Bihar Elections: Why Election Promises of Free Coronavirus Vaccine Can be Both a Freebie and a Policy Statement

BJP's election manifesto promise of free coronavirus vaccine has faced severe criticism for politicising a pandemic. Yet, it comes in a long line of election dole-outs promised by parties to lure voters. SONALI CHUGH examines its legal veracity.

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Amid a loud election campaigning in Bihar, Union Finance Minister Nirmala Sitharaman pledged free COVID-19 vaccine for all in the state as soon as it is available. The minister flashed it as 'promise number one' in the Bharatiya Janata Party's election manifesto for the upcoming assembly polls in the state.

Given the number of people who have thronged the campaign rallies in Bihar, throwing caution to the winds, the promise for a free vaccine seems a little ironic.

Currently, the COVID-19 vaccine is yet to come, let alone its approval. Considering this fact, BJP seems to be riding a unicorn on an invisible saddle.

This announcement caused a huge uproar from the opposition that reasoned that no single state can be a beneficiary of the COVID'19 vaccine. The opposition quickly alerted the Election Commission of India [ECI] for this violation of the Model Code of Conduct by the ruling party. Shortly after the uproar settled, BJP's manifesto received an oblique nod by the Election Commission of India. The latter gave an implicit approval by quoting an instance from the 2019 General Election when the 'NYAY Yojna' of the Indian National Congress was given a pass.

Those favoring the BJP have turned to an alternate argument,  that is the directive principles of the state policy that gives states the power to frame various welfare schemes for citizens and thus making this promise non-violative of the Model Code of Conduct (MCC).

Following Bihar's lead,  the state of Madhya Pradesh, also a BJP ruled state, promised free vaccination in its manifesto, directed at the upcoming by-polls for 28 seats.

In another such instance, a BJP candidate from Rajarajeshwarinagar recently distributed set-top boxes ahead of the upcoming by-polls in the state.

The promise of freebies in the garb of welfare schemes is now common parlance.

During Delhi Elections this year, Delhi Chief Minister Arvind Kejriwal was served with a notice by the Election Commission. EC's reasoning for the warning was the promise made by Delhi CM which was to set up a 'mohalla clinic'. Since Aam Aadmi Party was the 'party in power', the promise made in a private gathering was considered violative of the MCC.

Last year, a petition was filed against direct cash transfer schemes and freebies ahead of the polls, and it came under the apex court's scanner. The petitioner claimed that the center and state government were rolling out certain schemes such as PM Kisan Samman Nidhi Scheme, NTR Bharosa, and Mukhya Mantri Yuva Nestam, and so on. It was claimed that these dispensations gave undue advantage to some parties causing aberration to free and fair elections.

Both AIADMK and DMK have rolled out the announcement for freebies or dole-outs rigorously. In 2016, the AIADMK, the ruling party at the time, went all out in launching freebies ahead of state assembly polls.

Samajwadi Party among others has been infamous for promising and distributing laptops before coming to power.

The legality of dole-outs and freebies during elections

The promulgation of the Representation of People's Act (RPA) 1950 and 1951 soon after independence provided an environment for the electoral provisions to prosper and a constitutional framework for elections. Concerning dole-outs, Section 123 of RPA restricts 'undue influence' over voters. It also specifies under Section 123 (b), what 'interference' is not,

"a declaration of public policy, or a promise of publication, or the mere exercise of a legal right without intent to interfere with an electoral right, shall not be deemed to be interference within the meaning of this clause."

Apart from this, there's the Model Code of Conduct emanating from the powers of the EC given to it under Article 324 of the constitution.

In S. Subramaniam Balaji versus The Government of Tamil Nadu 2013, the Supreme Court had directed the Election Commission to frame guidelines 'in consultation with recognized political parties' that would regulate the deliverables promised in manifestos. Especially with regards to freebies, the court was cautious and stated,

"Although, the law is obvious that the promises in the election manifesto cannot be construed as 'corrupt practice' under Section 123 of Representation of People's (RP) Act, the reality cannot be ruled out that distribution of freebies of any kind, undoubtedly, influences all people. It shakes the root of free and fair elections to a large degree…"

Thereafter, a provision of election manifestos was added to the MCC after consultation with all political parties.

The guidelines require that any promise stated in the manifesto must exhibit the means of its fulfillment, as well as, reflect a certain rationale. In that case, at this juncture, BJP's vaccine promise seems far from this requirement. Right now, the union government is yet to promulgate a policy on the vaccine and a budgetary provision for 'free vaccines for all residents' is too distant to be real. Therefore it is apparent that this is a move to entice voters,  but quite hollow for its own claims.

Further, the 'Manual on Model Code of Conduct'  released last year mentions that the election commission 'may approve certain schemes' that are meant to tackle emergencies or unforeseen calamities, and the likes.

However, in such cases, the EC also cautions that "…no impression should be given or allowed to be created that such welfare measures or relief and rehabilitation works are being undertaken by the Government in office so as to influence the electors in favor of the party in power…"

Who decides on the legality of freebies?

The practice of pushing freebies, dole-outs, or electoral promises brimming with tall claims without any means or justification is now common and banal.

The Election Commission's response has been erratic to such promises.

Time and again, Election commissions' fidelity to the democratic ideals has been questioned, and a certain pull for allegiance is sought from the 'party in power'. In the recent past, these allegations seem to stifle the EC's standing as a firm regulator. Its silence and reluctance in places where it is required to speak are making the EC seem only complicit with the current regime.

Thus the distinction between what kind of 'freebie' or 'welfare scheme', or 'promise' that can be deemed as violative is becoming increasingly difficult to figure out.

Even after interventions from the judiciary, the spectrum of the violative is ridden with whims, convenience, and ad-hoc decision making by the EC.  This, even more so, brings to question the role of the election commission right now.

Needless to say, the time of rolling out manifestoes is more often than not opportunistic. The dole-outs on the eve of election days have become a norm. Therefore, each time the threshold of what can be deemed as a 'violation' of the MCC is also pushed further. Given that the bar of violation is so high, the question that is up for deliberation is if this particular instance is a violation.

(Sonali Chugh is a post-graduate from School of Law, Governance and Citizenship at Ambedkar University Delhi and an intern with The Leaflet. Views are personal.)