"Issue Was Not Justiciable At All": Review Petition Filed Against Supreme Court's Electoral Bonds Judgment

A Petition has been filed before the Supreme Court seeking review of the Electoral Bond Judgment dated February 15, 2024, whereby a Constitution Bench held that the 2018 Electoral Bonds Scheme was 'unconstitutional'.

The Review Petition filed by Advocate Mathews J. Nedumpara states, "the electoral bonds scheme is by no means a perfect mechanism; nonetheless, it is in the province of legislative policy, reflecting the will of the people. It is amenable to correction by way of total repeal, amendment or modification, which also falls in the exclusive domain of the wisdom of the people."

Defending the Electoral Bonds Scheme, the Petitioner contends, "It was not a measure which would have totally eradicated the role of black money in politics but it hoped to bring some element of transparency by permitting contributions to be made to the political parties by allowing confidentiality, which meant that the information as to the donors and donees would remain secret."

The Petition also contends that the electoral bonds scheme did not involve the fundamental right of any citizen in its strict sense because it concerns every citizen; hence, the issue was not justiciable at all.

"However, alleging a make-believe violation of fundamental rights, namely, that right information is an integral part of the right to freedom of speech and expression, the jurisdiction of the Supreme Court under Article 32 was invoked," the Review Petition reads. It also states, "This Hon’ble Court entertained the petition and struck down the law and the scheme without noticing that in doing so it is acting as an appellate authority over the Parliament, substituting its wisdom on a matter which falls in the exclusive province of legislative and executive policy."

Furthermore, the plea suggests that public opinion might be divided on the issue, with a significant portion of the population potentially supporting the scheme. "The Court failed to notice that the public opinion could be sharply divided and the majority of the people of this country could probably be in support of the scheme, brought into existence by their elected representatives, and that they too have a right to be heard, as much as the PIL/writ petitioners," it reads. 

The Petition further states, "The Court failed to notice that, if at all it is venturing into the forbidden domain of adjudicating upon a matter of legislative policy, they have a duty to hear the public at large and that the proceedings ought to be converted into a representative proceedings, employing the principles discernible from Order 1 Rule 8."

Pertinently, the 5-Judge Bench of the Apex Court, in a batch of pleas challenging the validity of the electoral bond scheme for political funding of parties, had unanimously concluded that:

-The Electoral Bond Scheme, the proviso to Section 29C (1) of the Representation of the People Act, 1951 as amended by Section 137 of the Finance Act, 2017 Section 182(3) of the Companies Act as amended by Section 154 of the Finance Act 2017 and Section 13A (B) as amended by Section 11 of the Finance Act 2017 are violative of Article 19(1) a of the Constitution of India and unconstitutional.

-The deletion of proviso to Section 182(1) of the Companies Act permitting unlimited corporate contributions to political parties is arbitrary and violative of Article 14.

In the said landmark Judgment the Court had reiterated that doctrine of manifest arbitrariness can be used to strike down laws. The Court had said that doctrine of manifest arbitrariness can be used to strike down a provision where: (a) the legislature fails to make a classification by recognizing the degrees of harm; and (b) the purpose is not in consonance with constitutional values. The Court had also clarified that there is a distinction between plenary legislation and subordinate legislation when they are challenged for being manifestly arbitrary.

Cause Title: Mathews J. Nedumpara & Anr. v. Association for Democratic Reforms and Ors.