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On this blog, we have discussed on many occasions a phenomenon that I have labeled “judicial evasion”: by keeping a case pending, and delaying adjudication, the Court effectively decides it in favour of one of the parties (most often, the party in a stronger position, i.e., the government), simply by allowing status quo to continue. A form of judicial evasion has been visible in, for example, the six-year delay in hearing the Aadhaar case (discussed here), the continuing non-decisions in the Delhi v Union of India case (partially discussed here), and the refusal by the Supreme Court to adjudicate the legality of the Bombay High Court censoring a film (discussed here).

However, the Supreme Court’s interim order yesterday in the electoral bonds case presents a textbook example of the subject under discussion. Recall that the electoral bonds case involves a constitutional challenge to the government’s electoral bonds scheme, a method of political funding that is marked by donor anonymity and the elimination of caps on corporate funding (for an extended discussion, see here). After hearing parties for three days, yesterday, the Supreme Court passed an interim order where it refused to stay the scheme, and directed that the details of funding through electoral bonds be made available by political parties to the Election Commission, in a sealed cover, by May 30 (after the end of the general election).

There is a lot to be said for the continuing use of “sealed covers” (especially in a case about the voter’s right to know the sources of public funding), but here, I want to focus on paragraph 11 of the Order, where the Court notes that:

All that we would like to state for the present is that the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country. Such weighty issues would require an indepth hearing which cannot be concluded and the issues answered within the limited time that is available before the process of funding through the Electoral Bonds comes to a closure, as per the schedule noted earlier.

This may sound reasonable. It is, however, deeply disingenuous. What the Court does not mention here is that the constitutional challenge was filed in early 2018, more than a year ago. It is not as if the petitioners sat on their hands, and waited for the general elections to begin, before rushing to the Court. The scheme was challenged almost immediately after it was enacted into law, notice was issued, and then … nothing happened. In the meantime, electoral bonds were issued on multiple occasions by the SBI, and a significant amount of political funding (more than a hundred crores) was secured through that mechanism, the overwhelming bulk of it going to the ruling party (recall that one of the grounds of challenge is that because of asymmetric anonymity, the scheme unduly favours whichever political party is in power).

The issues at stake were as “weighty” in early 2018, as they are now. Surely, the Court knew this. Furthermore, At the time, there were strong protests against the scheme, and later in the year, a former Chief Election Commissioner publicly criticised them. Everyone knew that general elections would be held in spring 2019. And surely, the Court also knew that an “in-depth hearing” would be required to adjudicate upon the issue. So, to turn around now and act as if these are all fresh developments, that have ambushed the Court unawares, will simply not do: the responsibility for why this hearing only ended up taking place in the middle of the elections, when the Schedule for issuing the Electoral Bonds is more or less over rests solely upon the Court, and it is therefore not open to the Court to now shrug it off by kicking the can off the road.

In paragraph 12, the Court then notes that:

The Court, therefore, has to ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties but that the same ensures adequate safeguards against the competing claims of the parties which are yet to be adjudicated.

 

But the Court’s method of ensuring a “balance” is a strange one, because it is effectively to simply let the scheme continue. Ordering that the details of the donations be made available to the Election Commission in a “sealed cover” accomplishes the square root of zero: it would make sense if there was suspicion of illegality. However, the entire constitutional challenge is based on the argument that the Electoral Bond Scheme legalises  wholesale political corruption by allowing for limitless, secret corporate donations to political parties. How exactly, then, has the Court “balanced” the interests of the parties, especially given that a massive chunk of funding through electoral bonds has already taken place over the previous year, because of the Court’s own failure to hear the case?

It is also unclear why three full days of hearing were not enough for the Court to come to a firm conclusion about the prima facie unconstitutionality (or not) of the Scheme, and allow or disallow a stay accordingly. Recall that this is a Court that regularly grants stays on notice day itself, including on issues that are highly complex (the present Chief Justice himself, for example, stayed this very complex Delhi High Court judgment on genetic discrimination on the very first day of hearing). The same Chief Justice has wrapped up two Constitution Bench cases (involving complex issues on separation of powers and on the RTI) within three to four days of hearing, each. How, then, is it suddenly the case that three days of argument are insufficient for grasping the constitutional issues involved in the electoral bonds case?

Ultimately, this has proved to be yet another example of the Court talking a good talk, but failing to act on it when it comes to the crunch. For the last fifteen years, we have multiple judgments of the Court extolling the voter’s “right to know” as an element of Article 19(1)(a), as integral to free and fair elections, as a cornerstone of democracy, and so on. But when it comes to testing these propositions in an actual case – in a constitutional challenge to State action – all these principles suddenly seem to be writ in water.

At the end of the day, however, what stands out in this case is the element of judicial evasion: an issue crucial to democratic functioning, one that concerned the sanctity of the democratic process itself – the very area that Courts are supposed to stand the most vigilant guard over – was allowed to linger until it became more or less academic (as far as the ongoing elections are concerned). One can only hope that this interim order does not now meet the fate of the Aadhaar case, and remain “interim” for the next half-decade.