30 Oct 2023 4:24 AM GMT
Attorney General for India, R Venkataramani, in a statement filed before the Supreme Court in the electoral bonds case, has submitted that the citizens do not have the right to information under Article 19(1)(a) of the Constitution regarding the funding of a political party.The AG refuted the argument of the petitioners, who challenge the electoral bonds scheme, that citizens have the right...
Attorney General for India, R Venkataramani, in a statement filed before the Supreme Court in the electoral bonds case, has submitted that the citizens do not have the right to information under Article 19(1)(a) of the Constitution regarding the funding of a political party.
The AG refuted the argument of the petitioners, who challenge the electoral bonds scheme, that citizens have the right to know about the source of funding of a political party.
"Firstly, there can be no general right to know anything and everything without being subjected to reasonable restrictions. Secondly, the right to know as necessary for expression can be for specific ends or purposes and not otherwise," AG said.
He further stated that the judgments upholding that the citizens’ right to know of the criminal antecedents of candidates cannot be extrapolated to mean that they have the right to information regarding the funding of parties.
Stating that those judgments were in the context of making informed choices about electoral candidates and knowing their antecedents, the top law officer of the Union said that information limited to such knowledge serves a "specific end of citizens’ choice of electing candidates free from blemish".
"Right to know for specific rightful expression was thus conceived. From that it cannot be said that the right to know for general or broad ends necessarily follows.
Therefore, these judgments cannot be read as to suggest that a citizen has a right to information under Art. 19(1)(a) regarding funding of political party. If there is no right under Article 19(1)(a), the further question of locating reasonable restriction under Article 19(2) does not arise"
The batch of petitions challenge the amendments introduced by the Finance Act, 2017 paving the way for the anonymous electoral bonds scheme.
In his statement, the Attorney General said that the electoral bond scheme does not impinge upon any existing right of any person and cannot be said to be repugnant to any right under Part III of the Constitution. "In the absence of such repugnance, the Scheme will not be illegal. A law which is not so repugnant cannot be voided for any other reason. Judicial review is not about scanning State policies for the purposes of suggesting better or different prescriptions," the Attorney has told the Apex Court.
A Constitution Bench of the Supreme Court will start hearing the batch of petitions challenging the Electoral Bonds scheme on October 31.The bench consists of Chief Justice of India DY Chandrachud, Justices Sanjiv Khanna, BR Gavai, JB Pardiwala and Manoj Misra. On October 16, a 3-judge bench comprising CJI, Justices JB Pardiwala and Manoj Mishra had referred the matter to a 5-judge bench "in view of the importance of issue raised". Earlier, CJI Chandrachud had agreed to hear the petitions -which were filed in 2017- after the petitioners urged that the matter be heard before the upcoming general elections.
The AG has also stated the scheme promotes contribution of clean money and adherence to tax obligations.
“The scheme in question extends the benefit of confidentiality to the contributor. It ensures and promotes clean money being contributed. It ensures abiding by tax obligations. Thus, it does not fall foul of any existing right. A constitutional Court reviews State action only if it impinges upon existing rights and not because State action has not provided for a possible right or an expectation howsoever desirable. “
The AG has also argued that the aspect of testing out a new law is to be considered in public and parliamentary debates. He further said that this is not a case for Court driven guidelines.
“Additionally even when the Court proceeds to declare an aspect as part of a right for the first time, it will be in tune with separation of powers that the subject of reviewing or testing a law with the newly stated aspect of a right be relegated to public and parliamentary debates. This is also not the case for Court driven guidelines. That contribution to political parties has democratic significance and a fit subject for political debate and demand of governance accountability free from influences does not mean that the Court will proceed to declare on such matters in the absence of a clear constitutionally offending law," AG said.
The Finance Act 2017 introduced amendments in Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of Peoples Act and Foreign Contributions Regulations Act to make way for the electoral bonds.
By virtue of the 2017 amendment made to Section 29C of the Representation of Peoples Act 1951(RPA), a donor may buy an electoral bond at specified banks and branches using electronic modes of payment and after having completed the KYC (know your customer) requirements. However, political parties are not required to disclose the source of these bonds to the Election Commission of India (ECI). The bonds can be bought for any value, in multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh or Rs 1 crore. The name of the donor will not be there in the bond. The bond will be valid for 15 days from the date of issue, within which it has to be encashed by the payee-political party. The face value of the bonds shall be counted as income by way of voluntary contributions received by an eligible political party, for the purpose of exemption from Income-tax under Section 13A of the Income Tax Act, 1961.
The petitions have been filed by political party Communist Party of India (Marxist), and NGOs Common Cause and Association for Democratic Reforms(ADR),which challenge the scheme as "an obscure funding system which is unchecked by any authority". The petitioners voiced the apprehension that the amendments to Companies Act 2013 will lead to "private corporate interests taking precedence over the needs and rights of the people of the State in policy considerations".
In March 2019, the Election Commission of India filed an affidavit stating that anonymous electoral bond scheme was a "retrograde step" as it has a serious impact on transparency in political funding.
In 2021, the Supreme Court had refused to stay the release of electoral bonds ahead of the assembly elections in certain States.