Turning points have come but rarely in the ten years of the Narendra Modi government, given its astounding success in maintaining an iron-clad, surveillance-driven grip on every institution in the country. The Supreme Court verdict of February 15 that outlawed electoral bonds is emphatically one of them, and needs to be recognised as another chance that has been given to us, as Indians, to redeem our besmirched republic.
This moment stands as testimony to the Supreme Court’s capacity to assert itself, something we felt it had become incapable of doing. It remembered its obligations to the Constitution and to one of its foundational principles – Article 19 1(a) guaranteeing freedom of speech and expression as well as the concomitant right to information.
(Also Read – How Will SC Verdict On Electoral Bonds Affect 2024 Election?)
The question is, would the court have done the right thing and outlawed electoral bonds if it had not been for the dogged resistance of an unsung, often attacked and abused tribe, sometimes derided as the “RTI-wallahs”? It is these women and men who kept up their date with the courts, tarikh-pe-tarikh, along with their praetorian guard of constitutional lawyers.
As journalist Nitin Sethi, tweeted: “It wasn’t 1 or 2 people or organisations. Many such as @SauravDas and the Common Cause, Anjali B and her colleagues, Venkatesh @mediatrack, @poonamjourno,@Amannama,@SharanyaHK. With @CommodoreBatra &@adrspeaks leading. It took a village. But it ain’t over…”
They did this right from the days when the electoral bond scheme was introduced as part of the Finance Bill in the Budget of February 2017. Within a span of six months, the lead petitioners Association for Democratic Reforms and Common Cause, were already knocking on the doors of the Supreme Court. Altogether in the final hearing of the case there were five petitioners – apart from the lead petitioners, there were three tagged petitions representing the CPI(M), Dr Jaya Thakur of the Congress, and banking lawyer Spandan Biswal.
With the mainstream media generally preferring to look the other way, the Modi government could drive a truck through the objections raised by various authorities to the electoral bond scheme. The Reserve Bank, as the recent apex court judgment noted, had as early as January 2017 written to the Finance Ministry objecting to the proposal which it argued militated against its own authority to issue bearer instruments. Later Urjit Patel, who was then governor of the apex bank, conveyed to the finance ministry his views on the risks of money laundering, forgery and cross border counterfeiting that could emanate from the issuance of the bonds.
Interestingly, the Election Commission of India also displayed some spine in those early days. The judgment observed that on May 26, 2017, the ECI wrote to the Ministry of Law & Justice, pointing out that the amendments to the IT Act, RPA, and Companies Act introduced by the Finance Act 2017, will have a “serious impact on transparency of political finance/funding of political parties”. The ECI also expressed concern over the negative impacts that removing the cap on corporate donations would have.
Over time, one by one, these institutions fell silent, with the Modi government displaying extraordinary gumption and persisting with the scheme. And why would it not? The electoral bonds arrangement proved to be a cornucopia that the late finance minister, Arun Jaitley, had bequeathed his party, which gave and gave.
The only group that kept pushing back against it was the “RTI-wallahs”. It was their persistence which led to the Supreme Court admitting in its order of April 13, 2019, that the scheme gave rise to “weighty issues which have a bearing on the sanctity of the electoral process”.
But that bench, led by Chief Justice Ranjan Gogoi, refused to grant interim relief. A month later, in the general election that followed, the BJP emerged with an even bigger margin of votes than it had notched earlier (assisted undoubtedly by the generous flow of funds in its direction).
Despite this discouraging trajectory, the petitioners kept filing petitions, time and again, but to little avail. On occasion the petitioners even met with hostility from their lordships. When the petition came up before a bench led by then chief justice, S.A. Bobde, it was not only rejected but firmly rebuffed with the words, “there cannot be repeated applications seeking the same relief”.
The days passed. In October 2023, with a new general election on the horizon, the apex court was once again approached by the petitioners. The bench led by the present chief justice saw the issue as one of “importance” and referred it to a constitution bench. A couple of hearings took place and a judgment was arrived at on November 2, 2023, which was reserved. The rest, of course, is history.
Why is this back story important for journalists?
It is all about information, the life force of the profession. Many serious journalists – not of course the bejewelled and suited types inhabiting prime time – realised its worth and the value of chasing this story. They went on to unearth the unique alphanumeric number on the bond certificates; access file notings; and keep a river of information flowing.
The argument that the petitioners made to the court was straightforward: the opacity that marked the scheme “defeats the people’s right to know about the funding of political parties and promotes corruption.” The Modi government, in its response was having none of that. It actually put forward the mind-blowing counter-argument that “citizens did not have a ‘general right to know regarding the funding of political parties’, and emphasised that ‘right to know’ itself is not a general right available to citizens” (‘Part of Secret Ballot’: How the Modi Govt Backed Electoral Bonds in the Supreme Court’, February 16).
Such arguments did not fortunately convince the bench. There was no getting away from the fact that “anonymity” was crucial to the electoral bond scheme, yet this very non-disclosure of information on electoral contributions was clearly violative of the right to information of the voter and therefore the freedom of expression guarantee in the constitution. This was the line the petitioners chose.
The court, when it weighed in, cited two phases of court rulings on Article 19 (1)(a). The first linked the “right to information to the values of good governance, transparency and accountability” and recognised the role of citizens in holding the state accountable for its actions and inactions and argued that they must possess relevant information in order to do this. In the second phase, the focus was on the evolution of the jurisprudence on the right to information. In the second phase, various rulings had recognised that “effective participation in democratic governance is not just a means to an end but is an end in itself.”
But how important to this process is information on political funding? The bench headed by CJI Chandrachud dwelt on this question and concluded that such information was essential if the voter is to exercise their franchise in an effective manner.
Therefore, “the Electoral Bond Scheme to the extent that they infringe upon the right to information of the voter by anonymizing contributions through electoral bonds, are violative of Article 19 (1)(a).”
The power of information to animate democracy was the leitmotif of this judgment.
This article was first published by The Wire, on January 17th 2024 by Pamela Philipose.
