Whilst the Constitutional Bench of the Supreme Court reserved its judgment on the petitions challenging the validity of the Electoral Bonds Scheme notified by the government on January 2, 2018, as an alternative to cash donations made to political parties, the same has sparked the age-old debate between two of competing rights i.e. the Right to Information and the Right to Privacy.

The electoral bonds scheme was bought by the Modi government through the Finance Act, 2017 as a financial instrument which aimed at cleansing the political funding system by reducing the inflow of black money. They were brought with an objective to provide for a transparent procedure for those who wished to make political donations. According to the original scheme, the donors could buy the bonds from the State Bank of India in denominations of Rs. 1,000, Rs. 10,000, Rs. 1 Lakh, 10 Lakh and Rs. 1 Crore and then hand them over to any political party which is registered under the Representation of People Act, 1951 and have secured atleast 1% of votes in the last State Assembly or Lok Sabha elections. It is also pertinent to note that these bonds are deposited in thee account of Election Commission of India (ECI) and have a life of only 15 days. The political party has to encash the amount within these 15 days. Further, these bonds are not available for purchase at all times and can only be purchased for a period of 10 days in a gap of four months (January, April, July and October) and for 30 days in the Lok Sabha election years.

The captivating part of the scheme is that the Electoral Bonds do not contain the name or any other information of the buyer. Not only this, but there is no limitation on the number of persons or companies that can purchase these Electoral Bonds. Therefore, in the wake of the claim of an NGO coupled with the fact that so far Rs. 12,000 crores have been paid to political parties through electoral bonds, two-thirds of which has gone to one major political party, the Apex Court decided to refer the matter to a constitutional bench.

The central criticism is that the scheme contradicts the objective of the scheme which was to bring in more transparency to election funding as the anonymity of the scheme benefits the ruling party as it leaves room for extortion and victimization of donors. Furthe, it was also argued that since the scheme permits unlimited corporate and foreign entities donations to political parties and allows them to enjoy 100% tax exemption, it leaves scope for backdoor lobbying and quid pro quo as there was circumstantial evidence to prove that there were kickbacks being provided by corporations via electoral bonds to political parties in power to get favours for the corporations. It was also argued that the Electoral Bond Scheme violates the citizen’s fundamental right to information under Article 19(1) of the Constitution, but it is important to highlight that the compromise to right to information was only limited to the general public and the information was accessible to the government which had the potential to disrupt free and fair elections.

Another argument that was raised was that the Electoral Bond is a misnomer as the money can be used for any other purpose after it is withdrawn since there is no system of checks and balances in place in order to check how the money is being spent by the political parties.

The Apex Court established both, the right to know as a fundamental right with RTI playing a pivotal role in democratizing access to information and the right to privacy including the right to protect identity and anonymity. While the right to information is fundamental in bringing about transparency in the government functioning, the right to privacy grants individuals the fundamental right to control the collection and access to personal information about them that is held by the government.

The Centre on the other hand asserted that the right to know is not absolute and is narrowly tailored stating that “they have a rational relation to the object that is sought to be achieved” which is clean political funding and this object would not be achieved if the political donations continue to remain outside the electoral bond scheme. At the same time, the Centre has batted for the electoral bond purchaser’s right to privacy stating that it is recognized as fundamental right.

Interestingly, after the Supreme Court reserved its judgement on the matter and directed the Election Commission to submit its report on donations received by political parties, the Election Commission asked all such parties which have ever gotten donations through electoral bonds to furnish the same.

By - Prapti Allagh