SC: Poll bonds selectively anonymous, ruling party can identify donors, Opposition can’t

NEW DELHI: The Supreme Court Wednesday said the problem with electoral bonds scheme is that it provides for “selective anonymity” and “selective confidentiality” as the details are available with the State Bank of India (SBI) and can also be accessed by the law enforcement agencies.

A five-judge constitution bench headed by Chief Justice D Y Chandrachud observed the problem with the scheme would lie if it does not provide a level playing field to political parties and if it suffers from opacity.

While hearing arguments on a batch of pleas challenging the validity of electoral bonds scheme for funding political parties, the apex court said the motive behind the scheme may be perfectly laudable but in an effort to bring in white money into the electoral process, it essentially provides for a “complete information hole”.

“The problem with the scheme is it provides for selective anonymity. It is not completely anonymous. It provides for selective anonymity, selective confidentiality. It is not confidential qua the State Bank of India. It is not confidential qua the law enforcement agencies,” the bench, also comprising Justices Sanjiv Khanna, B R Gavai, J B Pardiwala and Manoj Misra, told Solicitor General Tushar Mehta who was arguing the case for the Centre.

Under the scheme, electoral bonds can be issued or purchased from some authorised branches of the SBI.

“Your argument that look if you were to strike down the scheme, you will go to a situation which existed prior, that may not be valid for the reason that we are not precluding the government from coming out with a transparent scheme or a scheme which has a level playing field,” the CJI observed.

During the day-long hearing, he said a big donor would never take the risk of buying electoral bonds for the purpose of tendering it to political parties and never put his or her head on the line by being in the books of account of the SBI.

The CJI said a big donor may disaggregate the donation to people who will purchase electoral bonds with small amounts through the official banking channel and not through cash.

Mehta, who told the bench he would explain the entire scheme, said each and every word in it was very consciously used and what the petitioners have called “anonymity or opaqueness” was neither anonymous nor opaque but was “confidentiality by design”.

“The purpose of ensuring that electoral funding relies less and less on cash component and more and more on accountable component is, of course, a work in progress and we are completely with you. There is no difficulty,” the bench said.

Making it clear that the apex court was not saying what the scheme should be, the bench said maybe the earlier scheme had failed and did not get as much white money into the electoral funding as desired.

Justice Khanna said one of the issues was selective confidentiality and it may be easier for the party in power to get the information about the electoral bonds.

He said because of selective confidentiality, the opposition parties may not know who the donors are but the donors of the opposition parties may be identified at least by the probe agencies.