Herald View: Electoral bonds and the voters' right to know

On 31 October, a five-judge constitution bench of the Supreme Court of India started hearing petitions challenging the controversial electoral bonds scheme. On the Sunday preceding (29 October), the Attorney General of India R. Venkataramani sent a written submission to the Court refuting arguments that citizens have a right to know who is funding our political parties.

The A-G would have us know that we, the people of India, who vote in people’s representatives from various political parties, do not have a right to know who funds their election campaigns.

But how then, Mr A-G sir, do citizens find out if there are any quid pro quo deals between big donors and political parties, especially ruling parties? What if heavy donors receive preferential treatment from parties they support? If you’ll look in the right places, you might even find the evidence.

But let’s also take on board the argument made in court by Solicitor General of India Tushar Mehta that the State must protect donors’ right to privacy because their “political affiliation” is in the “core zone of privacy”.

Mehta said in court: “The electoral bond does not carry the name of the buyer or payee in order to protect the citizen’s right to privacy to [their] political affiliation and to choose to fund a political party of [their] choice, without the fear of being targeted or suffering vindictive repercussion for owning such a choice.”

If that means that said ‘right to privacy’ should override the voter’s ‘right to know’, should the donor’s political affiliation be selectively available to the government and the ruling party of the day? Or shouldn’t the confidentiality of the citizens’ political affiliation extend to the government as well, given that the ruling party will also seek re-election?

Thankfully, the learned judges are not convinced either, or so it appears, judging from their initial observations. Expressing the reservations of the bench, Chief Justice of India D.Y. Chandrachud said the problem with the scheme was that “[It] provides for selective anonymity/ confidentiality; it’s not completely anonymous.”

To paraphrase, he said: SBI, as the issuer of the bonds, knows, as do the law enforcement agencies. So, the government may also come to know who has funded opposition parties but the opposition parties would have no way to find out who has donated to the ruling party. “This creates an imbalance in the scheme,” the CJI said.

In any case, it’s a bit rich for this government to invoke citizens’ right to privacy when it violates the right at every turn. It has even framed or recast laws—such as the Digital Personal Data Protection Act, 2023; the Indian Telecom Bill, 2022; the Aadhaar and Other Laws (Amendment) Act, 2019—to grant itself exceptional rights to access citizen data without specifying reasons or making any ‘use limitation’ commitments.

‘User consent’ and ‘use limitation’ are defining features of data-privacy regimes such as the EU’s General Data Protection Regulation (GDPR), which foregrounds the individual’s right to their data. Your consent, under the GDPR, for use of your data ‘must be freely given, specific, informed and unambiguous. In order to obtain freely given consent, it must be given on a voluntary basis.’

India’s data-privacy framework, on the other hand, has been bent to the will of a surveillance State. Our government’s favourite and most handy excuse for invading citizens’ right to privacy is ‘national interest’ and its cousin ‘national security’. Many will remember the Pegasus spyware case.

There’s more to demonstrate the depth of our government’s commitment to our right to privacy, but it may be enough to recall that in K.S. Puttaswamy vs Union of India, the landmark case in which a nine-judge SC bench upheld the right to privacy as a fundamental right, it was the government that was arguing that citizens do not have a fundamental right to privacy.

It should not surprise us that the government does not think much of voters’ right to know who funds our political parties. Before the electoral bond scheme was introduced in 2018, political parties were bound by law to disclose to the Election Commission of India (ECI) the identity of donors who contributed more than Rs 20,000.

Companies donating to political parties had to record the names of the parties in their books of account and annual reports. The electoral bond scheme did away with these requirements and now neither citizens nor shareholders of donor companies nor the ECI has access to this information. Does that sound kosher?

In reply to a recent RTI application, the State Bank of India has confirmed that in 10 days between 4 and 13 October 2023, electoral bonds worth Rs 1,148 crore were sold, of which Rs 1,095 crore were in denominations of

Rs 1 crore each. How many Indians, we wonder, have the means to buy Rs 1 crore bonds, assuming these are different individuals or companies? But we won’t find out because as citizens, we do not have the right to know.