive statutory regime leaves a regulatory vacuum. The article contends that reform should not ban welfare schemes; rather, it should introduce transparent costing, legislative approval, disclosure of funding sources, and a clear legal distinction between public-interest welfare and vote-buying through public resources. The proposed solution is institutional: a statutory framework empowering the ECI, Comptroller and Auditor-General, and Finance Commissions to assess the fiscal impact of major electoral promises without curtailing democratic debate.
S. Subramaniam Balaji v. Government of Tamil Nadu, (2013) 9 SCC 659
This is the leading authority. The case concerned the distribution of colour televisions pursuant to a pre-election promise. The Supreme Court held that promises in an election manifesto do not constitute corrupt practices under Section 123 of the Representation of the People Act, 1951. It also observed that State distribution of items such as televisions and laptops to eligible persons could be connected with the Directive Principles of State Policy.
The judgment nevertheless acknowledged the potential influence of freebies on voters and directed the ECI to frame guidelines on election manifestos in consultation with recognised political parties. This direction forms the basis of the present manifesto guidelines in the MCC.
Association for Democratic Reforms v. Union of India, (2002) 5 SCC 294
Though not directly about freebies, this case established that voters have a right to know relevant information about candidates, derived from Article 19(1)(a) and the constitutional guarantee of free and fair elections. The principle supports the argument that voters are entitled to meaningful information about the fiscal consequences of electoral promises.
Union of India v. Association for Democratic Reforms, (2002) 5 SCC 294
The Supreme Court reaffirmed that fair elections form part of the basic structure of the Constitution. This principle is relevant because unregulated, opaque promises funded by public money may undermine the voter’s ability to make an informed electoral choice.
Ashwini Kumar Upadhyay v. Union of India
This ongoing litigation challenges the constitutionality of electoral freebies and seeks reconsideration of Subramaniam Balaji. In August 2022, the Supreme Court referred the matter to a three-Judge Bench to examine, among other issues, the ECI’s power to regulate manifesto promises and the need for a dedicated body to study the fiscal impact of freebies.
Electoral freebies cannot be dismissed as inherently illegal, nor accepted as beyond constitutional scrutiny. India is a welfare state, and social-security measures are often necessary to fulfil constitutional commitments to equality, dignity, and socio-economic justice. But a democracy also requires that electoral competition remain fair, informed, and fiscally responsible.
The present legal position is incomplete. Section 123 of the Representation of the People Act, 1951, does not clearly cover party-level manifesto promises, while the ECI’s MCC operates mainly as an administrative code rather than a statutory deterrent. The Supreme Court’s pending examination of the issue provides an opportunity to develop a balanced doctrine.
A practical reform framework should include:
• A statutory definition distinguishing welfare measures from electoral freebies.
• Mandatory disclosure of estimated recurring and capital costs for major promises.
• Independent fiscal assessment before implementation of large-scale schemes.
• Clear restrictions on announcements by incumbent governments during the MCC period.
• Stronger ECI powers to issue advisories, seek explanations, and refer egregious cases for scrutiny.
• Parliamentary and state legislative oversight of expenditure through budgetary processes.
The objective should not be to prohibit welfare politics. It should be to ensure that public resources are used for constitutional welfare, not converted into instruments of electoral coercion. A transparent, fiscally disciplined framework would preserve both democratic choice and intergenerational fiscal responsibility.
1. Are election freebies illegal in India?
No. Mere promises in an election manifesto are not, by themselves, illegal or corrupt practices under current law. The Supreme Court held so in S. Subramaniam Balaji.
2. Can the Election Commission ban freebies?
The ECI can regulate certain conduct during elections through the Model Code of Conduct, including announcements of financial grants by the party in power. However, it has stated that it lacks comprehensive statutory power to regulate political parties’ manifesto promises absent legislation.
3. Are all welfare schemes “freebies”?
No. Welfare measures aimed at education, health, food security, housing, or livelihood may be constitutionally supported by the Directive Principles. The concern arises with untargeted promises made primarily to influence voters without fiscal justification.
4. What is the main legal provision involved?
Section 123 of the Representation of the People Act, 1951, which defines corrupt practices, including bribery and undue influence. The unresolved issue is whether broad party promises fall within its scope.
5. What reform is most suitable?
A balanced statutory framework requiring cost disclosure, fiscal impact assessment, and transparency, rather than a blanket prohibition on welfare promises. This would protect both voter welfare and public finances.
