This article on ‘Need for a Holistic and a balanced reassessment of ‘Electoral Bonds’- A Constitutional Perspective’ was written by Samrat Bandopadhyay and published by Legal Upanishad.
Shri Piyush Goyal, Cabinet Minister, Government of India and Minister of Textiles, Minister of Commerce and Industry and Minister of Consumer Affairs, Food and Public Distribution, once reckoned, “The Electoral Bonds are a prime instance of electoral reform, aimed to remove corruption from the system as now donors will be able to donate only through cashless channels. Earlier, the elections were fought through an opaque and unaccountable system where black money ruled…” The buzzword on ‘electoral bonds’ to finance political parties in their election endeavour and to augment a ‘fair and transparent’ election process has been garnering attention from the time of its introduction.
The election is the festival of democracy. In India, the constitutional tenets, rules, principles, and ethos as enshrined in the Constitution of India and the very essence of ‘capturing the fervour of democracy’ via an electoral process have been the bedrock of the law of this country.
Election Funding via Electoral Bonds
Election funding is no different in this context aimed at bringing about ‘transparency’ and ‘improving’ the electoral process in India. Anonymous funding, whether domestic or from foreign channels with no records or trails of any kind as to investors, sympathizers, or payment channels, have had hitherto been a talking point for ‘money laundering’, ‘money pumped’ through the ‘black market’, ‘tax evasive’, ‘parallel economy’ and multiple other issues from time immemorial. A transparent, process-oriented and pertinently, on top of it, a legally feasible and legal source of funding has been the clarion call from various quarters, driving the need for this positive initiative in the realm of ‘electoral reforms’.
Analysis from a Constitutional Perspective
From the prism of constitutionality, the contention raised by some to refer the matter pertaining to ‘electoral bonds’ to the constitutional bench, has still lingered with issues on its constitutionality validity[i], its electoral efficacy, meeting the legislative intent, interpretation in the context of elections, be it election inter alia to local bodies, panchayats, State Legislative Assemblies or Lok Sabha. It is fait accompli that a sound, robust, nimble and supple electoral system would be a backbone of a solid democracy encouraging honest, hardworking and disciplined members of the people, community, society and nation to lead the democratic process, of being elected in the electoral process.
The voice of people in this vibrant democracy calls attention to the legal, social, economic, technological and political pertinent issues to be addressed. The pivotal question of whether anonymous funding, by entities such as Corporates and Financial Entities, be equated to individual funding, in terms of the ‘capacity of funding’, ‘channels of funding’, ‘instruments of funds’, ‘financial asset management via financial instruments’,’ risk management’, ‘credit interest variances’, ‘stock market influencing factors’ are some of the seminal issues which merit a ‘holistic’ and an ‘all-inclusive analysis’. Article 324 to 329[ii] pertains to the electoral reforms related to the need to analyze this issue from a multi-dimensional angle.
A Ramification of Electoral Bond’s Implementation
It is vital to note that the fundamental right from equality[iii] and freedom of speech and expression[iv] perspective, has relevance with the right of the citizens involved in the electoral process[v] to know who is funding during the electoral process, where it is funded from, how the fund is being channelled and the sources of the fund, the intention and the motive of the funders in the long run. This manifestations to a sense of responsibility, nonetheless, to keep track of the funding of this ‘ interest-free bearer instrument’ via the ‘electoral bonds’ purchased through the designated banks, as per Government notification in online mode.
Keeping a close on the stock markets, derivative markets, financial forex market, legal channels of legitimate funding via financial instruments, fair competition among market players, ensuring proper dissemination of information and communication, cyber security and better enforcement of the legal provisions are some of the vital aspects which have to go hand in hand and in tandem with ‘due diligence’ and ‘due compliances’ with the legal extant laws of the land.
Transparency and Accountability: The Focus of ‘Electoral Bonds’
The transparency as intended with the legislative efforts of ‘electoral bonds’ has to be complied with ‘due regard’ to the media’s non-partisan role, along with other stakeholders in the economy of the country, whether it is the industrialists, business fraternity, chamber of commerce, foreign government agencies, financial institutions and administrative wings, among others.
Strict adherence to the Model Code of Conduct[vi] during elections, preparation of electoral rolls, and facilitating awareness of ‘electoral bonds’ among all the stakeholders in the value chain of the economy with sensitization workshops and programmes driven for larger awareness among the populace would go a long way in ensuring that the intent of the legislation and the fore-fathers of this Constitution of India is being upheld with honour and dignity.
To conclude, as held in the catena of cases surfacing before the Hon’ble Courts of this country, had been unanimous in its judgment that a ‘fair and free’ election process is the lifeline and blood of this democracy. As citizens of this magnanimous and vibrant democracy, it is the responsibility and duty of each citizen to uphold the corresponding ‘rights’ of every individual[vii] when it is conducted with ‘due regard’ and in compliance with the legitimate process as enunciated by Prof HLA Hart in his famed work ‘The Concept of Law’[viii].
As held by the Hon’ble Supreme Court of India in line of judgments and catena of cases, Smt. Indira Nehru Gandhi vs Shri Raj Narayan[ix], N. P. Ponnuswami vs The Returning Officer, Namakkal Constituency[x], Election Commission of India vs Saka Venkata Rao[xi], Brundaban Nayak vs Election Commission of India & Another[xii], Meghraj Kothari vs Delimitation Commission & Others[xiii], the vital facet of fundamental rights is ‘inalienable’[xiv] and fundamental to the very existence of the mankind[xv].
It is the most opportune time to uphold the ‘high ideals’ of the framers of the Constitution at the same point of time to ensure that the ‘transparency’ and the ‘financial discipline’ contemplated by the electoral bonds are not compromised in the anvil of parochial interests of few and to ensure that in the festival of democracy, the elections, the most deserving emerges the winner in the entire process.
List of References
- Article 14 of Indian Constitution
- Article 19(1)(a) of Indian Constitution
- The Representation of the People Act, 1951
- Smt. Indira Nehru Gandhi vs Shri Raj Narayan, 1975 SCC (2) 159
- N. P. Ponnuswami vs The Returning Officer, Namakkal Constituency, 1952 1 SCR 218
- Election Commission of India vs Saka Venkata Rao, 1953 AIR(SC) 210
- Brundaban Nayak vs Election Commission of India & Another, 1965 SCR (3) 53
- Meghraj Kothari vs Delimitation Commission & Others, 1967 SCR (1) 400
- Kesavananda Bharati Sripadagalvaru & Ors. vs State of Kerala & Anr. (1973) 4 SCC 225
- General Conduct guidelines of Election Commission of India, Election commission of India, available at: https://eci.gov.in/mcc/ ( last visited on 12 June 2023)
- William C Starr, “Law and Morality in H.L.A. Hart’s Legal Philosophy” 67(4) Marquette Law Review (1984)
[i] UOI v. Association for Democratic Reforms, 2002 AIR 2112
[ii] Article 329 of Indian Constitution pertains to barring Courts to interfere with the Electoral process and matters in relation to elections.
[iii] Article 14 of Indian Constitution
[iv] Article 19(1)(a) of Indian Constitution
[v] The Representation of the People Act, 1951
[vii] Law and Morality in H.L.A. Hart’s Legal Philosophy Article (Vol 67- Foot Note 25) delves on Separation of Law and Morality- Does morality have a role to play?
[viii] Prof HLA Hart erudite scholar who was Professor of Jurisprudence at Oxford University and Principal of Brasenose College, Oxford with his famed work ‘The Concept of Law’. The Concept of Law, By H. L. A. Hart, edited by Joseph Raz and Penelope A. Bulloch, 3rd ed., Oxford University Press, 2012
[ix] Smt. Indira Nehru Gandhi vs Shri Raj Narayan, 1975 SCC (2) 159
[x] N. P. Ponnuswami vs The Returning Officer, Namakkal Constituency, 1952 1 SCR 218
[xi] Election Commission of India vs Saka Venkata Rao, 1953 AIR(SC) 210
[xii] Brundaban Nayak vs Election Commission of India & Another, 1965 SCR (3) 53
[xiii] Meghraj Kothari vs Delimitation Commission & Others, 1967 SCR (1) 400
[xv] Kesavananda Bharati Sripadagalvaru & Ors. vs State of Kerala & Anr. (1973) 4 SCC 225