Navya Dubey
Source: Wikimedia Commons
Abstract: This article examines how the constitutional and statutory framework governing election manifestos has created an institutional lock-in that leaves electoral promises largely unregulated. The article posits that transparency-oriented legislative reforms are the only realistically implementable interventions within India’s current democratic framework, as opposed to punitive measures, to balance welfare objectives with fiscal responsibility.
Introduction
The petition filed against the Karnataka Chief Minister (“CM”) challenging his 2023 election, alleging that certain ‘freebies’ offered in the party manifesto amounted to corrupt practices, has once again revived the long-standing debate over freebies, continuing to impact voting behaviour and policy-making. Welfare policies published in election manifestos (“manifestos”) are often viewed with scepticism. However, such promises may be intended to fulfil the constitutional mandate of welfare and are not inherently illegitimate.
However, political parties increasingly offer “freebies”, which are public welfare measures, provided free of charge, as part of their manifestos. Such freebies undoubtedly influence the electorate in ways that often go beyond ideological alignment or long-term policy preferences. When political competition increasingly turns on the promise of material transfers, the electoral process risks shifting from a deliberative exercise to a transactional one. Thus, the regulation of electoral promises is a recurring concern.
This article starts by placing the controversy in the context set by the landmark case of S. Subramniam Balaji v. State of Tamil Nadu (“Balaji”), explaining why that stance does not effectively address important democratic issues. Next, it looks at recent challenges which have brought these unresolved questions back to the forefront. The article then reviews the role of the legislature as a conflicted regulator creating an institutional lock-in. A brief comparison examines how other democracies handle manifesto regulations. Finally, the article advocates for a focused legislative response that maintains democratic choice while addressing issues related to finances and elections.
Legal Status of Electoral Promises
A manifesto generally serves as a reference for the voters to decide which party aligns best with their expectations. The Balaji case was a major development in the attempt to regulate electoral promises.
Section 123 of the Representation of People Act, 1951 (“RPA”) lays down the major corrupt practices, exempting declarations of public policy. In Balaji, the Supreme Court (“SC”) observed that Section 123 applies to the conduct of individual candidates while manifestos are policy statements of the political parties. Thus, it does not fetter the powers of the political parties regarding freebies. The Delhi HC reaffirmed the same, dismissing a petition to make manifestos legally binding. The SC also took judicial notice of the fact that freebies influence the voters, violating electoral fairness.
The SC showed judicial restraint because, neither is it possible to declare all promises in a manifesto as a corrupt practice, owing to the constitutional mandate of welfare, nor judicially expand the definition of corrupt practices, as that would be judicial overreach. Further, there is no clear demarcation between welfare and freebies. It is not within the judiciary’s domain to legislate what qualifies as a freebie, as doing so would violate the doctrine of separation of powers. Thus, the ballot box was deemed to be the appropriate check. If the voters remain unsatisfied by the promises made in manifestos, or upon failure to complete them, voters can always vote them out of power.
However, considering the asymmetry in information and fiscal transparency, the SC directed the Election Commission (“EC”) to frame guidelines regulating manifestos under Article 324. The EC issued manifesto guidelines to preserve free and fair elections, which aimed to encourage political parties to act responsibly through transparency and public accountability, rather than through legal control. However, they remain as a part of the non-binding Model Code of Conduct (“MCC”), thus failing to achieve its objective. Further, the EC has limited power to regulate political parties, and due to the lack of any statutory sanctions, political parties continue to neglect the guidelines with minimal consequences.
Re-emergence of the Freebies Debate
The debate over freebies has returned due to a recent challenge regarding Karnataka CM Siddaramaiah’s 2023 election. The petitioner claims the Congress party’s pre-election promises amount to electoral wrongdoing. The SC issued a notice, seeking the CM’s response to the challenge, after it was brought to its notice that the ruling in Balaji was under review by a larger bench.
The mention of reconsideration of the decision of the Balaji case in the Siddaramaiah case is significant. This reconsideration arose from the petition of Ashwini Upadhyay v. Union of India, where the petitioners have questioned whether Balaji’s conclusions are still adequate given modern electoral practices. They argue that political parties often make extensive promises funded by taxpayer money without assessing their financial viability, which influences voter choices while shifting the financial burden to future governments. They claim that such promises disrupt the level playing field between political parties and undermine the integrity of elections. Interestingly, unlike other litigation in this area, this dispute does not challenge a specific scheme but the structural effect of freebies. Recognising the complexity of these issues, the SC referred the case to a larger bench to review the scope of judicial intervention.
The Conflict-of-Interest Trap: Why the Legislature Will Never Self-Regulate
Clearly, the manifesto guidelines failed to achieve their objective, primarily due to the lack of legal enforceability. Ideally, the electorate should have indirectly forced consequences on parties neglecting the guidelines by not electing them. However, the caveat lies in the fact that freebies are inherently meant to influence the voters. Often, voting behaviour is influenced by immediate, tangible benefits. For many, it is difficult to consider long-term fiscal impacts that seem abstract at the time of casting their votes.
However, in a democracy, the people’s rule is supreme, and whatever the citizens choose must be respected. As the SC rightly observed in Balaji, judicial interference is permissible only if an action is unconstitutional or contrary to a statutory provision, not if the action appears to be unwise. Any deeper attempt to fix the problem would risk judicial overreach or violation of the doctrine of separation of powers.
Separation of powers, as an established defence of the status quo, recognises the control of manifestos as a legislative prerogative, not a judicial one. Although this assertion has constitutional merits, it is politically misguided. It fails to realise that the legislature is a direct beneficiary of the very vices it is supposed to correct.
The political parties rely upon freebies as their main competitive tool. To ask such bodies to amend the RPA to include freebies under corrupt practices is just like asking the participants of an auction to restrain themselves in their bids. In such a setting, competition naturally drives escalation, and any participant who restrains themselves risks losing the competition. For this reason, in the modern populist struggles, parties have little incentive to restrict the usage of freebies. Thus, an institutional void arises, where an avoidance cycle takes place: the SC does not interfere as it is outside its domain; the EC cannot meaningfully regulate due to lack of statutory sanctions; the legislature does not take any action because it benefits from the status quo.
The reconsideration of the Balaji case and the consequent Karnataka electoral challenge illustrate how unstable the void is. Petitions continue due to the lack of accountability of the institutions: when the adjudicator considers itself powerless, and the rule-maker itself is a participant, the legitimacy of the process is undermined.
Comparative Perspective
Different democracies have responded differently to election manifestos and pre-election promises. A brief comparison based on the international practices compiled by the EC helps clarify India’s current situation. Broadly, three different approaches to how manifestos are dealt with can be identified. Each approach adapts a different balance between electoral freedom and accountability.
A. Models based on self-regulation by parties
In the United States (“US”), political party platforms are mostly policy-focused. They outline broad views on issues such as healthcare, economic policy, governance, and foreign affairs. Importantly, they generally do not promise specific benefits to voters. There is also no central election authority that reviews or regulates party manifestos. The responsibility lies mostly with the political parties, and the state has a minimal role.
In countries like the United Kingdom, Canada, and several European democracies have no specific legal rules regulating manifestos, though general guidelines on campaign materials apply indirectly. Election authorities here do not vet or approve manifestos, nor do they evaluate the substance of electoral promises.
This model is based heavily on political culture and voter scrutiny. However, experience suggests such a model is not very effective in India, where, unlike the US, welfare promises are often central campaigning strategies. Political parties have not achieved the standard of self-regulation that the MCC aimed to achieve.
B. Models based on vetting of manifestos.
A more involved model appears in countries like Bhutan and Mexico. In Bhutan, political parties must submit their election manifestos to the Election Commission before they are made public. The Commission reviews the content to ensure it does not threaten national security, social stability, or constitutional values. Similarly, in Mexico, political parties must submit an electoral platform to the election authority for approval before nominating candidates. Although these platforms are not evaluated on political grounds, they must meet the party’s stated principles and legal requirements.
While these models show institutional scrutiny is a feasible option, the focus remains on constitutional compliance and ideological consistency. It does not address concerns related to fiscal sustainability.C. Models based on fiscal transparency
Several Western European countries take a slightly different approach. While manifestos remain political documents, parties often include budget or financial explanations for their promises. Sometimes, independent audit institutions review these to see if the proposals are financially realistic.
Though this model does not stop parties from making promises, it adds some degree of financial accountability. It is a realistic model that ensures that voters are sufficiently informed about the likely fiscal implications of competing promises.
Thus, most countries have refrained from directly regulating what promises can be made through election manifestos. India’s situation is unusual because while there is no legal framework governing manifesto promises, SC has recognised the negative impact of non-regulation. India has failed to adopt a model of self-regulation through the MCC guidelines, primarily due to the lack of consequences for neglect.
This gap suggests there is a need to adopt a transparency-based institutional mechanism which preserves the freedom of the political parties while allowing voters to make an informed decision, as the SC envisioned.
Way Forward
The discussion on electoral freebies shows that the main issue is a lack of institutional measures regulating them. While courts can spot weaknesses in democracy, they cannot create accountability for elections without legislative support.
Some of the discourse on freebies has been on punitive regulation, such as deregistration of parties or taking away the party symbol. Although such policies are based on the issues of financial sustainability, they also reveal the inherent challenge of controlling election pledges by imposing categorical limitations.
This challenge is partly embedded in the disputed nature of the distinction between welfare and freebies. In Balaji, the SC noted that it is not possible to declare all promises in a manifesto as a corrupt practice, owing to the constitutional mandate of welfare. Further, the SC and the EC have both admitted that without statutory support, they have limited power to control the content of manifestos. Though some advocate for inclusion of freebies under corrupt practices either legislatively or judicially, the same cannot realistically be expected from the legislature, nor is it possible for the judiciary, as discussed.
Significant reform thus must involve legislation, but transparency-based reforms instead of prohibition can be institutionally feasible. The ongoing debate about freebies highlights the need for structures that link electoral promises to financial outcomes. To address this issue, this article proposes a tripartite reform agenda:
To begin with, any significant welfare promise that will surpass a nominated ceiling of the state or national budget should be followed by a Fiscal Impact Statement. Political parties must be required to disclose the approximate cost over five years, the sources of revenue (new taxes, debt, or reductions in current programs), and the assumptions underlying the estimates.
Second, an independent auditor must be introduced. Instead of courts or the EC determining the substantive merits of promises, an independent Fiscal Impact Unit (potentially under the control of the RBI or the CAG) would check the accuracy of disclosures. This maintains democratic choice as parties are free to come up with schemes, with the financial impact being believable and visible to voters. Such a body would have to be established by statute, and appointments to it would be made by a process specified by Parliament, but it must be given professional independence.
Thirdly, accountability after the elections must not be limited to the ballot box. A Statement of Implementation must be provided by the legislature within six months. When a government discards a key promise in its manifesto, there has to be a formal institutional explanation, thus creating a connection between campaign speech and performance. Such reporting might also affect party behaviour on the manifesto stage, where more realistic and fiscally viable pledges are made.
These reforms are deliberately modest. Since the political parties themselves gain from the prevailing lack of regulation, the adoption of sweeping legislative restraints is unlikely. However, the mechanisms based on transparency are consistent with the current political incentives: they increase credibility of promises, justify the fiscal decisions following the elections, and reduce the backlash in case the schemes are changed or abandoned. Such reforms are the only institutionally feasible alternative which does not distort democratic choice or invite judicial overreach.
Conclusion: Breaking the Circle of Institutional Evasion
The reappearance of the freebies debate in the Ashwini Kumar Upadhyay case and the Karnataka election issue proves that the legal framework that was assumed to be resolved by Balaji is inadequate to put the brakes on competitive populism funded by future fiscal crises. The judicial restraint can only be justified when other arms of government are performing their duties in a responsible manner. When the legislature is trapped in a conflict of interest, and the EC lacks statutory authority, restraint becomes abdication.
SC’s willingness to reconsider Balaji signals an institutional recognition that something has failed. Nevertheless, the answer is not in courts deciding which policies are good or bad. It consists of laying down a regulatory framework that would turn informed democratic choice from a dream into a binding norm, considering the limit of what can realistically be expected from a legislature that is itself a conflicted stakeholder. While such reform depends on legislative initiative, the procedural nature of transparency-based mechanisms makes them less intrusive than punitive regulation, and therefore more politically feasible. As both SC and EC have acknowledged the limits of their authority in regulating manifesto promises, meaningful reform is not possible without legislative action.
Navya Dubey is a second-year B.A. LL.B. (Hons.) student at Hidayatullah National Law University. She is interested in constitutional law and public policy