Concerns expressed too serious in electoral bond case
By Dr Gyan Pathak
Concerns expressed during the final day of the 3-day hearing on petitions challenging the constitutional validity of the Electoral Bond Scheme case were too serious to be resolved immediately, and hence the Bench hearing the case decided not to announce the verdict instantly at the conclusion of hearing on November 2, but reserved it. In the course of hearing the issue of political funding in India was found to be more complex than it was previously presumed.
It can therefore be argued safely that irrespective of the final verdict, there will remain miles to go for evolving a better transparent and cleaner system than the present Electoral Bond Scheme being implemented by the Narendra Modi led government, that goes on enriching the ruling BJP and impoverishing the entire opposition making the elections neither free nor fair by denying the opposition of a level playing field.
The Constitution Bench comprising Chief Justice of India DY Chandrachud, and Justices Sanjiv Khanna, B R Gavai, J B Pardiwala, and Manoj Mishra, has clearly revealed their mind that the Electoral Bond Scheme was flawed. The court remarked that while it was not asking the government to go back to a cash-based system, it was asking the scheme to be made in a proportional, tailor-made manner which took care of the serious deficiencies arising out of the current scheme. Various aspects of the scheme with its complexities were brought before the Bench, which included its impact on transparency, and the potential for corruption.
Ever since the scheme was introduced in 2018 by the Modi-led government, it remained one of the most controversial topics in the country. The government said that under the scheme the identity of the donor would not be revealed to any one, which was contrary to their claim that the scheme was a transparent and clean method of political funding. The claim of transparency was even false, which was clear in the Centre’s assertion that citizens have the right to know the source of funding, on which the Bench said that it was difficult to agree upon. On the other hand, the Banks and the Government have access to the record of the donor purchasing the bonds. It makes the ruling establishment privileged while the opposition are made to remain in the dark. Moreover, the information regarding the donors is kept purportedly for auditing purposes and to ensure that only legitimate sources of funding are used. This gives the government enough scope to manipulate donors and the amount they want from them.
The scheme was challenged in the Supreme Court by several petitioners, including the Congress leader Jaya Thakur and the Communist Party of India (Marxist). They contended that the scheme violated the citizen’s right to information and the principle of free and fair election. They pointed out how the scheme favours the ruling party and enables corporate lobbying and quid pro quo.
It was claimed by the government that electoral bonds were designed to reduce the use of black money in political funding, and increase in funding of political parties which can help strengthen political democracy by providing parties with the resources they need to run effective campaigns. However, the opposite is the ground reality.
The petitioners challenging the scheme submitted before the Bench hearing the case that keeping citizens in the dark about the source of funding of a political party and they not knowing who is funding which party, and are therefore unable to take informed decisions regarding their votes, actually breeds corruption.
Moreover, they argued that electoral bonds could be misused to funnel illegal money into political parties, especially the ruling political party. For example, a company could donate money to a political party in exchange for favourable government contracts. Additionally, electoral bonds make it difficult to hold political parties accountable for their finances leading to corruption and nepotism.
During the hearing it came to light that after the introduction of this scheme political parties could get donations even from shell companies, or any other company, even loss-making ones, which defeats the very purpose of the scheme.
Senior Advocate Prashant Bhushan argued that the scheme not only violates citizen’s rights but also promotes corruption by allowing companies to give kickbacks to parties in power, while Kapil Sibal argued it to be unconstitutional, undemocratic and unfair.
It should be noted that electoral bonds generated donations worth Rs 9,188 crore in the last 6 years. BJP bagged 57 per cent (Rs 5,272 crore) of the total donation, according to the ADR data. Congress received only Rs 952 crore. The seven nation parties including the Congress and 24 state parties received only Rs 16,437 crore.
Obviously, the chief beneficiary of the scheme is the ruling BJP at the Centre. However, in the last six years, the Supreme Court of India declined to stay the scheme twice in 2019 and 2021. In the meantime, six chief justices came to the Supreme Court.
During the final hearing on Thursday November 2, the Constitution Bench of the Supreme Court have flagged “serious deficiencies” in the electoral bond scheme, and also directed the Election Commission of India (ECI) to submit within two weeks complete information on each and every donor and contributions received by political parties through Electoral Bonds till September 30, as it reserved the judgment in a batch of petitions challenging the validity of the scheme. The report has to be submitted by ECI confidentially after collating the required information from all political parties that have received funds since 2018.
In all these circumstances one can see that the complexities and concerns regarding political funding in the country could continue further irrespective of the Supreme Court’s final verdict on the Electoral Bonds Scheme. Democracy in the country needs to be freed from the shackles of money and muscle power. Can the Supreme Court lead the way through its verdict? It remains a million-dollar question. (IPA Service)