Slow March to Accountability

Perseverance—and transparency—score a legal win

This story and the above illustration were originally published by Asia Democracy Chronicles.

Their latest accomplishment may have come too late to make a difference in India’s ongoing mammoth general election, which began on April 19 and ends on June 1. Yet for the transparency advocates in the world’s largest democracy, a five-judge Constitution Bench decision last February to strike down the government’s 2018 Electoral Bond Scheme is still nothing short of a miraculous victory that could have a profound political impact.

“Who could have imagined that ordinary citizens like us could have induced the Supreme Court to declare the ruling dispensation’s pet project unconstitutional?” comments activist Anjali Bhardwaj of the non-profit Common Cause a few months after the ruling.

Then again, retired Indian Navy Commodore Lokesh Batra, who managed to unearth information about the functioning of the electoral bonds that eventually formed the backbone of the Supreme Court petition against them, notes: “We might be ordinary citizens, but as taxpayers and voters, we have the right to participate in the governance of our nation; the right to demand answers; and the right to know. This is what the court has upheld.”

These bonds, which could be bought from banks and donated anonymously to political parties, had been exempted from public disclosure, ostensibly to protect the donors from the wrath of the parties they did not fund. According to the Supreme Court, however, this exemption violated the voters’ right to information enshrined in Article 19(1)(a) of India’s Constitution.

The judgment marks a coming of age of India’s maverick truth seekers – retired military officers, academics, lawyers, activists, and others who have been advocating for greater transparency and accountability in public life. The most potent weapon in their arsenal has been the Right to Information (RTI) Act 2005, which empowers every citizen to seek information about public works, and litigation.

Since it was ratified, the law has been the hero of many David vs the Goliath stories in India. But transparency and accountability activists in India say that the striking down of electoral bonds could be their most significant win yet.

Hush donations

The Electoral Bond Scheme was introduced in 2017-2018 by the ruling Bharatiya Janata Party (BJP) government, ostensibly to eradicate the use of black money in political party funding. These were “bearer” instruments, similar to currency notes, that individuals as well as corporates could anonymously donate to the party of their choice.

Since 2018, bonds worth nearly 16,000 crore rupees (more than US$1.9 billion) have been anonymously donated to political parties. The Association of Democratic Reforms (ADR) – which, together with Common Cause, and the Communist Party of India (Marxist) would become the primary petitioners in the Electoral Bonds case – analyzed available data and found that between 2018 and March 2022, 57 percent of donations via electoral bonds (about US$600 million) went to BJP.

“We couldn’t understand how a system of funding political parties could be made transparent, when it hid the identity of the donor,” recalls retired Major General Anil Verma, who heads ADR. “How could voters make informed decisions when they couldn’t – didn’t – know who was funding the party they voted for?”

In September 2017, ADR and Common Cause challenged the constitutionality of these bonds. But the matter proceeded at a pace best described as glacial.

“We filed six to seven petitions against the bonds before every assembly election from 2017 onwards,” Verma recounts. By 2019, RTI questions filed by Batra, Bhardwaj, and other transparency campaigners had established that the bonds were introduced despite clear warnings issued by the Election Commission of India (ECI) and various opposition parties. Moreover, even the Reserve Bank of India had cautioned that the bonds could be misused by shell companies to “facilitate money laundering.” (This was also noted in the final judgment by the court.)

ADR and Common Cause approached the court again in October 2023, asking it to consider the matter before the 2024 general election. This time, a Constitution Bench heard their arguments over three days in October and November 2023, and finally ruled that the Electoral Bonds Scheme was unconstitutional on Feb. 15, 2024.

The Bench held that “information about funding to a political party is essential for a voter to exercise their freedom to vote in an effective manner.” Justice Sanjiv Khanna, one of the presiding judges on the case, wrote: “The voters’ right to know and access to information is far too important in a democratic set-up so as to curtail and deny ‘essential’ information on the pretext of privacy and the desire to check the flow of unaccounted for money to the political parties.”

Eventually, the Supreme Court directed the State Bank of India to disclose all “conceivable” details regarding electoral bonds. This opened a veritable Pandora’s box. The data dump released in March by the State Bank of India proved that many companies gave donations just as they received major government contracts, which is a common pattern seen the world over.

The disclosure also showed that almost half of the top 30 corporate donors were facing government investigations around the time they purchased electoral bonds.

Thirty-three of the top corporate buyers of EBs had also registered negative or near-zero profit after tax in aggregate in the last seven years, which raised questions about whether they were shell companies or had undisclosed funds available. Prashant Bhushan, who represented ADR and Common Cause in the Supreme Court, said in a press conference that what these ordinary citizens had uncovered in their quest for transparency was “the biggest scam in the history of this country, and perhaps anywhere in the world.”

A potent law

Still, the scam would not have been unveiled had it not been for the most important success of India’s movement for accountability and transparency in public: the ratification of the Right to Information Act in 2005.

With the legislation empowering Indian citizens to demand information – and accountability – from the government and public bodies, over 1.6 million RTI applications are now being filed annually. That makes the RTI law the world’s most extensively used transparency legislation at present.

Citizens have discovered the power of information, invoking the law to seek information on everything – from pending ration-card applications to the 2013 Vyapam text-fixing scam, which resulted in over 250 cases filed against 5,000 accused parties and as many as 53 unnatural deaths of people associated in different ways with it. With every successful use of the law to access civic rights, one thing became clear: with the right information, even ordinary citizens are powerful.

A precursor to this was the campaign for electoral transparency that ADR, a group of civic-minded management professors, began in 1999. ADR filed a Public Interest Litigation in Delhi High Court seeking the disclosure of the criminal, financial, and educational backgrounds of all candidates contesting elections.

Based on this, the Supreme Court in 2002, and subsequently in 2003, made it mandatory for all candidates contesting elections to disclose criminal, financial, and educational backgrounds prior to the polls by filing an affidavit with the Election Commission.

Today ADR has an open data repository platform called Myneta, which provides election-related information to enable Indian voters to make informed choices. “Knowing who is funding a political party is an important aspect of this,” Verma points out. “It’s a fundamental aspect of a healthy democracy.”

Democracy in decline?

Yet the efforts of India’s transparency activists notwithstanding, the state of its democracy leaves much to be desired for many others.

Based on the Freedom in the World 2021 report of Freedom House, India’s status deteriorated from Free to Partly Free and has stayed there since. India has also slipped to 161st out of 180 countries in the World Press Freedom Index, just three spots above Russia.

The U.S. organization devoted to the support of democracy across the world rates people’s access to political rights and civil liberties in 210 countries and territories through its annual Freedom in the World report.

Transparency and RTI activists in the country face routine trolling and worse on social media, as well as state-sponsored investigations by the income tax departments, enforcement directorate, and the Central Bureau of Investigation. Batra says that he receives so many threats that he has stopped bothering about them. “When you ask tough questions, you’ve got to be prepared for this,” he says.

For others, though, government reprisals have been more serious. For example, following the communal rioting in Delhi in 2020, the Delhi police filed charges of sedition and terrorism against several activists, students, opposition politicians, and citizens, even though some had simply organized peaceful protests against the Citizenship (Amendment) Act.

Perhaps this is why many civil-society organizations have eschewed public meetings as a means of building consensus, in favor of the legal route and of course, the RTI law.

And so the transparency campaigners push on. In fact, Verma and his colleagues at ADR currently have a plea in the Supreme Court to bring political parties under the ambit of the RTI law. Every step toward transparency will “improve the state of our democracy,” Verma says.

Meanwhile, Commodore Batra is trying to juggle physiotherapy sessions for a frozen shoulder with a flurry of RTI applications to further shed light on electoral bonds. His latest query has revealed exactly how much the government has spent on printing these bonds, and how many have been printed thus far.

“My next step is to get my health back in order,” says the 78-year-old, laughing. “But, in the coming months, I am going to unearth the accounts of the PM Cares Fund, and find out why the government is being so cagey about it.”

List on Democracy Local Page
Not featured, regular item