Introduction
On 15February, a five-judge Constitution Bench led by Chief Justice D.Y. Chandrachud unanimously held the Union govt’s Electoral Bond Scheme (EBS) to be unconstitutional in its judgement in Association for Democratic Norms v Union of India. It also held the amendments in Representation of the People Act 1951 (RPA), Companies Act 2013, and the Income-tax Act 1961 (IT Act), acting as supporting legislation, to be unconstitutional. The scheme sought to secure donor privacy by exempting political parties from publishing reports providing details of contributions received through electoral bonds and removing the cap on corporate funding and disclosure requirements by doing away with the obligation for companies to maintain details of contributions to political parties. The judgement, championing the principle of political equality in an electoral democracy marred by widespread de facto inequality, marks a significant place in the Indian Constitutional Jurisprudence.
Hence, this blog first, discusses the inviolable connection between money and politics to underscore the importance of availability of information to the voter about a party’s funding. Second, it delves into the conflict between two fundamental rights and the double proportionality test adopted by the court on the countervailing fundamental rights of information to the voter vis-à-vis right to donor privacy. Third, it discusses the lapses in the application of the test and argues for a more structured and coherent proportionality regime.
The Close Association Between Money and Politics: Inequality in Influence
The court, before adjudicating on the constitutionality of EBS, provides an important context throwing light on the influence of money on political decisions to elucidate the effectof the scheme on fundamental rights of the voter. One of the most prominent ways in which money influences electoral outcomes is through vote buying which is executed both directly and indirectly through expenditure on political campaigns. Advertisements, campaigns and personal canvassing significantly influence voter behaviour to persuade them towards voting for a particular party as they provide better outreach to the party’s candidates, ideology and manifesto. This increased influence of money also creates an entry-barrier to politics for candidates as parties do not prefer to field candidates who are unable to finance their political campaign as well as for parties (most often representing marginalised communities) who do not have enough electoral finance.
The electoral process in India is undergirded by the principle of political equality which envisages ‘one person, one vote’ and aims to transcend socio-economic barriers in the political process. It would be fair to say that this principle of political equality also includes adoption of safeguards to prevent individuals or corporations with disproportionate power to exercise undue influence over the electoral process or at least ensure that there is transparency regarding this.
III. The Test of Proportionality: Balancing Fundamental Rights
The Right to the disclosure of information which is ‘essential’ in making the choice in favour of whom a vote should be cast is included within the ambit of freedom of speech and expression as provided in Article 19 (1) (a). This interpretation of Article19(1)(a) is in line with the larger goal of ensuring effective participation of the citizenry in democracy by facilitating them in making an informed choice which is an integral part of a representative democracy. Emphasising on the same, the court remarked that the “right to information has an intrinsic constitutional value; one that recognizes that it is not just a means to an end but an end in itself.”
The Right to Privacy which was recognised as a fundamental right in Justice K.S. Puttaswamy v Union of India includes within it the right to informational privacy. The freedom of political expression granted through Article19(1)(a) cannot be exercised freely without the right to privacy of political affiliation. This is because information about a person’s political beliefs can be used by the State to suppress dissent, discriminate and even disenfranchise such voters through surveillance. On the question of whether such right to right to privacy of political affiliation can be extended to funding to political parties, the court, while recognising that some political contributions are in the nature of quid pro quo and are impermissible held that, “when the law permits political contributions and such contributions could be made as an expression of political support which would indicate the political affiliation of a person, it is the duty of the Constitution to protect them”.
Now, to balance these two conflicting fundamental rights, the court has adopted the double proportionality standard formulated in Campbell v. MGM Limitedwhich involves “looking first at the comparative importance of the actual rights being claimed in the individual case; then at the justifications for interfering with or restricting each of those rights; and applying the proportionality test to each.”“Based on this, the following standard has to be followed by courts while balancing the conflict between two fundamental rights:
(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 beemployed from the perspective of both the rights where rights A and B are in conflict:
(b) Whether the measure is a suitable means for furthering right A and right B;
(c) Whether the measure is least restrictive and equally effective to realise right A and right B; and
(d) Whether the measure has a disproportionate impact on right A and right B”
Applying the first standard, it can be said that there exists no constitutional hierarchy between the right to information of the voter and the right to anonymity of political contributions as both of the rights are protected under Article 19(1)(a). Thus, no right has a higher status over the other. The second standard involves determining the suitability of the measure in furthering both the fundamental rights. This is done by evaluating whether there exists a rational connection between the measure and the purpose. On one hand, the measure of non-disclosure of political funding to the public does fulfil the purpose of anonymity of political contributions and ensures privacy of political affiliation but on the other hand as this measure of non-disclosure is absolute, it does not fulfil the purpose of right to information at all. The third standard involves checking the necessity of the measure by determining whether it is the least restrictive and equally effective measure. The court held that Section 29C of the RPA which mandates disclosure of contributions in excess of rupees twenty thousand received from a person or company for that financial year by the political party is a better measure through which both the donor privacy as well as right to information of the voter is achieved without any significant damage to both the rights. Since the measure failed on the third standard, the court did not employ the fourth standard which involves balancing both the rights to ascertain the disproportionate impact of one over the other.
Proportionality in India: Need for consistency in application
The doctrine of proportionality finds its support in various Supreme Court judgements emphasising reasonableness of state action as was remarked by Justice P.N. Bhagwati in Ajay Hasia v Khalid Mujibthat“the concept of reasonableness and non- arbitrariness pervades the entire constitutional scheme and is a golden thread which runs through the whole of the fabric of the Constitution” and more recently by Justice Chandrachud who held that ‘proportionality reflects a bridge from a culture of authority to a culture of justification’. However, the courts have not defined such reasonableness as a standard to be applicable to all cases as required and consequently, proportionality too, remains a broad principle to be followed.
In the Electoral Bonds Case, Chief Justice Chandrachud while providing the rationale behind adopting a double proportionality test in place of a single proportionality test, opines that a single proportionality test which checks whether the infringement of a fundamental right (right to information) is justified in fulfilment of state interest (right to donor privacy) would be insufficient to balance two fundamental rights because it inevitably gives prominence to the fundamental right alleged to be violated in question. The reformed double proportionality test as developed by Chief Justice Chandrachud does not fully encapsulate the standard formulated in Campbell v. MGM Limitedfrom where it has been adopted. This is because there has been no separate application of proportionality to each right considering the other right as the legitimate aim defeating the purpose of the test which seeks to secure maximum judicial protection to both the rights by application of proportionality test to the restriction on each right. As Chiranth Mukunda argues, “this distorts the double-proportionality enquiry and prioritizes the right under restriction (right A) over competing right B, and approximates towards a modification of single proportionality test, rather than a double-proportionality test.”
This case underlines the persistent problem of inconsistent and incoherent application of the proportionality test. Despite articulating a four-pronged test in J.S. Puttaswamy,the court refuses a substantive and uniform application, often leading to deference to state interests as seen in the Aadhar Judgement wherein the state interest gained precedence over the right to privacy. Thus, instead of assimilating the proportionality test into the existing mechanisms of judicial review, the judiciary needs to formulate a structured proportionality test which has an independent existence to effectively realise the objectives of the doctrine which can play an instrumental role in shaping the constitutional jurisprudence.
Conclusion
The case marks a watershed moment for the judiciary, in light of contemporary political milieu, as it moves away from the tradition to give precedence to the executive in matters of policy. By recognising the triumph of right to information of the voter over right to donor privacy, the court has sought to truly achieve political equality by putting voters in the know how of the influence that individuals and corporations have on political parties which could be in the shape of quid pro quo arrangements and hence facilitate in the making of an informed choice regarding the candidate they want to vote and eventually ensure that they remain active participants of everyday politics which is instrumental for the functioning of a representative democracy.
The double proportionality test employed, although with its flaws, is a welcome development with the indication that it is here to stay. It paves the way for future judgements recognising the normative significance of rights which can only be overcome in exceptional circumstances.
This blog is authored by Tamishra Chakraborty, 1st year student, Hidayatullah National Law University, Raipur.