Source: 
The Hindustan Times
https://www.hindustantimes.com/opinion/constitutional-idealism-gets-a-boost-from-sc-101708090703278.html
Author: 
Barkha Dutt
Date: 
16.02.2024
City: 

The verdict on electoral bonds suggests that the healthy and necessary tensions between the executive, judiciary and legislature are alive and well

“It’s the triumph of idealism over pragmatism,” Subhash Garg, former finance secretary of India, told me as news came in of the Supreme Court’s massive intervention in striking down electoral bonds as a way of political funding. Garg was the economic affairs secretary when the bonds were first notified in 2017. In his book, We Also Make Policy, he describes how he moved from being a critic of electoral bonds — seeing them as “devious” initially — to being persuaded by Arun Jaitley that bonds were preferable to cash-funded politics. His memoirs also chronicle the fierce clashes that took place over electoral bonds, describing then Reserve Bank of India (RBI) governor Urjit Patel as “combative and confrontational” over the issue. Patel wanted the bonds to be administered only by RBI (not the State Bank of India) and for them to be digital, not physical. This would have killed the essential feature of the bond as it was conceptualised around the anonymity of the donor. There was pushback from other institutions as well. OP Rawat, who was chief election commissioner at the time, argued against the anonymity the bonds enabled, calling the ‘opacity’ as “dangerous for the democratic system”.


The Supreme Court (SC) clearly agrees. Guided by the principle of “open governance”, the bench has not just struck down anonymous political donations, it has asked for details of these transactions to be published on the Election Commission of India website in three weeks. Garg argues that since the Court has not specifically directed the SBI to match purchaser to depositor, all you may get is a giant data dump as distinct from transparency around which corporate gave which political party how much money.

But it’s a start. And enough enterprising journalists and rights activists should be able to wade through the numbers and join the dots.

“Three cheers for Supreme Court,” said Major General Anil Verma, of the Association of Democratic Reforms, one of the main petitioners in this case.

And that’s the big takeaway of this story.

To be honest, the debate continues over how elections should be funded. Garg held that electoral bonds were the least evil option of all available options. Others have warned that this will take the country back to the days of cash under the table, with no record of contributors and an even more opaque system of political funding than the anonymity of the bonds enabled.

But as the debate continues over how politics should be financed, the SC’s clear-eyed assertion of constitutional principles is why the verdict is being celebrated. Most significantly the decision of the bench, led by Chief Justice of India (CJI) DY Chandrachud, reaffirms a rights-based democratic order. Remember, during the hearings, a key argument made by the Union was that citizens do not have the right to information under Article 19 of the Constitution regarding the funding of political parties. A note submitted by attorney general R Venkatramani was specific: “...Citizens do not have a general right to know anything and everything without reasonable restrictions…Right to know is not a general right available to citizens.” The SC concludes otherwise, placing the citizen’s right to know as fundamental. “Information about political funding would enable a voter to assess if there is a correlation between policymaking and financial contributions...,” the order says.

Once again, to reduce the import of this verdict to its technicalities would be to underestimate its spirit. What’s important is the Court’s focus on the primacy of the citizen, whose rights are placed ahead of the politician’s. It resets the hierarchy of that equation.

The other reason the verdict is significant is because it reaffirms the SC’s own capacity to push back, disagree and enforce checks and balances in the democratic order. The order comes at a time when even much-respected jurists such as Fali Nariman have said that India’s judiciary has typically been weak when governments have been strong. Others like justice Madan Lokur have lamented the perception of a “weak judiciary” that has not, in his view, asserted itself more strongly on the issue of judicial appointments.

But if this verdict is juxtaposed with two other important interventions from the top Court — marching back the convicted rapists in the Bilkis Bano case into jail and the scathing comments by CJI Chandrachud in the Chandigarh mayoral election (“We will not allow democracy to be murdered”) — one can see that the healthy and necessary tensions between the executive, the judiciary and the legislature are alive and well.

The verdict scrapping the bonds may have little to no impact on the outcome of the 2024 elections. Most people may never even read the full judgment. There may be no easy answers to the prickly questions of political funding. But, given how jaded and cynical we often are about politics, this infusion of “idealism” surely can’t hurt.

And it is this idealism of constitutional propriety that is being hailed.

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