The Unconstitutionality Of Electoral Bonds - An Analysis Of The Supreme Court's Judgment
Author: LawSphereX
Category: Constitutional & Human Rights
Published:
Updated:
THE UNCONSTITUTIONALITY OF ELECTORAL BONDS:
AN
ANALYSIS
OF THE SUPREME COURT'S JUDGMENT
Pankaj, SGT University
ABSTRACT
This paper examines the unconstitutionality of electoral bonds in India with a particular focus on the recent judgment by the Supreme Court of India that declared the scheme unconstitutional. The analysis explores the legal arguments presented, the reasoning of the Court, and the implications of the judgment for India's democratic processes. Electoral bonds were introduced in 2017 as an anonymous way for donors to fund political parties. However, critics argued that the lack of transparency allowed unlimited and unregulated corporate donations to parties. This violated the citizen's right to information under the Indian Constitution. The paper outlines how electoral bonds operate via the State Bank of India. Donors could anonymously purchase bonds of various amounts, depositing money directly into the parties' accounts.
Analysing the Supreme Court's rationale, the paper shows how the judges ruled unanimously that bonds contravened the people's right to know the source of political funding. These right outweighed arguments to protect donor privacy. The court also found the bonds failed to curb black money as claimed. As a result, the State Bank must disclose all bond transaction details to the Election Commission. This data made public on 15th Feb before the upcoming 2024 national elections. The implications of this verdict are explored, including impacts on ruling party finances and India's electoral integrity.
INTRODUCTION
OF THR ELECTORAL BONDS SCHEME Electoral bonds were introduced in 2017 by the Government of India as a mechanism to facilitate transparent political donations. The bonds can be purchased from authorized banks and donated to political parties, which can redeem them for money. The anonymity provided to donors. Electoral Bond scheme, passed as a Money Bill, was introduced after amending four Acts. “The main purpose of the scheme was to maintain secrecy of the donor by not exposing donor details to the public, “The Electoral Bond scheme was introduced after amending the RBI Act, the RP Act, the Income Tax Act, and the Companies’ Act. Before the scheme was introduced, two of Indian’s biggest constitutional bodies, the Election Commission and the Reserve Bank of India, were asked by the Government to give their views on the proposed electoral bond scheme.
Both the organizations went on record raising concerns about the same. The scheme was thereafter introduced. ” however, has been a point of contention, raising concerns about transparency and potential misuse. The constitutionality of the scheme was challenged, leading to a landmark judgment by the Supreme Court of India. Background of Electoral Bonds in India Political campaign financing has historically been an opaque affair in India. Largely unregulated political donations meant the role of black money and corporate influence in elections was pervasive yet invisible to the public. This clouded transparency and accountability around parties and candidates. In this context, the electoral bonds scheme was introduced by the Modi government in the Finance Bill of 2017 and implemented in 2018 as an attempt to reform political fundings.
Key features include: • Bonds can be purchased by Indian citizens and entities from specified branches of the State Bank of India. • Donations made via electoral bonds are exempt from disclosure under the Right to Information Act. • The scheme aims to curb black money in political funding by channelling donations through the banking system. • The bearer bonds, available in values from Rs 1000 to Rs 1 crore, would have a tenure of 15 days within which they had to be enchased by recipient parties. The scheme was justified as enabling legitimate donations from corporations, individuals and groups who wished to maintain their privacy. The previous system of cash equivalents was portrayed as breeding black money and being open to misuse. Electoral bonds, acting like bearer instruments, would supposedly tackle this by funnelling "white money" transparently into the system.
However, right from the start, opposition parties, transparency activists and constitutional experts raised serious concerns. They argued the scheme effectively legitimized and facilitated unlimited, undisclosed corporate donations to ruling parties. Being routed via the state-owned SBI, the secrecy around donors was being enabled by the government itself, unlike the previous system of electoral trusts run by the private sector. This initiative was aimed at reforming the political funding landscape in India, which had long been plagued by the influence of black money and a lack of transparency. The scheme allows individuals, companies, and institutions to purchase electoral bonds from designated State Bank of India branches and donate them to political parties of their choice.
These bonds are available in denominations ranging from ₹1,000 to ₹1 crore, and donors are not required to disclose their identities, which purportedly ensures privacy and discourages black money. The bonds are valid for fifteen days from the date of issuance, and political parties can encash them only through their verified bank accounts. The donations received through these bonds are exempt from tax, and the identity of the donors is kept confidential by the State Bank of India. The scheme is designed to ensure that donations are made through the banking system, thereby promoting clean money in elections. How Electoral Bonds Operate The electoral bonds scheme operates through a carefully structured mechanism aimed at ensuring transparency and accountability in political donations while maintaining donor anonymity.
The scheme operates through a series of steps that ensure both donor anonymity and transparency in political funding. The process begins with the issuance of the bonds by designated banks, followed by their purchase, donation to political parties, and finally, the encashment by the receiving political party. Issuance and Purchase: Electoral bonds are issued by specified branches of the State Bank of India (S B I). This bank is authorized to sell the bonds during specific sale windows announced by the government. Sale windows typically open in January, April, July, and October, lasting for 10 days each. Purchasers, who can be Indian citizens or entities incorporated or established in India, must adhere to Know Your Customer (KYC) norms to ensure that their identity is verified by the bank.
The bonds are available in various denominations ranging from ₹1,000 to ₹1 crore, and purchases can only be made through non-cash methods such as cheques or digital payments to maintain a digital trail. Donation and Anonymity: After purchasing the bonds, donors can donate them to any registered political party by physically handing over the bonds to the party. While the banks retain the details of the purchasers for regulatory purposes, these details are not disclosed to the public or to the receiving political party, thereby maintaining donor anonymity. This feature is designed to protect the privacy of donors while still ensuring the transaction is traceable by the bank. Encashment and Validity: Political parties that receive electoral bonds must deposit them into their designated bank accounts within a stipulated period. The bonds are valid for 15 days from the date of issuance.
If the bonds are not encashed within this validity period, they expire and cannot be redeemed. This requirement ensures that the funds are used promptly and not hoarded. Regulatory Oversight: The scheme is overseen by the Reserve Bank of India (RBI) and the Election Commission of India (ECI). These bodies ensure compliance with the regulations governing the issuance, purchase, and encashment of electoral bonds. Political parties are required to report the total amount received through electoral bonds in their annual financial statements submitted to the ECI, ensuring transparency in the overall funding received. Comparison with the Prior Scheme The introduction of electoral bonds marked a significant shift from the previous system of political donations, which was primarily cash-based and lacked robust regulatory oversight.
Below are the key differences between the electoral bonds scheme and the prior system: Transparency and Anonymity: Electoral Bonds: The scheme provides a balance between donor anonymity and transparency. While the donors' identities are kept confidential to the public and political parties, the total amount received through bonds is disclosed in the parties' financial statements. This reduces the potential misuse of funds and limits the influence of black money. Prior Scheme: Under the previous system, political donations, especially in cash, were often opaque. Political parties were not required to disclose the identities of donors contributing less than ₹20,000, which allowed for the aggregation of large sums of money from undisclosed sources, fostering an environment conducive to corruption and black money.
Regulatory Oversight: Electoral Bonds: The scheme introduces regulatory oversight by the RBI and the ECI, ensuring that the issuance, purchase, and encashment of bonds adhere to legal norms. This regulatory framework helps prevent misuse and ensures that funds are used for legitimate political activities. Prior Scheme: The previous cash-based system lacked stringent regulatory oversight. There were minimal checks on the sources of donations, making it easier for illicit funds to enter the political system without adequate scrutiny. Mechanism of Donation: Electoral Bonds: Donations through electoral bonds must be made through banking channels, either by cheque or digital payment. This creates a transparent, traceable path for funds, reducing the chances of illegal transactions. Prior Scheme: Cash donations were predominant, allowing for untraceable contributions.
This system facilitated the circulation of black money within the political domain, as there was no requirement for a digital trail or verification of donor identity for small sums. Accountability: Electoral Bonds: The requirement for political parties to report the total amounts received via electoral bonds enhances accountability. Although the donors remain anonymous, the disclosed totals help monitor the scale and sources of political funding. Prior Scheme: Accountability was minimal in the previous system. With no obligation to disclose donors contributing less than ₹20,000, large amounts of money could be funneled into political parties without any record, making it difficult to trace and regulate the flow of funds.
Impact on Political Funding: Electoral Bonds: The scheme aims to clean up political funding by encouraging legitimate donations through a regulated and transparent system. By reducing the influence of black money, it strives to create a more equitable political playing field. Prior Scheme: The unregulated nature of cash donations often led to an uneven playing field, where parties with access to larger sums of unaccounted money could outspend their rivals, potentially influencing election outcomes unfairly. The electoral bonds scheme represents a significant improvement over the prior system of political donations. By introducing a regulated, transparent mechanism for political funding while maintaining donor anonymity, the scheme seeks to reduce the influence of black money and enhance the accountability of political parties.
This shift towards cleaner and more transparent political funding is crucial for strengthening the integrity of the electoral process in India. OPPOSITION TO ELECTORAL BONDS Electoral bonds scheme faced significant opposition due to several reasons, primarily revolving around the issues of unlimited corporate donations, lack of transparency, and violation of the right to information. Many activists termed electoral bonds “Legalized Money Laundering”. right from the start, opposition parties, transparency activists and constitutional experts raised serious concerns. They argued the scheme effectively legitimized and facilitated unlimited, undisclosed corporate donations to ruling parties. Being routed via the state-owned SBI, the secrecy around donors was being enabled by the government itself, unlike the previous system of electoral trusts run by the private sector.
With general elections approaching in 2024, scrutiny of electoral bonds has sharpened. Opposition parties claim the scheme has singularly benefited the ruling party's war chest while crippling their own fundraising. Let's discuss some key point in in opposition of Electoral Bonds:
1 No Limits on Corporate Donations
One of the primary concerns regarding electoral bonds is the removal of caps on corporate donations to political parties. Prior to the introduction of electoral bonds, corporate donations were subject to limits—companies could only donate a maximum of 7. 5% of their average net profits from the preceding three financial years to political parties. This cap was intended to prevent excessive influence by corporate entities over the political process. With the advent of electoral bonds, these limits have been removed, allowing corporations to donate unlimited amounts. Critics argue that this opens the door to potential abuse, where large corporations can exert disproportionate influence on political parties and, by extension, on public policy.
This could lead to policy decisions favouring corporate interests over public welfare, undermining democratic principles and equality in political influence.
2. Concerns Over Lack of Transparency
Electoral bonds have been criticized for their lack of transparency. The anonymity afforded to donors means that neither the public nor the political parties themselves are required to disclose the sources of their funding. While this was intended to prevent harassment of donors, it has raised significant concerns about accountability and the potential for corruption. The lack of transparency means that it is difficult to track the flow of money into political parties and ascertain whether donations are coming from legitimate sources or from entities looking to exert undue influence. This opacity could facilitate the entry of black money into the political system and obscure the true extent of corporate and individual influence over political parties.
Furthermore, the anonymity of donations undermines the electorate's ability to make informed decisions, as voters are kept in the dark about who is financially backing the parties and candidates they are voting for.
3. Violation of Right to Information
The Right to Information (RTI) is a cornerstone of democratic governance, ensuring that citizens have access to information necessary for holding their government accountable. Critics of electoral bonds argue that they violate this right by shrouding political funding in secrecy. The anonymity provided to donors through electoral bonds limits the information available to the public regarding who is funding political parties and to what extent. The use of electoral bonds also raises concerns about the violation of the right to information. By allowing for anonymous donations, electoral bonds make it difficult, if not impossible, for citizens to access crucial information about the sources of political funding.
The right to information is a fundamental aspect of democracy, as it enables citizens to hold their elected representatives accountable and make informed decisions at the ballot box. When this right is compromised, it undermines the very foundation of democratic governance, as it prevents citizens from fully participating in the political process and holding their government accountable for its actions. GOVERNMENT’S STANCE ON ELECTORAL BONDS The government’s stance on electoral bonds is multifaceted, focusing on increasing transparency, protecting donor anonymity, ensuring regulatory compliance, and modernizing the electoral funding system. Through various interviews, articles, and official statements, the government has consistently portrayed electoral bonds as a significant reform aimed at reducing corruption and fostering a cleaner political environment.
Despite facing criticisms, the government maintains that the scheme is a substantial improvement over the previous unregulated cash donation system. Despite the criticisms regarding the potential misuse and lack of transparency in the electoral bonds scheme, the government has consistently defended the initiative. Critics argue that the scheme could still allow for large, opaque donations and that it may disproportionately benefit certain political parties. In response, government officials have contended that no system is perfect but that electoral bonds represent a significant improvement over the previous cashbased donation system. Prime Minister Narendra Modi’s View: Prime Minister Narendra Modi has highlighted that the introduction of electoral bonds is a significant reform in India’s electoral process.
He has stated that this mechanism will help curb corruption and promote clean elections by ensuring that all donations above a certain threshold are routed through the formal banking system. This, he argues, will make it easier to track donations and prevent the misuse of funds for illegal activities. Over a month and a half after the Supreme Court struck down the centre’s electoral bonds scheme, declaring it “unconstitutional” and violative of voters’ right to information, Prime Minister Narendra Modi said in an interview news agency ANI that the country had been pushed towards black money in elections and in honest reflection, “everyone will regret it”. The policy was providing crucial information about the trail of the money, and all the stakeholders involved in the political funding. Further the Prime Minister said that “due to electoral bonds you are getting trail of money.
Which company gave it? How they give it? Where did they give it? And that’s why I said opposition will think honestly everyone will regret it. ” This initiative has been extensively discussed in various interviews and articles, revealing the government’s detailed stance on the matter. Below are key points derived from these sources that elucidate the government's position on electoral bonds:
1 Transparency and Reduction of Black Money
In various public statements and interviews, the government has emphasized that the primary goal of the electoral bonds scheme is to bring transparency to the political funding process. According to the Ministry of Finance, the scheme is designed to shift political donations from cash to banking channels, thereby making them more traceable and reducing the flow of illicit money into the political system.
2 Anonymity of Donors
The government has justified the anonymity feature of electoral bonds by arguing that it protects donors from potential political retribution. In an interview, Finance Minister Nirmala Sitharaman explained that keeping the donor’s identity confidential encourages more individuals and corporations to contribute without fear of backlash from rival parties. This, according to the government, helps in increasing the overall volume of legitimate donations. Further stated by the government of India that the scheme promoted confidentiality and not anonymity. Confidentiality was crucial as it protected the donor from “victimisation and retribution” from political parties who they do not fund.
3. The mechanism of donors’ confidentiality is “foolproof” and “unbreachable” even
by the Union government: The government of India stated that the State Bank of India has been chosen to be the “authorised bank” as it is the largest public sector bank and assured that SBI has mechanisms that ensure that confidentiality is maintained even from the Union government. A letter from the Chairman of SBI who explained that there is “foolproof” and “scientific” mechanism to ensure this secrecy. While the nature of the mechanism itself cannot be disclosed due to confidentiality. The Government of India explained that explained that the information provided by donors shall be treated as confidential, except when a court demands it, or if there is a criminal case and law enforcement agencies seek such information and assured the public that if there was an attempt made to breach this confidentiality, a “digital footprint” will be left.
“You have the assurance of the chairman of the biggest public sector bank” that any breach will attract penal consequences.
4. Each provision in the 2018 Electoral Bonds Scheme is designed to ensure
legitimacy in political funding: In response of criticisms made by the oppositions and various activist the government of India argued that that every part of the scheme has been designed to ensure complete confidentiality of donors, and to bring transparency in transactions. Further said tthat the scheme is made for a variety of donors—transport business, contractors, small business, Hindu Undivided Families, and other such entities.
Then explained that a key requirement to purchase electoral bonds was Know Your Customer (KYC) details. This ensured that SBI could know and verify the donor. More importantly, India is a signatory to the Vienna Convention, which sought to eradicate money laundering and drug money in the economy. A Financial Action Task Force periodically assessed each signatory country on their compliance with the Convention, the results of which determined India’s eligibility for financial assistance. A step towards creating a robust system to eradicate black money was KYC details.
5. “Any system can be misused” but the electoral bonds scheme brings corruption
and black money to a minimum: “An apprehension that the powers conferred by this section may be abused in individual cases does not make the provision itself bad or invalid in law. ” Word from Commr. , H. R. E. v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (1954) goes in favour of the Indian government. “There can never be a system which is so foolproof, that it can never be misused”. the 2018 Scheme had already “begun... giving fruits” with digitisation bringing clean money into the economy. In various legal forums, including the Supreme Court, the government has defended the constitutional validity of the electoral bonds scheme. It has argued that the scheme complies with the legal framework governing political donations and election laws.
The government maintains that electoral bonds enhance transparency while respecting the donors' right to confidentiality, which is crucial for democratic participation. In public addresses, senior government officials have asserted that the electoral bonds scheme is part of a broader effort to reform and modernize the electoral process in India. They argue that this initiative, along with other measures like the Goods and Services Tax (GST) and demonetization, is aimed at curbing black money and promoting economic transparency. The government believes that electoral bonds encourage clean funding by making it easier and safer for individuals and corporations to donate to political parties. By reducing the risks associated with cash donations, the scheme is intended to foster a culture of legitimate political contributions.
ANALYSING: WHY THE SUPREME COURT SRUCK DOWN THE ELECTORAL
BONDS SCHEME "In a historic decision in the case of Association for Democratic Reforms and Anr v Union of India and Ors, the Supreme Court has declared the electoral bonds scheme “unconstitutional and manifestly arbitrary” in a judgment delivered on 15 February 2024." The Supreme Court's decision to strike down the electoral bonds scheme in 2024 is a landmark judgment with far-reaching implications for political funding and democratic transparency in India. This detailed analysis examines the reasons behind the Supreme Court's decision, supported by major developments with actual dates, providing a comprehensive understanding of the judicial scrutiny and eventual verdict. The Supreme Court delivered a comprehensive judgment striking down the electoral bonds scheme. The decision was based on multiple critical reasons, which are analysed below:
1. Violation of the Right to Know
The Supreme Court emphasized that the electoral bonds scheme fundamentally violates citizens' right to know the sources of political funding. This right is crucial for ensuring informed electoral choices and maintaining the integrity of democratic processes. By allowing donors to remain anonymous, the scheme deprives voters of essential information needed to make informed decisions.
2. Lack of Transparency
The Court noted that the scheme fails to ensure adequate transparency in political donations. The anonymity feature obscures the financial sources backing political parties, which can lead to undue influence and corruption. The judgment pointed out that transparency in political funding is essential for holding political parties accountable and preventing the misuse of funds.
3. Risk of Money Laundering
The Supreme Court highlighted concerns raised by the RBI regarding the potential misuse of electoral bonds for money laundering. The judgment found that the scheme's anonymity feature could be exploited to channel illicit money into the political system, thereby compromising the integrity of elections. The Court stressed the importance of having robust mechanisms to prevent money laundering and ensure that political funding is clean and transparent.
4. Disproportionate Benefit to the Ruling Party
The Court observed that the scheme disproportionately benefits the ruling party, which can access information on donors through government channels, thereby undermining the level playing field in elections. This imbalance can lead to a situation where the ruling party has an unfair advantage in terms of funding, distorting the democratic process and affecting the fairness of elections.
5. Constitutional and Legal Concerns
The judgment highlighted that the electoral bonds scheme violates several constitutional principles, including equality and non-discrimination. By enabling anonymous donations, the scheme creates an unequal political playing field. Additionally, the Court pointed out that the scheme contravenes provisions of existing laws aimed at promoting transparency in political funding, such as the Representation of the People Act, 1951. The judgment emphasized the need for political funding mechanisms that uphold constitutional values and ensure a transparent and accountable electoral process.
4.3 Detailed Judicial Reasoning
Impact on Democratic Processes The Supreme Court underscored that electoral integrity is paramount for a functioning democracy. By allowing anonymous donations, the scheme potentially undermines the trust and fairness of elections. The judgment highlighted that an informed electorate is crucial for the democratic process, and the scheme's opacity contradicts this principle. The Court stressed that transparency in political funding is vital to prevent corruption and ensure that elections are conducted fairly and equitably.
Economic and Social Implications The Court also considered the broader economic implications, noting that the scheme could facilitate the entry of unaccounted money into the political system, thereby affecting economic stability. Socially, the judgment pointed out that the scheme could lead to increased cynicism and distrust among citizens regarding the political process. The Court emphasized that a transparent and accountable political funding mechanism is essential for maintaining public trust in democratic institutions and processes.
4.3 Recommendations
and Future Directions:
Enhancing Transparency The Supreme Court recommended that any future framework for political funding should prioritize transparency and accountability. This includes mandatory disclosure of donor identities and amounts, accessible to the public. The Court suggested that the government and the ECI collaborate to develop a robust system that ensures transparency while protecting genuine donor interests. The judgment highlighted the need for a balanced approach that promotes transparency without compromising the privacy and safety of donors. • Strengthening Regulatory Oversight The judgment called for strengthening the role of regulatory bodies like the RBI and ECI in monitoring political donations. This includes regular audits and stringent compliance requirements.
The Court also recommended periodic reviews of political funding mechanisms to adapt to evolving challenges and ensure ongoing transparency. The judgment stressed the importance of a proactive regulatory framework that can effectively address the risks and challenges associated with political funding. • Public Awareness and Participation The Supreme Court underscored the need for greater public awareness about the importance of transparency in political funding. It encouraged civil society and media to play an active role in educating citizens about the significance of transparent political funding for a healthy democracy. The judgment also highlighted the importance of public
participation in demanding accountability from political parties regarding their funding sources. The Court emphasized that an informed and engaged citizenry is crucial for ensuring the effectiveness of democratic processes. The Supreme Court's decision to strike down the electoral bonds scheme marks a pivotal moment in the quest for transparency and integrity in political funding in India. By addressing the scheme's inherent flaws, the judgment reinforces the principles of democratic accountability and the right to information. The Court's detailed analysis and recommendations provide a roadmap for developing a more transparent and equitable political funding framework. This judgment not only upholds constitutional values but also sets a precedent for future reforms aimed at ensuring that political funding supports rather than undermines the democratic process.
CONCLUSION
The Supreme Court's decision to strike down the electoral bonds scheme represents a pivotal moment in the ongoing debate over political funding in India. While the judgment underscores the importance of transparency and accountability in democratic processes, it also raises complex questions about the timing and broader implications of the decision. On one hand, the Supreme Court's verdict reaffirms the fundamental right of citizens to know the sources of political donations. By emphasizing the principles of transparency and integrity in political funding, the judgment sends a strong message about upholding democratic values and preventing the undue influence of money in politics. This aligns with the larger goal of ensuring a fair and equitable electoral process where voters can make informed choices based on complete information.
However, the timing of the judgment, coming just before the general elections, has sparked speculation and debate. Some argue that the sudden upheaval in the electoral financing system could create uncertainty and disrupt the electoral process. Others question the motives behind the timing of the decision, suggesting that it may have been politically motivated or influenced by external factors. While these claims may be speculative, they underscore the importance of considering the broader context in which the judgment was delivered. Moreover, while the electoral bonds scheme had its flaws, simply striking it down without offering alternative solutions may not address the underlying issues of black money and corruption in politics. Political funding is a complex issue that requires comprehensive reforms addressing systemic challenges.
This includes not only enhancing transparency and accountability but also strengthening regulatory oversight, promoting public participation, and fostering a culture of ethical governance. In this light, the Supreme Court's judgment should serve as a catalyst for constructive dialogue and collaborative efforts to develop robust mechanisms for political funding. This requires engagement with stakeholders from across the political spectrum, civil society, and the legal community to devise solutions that balance the principles of transparency, privacy, and democratic accountability. Such reforms should be grounded in evidence-based policymaking and guided by the overarching goal of strengthening democratic institutions and processes.
In conclusion, while the Supreme Court's decision on electoral bonds is a significant step towards promoting transparency and integrity in political funding, it also underscores the complexity and challenges inherent in this domain. Moving forward, there is a pressing need for thoughtful deliberation and proactive action to address the systemic issues plaguing political financing in India. Only through sustained efforts and collaborative initiatives can we ensure a level playing field, uphold the integrity of our democratic institutions, and strengthen the foundations of our democracy.
REFERENCES
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3. Election Commission of India. (2018). Report on Electoral Bonds. Retrieved from
[Election Commission of India](https://eci.gov.in).
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