Haresh Jagtiani
The manifest concern for preserving democracy in India cannot be better exemplified than in the two recent verdicts of the Supreme Court, both authored by the CJI Dr. D. Y. Chandrachud.
In one, a seemingly minor electoral issue in the election of the Mayor of Chandigarh, provoked the CJI to describe the abuse of authority by the Returning Officer as “a murder of democracy” when he found that the ballot papers were defaced by him so as to invalidate eight otherwise valid votes of the opposing candidate which illegally resulted in declaring the BJP candidate to be elected as Mayor.
And in the second verdict, the constitutional bench of the Supreme Court headed by the CJI declared the Electoral Bonds Scheme (EBS) to be invalid and unconstitutional, violating the fundamental right of a citizen under Article 19 (1) (a) by denying him information fundamental to his right to receive the same in the interest of fair and free elections to parliament and State legislatures. The underlined theme of both these verdicts is the preservation of democracy, nothing more, and nothing less.
The Electoral Bond Verdict
In 2017, the Finance Act brought about four significant amendments in laws that governed contributions to political parties by individuals and corporations. The statutes that were amended were the Representation of the People Act, 1951; the Companies Act, 2013; Section 13 A of the Income Tax Act, 1995; and Section 31 of the Reserve Bank of India Act, 1931. The purport in all these alterations was to provide complete secrecy and anonymity to cash contributions to political parties by their donors. Contributions could be made without limit by donors on the assurance that their identities would remain secret as would the identities of the political parties to whom such donations or contributions were made. By these amendments, neither the donor nor the receiving political parties were required to maintain any accounts or records to show the extent of contributions made or received.
This was in stark departure from the amended provisions of law which compelled the donors to disclose the political parties to whom contributions were made and the amounts so contributed. Equally, political parties were bound to disclose amounts received by them in full. The consequences of not maintaining proper accounts, especially by companies, were penal in nature under the amended provisions. Quite obviously, the rationale of these amended provisions was that in the larger public interest, such contributions made to political parties were not meant as quid pro quo for favours to the donor.
These laws ensured probity in public life and contributed to keeping the institution of elections clean, free and fair. Prior to the amendment, the monopoly to issue bearer instruments which have the potential of becoming currency was with the RBI. However, by the amendment, any bank could be notified by the central government as having the authority to issue electoral bonds. To put it plainly, the EBS was the government’s way of institutionalising bribery unto itself.
A public interest litigation was filed shortly after the introduction of the EBS and the principle challenge was that the secrecy attending the EBS was a violation of a citizen’s fundamental right under Article 19 (1) (a) of the Constitution. By well-established judicial precedents, an Indian had the right to information in matters relating to governance by the State. Courts had previously traced a citizen’s right to information to the values of good governance, transparency and accountability by which the citizen could hold the State liable for its actions and inactions in matters of governance.
Another facet of Article 19 (1) (a) was the evolution of the jurisprudence on the right to information to a citizen. The Supreme Court had recognised the importance of information to form views on social, cultural and political issues, and participate in and contribute to discussions. This foundational basis of the challenge to the EBS found favour with the Supreme Court which eventually upheld the same and declared the EBS to be unconstitutional and invalid.
In the process of its judgment, the Supreme Court held that secrecy in contributions to undisclosed political parties was an obvious means of obtaining political favours by way of quid pro quo from the government in power. Previously, any contribution made in excess of Rs. 20,000 by an individual or a company was bound to be disclosed and accounted for, but now a limitless amount could furtively exchange hands from the donor to the donee through the instrumentality of an electoral bond. The Supreme Court couldn’t help but notice that 94% of the contributions made by the donors were in denominations of over a crore of rupees, thus highlighting the obvious nexus between the rich and influential and the government in power.
What further irked the Supreme Court was that when the EBS was being mooted and referred to institutions such as the RBI and the Election Commission for their views, both of them expressed serious misgivings about the scheme, including alerting the government and that the EBS would provide a convenient conduit for money laundering and other pernicious practices that would hurt the democratic fabric of the nation. These concerns and objections were brushed aside contemptuously, as it were, by the government.
The Supreme Court impliedly in its reasoning upheld these concerns of the RBI and EC. The Union of India in its response to the Petitioner brazenly argued, contrary to judicial precedents, that the citizen’s right to information was not absolute. The Union argued that the donor was not bound to disclose his affiliation to a political party nor his contribution made to it as that would be an invasion of the donor’s right of privacy. This argument was repelled by the Supreme Court by holding that the right of a citizen to information under Article 19 (1) (a) far outweighed in importance as an inalienable democratic value to the donor’s right of privacy in this regard.
Chandigarh Mayor Elections
The Supreme Court on a scrutiny of the defaced ballot papers held that it was obvious that the real winner was the AAP candidate and declared him as the Mayor of Chandigarh in the place of the previously “elected” BJP candidate. The Supreme Court has now issued a contempt notice to the Returning Officer and proposes to prosecute him for abuse of the electoral process and perjury.
What is of significance and runs parallel in both the above verdicts is the Supreme Court’s innate concern for upholding democratic values in the Indian polity. Pratap Bhanu Mehta in a brilliant piece “A long institutional road” (Indian Express, February 23rd 2024) covering both these verdicts has applauded the Supreme Court for its robust commitment to democracy, but has with a trace of cynicism wondered if these judgments are here to stay. I do not share this cynicism, and a plain reading of both these judgments fills me with immense satisfaction and belief that the Supreme Court means business if the government pussyfoots with constitutional democracy.
When the CJI fulminated and referred to the conduct of the Returning Officer in the Mayor election case as “murder of democracy”, this phrase ought to have sent shudders to the ruling dispensation. The learning and intellectual sophistication with which the Electoral Bond judgment is written gives one a glimpse at the power of the intellect. Shri Aurobindo, one of India’s mightiest intellectual giants, once said “when I realised that with the aid of the intellect you can justify anything, I lost my respect for the intellect.”
I’ll bet my bottom dollar that it’s solely the concern for democracy which has prompted the Supreme Court to declare the EBS unconstitutional. Both the above judgments are from the heart and the intellectual flavour is just the vehicle through which the Supreme Court has done this country proud.
(The writer is a senior advocate who practices in the Supreme Court and has espoused causes of public interest. He heads the Mumbai law firm Oasis Counsel and Advisory) (Syndicate: The Billion Press)