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Opinion

Contrasting Response To PILs On Opaque Electoral Bonds And Election-Time Freebies Shows SC In Bad Light

At least four petitions filed way back in September 2017, challenging the constitutional validity of the opaque system of donating money to political parties, something that, many experts say, causes irreparable damage to the democratic fabric of the country, remain undecided in SC.

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Possibly finding some merit in the arguments advanced by the Union government, which told it that freebies and populist promises by political parties during elections have an adverse impact on the economy and could lead to “economic disaster”, the Supreme Court now wants the formation of an expert panel to oversee freebies announced by political parties during campaign season.

While there may be some merit in the Supreme Court’s view, even if one ignores the views of an earlier Supreme Court bench in its judgment of July 5, 2013, on a similar subject, where the bench headed by Justice P Sathasivam had noted that “… the law is obvious that the promises in the election manifesto cannot be construed as ‘corrupt practice’ under Section 123 of RP Act”, what can’t be ignored is that the apex court hasn’t found it fit to decide, arguably, still the more important issue of the legality of electoral bonds. Legal experts and those fighting for transparency in the electoral system have repeatedly dubbed the EBs a means to legalise anonymous funding of political parties.

At least four petitions filed way back in September 2017, challenging the constitutional validity of the opaque system of donating money to political parties, something that, many experts say, causes irreparable damage to the democratic fabric of the country, are yet to be decided even though the petitions have been listed several times before various benches.

So far, there has been only one interim order and one judgment on April 12, 2019, through which the Supreme Court bench headed by then Chief Justice of India Ranjan Gogoi allowed the sale of the controversial bonds, thus ensuring that the coffers of political parties continued to be replenished.

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In the same judgment, the bench acknowledged that “rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process”. It then went on to allow the sale of electoral bonds (EBs) –so far, the window for sale and purchase of the controversial bonds has been opened 21 times and a whopping amount of more than Rs 10,000 crores – the number one followed by 11 zeros! – has been donated to various political parties, with over 75 per cent being donated to the ruling BJP.

The only “just and proper interim direction” that Chief Justice Gogoi’s bench gave was to ask all the political parties which had received donations through EBs to submit in a “sealed cover” detailed particulars of the donors, the amount of each bond, etc. But, despite the Supreme Court’s acknowledgement that issues relating to the EBs pose a threat to the electoral process, the court hasn’t shown any kind of urgency to deal with the same.

In the meantime, the number of political parties, which stood at about 1500 in 2017, is now touching the 2900-mark.

Surprisingly, the Supreme Court hasn’t shown any urgency in hearing and deciding the petitions even though it later transpired that in the information that was submitted to the Supreme Court in a sealed cover, there were details about 40 registered, unrecognized political parties that had received electoral bonds even though they were ineligible to do so.

On April 5, the Chief Justice of India NV Ramana said the Court wanted to take up a challenge against the electoral bonds scheme, but couldn’t do so due to the COVID-19 pandemic. He assured the petitioner’s counsel Prashant Bhushan that the matter would be heard soon. It has yet to happen.

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Compare the court’s absence of alacrity in the case of the electoral bond to its speedy response in the freebies case, where the petitioner – Ashwini Kumar Upadhyay – is a BJP leader.

Within days of the petition being filed, the bench of CJI Ramana, on January 25 this year, issued notices to the Union of India and the Election Commission of India (ECI).

The SC, mindful of the fact that there was little it could do, nevertheless decided to even ignore the fact that the petitioner had named only a few, select political parties and states, observing the issue raised by the petitioner was “no doubt a serious issue”

However, the ECI expressed its inability to deal with the issue, saying there was no law that allowed it to do so.

The EC, which filed a detailed response in the top court in April, also pointed to the court’s 2013 ruling in the S Subramaniam Balaji case, wherein the SC had said that a promise contained in an election manifesto couldn’t constitute a bribe or corrupt practice as per Section 123 of the Representation of People’s Act, 1951.

The Supreme Court has now suggested the formation of an expert panel to decide the issue. While other political parties had not responded to the court’s suggestion, Delhi Chief Minister and Aam Aadmi Party chief Arvind Kejriwal were quick to question the Centre’s argument on the issue. In a series of tweets, he suggested that the real motive behind the Centre’s stand was not fiscal prudence but something different.

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