RECENT disclosures of freebies, which a couple of fiercely rival parties in the south dole out before the elections, make one wonder how effective the law is to curb bribery at the polls. Even refrigerators are promised, and sometimes actually provided. How indeed have matters come to such a pass?

The vice is fairly old and its neglect was the cause of its spread. On Dec 2, 1926 — that is nearly 90 years ago — Motilal Nehru wrote to his son Jawaharlal Nehru after a bruising by-election: “Communal hatred and heavy bribery of the voters was the order of the day. I am thoroughly disgusted and am now seriously thinking of retiring from public life. … The Malaviya-Lala (Lajpat Rai) gang aided by Birla’s money are making frantic efforts to capture the Congress … I fear there will soon be defections from our ranks but apart from this it is impossible to achieve anything … I shall consult Gandhiji but as you know his hobbies do not interest me beyond a certain point.”

Those were the days of a severely limited franchise — quite far from the adult franchise of our times. It was relaxed in 1937 and later in 1946. But judging by the ingenuity of corrupt politicians during the polls, their ways did not improve one bit; rather, the standards deteriorated.

After independence, political warfare intensified and bribery at the polls became widespread. In 1969, the Congress split. A few years later the powerful Dravida Munnetra Kazhagam, which had ousted the Congress from Tamil Nadu for good, split.

The urge to do public good should be exercised much before polls.

The two wings led by J. Jayalalithaa and M. Karunanidhi are at war. No holds are barred. Neither has a reputation for squeamishness in the use of money during elections. Not that things are any better elsewhere in India. The northern belt stretching from Punjab to Bihar can rival Tamil Nadu.

To be sure, the law does punish bribery as it does in all democracies. India’s Section 123(1) of the Representation of the People Act, 1951 defines bribery as “any gift offer or promise by a candidate” to any person with the object of “inducing” him to vote or refrain from voting at any election. This requires two things. One is speedy, impartial investigation. The other is early judicial indictment. Neither is available as a rule.

Unfortunately, the Supreme Court was equivocal with regrettable consequences. In 1968, it ruled that “the position of a minister is different. It is obvious that he cannot cease to function when his election is due. He must … improve the image of his administration before the public. …

“The grant of discretionary grants was part of the general scheme to better community development projects and to remove the immediate grievances of the public and the money was required to be spent in about three months’ time. … If there was good evidence that the minister bargained directly or indirectly for votes, the result might have been difficult, but there was no such evidence.”

However, the Supreme Court went on to add this proviso: “Election is something which must be conducted fairly. To arrange to spend money on the eve of elections in different constituencies, although for general public good, is, when all is said and done, an evil practice, even if it may not be corrupt practice.”

Surely, the dividing line between an evil practice and a corrupt practice is a very thin one. The urge to do public good should be exercised not on the eve of elections but much earlier. It ruled that even “slight evidence might change this evil practice into corrupt practice. Payments from discretionary grants on the eve of elections should be avoided” — a counsel of perfection.

The judges failed to notice the realities as men of the world. Why would ministers disburse money just on the eve of the polls? To its lasting credit, the Election Commission of India stepped in. In the last quarter century, it enforced the Model Code of Conduct, though it lacks statutory sanction, by simply threatening to postpone the polls.

Unfortunately, the Supreme Court was utterly unrealistic and slow in curbing the vice at an initial and formative stage. It concerned ministers’ conduct in showering pre-poll favours.

How on earth can a bargain be proved? The election commission stepped in and took care of this abuse in the Model Code of Conduct. But the law on bribery remains in a poor state. The solution lies in enacting a statutory presumption that money spent thus by any candidate, minister or other, when elections are announced is spent to ‘induce’ voters and thus constitutes bribery. The Model Code of Conduct is not enough. The law must provide effective deterrence.

The writer is an author and a lawyer based in Mumbai.

Published in Dawn November 19th, 2016