Electoral Bonds | How Supreme Court Used Proportionality Test To Give Primacy To Voters' Right To Information

In a profound development, the Supreme Court on Thursday (February 15) struck down the controversial Electoral Bonds (EB) Scheme, holding that anonymous EBs are violative of the right to information enshrined under Article 19(1)(a) of the Constitution.The decision was rendered by a Constitution Bench comprising CJI DY Chandrachud, Justices Sanjiv Khanna, BR Gavai, JB Pardiwala, and Manoj Misra which gave two concurring opinions. Notably, the Court directed the Election Commission of India to publish details of political parties that received contributions through EBs during the stipulated period by March 13, 2024.For an overview of the judgment, click here.In the present segment, we will see how CJI Chandrachud, in a nuanced and erudite judgment written on behalf of himself, Justices Gavai, Pardiwala and Misra, balanced individuals' right to information under Article 19(1)(a) with contributors' right to informational privacy.Balancing conflicting fundamental rightsAt the outset, the CJI recapitulated that to balance competing fundamental rights in the past, courts have used the collective interest or the public interest standard, the single proportionality standard, and the double proportionality standard.The public interest standard involved two modalities: first, where the Court would weigh constitutional values of competing rights and circumscribe one of them such that there was no real conflict, and second, where the Court would compare values espoused by the competing rights and give more weightage to the one that was in furtherance of a higher degree of public interest.The CJI referred to Sahara India Real Estate Corporation Limited v. Securities and Exchange Board of India (2012) to highlight that the Bench in that case evolved a two prong standard to balance fundamental rights through neutralizing devices, which partly resembled the "structured proportionality standard". These two prongs were: (i) there is no other reasonable alternative measure available (necessity test); and (ii) the salutary effects of the measure must outweigh the deleterious effects on the fundamental rights (proportionality standard).He further alluded to the decision in Mazdoor Kisan Shakti Sangathan v. Union of India (2018) that marked a shift in the degree of justification, ie from the pre-proportionality stage to the proportionality stage. In the captioned case, while balancing right to protest with right to peaceful residence, the Court had applied one of the prongs of the proportionality standard ie the "least restrictive means" prong.The precedential recap would not have been complete sans mention of Justice KS Puttaswamy (5J) v. Union of India (2019), adverting to which the CJI recalled how Justice AK Sikri (speaking for the majority) employed the "structured proportionality" standard to resolve a conflict between the right to informational privacy and the right to food. He added that on balancing the fundamental rights involved in the said case, the Court had come to a conclusion that provisions furthering the right to food satisfied a larger public interest whereas the invasion of privacy rights was minimal.Moving on, the CJI spoke of the single proportionality standard, under which it is analyzed if a fundamental right can be restricted for State interest (or a legitimate purpose), and if so, whether the measure employed to that end is proportional to the object sought to be achieved. He opined that the standard suffers from limitations insofar as balancing conflict between two fundamental rights is concerned."The proportionality standard is an effective standard to test whether the infringement of the fundamental right is justified. It would prove to be ineffective when the State interest in question is also a reflection of a fundamental right. The proportionality standard is by nature curated to give prominence to the fundamental right and minimize the restriction on it."The CJI also made reference to Central Public Information Officer, Supreme Court of India v. Subash Chandra Agarwal where, while penning a concurring opinion, he observed that to balance two fundamental rights, Courts must identify the precise interests weighing in favor of both disclosure and privacy, and not merely undertake a doctrinal analysis to determine if one of the fundamental rights takes precedence over the other.Test to be employed for balancing two fundamental rightsThe CJI summarized the test to be applied by courts while attempting to resolve a conflict between two fundamental rights (say, A and B) as follows:a. Does the Constitution create a hierarchy between the rights in conflict? If yes, then the right which has been granted a higher status will prevail over the other right involved. If not, the following standard must be employed from the perspective of both the conflicting rights,b. Whether the measure is a suitable means for furthering right A and right B? It is not necessary that the measure should be the only means capable...

Electoral Bonds | How Supreme Court Used Proportionality Test To Give Primacy To Voters' Right To Information

Debby Jain

Tags