In a landmark decision, the Supreme Court of India arrived at a unanimous judgment, with Chief Justice DY Chandrachud delivering the lead opinion. However, Justice Khanna provided a concurring opinion with slightly different reasoning. Two concurring opinions were pronounced, one by Chief Justice of India DY Chandrachud on behalf of himself and Justices BR Gavai, JB Pardiwala and Manoj Misra; and another by Justice Sanjiv Khanna.
The highlights of these opinions include the following:
Money, politics, and the right to vote
Chief Justice Chandrachud’s opinion highlighted the close connection between money and politics, emphasizing that voters require information about political party funding to make informed decisions. The court acknowledged the potential for financial contributions to lead to quid pro quo arrangements due to the intimate link between money and politics. Additionally, the disproportionate impact of the electoral bonds scheme prompted the Court to strike it down. The Court stressed that the scheme was not the least restrictive means to curb black money in electoral financing, as there are alternative methods with lesser impact on voters’ right to information.
Justice Sanjiv Khanna’s concurring opinion echoed these sentiments, emphasizing the paramount importance of transparency in political party funding. He asserted that the voters’ right to know and access information is indispensable in a democratic system. While acknowledging the significance of secret ballots in fostering free and fair elections, Justice Khanna emphasized that transparency, not secrecy, is crucial in funding political parties. He underscored that the confidentiality of the voting booth does not extend to anonymity in contributions to political parties.
Right to keep political affiliations private has its limits
The Court ruled that a citizen’s political beliefs and affiliations are part of their right to privacy. However, this right does not extend to contributions made to influence policies. Thus, a balance must be struck between a voter’s right to keep their political affiliations private and the right of voters to know about the funding of political candidates. The Court found that the electoral bonds scheme tilted this balance heavily in favor of maintaining political affiliations private, while disregarding the voters’ right to know about political contributions.
The Court observed that the anonymity of contributors was the primary feature that distinguished the electoral bonds scheme from other modes of contributions, such as cheques or debit transactions. Consequently, if the anonymity component of the scheme were to be struck down, the entire Electoral Bond Scheme 2018 would be deemed unconstitutional.
Furthermore, the Court criticized the allowance of unchecked corporate donations, emphasizing that corporate donors are fundamentally different from individuals and make contributions with the intent of securing benefits in return. The scheme even permitted loss-making companies to make anonymous political donations, disregarding the increased likelihood of quid pro quo contributions from such entities. This aspect of the scheme was deemed manifestly arbitrary and violative of Article 14 (right to equality) of the Constitution. The Court concluded that permitting unlimited corporate contributions undermined the principles of free and fair elections and political equality, encapsulated in the value of ‘one person one vote.’
Possible victimization of donors not justification for electoral bonds scheme
In Justice Sanjiv Khanna’s opinion, he rejected the Central government’s argument that the electoral bonds scheme aimed to shield political donors from retaliation by parties in power due to their affiliation with rival parties. Instead, Justice Khanna emphasized the importance of transparency over secrecy in political funding.
According to Justice Khanna, secrecy in political donations leads to severe restrictions on the public’s right to information and undermines efforts to prevent cases of retribution, victimization, and retaliation. He argued that transparency is crucial for maintaining accountability and ensuring fair political processes.
Furthermore, Justice Khanna highlighted concerns that political parties in power may still have unequal access to information about donors, even with the anonymity provided by the scheme. This, in his view, rendered the scheme contradictory and ineffective in achieving its purported objectives.
Additionally, Justice Khanna briefly addressed the possibility of money laundering facilitated by anonymity in political contributions. He warned that the policy of anonymity could enable money laundering through quid pro quo or illegal connections; as such transactions would escape public scrutiny.
(With inputs from barandbench.com)