Prof Satya Narayan Misra in Bhubaneswar, December 6, 2023: The Electoral bond scheme was introduced as a money bill in budget 2017-18, with the ostensible objective of cleansing the system of political funding. It has been challenged by civil society organizations like ADR as opaque with serious implications for conducting free and fair elections.

After prevaricating for over five years, during which time 29 tranches of electoral bonds have been funded by anonymous corporates, the Supreme Court is expected to give its verdict on the validity of this opaque process. The Solicitor General has argued that the donor’s privacy trumps over right to know of a voter and that ‘more contribution going to party in power is the norm’. Such outlandish arguments fly in the face of a liberal democracy which puts a premium on transparent conduct of public affairs, effective opposition to majoritarian trends and accountability to citizenry and constitutional morality.

Apart from fraudulent misuse of money bill provision, the EBS has scheme has arm twisted every possible act and provision to run its course. Section 29C of the RPOP Act has been amended so that the candidates do not have to render a statement of funds received under EBS to the ECI. Section 13A of IT Act 1961 was amended exempting candidates from keeping account of money received through EBS.

It also removes the cap of 7.5% of average of net profit during the last three years. The FCRA (2010) has been amended allowing foreign companies to provide funds even if their share in the Indian company exceeds 50%. Electoral bonds are tax-exempt under S 88G C & S88GGB of the Income Tax Act 1961. In a nutshell, the entire scheme was legally firewalled to be unlimited, unaccounted, and unidentified political funding by the corporates!

The major trigger came for this when the government promulgated the Right to Information Act. It may be recalled that the Supreme Court came out of its cocoon of orthodoxy & examining the procedural aspects only to the importance of an open government that is responsible and accountable to its citizens in the SPGupta Vs UOI case (1981).

It served as a milestone for a spate of Public Interest Litigations (PIL) which were filed by Civil Society watch Dog organizations like PUCL, ADR & Common Cause.By keeping the information regarding donations received by the political parties from corporates by the citizenry, the electoral bond scheme of 2018 clearly goes against the fundamental pillar democracy like freedom of speech & expression under Article 19(1). Chastened by the draconian change in electoral funding and legitimized opacity that shrouded it, ADR, Common Cause (NGOs), and CPI filed a PIL in the Supreme Court to stop the issuance of such bonds.

It is interesting to note that way back in 1957 Chief Justice M C Chagla of Bombay High Court had warned the parliament on the perils of allowing companies to freely add to the coffers of the party. To quote: “Any attempt on the part of anyone to finance a political party is likely to contaminate the very springs of democracy.” Justice Mukherjee of Calcutta High Court in the same year had observed: “A man, who pays the piper will call the tune.”This raises the basic issue whetherright to information is a part of freedom of speech and expression: more so since it does not find specifically mentioned in Article 19(1)(a).

The Supreme Court in response to several PILs & appeals filed before it has amplified the scope of Article 19(1)(a). In State of UP vs Raj Naraincase (1975), it was Justice Mathew wrote: “The people of this country have a right to know every public Act, everything that is done in a public way, by their public functionaries”. Disclosure of information in regard to the functioning of the government must be the rule and secrecy the exception.

However, the most definitive ruling in the context of the election was given in ADR Vs UOI (2002) when it made it mandatory for candidates to reveal their financial and criminal antecedents. The court also struck down S33A & 33B of the RPOP Act which tried to ban providing information. In PUCL vs UOI (2003) the court decreed that the State is under obligation to create conditions so that rights under Art 19(1) (a), like the right to receive information, can be effectively enjoyed by the citizens. While freedom of the press is not explicitly provided in the freedom of speech subclause, unlike the US constitution, in the Bennet Coleman Vs UOI case (1973), the court struck down government newsprint policy limiting the number of pages to be published by the editors.

Democracy envisages conducting free and fair elections and the right to information are basic features of democracy. The present EBS is a retrograde measure that legitimizes crony capitalism, militates against transparency, incentivizes corrupt practices, and bolsters the nexus between politicians and big business. Recourse to a money bill for amending the law to relate electoral funding to pre-empt a debate in the Rajya Sabha has subverted the legislative scheme. As things stand the present scheme has not only emasculated the authority of the ECI but also impaired its ability to conduct free and fair elections by not providing a level playing field to all political parties. It has also constrained its powers of supervising funds of political parties.

William Dalrymple wrote in his book  “The Anarchy” that: “East India Company was the first trading company to effectively rule India from the board room of London”. The electoral bond scheme has ushered in a similar company Raj., with big companies, foreign companies, and shell companies funding the governing party, with an eye on quid pro quo. It is widely acknowledged that the BJP has been promoting communal politics by polarising voters on religious lines. When the 29th tranche was released in November 4thon the eve of election to five assemblies, it was widely believed that it will benefit the BJP immensely. This has proved to be prophetic.

With crony capitalism being practiced nonchalantly despite a slew of serious charges on the funding of companies like Adani, no credible opposition leader holding a candle to the demagogy of Modi and dividing people on religious lines being canvassed unregulated, despite Representation of People’s Act calling such practices as unethical, schemes like EBS have become unconscious hands of history to promote Modi’s electoral juggernaut. Now that the state elections are the General election is due in 5 months’ time, CJI Chandrachud should rise to the occasion and establish credibility of an independent institution and bust the contemptible contention that privacy of a corporate donor will override right to informed voting.

The distinguished jurist Fali Nariman wrote in his eminently readable autobiography “Before Memory Fades”: Judiciary is like oxygen in the air.It is not enough that the judges are independent f executive. They must have courage.‘That moment of reckoning for the Supreme Court has come in the EBS petition.