Unbonded: On the striking down of the Electoral Bond Scheme by the Supreme Court

The electoral bonds verdict is a blow for freedom of expression

Anonymous donations of high value tend to undermine (to make someone less confident, less powerful, or less likely to succeed, or to make something weaker, often gradually) electoral democracy and governance as they facilitate (to make something possible or easier) a quid pro quo culture involving donors and beneficiaries (a person or group who receives money, advantages, etc. as a result of something else). In striking down the Electoral Bond Scheme (EBS) under which anyone could buy electoral bonds and donate them to political parties for encashment, the Supreme Court of India has recognised this malaise and struck a blow for democracy and transparency in political funding. The Court found that the entire scheme violates the Constitution, especially the voters’ right to information. It further found manifestly (very obviously) arbitrary, the amendment (a change to a law that is not yet in operation and is still being discussed) to the Companies Act that removed the cap of 7.5% of a company’s profit that can be donated to political parties without any requirement to disclose details of the recipient parties in its profit and loss accounts. It has also mandated disclosure of donation details since 2019. The judgment (a decision or opinion about someone or something that you form after thinking carefully) is one more in a long line of verdicts (an opinion or decision made after judging the facts that are given, especially one made at the end of a trial)  the Court has handed down to promote voter rights and preserve the purity of elections. Its earlier interventions led to the featuring of the ‘None of the Above’ option on the ballot, the removal of the protection given to legislators from immediate disqualification (he act of stopping someone from taking part in a competition or activity, usually because a rule has been broken, or the state of having this happen to you) on conviction (the fact of officially being found to be guilty of a particular crime, or the act of officially finding someone guilty) for a criminal offence, the mandatory disclosure of the assets and criminal antecedents of candidates in their election affidavits (a written statement that someone makes after promising officially to tell the truth. An affidavit can be used as proof in a law court) and expedited (to make something happen more quickly) trials for MPs and MLAs involved in criminal offences.

The Court’s reasoning is unexceptionable. It found that the primary justification (a good reason or explanation for something) for the EBS — curbing the use of ‘black money’ for political or electoral funding by allowing donations through banking channels — failed the test of proportionality, as it was not the least restrictive measure to abridge (to make a book, play, or piece of writing shorter by removing details and information that is not important) the voters’ right to know. It has made the logical connection between unidentified ((of a person or image of a person) whose name is not known) corporate donations and the likelihood of policy decisions being tailored to suit the donors. The judgment is a natural follow-up to a principle it had laid down years ago that the voters’ freedom of expression under Article 19(1)(a) will be incomplete without access to information on a candidate’s background. The principle has now been extended to removing the veil on corporate donors who may have been funding ruling parties in exchange for favours. While the verdict may help ease the hold that donors may have on governance through money power, a question that arises is whether the validity of the scheme could have been decided earlier or the issuance of bonds on a regular basis stayed. How much of the thousands of crores of rupees given to parties under this scheme resulted in policy measures favourable to the donors or helped fund the deployment (the use of something or someone in an effective way) of additional campaign resources will never be known. This was a fit case for the grant of an interim (temporary and intended to be used or accepted until something permanent exists) stay.

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