Supreme Court Gives Prominence To Voters' Right To Know

The Supreme Court of India, on February 15, held that the Electoral Bonds Scheme was constitutionally invalid as it contravened Article 19(a) of the Constitution of India. 

The Apex Court made scathing observations and expounded on various aspects of fundamental rights of the voters.

The Court said that citizens had the right to know about the entities contributing to particular political parties. On Right to information, the Court stated that, "A crucial aspect of the expansion of the right to information in the second
 phase is that right to information is not restricted to information about state
 affairs, that is, public information. It includes information which would be
 necessary to further participatory democracy in other forms and is not
 restricted to information about the functioning of public officials. The right to
 information has an instrumental exegesis, which recognizes the value of the
 right in facilitating the realization of democratic goals. But beyond that, the
 right to information has an intrinsic constitutional value; one that recognizes
 that it is not just a means to an end but an end in itself."

The Court further directed that the issuing bank (State Bank of India) shall stop issuing electoral bonds henceforth. The State Bank of India has also been directed to publish a list of donations to various political parties from the year 2019. The Chief Justice of India, while reading his opinion, also stated that the scheme violated the right to know of the citizenry as there was a possibility of quid pro quo since the identity of the donor remained concealed. The amendment to the Companies Act which allowed corporate funding to political parties was also held unconstitutional.

The Court reasoned that the influence of money over electoral politics was not limited to its
impact over electoral outcomes.

"It also spills over to governmental decisions.
 It must be recalled here that the legal regime in India does not distinguish
 between campaign funding and electoral funding. The money which is
 donated to political parties is not used by the political party only for the
 purposes of electoral campaign. Party donations are also used, for instance,
 to build offices for the political party and pay party workers. Similarly, the
 window for contributions is not open for a limited period only prior to the
 elections. Money can be contributed to political parties throughout the year
 and the contributed money can be spent by the political party for reasons
 other than just election campaigning," the Court observed.

The Court also underlined the possibility of quid pro quo in favour of the entity or person contributing to a political party. 

The Court affirmed that, "An economically affluent person has a higher ability to
 make financial contributions to political parties, and there is a legitimate
 possibility that financial contribution to a political party would lead to quid pro
 quo arrangements because of the close nexus between money and politics.
 Quid pro quo arrangements could be in the form of introducing a policy
 change, or granting a license to the contributor. The money that is contributed
 could not only influence electoral outcomes but also policies particularly
 because contributions are not merely limited to the campaign or pre-campaign
 period. Financial contributions could be made even after a political party or
 coalition of parties form Government. The possibility of a quid pro quo
 arrangement in such situations is even higher. Information about political
 funding would enable a voter to assess if there is a correlation between policy
 making and financial contributions."

Holding that the right to privacy of political was not applicable to electoral bonds, the CJI led bench struck down the scheme.

A five judge constitution bench comprising Chief Justice of India DY Chandrachud, Justice Sanjiv Khanna, Justice BR Gavai, Justice JB Pardiwala and Justice Manoj Misra had heard a batch of pleas wherein the challenge was mounted on the constitutionality of the scheme.

The scheme was introduced in 2017 through a Money Bill. The scheme created opacity in the electoral funding as the identity of the donor remained concealed. This acted as an advantage favouring the ruling establishment and put the rest of the political parties at a detriment.