Legal Eagle: Electoral Bonds Verdict Upholds The Voters’ Right To Know

Legal Eagle: Electoral Bonds Verdict Upholds The Voters’ Right To Know

This is one scandal that puts the other scandals in the shade because these corporations that have donated thousands of crores to the political parties that form the government are rewarded by having the investigative agencies off their backs

Olav AlbuquerqueUpdated: Thursday, March 21, 2024, 10:48 PM IST
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The timing of the Supreme Court’s verdict directing the State Bank of India (SBI) to release the identities of those who gifted electoral bonds running into thousands of crores of rupees to political parties will directly impact the elections by upholding the people’s right to know under Article 19 (1) (a) which forms part of the basic structure of the Constitution.

Though this right was not explicitly stated to form part of the Constitution’s basic structure when this doctrine was pronounced in Kesavananda Bharati’s case in 1973, the Preamble proclaims it is the people of India who are supreme because they delegate their powers to the executive and the legislature. The judiciary is selected to uphold the fundamental rights of the people from whom the judges are selected.

The Right to Information Act was amended to replace the Chief Justice of India with a cabinet minister nominated by the Prime Minister. At the state level, the Chief Minister could nominate a cabinet minister to the Right To Information (RTI) committee. These amendments introduced a government-controlled appointment committee to divulge information under the RTI Act.

The introduction of the Data Protection Act in August 2023, the hostile approach of Public Information Officers (PIOs) towards citizens, and misinterpreting provisions of the Right to Information (RTI) Act to conceal information were other factors blocking the free flow of information. Lack of clarity on what constitutes public interest and the right to privacy which is the opposite of the people’s right to know enabled the government to surreptitiously dilute the Right to Information Act, 2005.

On March 31, 2017, the Finance Act was amended culminating in amendments to the Representation of the People Act (RoPA), the Reserve Bank of India Act, of 1934, the Income Tax Act of 1961, and the Companies Act of 2013 which like the earlier amendments to the RTI Act thwarted the voters’ right to know under Article 19 (1) (a) who funded the political parties. The simple question that the Supreme Court had to decide was whether these amendments were unconstitutional or not.

This is why the 50th CJI Dhananjay Chandrachud has molded his four brother judges into one cohesive team to deliver the damning verdict on electoral bonds which has rattled the government and 27 political parties. In the Kesavananda Bharati case, there was a split verdict of seven judges supporting the basic structure doctrine while six opposed it.

Conversely, all five judges were unanimous that the electoral bonds were unconstitutional which makes it a landmark decision in the jurisprudence of Article 19 (1) (a). Twenty-seven political parties received donations through these electoral bonds with 523 declarations emerging. Electoral bonds bore no identification of the donor or the political party to which it was issued. If the 15-day deadline to encash the electoral bond was not met, neither the donor nor the political party in whose name it was made would receive a refund for the amounts ranging from Rs 1,000 to Rs 1,0,000,000.

If not encashed within 15 days, the value of the electoral bond was remitted to the Prime Minister’s Relief Fund. Big business entities who hoped to receive benefits from the government would purchase these bonds.

The Indian Express’ Ritu Sarin alleged the BJP got roughly Rs 8000 crores through electoral bonds. Future Gaming owned by Santiago Martins gifted Rs 509 crores and Megha Infrastructure gifted another Rs 105 crores to the DMK in Tamil Nadu. The Congress has also received donations through electoral bonds. AAP allegedly encashed Rs 5.75 crore to contest the 2019 elections. The Bajaj group donated Rs 3 crore, Gujarat-based Torrent Pharma gave Rs 1 crore and B.G. Shirke Construction from Pune gave another Rs 1 crore. .

The State Bank of India was asked to hand over details of donors and recipients to the Election Commission of India (ECI) by March 6 which was compelled to publish the data online by March 13. However, the SBI sought more time from the apex court as it failed to submit these details by March 6. The court rejected the SBI request, so the ECI was forced to publish all details on its website.

The SBI probably acted under government pressure to seek more time to release the explosive data so the government could formulate a strategy to contain the enormous damage done to its image because it was the late Arun Jaitley who as finance minister conceptualised these electoral bonds in 2017.

The point here is press freedom is a species of free speech guaranteed under Article 19 (1) (a) that overrides the model code of conduct which has come into force after the election dates have been announced. There can be no doubt that the people’s right to know is a part of the basic structure doctrine formulated in the Kesavananda Bharati case in 1973 which is precisely why we have learned the identities of those who gifted crores of rupees to political parties.

Hence, the right to secrecy of the government was held to flout Article 19(1)(a) of the Constitution. The judges also pointed out it “would lead to quid pro quo arrangements” between corporations and politicians which has been proved right.

This is one scandal that puts the other scandals in the shade because these corporations that have donated thousands of crores to the political parties that form the government are rewarded by having the investigative agencies off their backs. The government formulates its policies to suit those who donated crores of rupees to them.

With inconvenient politicians like Jammu and Kashmir governor Satya Pal Malik and Mahua Moitra out of the way, the government can manipulate public opinion using the media as a tool but the electoral bonds issue has now opened a Pandora’s box which will provide fodder for the media which cannot afford to ignore such a sensitive issue. Those who vote for those who preach transparency but pass laws that do just the opposite will now have themselves to blame.

Olav Albuquerque holds a PhD in law and is a senior journalist and advocate at the Bombay High Court

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