Renuka Paul May 22, 2019/Analysis
The legality of electoral bonds was recently upheld by the Supreme Court after the Association for Democratic Reforms (ADR), Common Cause, and CPI(M) filed a petition challenging its constitutionality, seeking either a stay on the issuance of electoral bonds or to make names of the donors public as interim relief. However, the Court did direct the political parties to submit all details pertaining to electoral bonds to the Election Commission of India (ECI) in “sealed covers”. In 2017, as part of political funding reforms, the Centre introduced the Electoral Bonds Scheme by amending the Finance Act, Income Tax Act, RBI Act and Representation of People Act. Through this scheme, donors can make contributions to political parties by purchasing bonds from designated branches of the State Bank of India (SBI) in denominations ranging from Rs 1000 to Rs 1 crore. Using banks as intermediaries, donors transfer funds to political parties. The latter can redeem the bonds only in their registered accounts within 15 days, before validity expires.
The Government of India announced the scheme in January 2018, claiming that it will “cleanse the system of political funding in India”. The Centre stated that political parties incur large scale expenditures in terms of staff salaries, election campaigns, travelling expenses etc., often funded through cash donations from sympathisers. Conventional funding practice has been characterised by an undisclosed quantum of money channelled to political parties from unidentifiable sources. To change this status quo, the National Democratic Alliance (NDA) set the limit on cash donations at Rs 2000, beyond which funding of parties had to be done through cheques and other financial instruments, in keeping with the government’s digitisation drive. Furthermore, tax deductions were introduced for funders utilizing cheques and online payments for party donations. However, the State noted that since this required disclosure of donor identities, these features were not widely accepted, as they “invited consequences from political opponents”. In order to overcome this challenge, electoral bonds were introduced to ensure clean money and substantial transparency, wherein funders could remain anonymous. It was justified that while donors could remain unidentified and were not required to reveal the parties they supported, political parties would have to disclose the amount of funds received through electoral bonds to ECI.
According to VS Sampanth, the former Chief Election Commissioner, electoral bonds have made political funding more anonymous than ever. He claims that these bonds do not meet the basic requirements of transparency and disclosure, and ease corporate funding. In other words, corporates can now financially back political parties without leaving a trace, thereby influencing policy without public scrutiny. This view was shared by the Association for Democratic Reforms (ADR), which took a contrary position from the Centre, opposing the scheme and arguing in Court that it has “opened the floodgates to unlimited corporate donations to political parties and anonymous financing by Indian as well as foreign companies, which can have serious repercussions on the Indian democracy”. An inquiry under the RTI Act revealed that 99.8 percent of the electoral bonds between March 2018 and January 24, 2019 were in denominations of Rs.10 lakhs to Rs 1 crore. Though the government denied corporate takeover, bonds being of the highest denominations indicate that it is not common citizens but corporates purchasing these bonds.
Previously, in March 2017, the Companies Act was amended to remove the cap on political funding, thereby allowing companies to donate more than 7.5 percent of their average net profits. It is also no longer required that the company be established for at least 3 years in order to make political donations, which may pave way for funding through shell companies. Further, the mandate of disclosing the identities of the beneficiary parties has also been removed. Therefore, currently, while the amount of donations is recorded in the books of accounts, corporates can unlimitedly and anonymously fund political parties legally. It remains a plausible option for even those companies that are operating at a loss. This alarming trend will strengthen the nexus between corporates and politics, leading to private corporate interests taking precedence over the public’s needs with regard to policymaking. Without funding tracks, it would be difficult for the Ethics Committee of Parliament, CAG, and the ECI to scrutinise and raise flags in the case of such incidents. Furthermore, in March 2018, the Foreign Contributions (Regulation) Act was amended to remove the ban on foreign corporations from funding political parties, retrospectively from 1976. By expanding the definition of foreign entities, it is now possible for parties to accept donations from overseas through “Indian subsidiaries” of foreign companies. In addition to making the Indian polity vulnerable to foreign influence and pressure, it has also made it possible to overturn the 2014 Delhi Court judgement that found the BJP and Congress guilty of violating the Foreign Contribution Act (FCRA) by accepting donations from Vedanta, a London-based multinational company. Interestingly, these amendments were introduced as money bills that bypassed the Rajya Sabha (NDA has a clear majority in the Lok Sabha).
Many argue that the recent array of political reforms favours the ruling party. These claims are strengthened by data that points to lopsided electoral funding. A study of income tax returns filed by parties for the period of March 2018 noted that the BJP was the biggest beneficiary of this scheme, accruing over Rs. 210 crores, i.e. 95 percent of all electoral bonds. Oppositions parties, especially regional parties, allege the Electoral Bonds Scheme to be inherently discriminatory. According to the scheme, a donor is required to submit KYC forms with the SBI branch to successfully purchase electoral bonds. The SBI reports to the Reserve Bank of India (RBI), and both banks report to the Ministry of Finance, which results in the ruling party ascertaining the identity of donors (if desired). Opposition parties claim that the ruling party registering the identity of the former’s donors while maintaining the autonomy of their own is unfair. They argue that funding mechanisms through electoral bonds is biased against them, and also provides the ruling party with the opportunity to dissuade or retaliate against their sympathizers. Overall, dissidents of the scheme contend that the Electoral Bonds Scheme threatens equality in political financing.
India’s political landscape is marked by opaque transactions and funding mechanisms that hinder public scrutiny, resulting in poor legislations favouring prime political funders. Since the early 1980s, multiple reports and committees such as the Goswami Committee on Electoral Reforms, Law Commission Report on Electoral Reforms, Vohra Committee on State Funding of Elections, etc. were formed to address these issues. In general, the suggested recommendations include capping of election expenditures, political contributions and per-candidate expenditures.
Studies have revealed that money power is used to unduly influence voters through freebies, raising candidates’ expenditures. With financial superiority translating to electoral advantage, parties turn towards corporate donations, resulting in policy capture. Unless expenditure limits are introduced and penalties strongly imposed, the system will remain murky. Additionally, doing so will also better financial equality among candidates hailing from different classes.
Many have called for public funding of elections through a centrally maintained Election Fund. However, in India, channelling public resources towards elections might adversely affect budgets for social sectors. Moreover, in the absence of a limit on the number of candidates, some might contest elections in order to avail state funds. The National Commission to Review the Working of Constitution 2001 held that state funding of elections must be preceded by regulation of political parties and financial reforms in order for it to be successful. Unfortunately, the recommendations have not led to legislative action.
For effective political reforms to occur, maintenance of donor records- irrespective of the amounts- is necessary. In the absence of a cap on political contributions, this would enable the electorate to make informed political choices, keeping in mind lobbying and policy capture. The first step towards greater transparency and accountability would be to bring political parties under the RTI Act. However, the evident lack of political will remains a problem. Considering this, the immediate solution would be to strengthen the ECI by extending legal rights and shielding it from political influence.
Renuka Paul is a Research Analyst with TPF.
