Electoral Bonds selectively anonymous; ruling party can identify donors with help of probe agencies but opposition can't: Supreme Court

The Supreme Court Wednesday questioned whether the electoral bonds scheme presents a disadvantage for opposition parties since ruling political parties may have ways to unearth confidential information about donors who contribute funds to opposition parties. [Association for Democratic Reforms and Anr vs Union of India Cabinet Secretary and ors]..The Court flagged concern that the opposition political parties may not have similar access to donor data, leaving them at a disadvantage. .A bench of Chief Justice of India (CJI) DY Chandrachud with Justices Sanjiv Khanna, BR Gavai, JB Pardiwala and Manoj Misra posed several questions over whether such "selective" confidentiality of donor information could skew the political playing field. ."There are ways and means to get information, and it is easier for the party in power to get that information. Let us put it very frankly. The fear is, because of this selective confidentiality, the opposition parties do not know who are your (ruling party's) donors, but donors to opposition parties can be ascertained at least by investigating agencies. So they are put at a disadvantage to question you on your donations, whereas their donations get questioned," Justice Khanna said. .The Court was hearing the batch of pleas challenging the validity of electoral bonds, which facilitates anonymous donations to political parties.On Tuesday, the Supreme Court had observed that the anonymity of donors is perhaps maintained under the electoral bonds scheme to protect donors from being victimised by rival political parties in power. On Wednesday (November 1), however, the Court moved on to questioning whether such "selective confidentiality" could adversely affect the level playing field between political parties. .Such selective confidentiality also meant that one could not be sure whether the person who buys an electoral bond is the actual person behind the donation, the CJI observed."The problem with the scheme is that it provides selective anonymity. It is not confidential qua the SBI or qua the law enforcement agencies. All that the large donor has to do is to disaggregate the donation, get people who would purchase the electoral bonds in small amounts. A large donor will never really put his or her head on the line by being in the books of account of the State Bank of India. This is what the scheme is capable of because of selective anonymity, selective confidentiality," the CJI added..Appearing for the Central government, Solicitor General Tushar Mehta countered that the possible misuse of electoral bonds by one or two persons should not be the ground on which the scheme is struck down. He also argued that prior to the introduction of electoral bonds, political parties were able to get away with not disclosing the source of large political donations as long as the individual donations were below ₹20,000. As much as 69% of political donations were reported to be from "unknown sources" by using this legal loophole, as per an ADR report, he added. "Your lordships may want to ask the petitioners what benefit you would get if the country were to go ten steps backward," he argued. .However, CJI Chandrachud observed that even if the Court struck down the electoral bonds scheme, nothing would prevent the Central government from coming out with a better scheme to tackle black money in politics."What we are now doing (under the present electoral bonds scheme) is, in the effort to bring in white money into the political process, we are providing for an information hole. That is the problem. The motive may be perfectly laudable. Question is whether you have adopted means that are proportional," the CJI added..Donations via Electoral Bonds anonymous to protect privacy, political affiliation of donors: SG Tushar Mehta to Supreme Court.The Court also has asked the government to explain whether the scheme has sufficient safeguards against political corruption or quid pro quo situations."If confidentiality is given, then how do we ensure that quid pro quo does not take place?" Justice Khanna asked. .In today's hearing, the petitioners completed their arguments after submissions by Senior Advocates Vijay Hansaria (for a petitioner) and Sanjay Hedge (who appeared for an intervenor)..Senior Advocate Hansaria stressed that free and fair elections are a part of the basic structure of the Constitution and that the kickbacks received via electoral bonds gives rise to opaqueness. Senior Advocate Sanjay Hegde supported the arguments of other petitioners. He added that even if the electoral bonds scheme is upheld, the Court could issue directions so that it is more transparent. .Submissions were also made by advocate PB Suresh on behalf of the Dalit Panthers, who registered protest that only parties that have a certain vote share could avail electoral bonds. This is discriminatory, he contended. The CJI, however, opined that this aspect may be considered later since the party was not challenging the validity of electoral bonds itself. .The hearing is set to continue tomorrow. Read our coverage of Day 1 of the hearing here. .Electoral Bonds: Voters don’t have right to know source of funding of political parties, AG KK Venugopal.[Follow our live-coverage of today's hearing]