The Bihar Cabinet approved a scheme on August 29, 2025 and by October 3, about one crore women had received ₹10,000 each in their bank accounts. The Election Commission of India (ECI) announced the poll schedule on October 6 and transfers continued even after that date. In August 2026, the Uttar Pradesh government was reported to be considering a ₹50,000 transfer to women, with part of it paid before the 2027 Assembly elections and the rest after. The scheme has not been finalised.

The pattern is not confined to one party. Madhya Pradesh, Maharashtra and Bihar ran such schemes before their elections under Bharatiya Janata Party (BJP) or NDA governments. The Aam Aadmi Party (AAP) in Delhi and the Congress in Himachal Pradesh announced monthly payments to women ahead of polls. Any honest discussion has to start from that spread, because the problem lies in the statute, not in any one manifesto.

Section 170 of the Bharatiya Nyaya Sanhita (BNS), 2023 defines bribery at elections. It covers anyone who "gives a gratification to any person with the object of inducing him or any other person to exercise any electoral right", and anyone who accepts one. Then comes the proviso: "Provided that a declaration of public policy or a promise of public action shall not be an offence under this section."

Parliament carried this text over word for word from Section 171B of the Indian Penal Code when it enacted the BNS in 2023. The replacement of the colonial code was an obvious moment to revisit the carve-out. It was not revisited.

The carve-out has a sound core. An election is a contest of public promises. A party that pledges free school meals is not bribing voters; it is asking them to choose a policy. Criminal law has no business policing manifestos, and the Supreme Court said as much in S Subramaniam Balaji v. State of Tamil Nadu (2013), holding that manifesto promises are not corrupt practices under Section 123 of the Representation of the People Act, 1951.

The proviso uses two words with fixed meanings: "declaration" and "promise". Both look forward. They describe what a party will do if elected. A cash transfer credited to a voter's account weeks before polling is neither. It is performance, delivered by the party already holding power, to people who have not yet voted.

Read strictly then, the proviso does not reach a payment at all. That does not make such a payment a crime. The main clause still requires a gratification given "with the object of inducing" a vote. When the giver is the State acting under a Cabinet decision and an Appropriation Act, that object is almost impossible to prove against any individual. Nor should anyone want criminal courts deciding which welfare schemes were corrupt. That road leads to rival governments prosecuting each other's budgets.

The promise-payment distinction still matters, because it shows exactly where the law is silent. The challenger can only promise. The incumbent can promise and pay. The proviso protects the first; nothing in electoral law addresses the second. A candidate's own spending is capped under the election expenditure rules, while a government's pre-poll spending from the Consolidated Fund faces no comparable limit.

The Model Code of Conduct restrains new schemes only once the Election Commission announces the schedule. Everything before that date is outside its reach. The Bihar example shows that even the announcement does not stop money already in motion. The Code is also not statute. It rests on the Commission's general powers under Article 324 and on political consent.

After Balaji, the Commission added manifesto guidelines to the Code, asking parties to explain the rationale for promises and the means of financing them. Parties have largely treated this as a formality. The Commission itself has since described the disclosures it receives as routine and ambiguous. A disclosure duty with no consequence produces exactly that.

The challenge to Balaji was referred to a three-judge bench in August 2022. In February 2026, Chief Justice of India Surya Kant agreed that Ashwini Upadhyay's petition was of public importance and should go to three judges. Two weeks later, hearing an electricity tariff challenge by a Tamil Nadu power utility, the Chief Justice asked in oral remarks why cash transfer schemes arrive just before elections. Those were observations during a hearing, not a ruling.

The Court's limits are real. Balaji itself noted the Court's limited power to direct legislation and recorded that a separate law was needed. A court cannot fix a quiet period or a spending ceiling for State budgets. What it can do is clarify that Article 324 extends to the timing of State largesse during an election, so that the Commission acts on a firm legal footing rather than on consent.

The cleaner answer is legislative, through the Representation of the People Act rather than the penal code. Three changes would do most of the work.

First, a statutory quiet period. From the date the Commission announces the schedule until results, no government should launch a new direct cash scheme or pay the first instalment of one. Existing schemes should continue on their existing schedules, so that no beneficiary loses what she already receives.

Second, a fiscal note for late schemes. Any new cash scheme announced in the last six months of an Assembly's term should come through the regular budget, with its annual cost and funding source laid before the House. That treats voters as citizens entitled to know the price, not as recipients to be surprised.

Third, a clarification of the proviso. Section 170 should state that it protects declarations and promises and that it is not a licence for anything done under the banner of policy. The criminal offence need not expand; the clarification simply ends the habit of citing the proviso as blanket cover.

The best argument against all this is that the word "freebie" is loaded. Cash transfers to women have been linked to greater financial autonomy and free power or transport can be basic access in an unequal country. Corporate tax concessions and loan write-offs are rarely called freebies. On this view, a quiet period punishes welfare for the poor while leaving welfare for the rich untouched.

That objection deserves weight and it is why the rule above targets timing and transparency, not content. It does not decide which schemes are good. It decides only that a scheme worth running is worth announcing in a budget, with its cost on record and not in the final weeks before a vote. A welfare measure that cannot survive that test is not being protected from bias. It is being protected from scrutiny.

The proviso to Section 170 was written for a contest of promises. Elections now turn increasingly on money already paid. Parliament, which left the text unchanged in 2023, should decide whether it still wants that silence.

Shivanshu K Srivastava is an advocate practising before the Allahabad High Court and Legal Counsel & Advisor for NIFT.

Nupur Chaurasia is an advocate practising before Allahabad High Court.