Jaitley's Electoral Bonds Are Proof That Political Parties Are Sovereign in India and Not the People

Political parties are often able to exercise supreme power with impunity, even while blatantly defying statutory authorities.

As a society, we are not able to ensure that our political parties do not engage in political vendetta. Credit: PTI

As a society, we are not able to ensure that our political parties do not engage in political vendetta. Credit: PTI

A dictionary defines ‘sovereignty’ as “the quality or the state of being sovereign, or of having supreme power or authority; supreme or independent power or authority in government as possessed or claimed by a state or community”. So the question is: who in India has ‘supreme power or authority’ or ‘supreme or independent power or authority in government as possessed or claimed by a state’?

The first response that comes to mind might be that “We, the People” are sovereign because the preamble to the constitution opens with these words. But do “We, the People” actually exercise ‘supreme power or authority’? In theory, yes, we do that every five years when we choose our representatives to sit in parliament. These MPs then support or oppose proposed legislations in accordance with the whips or other instructions issued by the political parties on whose tickets they got elected.

The second possible response is an argument that is often heard: “parliament is supreme”. This is sometimes contested by saying that while the parliament can make laws, the laws are subject to judicial review since the constitutionality of those laws is finally decided by the Supreme Court. Even if it is accepted that parliament is supreme, it is worth trying to understand exactly how parliament works. The phenomenon of parliament being paralysed is so familiar that it does not need elaboration. Disruption has been a regular feature of every session of the parliament over the last five or six years. I also wrote a piece on it in 2012.

Who disrupts parliament is not a mystery. It’s the political parties. There have been instances when the leader(s) of one or more political party(ies) announce(s) in the evening that they would not allow parliament to function the next day. And they actually carry out their intention, and get away with it. The question then arises whether parliament is sovereign or political parties are sovereign.

Is the judiciary sovereign? The number of instances when the parliament (read political parties) has frustrated the decisions of the higher judiciary is legion. A couple of examples should prove the point.

Also read: Arun Jaitley on Why Electoral Bonds are Necessary

When the Supreme Court ordered disclosure of pending criminal cases by candidates contesting elections to parliament and state assemblies in the Association for Democratic Reforms (2002) case, parliament unanimously (meaning all political parties) supported the move to amend the Representation of the People Act to prevent the judgment from being implemented. It was only when the Supreme Court declared the amendment unconstitutional on appeal in 2003 that the disclosures became a requirement.

In 2014, the Delhi high court held the BJP and the Congress guilty of having violated the Foreign Contributions Regulation Act and directed the Union of India to “take action as contemplated by law…within a period of six months from date of receipt of certified copy of the present decision”. No action has been taken till date and a contempt petition is pending in the high court on this issue. This is an example of political parties being able to frustrate decisions of the higher judiciary.

Arguably the most glaring instance of political parties being able to exercise ‘supreme power or authority’ even by blatantly defying statutory authorities is that of the attempts to apply the Right to Information Act (RTI Act) to political parties. The highest statutory authority in the country for the implementation of the RTI Act, the Central Information Commission (CIC), decided in a full-bench decision in June 2013 that six national political parties satisfied all the four conditions as mentioned in Section 2(H) of the RTI Act, and are therefore public authorities under the Act.

All the six parties refused to comply with this decision of the CIC. When a complaint of non-compliance of its decision was lodged with the CIC, it issued several notices to the six parties, including show cause notices, but all the parties just ignored the notices and did not even deign to respond. The CIC then in a written decision in March 2015 said that it was “bereft of the tools to get its orders complied with”. A petition has since been filed in the Supreme Court to get the “final and binding” order of the CIC implemented. It is still pending.

What does the above show? That political parties, through the influence they exercise on MPs and MLAs, are able to defy the law of the land with impunity.

Also read: Much Ado About Nothing: Electoral Bonds and an Unapologetic Lack of Transparency

To answer the question ‘Who is sovereign in India?’ let us go back to the dictionary. It describes ‘sovereign’ as “Group or body of persons or a state having sovereign authority” (italics added). ‘Sovereign authority’, as we already know is ‘supreme power or authority’.

So, which is that ‘group or body of persons’ who can defy the law of the land with impunity, and consequently exercise ‘supreme power or authority’? Isn’t the answer obvious?

Why do we need to answer this question? Because the finance minister says that the “donors (are) reluctant to disclose the details of the quantum of donation given to a political party… because they fear consequences visiting them from political opponents”. This is what is commonly referred to as political vendetta.

As a society, we are not able to ensure that our political parties do not engage in political vendetta (because they are sovereign), so we have to keep experimenting with all types of complicated instruments such as electoral trusts and electoral bonds in order to deal with the ill-effects of the misbehaviour of political parties. The use of unaccounted money is just one such misbehaviour.

The finance minister is honest enough to say, “I do believe that donations made online or through cheques remain an ideal method of donating to political parties.” But he also says that “these have not become very popular in India since they involve disclosure of donor’s identity”.

What he does not disclose is why a law can’t be passed which requires all political parties to forbid all political parties from receiving all donation by all means other than digital ones (remember the full-page advertisements in all newspapers in the period following demonetisation exhorting all citizens to make all payments by digital means)?

The reason is that political parties are sovereign.

Jagdeep S. Chhokar is a former professor, dean and director-in-charge of IIM, Ahmedabad. Views are personal.