The Supreme Court’s judgement declaring the electoral bond scheme as unconstitutional is a landmark moment. Yet the decision, having been rendered after five long years, leaves our democracy beleaguered. Had the matter been adjudicated upon when challenged, the BJP would not have been able to amass the enormous wealth it has; despite the judgement, it has created a non-level playing field in our polity.
This is evident from the following facts. Between the years 2018–19 and 2022–23, the BJP has amassed almost Rs 6,566 crore. In 2017-18, before the scheme was launched, the contributions by way of cheques to the BJP were relatively insignificant at Rs 210 crore. Pursuant to the scheme being launched in January 2018, the contributions through electoral bonds issued in favour of the BJP rose to a massive Rs 1,450 crore. It is also clear that the scheme launched by my friend, the late Arun Jaitley, was designed to benefit the BJP; it ultimately resulted in a non-level playing field in the course of elections to the Lok Sabha and successive assembly elections.
We know that free and fair elections are a basic feature of our Constitution. It has been so held by the Supreme Court of India. At the time when the electoral bond scheme was launched, it was opposed by the Election Commission of India. Its opposition was overruled. By the time the matter was argued in court, the Election Commission, which was a party to the proceedings, maintained a stoic silence.
It is clear, therefore, that the commission was willing to go along with the government in this matter, though it has a constitutional responsibility of ensuring a level playing field in the electoral process. The conduct of the Election Commission does not surprise us any more, given that it has proactively collaborated with the government on all issues that have arisen in the course of successive elections. Yet it is the commission’s responsibility to ensure that the coming elections to the Lok Sabha are free and fair.
Now that the Supreme Court has declared the scheme as unconstitutional, as a matter of law, the monies transferred to the BJP, by whosoever it may be, cannot be considered as legitimate. In law, the illegality committed must not enure to the benefit of the BJP. We would be living in a fool’s paradise to hope that the Election Commission will direct the BJP as well as other political parties to disgorge the benefits that they have received pursuant to the monies transferred through the scheme. We are, therefore, confronted with a situation of a continuing, non-level playing field giving an unfair advantage to the political party in power. As a result, competitors are put to a disadvantage with no recourse. From a constitutional standpoint, this situation is untenable.
There is yet another consequence that flows from the declaration of the scheme being unconstitutional by the Supreme Court. In its judgement, the court has rightly assumed that the corporate sector’s massive contribution to one political party is probably not an act of pure generosity. Those who contributed to the party through this scheme did so perhaps in the hope of a quid pro quo. Since large parts of these contributions were through electoral bonds of the value of `1 crore, the donors must be persons or entities of substance hoping for benefits from such generous contributions.
In the circumstances prevailing today, and now that the Supreme Court has done away with the distinction between “proceeds of crime” and “money laundering," the Enforcement Directorate, which is an over-active and over-enthusiastic agency, is expected, as and when the names of the donors emerge, to immediately raid the individuals or entities who have made the contributions to discover the quid pro quo, if any.
In any case, the Enforcement Directorate is not known to target the government or members of the political party in power who have tainted records. What is likely to happen is that in states where the opposition is in power is that, once an FIR is lodged, the Enforcement Directorate will promptly start raiding opposition leaders and companies who donated and, in that process, muddy the waters even further. Now that the BJP has an unfair advantage, having benefited under the scheme, this is a genuine fear. The situation, therefore, gives the BJP a double advantage.
The Reserve Bank of India, too, had objected to the scheme for several reasons. One wonders what the RBI will do now since the scheme has been declared unconstitutional.
The extent of the damage caused to our polity is not limited to just the creation of a non-level playing field. The situation is far more serious. The corporate sector, which one can presume contributes heavily to the party in power at the Centre, also by and large owns the entire mainstream media. Having received contributions, the government at the Centre naturally would, apart from in other ways, benefit the corporate sector by giving advertisements to the channels run by them. In the process, mainstream channels—the so-called godi media—would broadcast a biased narrative in favour of the BJP.
We have witnessed this in the last several years. Such an outcome would be far more serious than the others mentioned above. It is unlikely that the mainstream media will allow 'real news’ to reach millions of consumers, but will do all it can to propagate tailored views to mislead the people. This, in turn, is likely to impact decision-making by citizens when they go to vote. Hence the outcome of the elections will surely be impacted in favour of the BJP.
We can only hope that the people of our country are wise enough to realise how the party in power has used a tainted legal process to enrich itself. And attempted to destroy the fundamentals of democracy, one of which is free and fair elections.
We are living in times where freedoms are throttled and fairness is not something that is cherished.
Kapil Sibal
Senior lawyer and member of Rajya Sabha
(Views are personal)