Ignoring what is potentially the biggest election funding scam in the history of any democracy, Prime Minister Narendra Modi, referring to the Bharat Rashtra Samithi and Indian National Congress in an election rally in Nagarkurnool in Telangana on March 16, 2024, said: “No corrupt person will be left, I am making this promise to the people.”Home minister Amit Shah, while defending the electoral bond scheme as “a beginning towards a solution”, said at the India Today Conclave on March 15, 2024 that he was willing to debate with any person on any forum that electoral bonds were brought to end black money in Indian politics.Mocking at any link between the functioning of central investigating agencies, including Enforcement Directorate raids, to the electoral funding of the ruling party, finance minister Nirmala Sitharaman bragged: “For all you know the money was given earlier and in spite of that we went knocking at their doors. Am I making sense? No? What if the companies gave money and after that we still went knocking on their doors through ED? Is that a probability or not?”“Still went knocking” shockingly suggests knowledge that the raided companies were donating to the party! There wasn’t even a whisper that there could be quid pro quo despite what was said in the February 14, 2024 judgment of the apex court and despite the initial revelations about donors and donees in the data released by the Election Commission of India.Hiding behind the fig leaf of opacityWhat was not answered by the Union home minister and finance minister was why was the ruling party accepting thousands of crores of rupees from companies that were being investigated, raided and/or prosecuted by agencies of the Centre. The short answer would be that they did not know who the donors were, otherwise they would be open to prosecution for extortion, an accusation that has been made by opposition leaders like Rahul Gandhi. The minimal charge of political and financial immorality of accepting donation from companies being investigated, prosecuted and/or raided by Central agencies is being defended on the ground of anonymity and opacity of the electoral bond scheme.Apex court’s removal of the fig leafThis fig leaf of lack of knowledge, about donors, by the ruling party was systematically removed by the Constitutional Bench of the Supreme Court by its judgement to expose possible corruption in governance anchored in quid pro quo between the corporate donors and the political donee. While holding the Electoral Bonds Scheme violative of Article 19(1)(a) of the Constitution, the court systematically (paragraph 103) rubbished the government’s claim that it did not know who the donors were. The court observed:“The submission of the Union of India is that the political party which receives the contribution does not know of identity of the contributor because neither the bond would have their name nor could the bank discloses such details to the political party. We do not agree with this submission. While it is true that the law prescribes anonymity as a central characteristic of electoral bonds, the de jure anonymity of the contributors does not translate to de facto anonymity. The Scheme is not fool-proof. There are sufficient gaps in the Scheme which enable political parties to know the particulars of the contributions made to them. Clause 12 of the Scheme states that the bond can be encashed only by the political party by depositing it in the designated bank account. The contributor could physically hand over the electoral bond to an office bearer of the political party or to the legislator belonging to the political party, or it could have been sent to the office of the political party with the name of the contributor, or the contributor could after depositing the electoral bond disclose the particulars of the contribution to a member of the political party for them to cross-verify. Further, according to the data on contributions made through electoral bonds, ninety four percent of the contributions through electoral bonds have been made in the denomination of one crore. Electoral bonds provide economically resourced contributors who already have a seat at the table selective anonymity vis-à-vis the public and not the political party.”Why has the government shied away from investigating quid pro quo In paragraph 172 of the apex court judgment, the bench observed: “The deletion of the mandate of disclosing the particulars of contributions violates the right to information of the voter since they would not possess information about the political party to which the contribution was made which, as we have held above, is necessary to identify corruption and quid pro quo transactions in governance.” In paragraph 201 the court bluntly said that “the reason for political contributions by companies is as open as day light. Even the learned Solicitor General did not deny during the course of the hearings that corporate donations are made to receive favours through quid pro quo arrangements.” The court made it crystal clear in paragraph 212 that “contributions made by companies are purely business transactions made with the intent of securing benefits in return”.It may be recalled that a ~100 crore Delhi liquor scam has led to the arrest of two ministers of AAP and to the arrest of MLC K. Kavitha on March 16, 2024. This, even when no money has been found. In the electoral bonds scam, thousands of crores have been received, by ruling parties in Centre and states, from just 14 among the top donor companies that were being investigated, raided and prosecuted by the ED, CBI and or Income Tax Department. Yet the Union government has not even announced an inquiry into the quid pro quo between political parties and the donors even though the initial data, however imperfect, is out in the public domain! This means that the Union government and/or its agencies do not really agree with the findings of the apex court that there is or could be quid pro quo and corruption. Or worse, how can the ruling party in the Centre be expected to investigate itself?Applying the AAP principleIt is not as if political parties cannot be investigated and prosecuted for corruption and or money laundering. Speaking in the Supreme Court before a bench of Justices Sanjiv Khanna (part of the present Constitutional Bench hearing the electoral bonds case and in line to be next CJI) and S.V.N. Bhatti on behalf of CBI and ED in the alleged liquor scam involving ~100 crore kickbacks, ASG S.V. Raju told the court: “I have received instructions to make a statement. We are contemplating making AAP an accused and invoking Section 70 of PMLA with respect to vicarious liability.” He was responding to a query from the bench as to why they had not made AAP an accused despite consistently alleging that it was the party that was the main beneficiary of the alleged scam. So therefore not only the apex court, but also the CBI and ED agree that political parties can possibly be investigated and prosecuted for corruption.Court-monitored investigationA court-monitored investigation is necessary because the court has imputed knowledge to the government/ruling political party about the donors and their donations, despite the de jure anonymity of the electoral bond scheme. It is not possible for the government to distance itself from the party!Therefore, the Supreme Court could constitute an SIT, principally consisting of retired ED, CBI and Income Tax officers, which could examine, investigate to the extent possible, and report on the quid pro quo mainly between the political party and the government in the Centre and the donors that were under investigation or were raided and/or were being prosecuted by Centre’s instrumentalities, mainly the ED, CBI and Income Tax. Other quid pro quos between state governments and parties and the donors would also have to be investigated.The amount paid by the donors who were already being investigated and/or raided/ prosecuted by the agencies of the Centre should be impounded from the political parties (if unspent) and deposited in the Consolidated Fund of India as central revenues. Similarly donations received by parties in States where quid pro quo is revealed with specific donors would be required to be impounded and transferred to CFI. Third, all donations to political parties ought be made in a transparent manner, till parliament comes up with a law for transparent funding of political parties.Rahul Singh is a former civil servant who retired from the Ministry of Defence, Government of India.
