Electoral bonds: SC verdict too little, too late, too early to celebrate?

So unexpected was the verdict that a lawyer posted on X the question that most lawyers are asking: ‘what is the catch?’

A sample electoral bond (photo: National Herald archives)
A sample electoral bond (photo: National Herald archives)

A.J. Prabal

It took the Supreme Court seven years since the first petitions challenging the electoral bonds scheme were filed in 2017 to strike them down as unconstitutional today, 15 February. The court had delayed the hearing and thereafter dragged its feet, refusing repeatedly to grant an interim stay as the petitioners prayed.

The then chief justice of India (CJI) Dipak Misra did not list the petitions for substantive hearing. His successor Ranjan Gogoi also dragged his feet before listing the matter on an urgent application just before the 2019 general elections. He, however, claimed there was not enough time to hear such an important case. The request for an interim stay was turned down.

On 26 March 2021, a three-judge bench comprising then CJI Sharad Bobde and justices Bopanna and Ramasubramanian again refused to stay the electoral bonds scheme, which allowed for unlimited and anonymous corporate donations to political parties. CJI Bobde actually wrote in his order that because the “bonds had been released without impediment in 2018, 2019, and 2020”, there was no urgent necessity for a stay. 

Now that the scheme has been unanimously held to be unconstitutional by a five-judge Constitution bench, the question is, why was the illegal and unconstitutional scheme left alone for five years? When a five-judge Constitution bench headed by CJI D.Y. Chandrachud reserved its verdict in October 2023, therefore, there was not much hope that the scheme would be set aside.

Such was the scepticism that even after the court delivered a comprehensive and detailed order today to explain why the Union government failed to make its case and why its arguments were not acceptable, lawyers and litigants alike wondered what the catch was.

The past few years saw the Supreme Court being described increasingly as an ‘executive court’, doing the bidding of the government. So is today’s judgment too good to be true, or is it too good to hold for long?

Within minutes of the verdict delivered at around 11.00 am, questions began to be asked about whether the government could bring in an ordinance to nullify the ruling. An even more audacious suggestion was that the government could call a special session of Parliament and pass another law with minor changes to make the scheme legal all over again.

Graphics courtesy: 
ADR India & MyNeta (@adrspeaks/X)
Graphics courtesy: ADR India & MyNeta (@adrspeaks/X)

From data posted by the Association for Democratic Reforms (ADR) related to electoral bonds, a few points stand out:

  1. Between March 2018 and January 2024, electoral bonds worth over Rs 16,518 crore were purchased as per RTI responses from State Bank of India

  2. Maximum electoral bonds (by amount) worth Rs 15,631 crore were purchased in the denomination of Rs 1 crore

  3. Between FY 2017-18 and FY 2022-23, the BJP declared donations worth Rs 6,566 crore and the Congress declared Rs 1,123 crore from electoral bonds, as per their respective audit reports, which means 54.78 per cent of the total sale of bonds declared by recognised political parties in this period, were recorded by the BJP

  4. The data for FY 2023-24 is not available in the public domain as audit reports of political parties are not yet available on the ECI website. Hence, the total earnings from electoral bonds by political parties so far can only go up 

Nonetheless, the BJP’s IT cell and most TV channels either ignored or downplayed the verdict, focusing on the supposedly sad plight of women in Sandeshkhali in West Bengal or on the PM’s visit to Qatar. In the eight hours following the verdict, BJP IT cell chief Amit Malviya posted half a dozen stills, videos and comments on Sandeshkhali, but not one on the verdict.

BJP supporters, meanwhile, speculated if the Supreme Court’s directive to the Election Commission to publish the list of buyers of electoral bonds on its website would embarrass the BJP or work against the Opposition. The Supreme Court had also directed the un-encashed bonds to be returned. BJP supporters seemed unanimous in holding that the verdict would cause ‘bigger problems’ for the Opposition.

Graphics courtesy: 
ADR India & MyNeta (@adrspeaks/X)
Graphics courtesy: ADR India & MyNeta (@adrspeaks/X)

"The order to retrospectively publish the donor list or make it public, that too just before a general election, will potentially hurt the opposition more, way more than what many people realise,” reflected one of them, while another agreed with him. The Opposition would find it more difficult than the BJP to mobilise funds at short notice, return the un-encashed bonds and declare the names of donors, he added hopefully. For good measure, he cautioned the Opposition, “celebrations may be a bit premature”.  

The only sour note, however, was introduced by former MP and BJP leader Subramaniam Swamy, who laconically called for Prime Minister Narendra Modi to resign. It was the prime minister’s "crazy idea" which undermined the credibility of the BJP and its claim to fight corruption. PM Modi, he alleged, had overruled then RBI governor Urjit Patel, who had warned the late Arun Jaitley that the scheme would undo any good that demonetisation may have done.

When a single Judge of Allahabad High Court found Mrs Indira Gandhi had used government resources to put up an election platform, JP (Jayprakash Narayan) had demanded that she resign as PM. "Will JP created party off shoot i.e. BJP follow JP?" Swamy posted on X.

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