SC says ‘quid pro quo’ through electoral bonds are now just ‘assumptions’

The Supreme Court on Friday refused to set up a Special Investigation Team (SIT) headed by a former Apex court judge to probe allegations of “quid pro quo” among political parties, public servants, companies and even officers of law enforcement agencies revealed through data made public on electoral bonds.

A three-judge Bench of Chief Justice of India DY Chandrachud termed these allegations as sheer “assumptions” at this stage and refused to embark on what it called a “roving and general inquiry”.

The Bench summarised that the petitions, including one by NGOs Common Cause and Centre for Public Interest Litigation, represented by advocates Prashant Bhushan, Neha Rathi and Cheryl D’Souza, were based on primarily two assumptions.

‘Two assumptions’

One, that there was prima facie quid pro quo whenever the date of purchase of electoral bonds and donation to a ruling political party was proximate to change in policy or award of contracts.

Secondly, the involvement of officers of investigative agencies in the corruption and quid pro quo did not guarantee a fair probe.

The petitioners had argued that officers of the CBI, Enforcement Directorate and the Income Tax Department “appear to have become accessories to corruption”, they said

Electoral bonds data showed the purchase of bonds by accused persons had coincided with the sudden fading away of hotly pursued criminal prosecutions.

“But these are only assumptions at the present stage,” Chief Justice Chandrachud said.

Besides, the court pointed out that the electoral bonds scheme was embodied within several enactments or amendments made by the Parliament until it was found unconstitutional by a Constitution Bench of the Supreme Court in March 2024.

“Donations were made to political parties through electoral bonds on the basis of laws enacted by the Parliament,” Chief Justice Chandrachud reasoned.

“Element of criminality”

The court said if the petitioners suspected an “element of criminality” in any individual instance of proximity between the purchase of bonds and government largesse, they should first invoke the normal remedies available under the law of criminal procedure.

The petitioners could file writ petitions with the State High Court concerned under Article 226 of the Constitution if agencies refused to investigate or file a seemingly unfounded closure report.

The Bench said any writ petition filed under Article 32 in the Supreme Court must be preceded by the invocation of normal remedies.

SIT “premature” and “inappropriate”

The court found it both “premature” and “inappropriate” to constitute an SIT.

It would be premature as there were other remedies available in law. The petitioners had to test them first, and approach the apex court only when they had failed.

Again, it would be inappropriate to order an apex court-monitored probe by an SIT now as this would postulate that the normal criminal remedies were not efficacious.

The Constitution Bench had intervened to strike down the electoral bonds scheme after examining their constitutional validity. This exercise was distinct from entertaining mere allegations of criminal wrongdoing, the CJI distinguished.

“Recourse to Article 32 of the Constitution should not be taken as a matter of recourse when other remedies are available,” the court held.

The court further dismissed pleas to direct authorities to make recoveries of amounts received by political parties through electoral bonds on the basis that the money was proceeds of crime.

The court declined to order Income Tax authorities to reopen the assessments of political parties, saying “it was inappropriate”. It said such a direction would amount to an infringement on the statutory functions of the department under the Income Tax Act of 1961.

In its March 2024 judgment, a Constitution Bench had held that the electoral bonds scheme violated the public’s right to know about political funding and freedom of speech and expression. It gave large contributors, giant corporations a high seat at the banquet table by promoting a culture of quid pro quo. The scheme had revealed the deep nexus between political parties and lobbies with deep pockets.