With all due respect, the Supreme Court led by our Hon. CJI, Justice Chandrachud, has created a serious situation by its activism on the Electoral Bonds issue. Before we get into the details of this case, let us agree that judicial verdicts, if ill-conceived or plain wrong, can have serious consequences.
We all know the recent upheaval in Manipur – the rioting, civil unrest and numerous deaths that followed the local High Court’s decision. Quint, no fan of Modi or the BJP government called it the “tinderbox that led to the conflagration” It was withdrawn suddenly, and one can be 400% certain the judges involved won’t face any consequences. That is not our objective anyway.
In economic matters too there are bad precedents. Renowned lawyer Harish Salve went to the extent of blaming the economic slowdown on the Supreme Court’s judgement on the 2G spectrum case. The court had wiped out, with one stroke of pen, all licences allotted.
When it comes to matters involving the judiciary itself we have the NJAC saga where a law passed with a massive majority by duly elected Parliament and approved by state assemblies was cast aside in favour of an opaque system invented by judges with little accountability. And it’s been defended by the legal equivalent of “trust me, bro, don’t ask for details”. The contrast with the transparent process of selecting judges in the USA can’t be any sharper.
The point is not to blame individual members of the judiciary – they are after all human. But the point is, when judicial activism and the heady feeling of “making a difference”, “leaving a mark” or “showing them who is the boss” sentiments take precedence over all other considerations, disaster is usually the result. Unlike with politicians, we have no recourse.
But most importantly, what sort of India are we building and what is the signal to foreign investors and others watching all this drama?
In the case of the Electoral Bonds (EB) issue, in my very humble opinion, the Supreme Court should have directed the Union to come out with a better law that fixes the issues identified. Make it time-bound. At worst, make any invalidations prospective, not retrospective.
Let me explain why and also some of the other points about this affair.
- First – it is a clear case of reversal of the usual 80-20 rule that good corporate managers follow – spend most of the time on the big stuff and forget the small ones. Lordships have done exactly the opposite. As the article in The Print by N Gopalswami explains quite nicely, cash expenses over and above the ceiling are much, much higher than “official” expenses, funded partly by EB. So if transparent funding of elections is the goal, SC has scored a self-goal.
- Second, some on the right see all this activism through the prism of party politics and judicial bias. That is not good. I don’t think the Court was out to “get Modi”. I am convinced their intentions were for the good. The joke is that, even if you assume that to be incorrect and attribute bias, the entire saga has created more problems for the opposition than the BJP. How can small regional parties get so much? Why is the funding not by genuine business that builds factories and provides jobs but something as undesirable as lotteries?! As the saying goes “is hamam mein sab nange hein”. Getting a few percentages less than BJP doesn’t make a party holy.
- Sections of Pidi media tried to focus solely on the fact that BJP got more than others. YouTube journalist Ravish Kumar Pandeyji even tried to argue that everyone should get the same! This is nonsensical and unprecedented in any democracy. Firstly BJP has far more MPs and rules more states. Secondly, businessmen are not fools. No one funded ABV’s BJP “equally” when IG/RG’s Congress was enjoying 300-400 seats in Parliament and BJP had all of 2 MPs. They will give more to the party they think will come to power in the Center and give somewhat less to others to keep everyone happy especially as they rule some states. This is exactly what happened. And will happen in future too, EB or no EB.
- Such was the shock of the Pidi ecosystem when they realised their long-awaited Brahmastra was a dud that they went completely unhinged and resorted to white lies and pathetic low-quality excuses when their lies were exposed. That made things far worse for the anti-Modi ecosystem. We saw that in the Tek Fog & Facebook sagas too. In a bizarre display of propaganda masquerading as journalism, a team of 25 anti-BJP “journalists” advised by another 10 “experts” pored over the EB data but didn’t find it fit to question the lottery tycoon’s donations to DMK. Lol.
Let us get back to the question of retrospective changes. Let me be clear – the judiciary is not the only one that does such things – our tax laws are often changed retrospectively causing mayhem and chaos.
Nani Palkhivala, the eminent jurist who passed away recently, used to refer to Indira Gandhi’s decision to cancel the privy purses of Maharajas in his post-budget speeches. His point was that Governments can’t go back on their words. Whatever the justification. It signalled that GOI can’t be trusted. That’s what cheats and unreliable small-time businessmen do. One expects better from a democratic state.
On this Electoral Bonds matter, I do hope the Lordships ponder over this simple fact – combined with the 2G judgements and various others, what exactly does this signal to the sincere donors who thought their privacy was secure because the law said so?
That India is a banana republic where nothing is ever certain and everything is up for change on whims? That even passage of time is no guarantee that something won’t be raked up years after?
How will an overseas investor look at this? Can he trust any law, contract or winning bid? And invest on that basis? Can a board of directors answer shareholders that point to all these retrospective verdicts, laws, notifications and ask why they’re throwing good money into this casino roulette wheel? Can he book any revenue as final? Any assessment order or tax paid as a closed chapter? Or assume some profits because costs are paid for, hence immutable? Will he have to get them all validated by the Supreme Court as well as signed off by all political parties? Or worry that some street “action” will make even that pointless, like it happened with farm laws?
Remember, the requirement of privacy cuts both ways – it also protects the weaker parties. After all, if I were to donate to the underdog because I strongly believe in their ideology, I do not want the party in power to punish me for that. That is exactly what EB delivered. Now the baby has been thrown out with the bath water.
In this chaos, one big casualty is the genuine, patriotic donor – who will never again trust the system or Parliament’s laws and will resort to safe, secret cash funding, along with all the ills that go with it. After all, to donate cash illegally, you must raise and store that cash illegally and outside the books. There is no other way. Which also means no tax is paid on that. That culture seeps through the entire supply chain and business ecosystem – negating all the gains of UPI, GST, demonetisation etc. Everyone gives you unsigned bills written with pencil on plain paper, not formal invoices. There are two or three sets of books – one for the lala, one for the taxman and one more for the bankers.
Or as our liberals love to say, the India we all grew up in.
Now who is going to square this circle and how? I don’t know and no one does. Who pays the price? – we know. It is us the citizens. A huge opportunity for genuine reforms is lost in theatrics and virtue signalling.
It is not mine or anybody’s case that EB is perfect. It is also obvious 100% cash is far worse. There are dozens of things the Hon. Court could have done, and brought us closer to real change – let me just throw one. Why not a committee or empowered advisory team like they did for the BCCI saga? Alas, no. It had to be thrown out lock stock and barrel, without any replacement and that too retrospectively.
We are destined to suffer even more under the table deals. Assuming reasonable inflation over the figures cited in The Print article mentioned earlier, close to ONE LAKH CRORES will likely be spent on GE 2024. EB’s issued over several years cover hardly 20% of that. And we are not even counting the numerous state polls which will add to even bigger numbers. In any democracy, corrupt or otherwise, elections are expensive. That is not going to go away.
The more things change the more they stay the same – or in this case, regress.
