The broken bonds of democracy

An unsettled law is as dangerous as bad law.

A recent order by the Central Information Commission (“CIC”) has reiterated the inherent problems surrounding the Electoral Bond Scheme 2018. This order passed in an appeal against the State Bank of India has effectively shut the door to seek any details about donors and donees relating to electoral bonds under the Right to Information Act 2005 (“RTI Act”). With no other recourse available, the Supreme Court of India finds itself as the only surviving arbiter on adjudicating the vires of electoral bonds and settling the legal questions once and for all.  

An Illegal Scheme

The Electoral Bond Scheme 2018 (“Scheme”), which came into effect on 2 January 2018, creates banking instruments for donation of funds to political parties facilitated by the State Bank of India. (https://www.thehindu.com/news/national/the-hindu-explains-what-is-an-electoral-bond-and-how-do-we-get-one/article22367124.ece) The Scheme has been criticized for being intrinsically flawed as it conceals the identity of the donors and donees as well as the amount of donation. In effect, the Scheme defeats transparency, promotes arbitrariness and, is therefore, per se illegal.

By its very nature, the Scheme facilitates undisclosed quid pro quo arrangements between donors, who are more likely to be corporates, and political parties. Such an arrangement goes against best practices of electoral democracy and is repugnant to the freedom of speech and expression. In People’s Union for Civil Liberties v. Union of India and Another 2002, the Supreme Court held that the freedom of speech and expression also contained the fundamental right of a voter to secure information about the candidates who are contesting the election. (https://indiankanoon.org/doc/15059075/)

When the voter is permitted to know if an electoral candidate is facing any cases, even if those have not ended in conviction or even proceeded to a trial, should she not be equally entitled to know who is financing the expenses of the political party and its candidate? There can be no justification for election financing to be shrouded in secrecy through such a law. 

Closing the RTI Doors

The order passed by CIC in Second Appeal No. CIC/SBIND/A/2018/167835 has upheld the contention of the State Bank of India that they are not required to furnish the details of donors, donees and donations under the RTI Act.  In doing so, they have relied on two grounds provided under Section 8 of RTI Act, which exempts disclosure of information. Firstly, on the ground that the information sought has been held in fiduciary capacity and secondly, that there was not public interest involved in the application. 

The incredulity of the order aside, there is a tremendous legal infirmity that pervades the interpretation of law. Both grounds of reasoning do not stand a bare scrutiny of law. It is also trite that any exemption provided under Section 8 of the RTI Act is not absolute and should be read only in a very narrow and limited sense. Section 8(2) of the RTI Act directs that when public interest outweighs any harm to protected interests, the information sought for may be accessed. This section begins with a non obstante clause and therefore overrides the grounds relied upon by the CIC. (https://indiankanoon.org/doc/758550/)  

The public interest in the present matter is undisputable. The CIC, in an earlier order, has deemed political parties to be public authorities under the RTI Act. (https://thewire.in/government/national-parties-public-authorities-rti-election-commission ) The funds received by political parties from donors would naturally be of interest to voters of the country in order to understand their financing and functioning. Donations by corporate entities, especially public limited companies, would also be of interest to their shareholders and potential shareholders. Therefore, the failure of the CIC in appreciating the present issue as one of the highest public importance and resorting to hyper-technical objections is, indeed, shocking and defeats the objects of the RTI Act itself.

The Final Arbiter

The CIC order effectively shuts the door on any RTI requests with regard to electoral bonds and any concomitant information. As the current controversy stands, there is no other recourse but for the Supreme Court of India to determine the law with regard to the Scheme and the interpretation of the CIC. A batch of petitions filed by Association of Democratic Reforms and the Communist Party of India (Marxist) are subjudice. Therefore, the present decision of the CIC, if carried to the Supreme Court on appeal, may also be tagged and heard altogether. 

It is worth remembering that the writ petitions pending adjudication have been filed over three years ago and that the respondents have also entered appearance and filed their pleadings. In its counter-affidavit filed before the Supreme Court in WP (C) 880 fo 2017 , the Election Commission of India has argued the case for “declaration of donation received by the political parties and also about the manner in which those funds are expended by them, for better transparency and accountability in the election process”.  (https://www.scobserver.in/court-case/electoral-bonds) 

The public scrutiny of political parties and political candidates is an essential and inalienable part of a free and fair democratic process. By suppressing knowledge of political financing, we are ultimately breaking the very basic bonds of democracy that is holding the country together. It is regrettable that the matter has not yet attained judicial finality. An unsettled law is as dangerous as bad law. In larger interest, therefore, the Supreme Court must find its urgency and conclusively settle the questions around the constitutionality of electoral bonds. 

Manuraj Shunmugasundaram 

Advocate and Spokesperson, Dravida Munnetra Kazhagam

Link to the Article: https://www.thehindu.com/opinion/op-ed/the-broken-bonds-of-democracy/article33447535.ece