A five-judge bench of the Supreme Court of India headed by the Chief Justice of India, D. Y. Chandrachud struck down the electoral-bonds scheme in a unanimous judgement on February 15, 2024, as `unconstitutional and manifestly arbitrary’. It rendered unconstitutional the bond scheme as well as the preceding amendments to the Representation of People Act, Companies Act and the Income Tax Act, and violated the voters’ right to information about political funding.
The Court ordered the State Bank of India, the sole organisation responsible for receiving the payments for the bonds and issue of the bonds to publish various details of the contributions received and information about the donors.
The judgement confirmed what most politically conscious persons and organisations and popular opinion knew all along. It was known that the electoral bond scheme was a way in which big money bags could contribute to political parties and gain traction with decision making activities in Parliament and elsewhere, and also oil the machinery of political parties. The judgement itself noted that the scheme promoted the culture of quid pro quo. The Court did not accept the original claim that the scheme would rein in the influence of black money in the economy and policy making and was not a reasonable restriction on the voters’ fundamental right to information.
Leading newspapers in their editorials have welcomed the judgement and have said that the judgement is a victory for democracy and reinforce the observations made in the judgement. They have noted that this is a victory for the Right to Information, which is said to be an inalienable right. Legal and Civil Society scholars are likely to debate the gains for the citizenry arising from this judgement.
But, as some perhaps expected, the State Bank of India refused to comply with the judgement. Just a couple of days before the deadline, it filed an appeal stating that the process of making the bonds anonymous was quite complicated and sought time till June, that is well after the upcoming General Elections are completed, to reveal the information. It appears to be a ploy to thwart the gains made by the verdict.
Former Finance Secretary Subhash Chandra Garg1 who was the Economic Affairs Secretary when the Electoral Bond Scheme, 2018 was being formulated by the department in 2017, said that SBI’s application to the Supreme Court seeking three months more to provide data, was a “cooked up excuse”. The SC had asked SBI for details of bonds bought the date and the amount. Mr Garg said “the information of who bought, on what date, how much of the electoral bond is available on the computer. Similarly, who deposited, for how much of the EB amount, and on which date, that’s also available on the computers as that was deposited in their accounts. That’s all the Supreme Court has asked for”.
While the verdict of the Supreme Court reinforced what most politically conscious persons and organisations and popular opinion knew all along, and the reluctance of the SBI to comply with the judgment within the time stipulated was perhaps expected, it may yet be worth noting that even if there was knowledge of the donors and that there was `transparency’ to the process of receiving monies and funds for various political parties, is it still a level-playing field? Given the scale of expenditure that is required to contest in, leave alone win in an election, to what extent is an individual really capable of being elected, unless he or she has a party ticket from one of the well-established national or regional parties? It is almost impossible for an independent candidate to be elected. It is probably an opportune time to ask why elections have become so expensive and what would be the proper way to fund elections, and how can the best form of representation of the people actually take place.
According to the Association for Democratic Reforms (ADR) which was a petitioner in the case, the total donations (above Rs 20,000) declared by the national parties for FY 2022-23 was Rs 850.4 crore from 12,167 donations. Of these, the BJP got more than five times the total received by the other parties combined – A total of Rs 719.8 crore from 7,945 donations was declared by the BJP followed by Rs 79.9 crore from 894 donations declared by the Congress. This makes it clear that the purpose of political donations by the rich and companies controlled by them is to influence the powers that be, especially the ruling party at the centre, to carry out the wishes of the donors in the real, of public policy and implementation.
The electoral bonds judgement however provides an excellent opportunity to carry forward the debate on the nature of the political institutions in the country and to ask what kind of electoral reforms are needed to ensure that the basic functioning of democracy take place. For instance, one could ask if there is a right to recall in the present electoral system. In a mature democracy such a right would also be an important right for the people.
Reference
by BA and Venkatesh Sundaram
