A rare blow on anonymous big money

“One man one vote, one vote one value,” is the basis of our Parliamentary democracy. However, the electoral bonds scheme, where anonymous big money talked, could tilt the electoral discourse. 

Essentially, the scheme meant that anybody could buy electoral bonds whenever they were issued and then give them to a party of their choice to be encashed. The identity of the donor was thus kept anonymous from the public but was known to the issuing bank i.e. the State Bank of India, and obviously, to the receiving parties.

The scheme was propounded by the late finance minister Arun Jaitley as a panacea to weed out black money in elections. The rationale was that legitimate money through legitimate banking channels could be paid as donations to political parties without the donor’s identity being made public. The justification for the anonymity was that the donor would then be protected from reprisal by opposing parties, especially in case the party which received the donation fails to come into power.

Many political parties opposed the scheme and the opacity associated therewith, but most of them did accept donations by way of electoral bonds. The CPM was one of the few exceptions, which refused to take any donations via electoral bonds and challenged the scheme by way of a petition in the Supreme Court. The other petitioners were Association for Democratic Reforms, Dr Jaya Thakur and Spandan Biswal.

Thursday's judgment is truly historic. Very rarely has the apex court struck down a scheme or legislation in which the government of the day invested significant political capital. In the 1980s, in the bearer bonds case 'RK Garg vs Union of India', the court had even formulated a hands-off policy with respect to economic matters.

There were many gloomy prophecies that nothing much would come out of the case or that the judgment would only be delivered after the Lok Sabha elections. The judgment has pleasantly surprised a lot of believers in the rule of law, and put to rest some pessimistic prognostications.

The court has not been content with merely striking down the legislation but letting the past transactions remain anonymous. In its operative directions, the apex court has lifted the veil upon past transactions by directing the SBI to inform the Election Commission of India of “details of the Electoral Bonds purchased since the interim order of this court dated April 12, 2019, till date”.

Further, the ECI has been directed to place these details on its official website. This will prove to be extremely valuable data to those who chart the course of Indian politics and policy. It may well be that some governments at the Centre or state level received significant donations which impacted the course of policy-making post elections. Now, all political parties are likely to be aware of those who are donating significantly to their opponents.

Thankfully, the Indian Supreme Court has not gone the way of the Supreme Court of the United States which in Citizens United (2010) held that corporate donations to political causes constituted the exercise of “free speech” under the US Constitution. That decision has legitimised the use of huge corporate money through Political Action Committees, which significantly impact the course of elections at the Presidential and Congressional levels.

While money talks, it cannot be used anonymously in huge quantities to out-shout significant voices in our large democracy. Thank God, the Supreme Court has not stood a mute spectator.

(The author is a senior advocate, Supreme Court of India)