The Synergy of the Electoral Bonds Case and the Right to Information of Voters in Indian Democracy

Nidhi Sharma

Jindal Global Law School

In February 2024, the Supreme Court of India (SCI) recognised voters' right to information concerning the financial transparency of political parties in India. This ruling sparked a dialogue among a range of stakeholders, emphasising the necessity for greater transparency and accountability in the operations of political parties. Democracies worldwide thrive when they have an informed citizenry and political parties are held to account. In this post, I examine the synergy of the SCI ruling with the scope of the right to information of the voters under the Right to Information Act, 2005 (the RTI Act). I do so by examining the 2013 ruling of the Central Information Commission of India (CIC) that declared the political parties to be within the scope of the Right to Information Act, 2005 (the RTI Act).

Political Parties & the Right to Information Law

The 2024 judgment of the SCI, concerning the right to information of the voters, resonates with an order dated 3 June 2013, issued by CIC, the apex body set up under the RTI Act. The CIC order declared that political parties operating in India would be under the scope of the RTI Act. The RTI Act was framed to help develop an informed citizenry and has been the flag bearer of transparency and accountability in public administration. It postulates that any ‘public authority’ under clause (h) of section 2 is obligated to perform a suo moto duty (an obligation to disclose information to the public at regular intervals) of disclosure of public information and/or to furnish the information as and when sought by any person.

Applying the determining criterion in clause (h) of section 2 for identifying a 'public authority', the order posited that, given the public nature of political parties in Indian democracy, they performed an essential role for Indian voters. Further, as sub-clause (ii) of clause (h) of section 2 of the RTI Act includes within the definition of ‘public authority’ a "non-government organization substantially financed, directly or indirectly, by funds provided by the appropriate Government", the inclusion of political parties under this definition is not far-fetched.

The reasoning behind the CIC order hinged on the fact that political parties in India are substantially financed by the Central Government and benefit from land allotment in Delhi and other state capitals, are granted bungalows at concessional rates, and also receive a blanket tax exemption. The order’s inclusion of political parties within the scope of the RTI Act was a salutary step towards curbing corruption and fostering transparency and accountability in the democratic process. It bolstered vigilance by empowering the citizenry to seek information about any elected legislator, which can help mitigate the abuse of power. This novel development acknowledged the essence of a voter’s right to information in a healthy democracy. 

However, all political parties across the ideological spectrum, which are otherwise divided on partisan lines, displayed unprecedented camaraderie in taking a position against the decision of the CIC, which led to a boycott of the order and collective non-compliance. The attempts of these pressure groups to nullify the effect of the order can also be witnessed in the proposed amendment to the RTI Act introduced in Parliament as a reactive measure. The purpose of the Amendment Bill, which has since lapsed, was to create a categorical exemption under clause (h) of section 2 in favour of political parties that would exclude them from the purview of the RTI Act. The coordinated non-compliance of the order pushed the issue to dormancy till two Public Interest Litigations - Ashwini Kumar Upadhyay and Association for Democratic Reforms (the RTI petitions) - were filed in the SCI in 2019 and 2015, respectively, demanding political parties be brought with the scope of the RTI Act. These petitions remain pending in the Court.

Transparency in Political Funding & the Electoral Bonds Decision

The move to oblige political parties to provide information has been catalysed by the recent decision of a constitution bench of the SCI in Association for Democratic Reforms v. Union of India (2024) (the Electoral Bonds case). Herein, the Electoral Bonds Scheme was under constitutional scrutiny. That scheme allowed the citizens of India to make anonymous donations to political parties in the form of electoral bonds, and the political parties were exempted from disclosing information about the funds received through such bonds to the public. While declaring the controversial and notoriously opaque Electoral Bonds Scheme unconstitutional, the Court affirmed that it is the constitutionally protected fundamental right of every voter to seek information from political parties. It also emphasised the constitutional duty of every political party to disclose the sources of their political funding, thereby furthering participatory democracy. Though the adjudication here hinged on the right of citizens to information vis-à-vis political funding and its intersection with an effective right to vote, the decision also recognised political parties as ‘political units’ in the electoral process. 

The SCI assessed the Electoral Bonds Scheme against the touchstone of the right to information of a voter, which emanates from sub-clause (a) of clause (1) of Article 19 of the Constitution as elaborated on by the Supreme Court in the cases of Union of India v. Association of Democratic Reforms and PUCL v. Union of India. Therein, the Supreme Court recognised the quintessential need for transparency and accountability in the political sphere as it intersects with the life of the public at a micro level. Consequently, the Court’s decision in these cases safeguarded the right of the voters to seek information about the antecedents of the political leaders. As a corollary to this, the Court drew the conclusion in the Electoral Bonds case that political parties stand on the same pedestal as political leaders or candidates and thus crystallised the claim of the voters to seek information regarding the sources of financial contributions made to political parties by various stakeholders. 

Political Parties as Public Authorities with RTI Disclosure Obligations

Applying this jurisprudential development to the claims advocating for political parties to fall under the scope of the RTI Act, it is interesting to note that, by an order dated 31 January 2023, the SCI separated  the Electoral Bonds petition from the RTI petitions, on the basis that the petitions raise different questions of law. However, based on the reasoning in the Electoral Bonds case, it is clear that overlapping issues link these cases. Both petitions seek an interpretation of sub-clause (a) of clause (1) of Article 19 vis-à-vis the right to information of a voter. Given the statutory guarantee of the fundamental right to information found in the RTI Act, one wonders if these two are distinct and separate issues. Since the constitution bench in the Electoral Bonds case recognised political parties as vital political units in the democratic process and the centrality of the right to information of a voter, can an extension of this reasoning perhaps provide a roadmap for the pending issue of the extension of the RTI Act to political parties?

There are primarily two questions to be answered here: (a) whether political parties fall within the purview of the term ‘public authorities’ under the RTI Act, and (b) whether an application to seek information lies against a political party under the RTI Act. Applying the ratio decidendi of the Electoral Bonds case to question (a), it can be asserted that the Supreme Court’s recognition in Union of India v. Association of Democratic Reforms and PUCL v. Union of India that political parties are relevant political units performing public functions in an electoral democracy leads to an affirmative answer. As a result, if the answer to question (a) is that the term ‘public authorities’ encompasses political parties, it will ipso facto lead to the conclusion that a voter has a right to seek information from political parties via the route of the RTI Act.

Since the Supreme Court has previously identified and recognised the right of voters to know the antecedents of candidates and recognised the right of voters to know the sources of political funding it follows that, by the same reasoning, the Court would require substantial and cogent reasons to hold otherwise when adjudicating the pending RTI petitions. The jurisprudence developed so far holds in favour of the right to information of the voters to bring the political parties within the umbrella of the Right to Information Act, 2005.           

Nidhi Sharma is an Assistant Professor and the Assistant Director of the Centre for Constitutional Law Studies at Jindal Global Law School

Suggested citation: Nidhi Sharma, ‘The Synergy of the Electoral Bonds Case and the Right to Information of Voters in Indian Democracy’ IACL-AIDC Blog (27 August 2024) The Synergy of the Electoral Bonds Case and the Right to Information of Voters in Indian Democracy — IACL-IADC Blog (blog-iacl-aidc.org)