Electoral Bonds Scheme Discriminatory For Excluding Parties With Small Votes Shares? Supreme Court Refuses To Consider In Ongoing Case

The Supreme Court on Wednesday (November 1) refused to entertain an intervention application filed by 'Dalit Panthers' party challenging the Electoral Bonds scheme as discriminatory for not allowing parties with small votes share to accept the bonds.

The Constitution Bench comprising Chief Justice of India DY Chandrachud, Justices Sanjiv Khanna, BR Gavai, JB Pardiwala, and Manoj Misra said that the challenge to the scheme on this ground cannot be considered in an intervention application and suggested that the applicant files a separate writ petition.

The bench said that in the ongoing case, it was considering other issues and the grievance regarding exclusion of smaller parties from electoral bonds was a different issue, which has to be considered in a separate petition.

Advocate PB Suresh, the counsel representing Dalit Panthers, pointing out that only registered political parties which secure not less than 1% of votes in the last general elections were eligible to receive electoral bonds, argued that the scheme has a disproportionately adverse impact on political parties that champion the rights of Dalits and other marginalized sections of society. He pointed out that the scheme's criteria for eligibility to receive electoral bonds were unjust and lacked a rational nexus. The counsel asserted that this distinction between the 1% and the remaining 99% was unreasonable and lacked a rational nexus.

At this point, Justice Gavai said–

"A political party should hold at least 1% votes in the election. Tomorrow you may have a two person party and then want donations by bonds."

However, the counsel argued that this 1% threshold acted as a barrier to free and fair elections. The CJI interjected and said–

"You can receive donations but you cannot have electoral bonds."

The counsel countered this, stating that the anonymity offered by the electoral bonds scheme was intended to protect donors of other political parties, but it was not extended to those who wished to donate to his party which espoused the cause of Dalits. He claimed that this discrepancy adversely affected his party.  He emphasized that his party should receive the same level of anonymity as other political parties to maintain a level playing field.

At this juncture, the CJI acknowledged the party's grievance but suggested that the broader issue of how election laws impact parties advocating for marginalized causes should be addressed in a separate petition. The CJI orally remarked–

"We are not belittling your grievance. But this grievance is not particularly related to electoral bonds. Your grievance has to be in form of another petition which challenges broader aspects of election law which have a disparaged impact on parties espousing the cause of marginalised. You may want to come forth with a broader petition...You are raising a cause pertaining to marginalised group but please keep your powder dry for a substantive challenge in a separate petition. We don't want to lose the impact of what you are saying in a specific challenge. This is a niche challenge."

The CJI further assured the counsel that the Supreme Court's stance would not affect his course of action and expressed understanding of his concerns. The counsel was advised to seek redress in a manner that would enable a more in-depth examination of the issues he raised, without intervening in the current proceedings related to electoral bonds. The CJI said–

"You may want to reassess your position. Come to the appropriate High Court and challenge specific provisions of the election law which according to you have disparate impact on parties representing Bahujan causes. We are not at all saying that you are not right on your broader grievance but it has to be examined by a constitutional court. You may want to frame it very differently. Why get into it here as an intervener without adequate data, adequate challenges to other provisions of law? We will not say anything which affects your course, please rest assured." 

The hearing of the case is ongoing. Live updates can be followed here.