In declining to stay the operation of the Electoral Bonds Scheme (EBS), citing the fact that the plea for stay had been heard and refused last year itself, the Supreme Court is taking a narrow and technical view. In an order in April 2019, a Bench of the Supreme Court headed by the then Chief Justice of India, Ranjan Gogoi, had asked political parties to disclose to the Election Commission of India (ECI), in sealed covers, details of the donations they had received through the anonymous bonds. Given the “limited time” available then and “the weighty issues” involved in the matter, it declined to grant a stay. However, it is quite disappointing to note that nine months on, the court remains unmoved by submissions that a fresh window for purchase of bonds is set to be opened soon, coinciding with the Delhi Assembly election and that the scheme itself was being frequently opened so that the ruling party would stand to benefit. Fresh revelations suggest that the Reserve Bank of India and the ECI had voiced their reservations about the scheme, which was enabled by provisions of the Finance Act, 2017, and introduced in 2018. The Association for Democratic Reforms, the petitioner, has disclosed that an overwhelming majority of the donations made through electoral bonds had gone to the Bharatiya Janata Party. Further, the ECI has already made clear its strong opposition to the various amendments to the law on contributions to political parties.
In particular, the ECI, in its response filed in the court, said the provisions would enable the creation of shell companies for the sole purpose of making political donations and no other business, that the abolition of the clause that says firms must declare political contributions in their profit and loss accounts would compromise transparency, and the amendments to the law on foreign contributions would mean that there would be unchecked foreign funding of political parties, leading to foreign influence on India’s policy-making. Overall, it had recorded its unequivocal position that the EBS would help the use of black money for political funding. In this backdrop, it is quite intriguing that the top court has given the ECI a fortnight to reply to the petition for stay when its position is quite clear. The least the court can do now is to expedite the final hearing of the petitions challenging the scheme. There are indeed strong grounds for putting an end to the system of anonymous bearer bonds being used to fund parties. Such anonymity gives a clear and unfair advantage to the ruling party of the day. It must be remembered that the failure to have an early hearing has already led to the scheme being opened ahead of every major election. It may not be possible to assess the adverse impact that such opacity can have on the electoral process. This is a matter crying for an early and expeditious decision.