Yet another miss with electoral bonds

It is tough to have a reaction that is not tinged with amusement, despair, frustration, and mirth all at once, at the latest developments on electoral bonds. The elections are underway and the apex court is told on oath by the Election Commission, the electoral regulation with powers directly under the Constitution, that electoral bonds are perilous.


First, the sequence. Electoral bonds were spoken of first in the Union Budged speech in February 2017. The bonds were actually launched in January 2018. A non-governmental organisation challenged it immediately with a writ petition in February 2018. Nothing concrete happened with the petitions. Billions of dollars (perhaps one should stick to rupees) of money changed hands and filled the coffers of political parties. Various elections (to the state legislative and local self governments) have taken place since then. Now on the eve of elections to Parliament, the writ petition was considered. And the court deferred the hearing to later.


A quick word on the bonds and how they work: Walk up to the State Bank of India to buy a 15-day bond. The bond can be handed over to any political party with full secrecy guaranteed. Neither do you need to disclose your purchase of the bonds nor do you need to disclose the party to which you donated the bonds. The political parties can claim not to know who the actual donors are. This is facetious only because they would clearly know who donated in electoral bonds — much the same way in which they know who donates them cash. The bonds give them the legal figment of anonymity, and they stand relieved of the obligation to disclose the colour of money received.


Concerted conspiracy across political parties have already frustrated a less-empowered authority to bring in transparency in political funding. The Chief Information Commissioner had directed disclosure under the Right to Information Act, but electoral bonds have conferred on them the benefit of pretending not to even know who has donated to them.


In a nutshell, the bonds are an official contrivance that works on legitimising concealment of the source of funding for political parties. Put differently, it is an official donation-laundering mechanism. The Attorney General of India is reported to have solemnly argued before the Supreme Court that there is no need for people to know who is funding the political party seeking their votes. The single biggest threat to the polity is not knowing who is funding the political party that is seeking to serve in government, and therefore, not knowing whose persuasion the government would be amenable to.


The Election Commission of India is a constitutional authority. What the Supreme Court can only do judicially, the Election Commission can do quasi-judicially — a more recent example is the ban on biopics and hagiographic movies made on political leaders. But it took the Supreme Court to remind the Election Commission of its powers to do its work.  That is the failure of one constitutional authority.


The next is that of courts. The real task of the highest constitutional court of the land is to handle such matters of strategic importance to the very future of the Republic. Electoral bonds were not an overnight announcement like the demonetisation decision. They were announced nearly a year before their launch and a writ petition was before the Supreme Court in a month after the launch. That was the time to hear the matter. If the Election Commission did nothing, so did the Supreme Court — do nothing. 

To be “fair”, this approach is not specific to the petition challenging electoral bonds. Every material decision of far-reaching importance gets announced and goes on to take a life of its own well before a hearing actually takes place, rendering the outcome a near-total academic enterprise. Indeed, even with demonetisation — a measure that had serious legal infirmities in substance, no immediate relief was granted. Whenever these petitions are considered, the exercise would be academic. Likewise, Aadhaar (and indeed a plethora of legislation passed off as money bills) had the same destiny. It crept up over all walks of life before the court could consider the matter.


An interesting recent closure of a long-drawn infructuous litigation also took place this month — the Supreme Court disposed of litigation over Enron’s Dabhol project on the premise that no effective order of any consequence can now be passed.


It can be tragicomic for such developments on matters of electoral law in the world’s largest democracy. It is ndeed time to reflect on where we have lost our way


The author is an advocate and independent counsel. Tweets @SomasekharS


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