Holding

The Electoral Bond Scheme and the impugned amendments to the Finance Act 2017 are unconstitutional as they violate the right to information under Article 19(1)(a) and the principle of free and fair elections under Article 14, and the deletion of the cap on corporate contributions is manifestly arbitrary.

Summary

The Supreme Court of India struck down the Electoral Bond Scheme and related amendments to the Finance Act 2017, which had introduced anonymous financial contributions to political parties. The Court held that the scheme violated the right to information of voters under Article 19(1)(a) of the Constitution, as information about political party funding is essential for an informed vote. Applying the proportionality test, the Court found that the scheme was not the least restrictive means to achieve the stated goals of curbing black money and protecting donor privacy. Additionally, the amendment to Section 182 of the Companies Act, which removed the cap on corporate contributions, was held to be manifestly arbitrary and violative of Article 14, as it permitted unlimited corporate funding and treated companies and individuals alike. The Court directed the State Bank of India to stop issuing electoral bonds and to disclose details of all bonds purchased and encashed since April 2019 to the Election Commission, which must publish the information. The judgment emphasized that transparency in political funding is crucial for free and fair elections and that the right to know of voters outweighs claims of donor anonymity.

Issues considered

Whether the Electoral Bond Scheme and the amendments to the Reserve Bank of India Act, 1934, the Representation of the People Act, 1951, the Income Tax Act, 1961, and the Companies Act, 2013 by the Finance Act, 2017 are constitutionally valid.
Whether unlimited corporate funding to political parties, as permitted by the deletion of the first proviso to Section 182(1) of the Companies Act, infringes the principle of free and fair elections and violates Article 14 of the Constitution.
Whether the non-disclosure of information on voluntary contributions to political parties under the Electoral Bond Scheme and the amendments to Section 29C of the RPA, Section 182(3) of the Companies Act, and Section 13A(b) of the IT Act violate the right to information of citizens under Article 19(1)(a) of the Constitution.

Legislation cited

Companies Act, 2013s. 182
Constitution of Indias. 110, s. 14, s. 19(1)(a), s. 19(2), s. 21, s. 25, s. 324, s. 326
Finance Act, 2017s. 11, s. 135, s. 137, s. 154, s. 236
Income Tax Act, 1961s. 13A, s. 80GGB, s. 80GGC
Representation of the People Act, 1951s. 123, s. 29C, s. 33-B, s. 77
Reserve Bank of India Act, 1934s. 31(3)

Subjects

Electoral Bond Schemeright to informationfree and fair electionsproportionalitymanifest arbitrarinesscorporate fundingdonor privacyArticle 19(1)(a)Article 14political party fundingtransparency

Judgment

[2024] 2 S.C.R. 420 : 2024 INSC 113

Association for Democratic Reforms & Anr.
V.
Union of India & Ors.
(Writ Petition (C) No. 880 of 2017)
15 February 2024

[Dr Dnhananjaya Y Chandrachud,* CJl, 8 R Gavai,
J B Pardiwala, Manoj Misra and Sanjiv Khanna,* JJ.]

Issue for Consideration

The matter pertains to the constitutional validity of the Electoral
Bond Scheme which introduced anonymous financial contributions
to political parties; as also the constitutional validity of the
provisions of the Finance Act 2017 which, among other things,
amended the provisions of the Reserve Bank of India Act 1934,
the Representation of the People Act 1951, the Income Tax Act
1961; as also whether unlimited corporate funding to political
parties, as envisaged by the amendment to s. 182(1) of the
Companies Act infringes the principle of free and fair elections
and violates Art. 14 of the Constitution; and whether the non-
disclosure of information on voluntary contributions to political
parties under the Electoral Bond Scheme and the amendments
to 5. 29C of the RPA, s. 182(3) of the CA and 5. 13A(b) of the
IT Act are violative of the right to information of citizens u/Art.
19(1)(a) of the Constitution.

Headnotes

Elections — Electoral process — Electoral Bond Scheme, 2018
- Electoral Bond Scheme introduced anonymous financial
contribution to political parties — Constitutional validity of:
Held: (per Dr Dhananjaya ४ Chandrachud, Cul.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Electoral
Bond Scheme is unconstitutional — Directions to the issuing bank
to stop the issuance of Electoral Bonds — SBI to submit: details
of Electoral Bonds purchased since 12 April 2019 till date to the
ECI including the date of purchase of each Electoral Bond, the
name of the purchaser of the bond and the denomination of the

* Authors
Ed. Note : Hon’ble Dr Dhananjaya Y Chandrachud, Cul, pronounced the judgement of the Bench comprising
his lordship, Hon’ble Mr. Justice B.R. Gavai, Hon’ble Mr. Justice J.B. Pardiwala, Hon’ble Mr. Justice Manoj
Misra, while Hon’ble Mr. Justice Sanjiv Khanna pronounced his separate judgement.
[2024] 2 S.C.R. 421
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Electoral Bond purchased; details of political parties which have
received contributions through Electoral Bonds since 12 April 2019
till date to the ECI, and each Electoral Bond encashed by political
parties — SBI to submit the said information to the ECI within the
period stipulated - ECI to publish the information shared by the
SBI on its official website — Electoral Bonds within the validity
period of fifteen days but have not been encashed by the political
party yet, to be returned by the political party or the purchaser to
the issuing bank — Constitution of India. [Paras 216, 219] — Held:
(per Sanjiv Khanna, J.) (Concurring with Dr Dhananjaya Y
Chandrachud, Cul.) (Concurring with conclusions albeit with
different reasonings) Electoral Bond Scheme is unconstitutional
and is struck down — Directions to ECI to ascertain the details
from the political parties and the State Bank of India, which issued
the Bonds, and the bankers of the political parties and thereupon
disclose the details and names of the donor/purchaser of the Bonds
and the amounts donated to the political party - Henceforth, the
issuance of fresh Bonds is prohibited — Electoral Bonds within
the validity period of fifteen days but have not been encashed by
the political party yet, to be returned by the political party or the
purchaser to the issuing bank. [Para 79]

Elections — Electoral process — Electoral Bond Scheme -
Amendmentto s. 182 of the Companies Act, 2013 Act, deleting
the first proviso thereunder (as amended by the s. 154 of the
Finance Act, 2017) thereby permitting unlimited corporate
funding to political parties — First proviso to s. 182 provided
the limit of contribution by the company upto seven and a half
per cent of its average net profits during the three immediately
preceding financial years — Validity of:
Held: (per Dr Dnananjaya Y Chandrachud, Cul.) (for himself and
for B R Gavai, J 8 Pardiwala and Manoj Misra, JJ): Is arbitrary
and violative of Art. 14 — It infringes the principle of free and fair
elections — Amendment to 5. 182 is manifestly arbitrary for treating
political contributions by companies and individuals alike; permitting
the unregulated influence of companies in the governance and
political process violating the principle of free and fair elections;
and treating contributions made by profit-making and loss-making
companies to political parties alike [Paras 215, 216] — Held: (per
Sanjiv Khanna, J.) Amendment to s. 182 of the Companies Act,
deleting the first proviso thereunder, is unconstitutional, and is
422 [2024] 2 S.C.R.
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struck down — Principle of proportionality applied which would
subsume the test of manifest arbitrariness — Furthermore, the claim
of privacy by a corporate or a company, especially a public limited
company would be on very limited grounds, restricted possibly to
protect the privacy of the individuals and persons responsible for
conducting the business and commerce of the company - It would
be rather difficult for a public (or even a private) limited company
to claim a violation of privacy as its affairs have to be open to the
shareholders and the public who are interacting with the body
corporate/company — Constitution of India — Art. 14 - Companies
Act, 2013 - 5. 182. [Para 73]

Elections - Electoral process — Electoral Bond Scheme -
Non-disclosure of information on voluntary contributions to
political parties under the Electoral Bond Scheme and the
amendments to s. 29C of the Representation of the People
Act 1951, s. 182(3) of the Companies Act and s. 13A(b) of the
IT Act by the Finance Act, 2017 — If violative of Art. 19(1)(a):

Held: (per Dr Dnananjaya ४ Chandrachud, CuJI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Information
about funding to a political party is essential for a voter to exercise
their freedom to vote in an effective manner — Electoral Bond
Scheme and the impugned provisions-proviso to s. 29C(1) of the
RPA, s. 182(3) of the CA, and s. 13A(b) of the ITA to the extent
that they infringe upon the right to information of the voter by
anonymizing contributions through electoral bonds are violative of
Art 19(1)(a) and unconstitutional — Union of India was unable to
establish that the measure employed in Clause 7(4) of the Electoral
Bond Scheme is the least restrictive means to balance the rights
of informational privacy to political contributions and the right to
information of political contributions — Deletion of the mandate
of disclosing the particulars of contributions in s. 182(3) 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, is necessary to identify corruption and quid pro quo
transactions in governance — Such information is also necessary for
exercising an informed vote - 5. 29C exempts political parties from
disclosing information of contributions received through Electoral
Bonds whereas s. 182(3) applies to all modes of transfer - Both
must be read together — Only purpose of amending s. 182(3)
was to bring the provision in tune with the amendment under the
[2024] 2 S.C.R. 423
Association for Democratic Reforms & Anr. v. Union of India & Ors.

RPA exempting disclosure requirements for contributions through
electoral bonds — Amendment to s. 182(3) becomes otiose in
terms of the holding that the Electoral Bond Scheme and relevant
amendments to the RPA and the IT Act mandating non-disclosure
of particulars on political contributions through electoral bonds is
unconstitutional [Paras 104, 168, 169, 172-174, 216] — Held: (per
Sanjiv Khanna, J.) On application of the doctrine of proportionality,
proviso to s. 29C(1) of the RPA, s. 182(3) of the CA, 2013, and
5. 13A(b) of the ITA, as amended by the Finance Act, 2017,
unconstitutional, and are struck down — Representation of the
People Act, 1951 - s. 29C — Companies Act, 2013 - s. 182(3)
— Income Tax Act, 1961 - 5. 13A(b) — Constitution of India — Art.
19(1)(a). [Para 74]

Elections — Electoral process — Electoral Bond Scheme -
s. 31(3) of the RBI Act added by the Finance Act, 2017 to
effectuate the issuance of the Bonds which, as envisaged, are
not to mention the name of the political party to whom they
are payable, and hence are in the nature of bearer demand
bill or note — Challenge to:
Held: Per Sanjiv Khanna, J. Sub-section (3) to s. 31 of the RBI
Act, 1934 and the Explanation thereto introduced by the Finance
Act, 2017 is unconstitutional, and are struck down as it permits
issuance of Bonds payable to a bearer on demand by such person
— Finance Act, 2017 — Reserve Bank of India Act, 1934 - s. 31(3).
[Para 79]

Elections — Electoral process — Electoral Bonds Scheme, 2018
— Challenge to the Electoral Bond Scheme and the statutory
amendments mandating non-disclosure of information on
electoral financing; and provisions permitting unlimited
corporate funding to political parties - Parameters to test:

Held: (per Dr Dhananjaya Y Chandrachud, Cul, (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ):
Courts must adopt a less stringent form of judicial review while
adjudicating challenges to legislation and executive action which
relate to economic policy as compared to laws relating to civil
rights such as the freedom of speech or the freedom of religion
— Amendments relate to the electoral process — Correspondence
between the Ministry of Finance and RBI that the Bonds were
introduced only to curb black money in the electoral process, and
424 [2024] 2 S.C.R.
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protect informational privacy of financial contributors to political
parties — Union of India itself classified the amendments as an
“electoral reform” — It cannot be said that the amendments deal
with economic policy [Paras 40, 42] — Held: (per Sanjiv Khanna,
J.) Scheme cannot be tested on the parameters applicable to
economic policy — Matters of economic policy normally pertain to
trade, business and commerce, whereas contributions to political
parties relate to the democratic polity, citizens’ right to know and
accountability in the democracy — Primary objective of the Scheme,
and relevant amendments, is electoral reform and not economic
reform — To give the legislation the latitude of economic policy, it
would be diluting the principle of free and fair elections. [Para 15]

Elections — Electoral process — Presumption of constitutionality
— Application, to electoral laws:

Held: (per Dr Dnananjaya ४ Chandrachud, Cul, (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Presumption
of constitutionality is based on democratic accountability, that is,
the legislators are elected representatives who are aware of the
needs of the citizens and are best placed to frame policies to
resolve them; and that they are privy to information necessary
for policy making which the Courts as an adjudicating authority
are not — However, the policy underlying the legislation must
not violate the freedoms and rights entrenched in Part III of the
Constitution and other constitutional provisions — Presumption of
constitutionality is rebutted when a prima facie case of violation
of a fundamental right is established - Onus then shifts on the
State to prove that the violation of the fundamental right is justified
— It cannot be said that the presumption of constitutionality does
not apply to laws which deal with electoral process [Paras 44,
45] — Held: (per Sanjiv Khanna, J.): Doctrine of presumption of
constitutionality has its limitations when the test of proportionality
is applied — Structured proportionality places an obligation on
the State at a higher level, as it is a polycentric examination,
both empirical and normative — While the courts do not pass a
value judgment on contested questions of policy, and give weight
and deference to the government decision by acknowledging
the legislature’s expertise to determine complex factual issues,
the proportionality test is not based on preconceived notion or
presumption — Standard of proof is a civil standard or a balance
of probabilities; where scientific or social science evidence is
[2024] 2 S.C.R. 425
Association for Democratic Reforms & Anr. v. Union of India & Ors.

available, it is examined; and where evidence is inconclusive or
does not exist and cannot be developed, reason and logic may
suffice. [Para 18]

Elections — Electoral process — Electoral Bond Scheme, 2018
— Corporate donations to national parties through electoral
bonds — Annual audit reports of political parties from 2017-
18 to 2022-23 as available on website of ECI - Significance
— Doctrine of proportionality, application:
Held: (Per Sanjiv Khanna, J.) Data indicative of the quantum
of corporate funding through the anonymous Bonds -— It clarifies
that majority of contribution through Bonds has gone to political
parties which are ruling parties in the Centre and the States —
More than 50% of the Electoral Bonds in number, and 94% of
the Electoral Bonds in value terms were for Rs.1 crore — This
supports the reasoning and conclusion on the application of the
doctrine of proportionality - Based on the analysis of the data
available, the Scheme fails to meet the balancing prong of the
proportionality test, however, the proportionality stricto sensu
not applied due to the limited availability of data and evidence.
[Paras 69, 74]

Elections — Electoral Process - Electoral Bond Scheme -
Infringement of the right to information of the voter, if satisfies
the proportionality standard vis-a-vis the purposes of curbing
black money; and protecting donor privacy:
Held: (per Dr Dhananjaya Y Chandrachud, Cul.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Purpose of curbing black money is not traceable to any of the
grounds in Art 19(2) — Electoral trusts are an effective alternative
through which the objective of curbing black money in electoral
financing can be achieved — Electoral Bond Scheme not being the
least restrictive means to achieve the purpose of curbing black
money in electoral process, there is no necessity of applying
the balancing prong of the proportionality standard — Electoral
Bond Scheme is not the only means for curbing black money in
Electoral Finance — There are other alternatives which substantially
fulfill the purpose and impact the right to information minimally
when compared to the impact of electoral bonds on the right to
information — Constitution of India — Art. 19(1) (a) and 19(2).
[Paras 116, 121, 124, 129, 130]
426 [2024] 2 S.C.R.
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Elections — Electoral process - Right to informational privacy,
if extends to financial contributions to a political party:
Held : (per Dr Dhananjaya Y Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) If the
right to informational privacy extends to financial contributions to
a political party, this Court needs to decide if the Electoral Bond
Scheme adequately balances the right to information and right to
informational privacy of political affiliation — Informational privacy
to political affiliation is necessary to protect the freedom of political
affiliation and exercise of electoral franchise — As regards, right
to informational privacy if can be extended to the contributions to
political parties, Electoral Bond Scheme has two manifestations
of privacy, informational privacy by prescribing confidentiality vis-
a-vis the political party; and informational privacy by prescribing
non-disclosure of the information of political contributions to the
public — Financial contributions to political parties are usually
made because they may constitute an expression of support to
the political party and that the contribution may be based on a quid
pro quo — Law permits contributions to political parties by both
corporations and individuals — Huge political contributions made
by corporations and companies should not be allowed to conceal
the reason for financial contributions made by another section
of the population: a student, a daily wage worker, an artist, or a
teacher — When the law permits political contributions and such
contributions could be made as an expression of political support
which would indicate the political affiliation of a person, it is the
duty of the Constitution to protect them — Contributions made as
quid pro quo transactions are not an expression of political support
— However, to not grant the umbrella of informational privacy to
political contributions only because a portion of the contributions
is made for other reasons would be impermissible — Constitution
does not turn a blind eye merely because of the possibilities of
misuse. [Paras 131, 138, 139, 142]

Doctrines/Principles — Principle of proportionality -
Proportionality standard test — Four prongs — Explanation of:
Held: (per Dr Dhananjaya Y Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Proportionality standard is laid down to determine if the violation
of the fundamental right is justified — Proportionality standard is-the
[2024] 2 S.C.R. 427
Association for Democratic Reforms & Anr. v. Union of India & Ors.

measure restricting a right must have a legitimate goal (legitimate
goal stage); the measure must be a suitable means for furthering
the goal (Suitability or rational connection stage); the measure
must be least restrictive and equally effective (necessity stage);
and the measure must not have a disproportionate impact on
the right holder (balancing stage) — At the legitimate goal stage,
the Court is to analyze if the objective of introducing the law is a
legitimate purpose for the infringement of rights — Second prong
of the proportionality analysis requires the State to assess whether
the means used are rationally connected to the purpose - At
this stage, the court is required to assess whether the means,
if realised, would increase the likelihood of the purpose - It is
not necessary that the means chosen should be the only means
capable of realising the purpose — Next stage is the necessity
stage, wherein the Court is to determine if the means adopted
is the least restrictive means to give effect to the purpose — The
Court is to see, whether there are other possible means which
could have been adopted by the State; whether the alternative
means identified realise the objective in a ‘real and substantial
manner’; whether the alternative identified and the means used
by the State impact fundamental rights differently; and whether
on an overall comparison (and balancing) of the measure and
the alternative, the alternative is better suited considering the
degree of realizing the government objective and the impact on
fundamental rights — In the last stage, the Court undertakes a
balancing exercise to analyse if the cost of the interference with
the right is proportional to the extent of fulfilment of the purpose
— It is in this step that the Court undertakes an analysis of the
comparative importance of the considerations involved in the
case, the justifications for the infringement of the rights, and if
the effect of infringement of one right is proportional to achieve
the goal [Paras 105, 106, 117, 119, 156] — Held: (per Sanjiv
Khanna, J.) Four steps of test of proportionality are: first step is
to examine whether the act/measure restricting the fundamental
right has a legitimate aim, second step is to examine whether
the restriction has rational connection with the aim, third step
is to examine whether there should have been a less restrictive
alternate measure that is equally effective, and last stage is to
strike an appropriate balance between the fundamental right and
the pursued public purpose. [Para 25]
428 [2024] 2 S.C.R.
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Doctrines/Principles — Principle of proportionality — Test of
proportionality — Proportionality standard to balance two
conflicting fundamental rights — Foreign vis-a-vis Indian
jurisprudence:
Held: (per Dr Dhananjaya Y Chandrachud, Cul, (for himself
and for 8 R Gavai, J B Pardiwala and Manoj Misra, JJ):
Foreign case *Campbell v MGM Limited judgment adopts a double
proportionality standard — It employed a three step approach to
balance fundamental rights, first step to analyse the comparative
importance of the actual rights claimed, second step to lay down
the justifications for the infringement of the rights, and third to apply
the proportionality standard to both the rights — Said approach must
be slightly tempered to suit Indian jurisprudence on proportionality
— Indian Courts adopt a four prong structured proportionality
standard to test the infringement of the fundamental rights — In
the last stage, the Court undertakes a balancing exercise, wherein
the Court undertakes an analysis of the comparative importance
of the considerations involved in the case, the justifications for
the infringement of the rights, and if the effect of infringement
of one right is proportional to achieve the goal — Thus, the first
two steps laid down in Campbell case are subsumed within the
balancing prong of the proportionality analysis. [Paras 154, 156]
— Held: (per Sanjiv Khanna, J.) Test of proportionality employed
by courts in various jurisdictions like Germany, Canada, South
Africa, Australia and the United Kingdom, however, no uniformity
on application of test of proportionality or the method of using the
last two prongs — In the third prong, courts examine whether the
restriction is necessary to achieve the desired end, wherein they
consider whether a less intrusive alternative is available to achieve
the same ends, aiming for minimal impairment — As regards, the
fourth prong, the balancing stage, some jurists believe that balancing
is ambiguous and value-based, which stems from the premise of
rule-based legal adjudication, where courts determine entitlements
rather than balancing interests — However, proportionality is a
standard-based review rather than a rule-based one — Balancing
stage enables judges to consider various factors by analysing them
against the standards proposed by the four prongs of proportionality
— This ensures that all aspects of a case are carefully weighed
in decision-making — While balancing is integral to the standard
of proportionality, such an exercise should be rooted in empirical
[2024] 2 S.C.R. 429
Association for Democratic Reforms & Anr. v. Union of India & Ors.

data and evidence as adopted by most of the countries — In
the absence of data and figures, there is a lack of standards by
which proportionality stricto sensu can be determined — However
many of the constitutional courts have employed the balancing
stage ‘normatively’ by examining the weight of the seriousness
of the right infringement against the urgency of the factors that
justify it — Findings of empirical legal studies provide a more solid
foundation for normative reasoning and enhance understanding
of the relationship between means and ends — Proportionality
analyses would be more accurate and would lead to better and
more democratic governance. [Paras 29, 31-33, 35]

Doctrines/Principles — Doctrine of proportionality -
Proportionality standard test to balance fundamental rights-
right to information and the right to informational privacy:
Held: (per Dr Dhananjaya Y Chandrachud, CuI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Proportionality
standard is an effective standard to test whether the infringement of
the fundamental right is justified — It would prove to be ineffective
when the State’s interest in question is also a reflection of a
fundamental right — Proportionality standard is by nature curated
to give prominence to the fundamental right and minimize the
restriction on it— If the single proportionality standard were employed
to the considerations in the instant case, at the suitability prong,
the Court would determine if non-disclosure is a suitable means for
furthering the right to privacy — At the necessity stage, the Court
would determine if non-disclosure is the least restrictive means
to give effect to the right to privacy — At the balancing stage, the
Court would determine if non-disclosure has a disproportionate
effect on the right holder — In this analysis, the necessity and the
suitability prongs would inevitably be satisfied because the purpose
is substantial: it is a fundamental right — Balancing stage will only
account for the disproportionate impact of the measure on the right
to information (the right) and not the right to privacy (the purpose)
since the Court is required to balance the impact on the right with
the fulfillment of the purpose through the selected means — Thus,
the Court while applying the proportionality standard to resolve
the conflict between two fundamental rights preferentially frames
the standard to give prominence to the fundamental right which
is alleged to be violated by the petitioners (in this case, the right
to information). [Paras 152-153]
430 [2024] 2 S.C.R.
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Doctrines/Principles — Double proportionality standard -
Application of, to both the rights-right to informational privacy
of the contributor and the right to information of the voter:
Held: (per Dr Dhananjaya ४ Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Double
proportionality standard is the proportionality standard to both the
rights (as purpose) to determine if the means used are suitable,
necessary and proportionate to the fundamental rights — First prong
of the analysis is whether the means has a rational connection
with both the purposes, that is, informational privacy of the political
contributions and disclosure of information to the voter — Further,
while applying the suitability prong to the purpose of privacy of
political contribution, the court must consider whether the non-
disclosure of information to the voter and its disclosure only when
demanded by a competent court and upon the registration of
criminal case has a rational nexus with the purpose of achieving
privacy of political contribution — Undoubtedly, the measure by
prescribing non-disclosure of information about political funding
shares a nexus with the purpose — Non-disclosure of information
grants anonymity to the contributor, thereby protecting information
privacy — It is certainly one of the ways capable of realizing the
purpose of informational privacy of political affiliation — Suitability
prong must next be applied to the purpose of disclosure of
information about political contributions to voters — There is no
nexus between the balancing measure adopted with the purpose of
disclosure of information to the voter — According to Clause 7(4) of
the Electoral Bond Scheme and the amendments, the information
about contributions made through the Electoral Bond Scheme is
exempted from disclosure requirements — This information is never
disclosed to the voter — Purpose of securing information about
political funding can never be fulfilled by absolute non-disclosure
— Measure adopted does not satisfy the suitability prong vis-a-vis
the purpose of information of political funding - The next stage is
the necessity prong, wherein the Court determines if the measure
identified is the least restrictive and equally effective measure —
Court must determine if there are other possible means which
could have been adopted to fulfill the purpose, and whether such
alternative means realize the purpose in a real and substantial
manner; impact fundamental rights differently; and are better suited
on an overall comparison of the degree of realizing the purpose
[2024] 2 S.C.R. 431
Association for Democratic Reforms & Anr. v. Union of India & Ors.

and the impact on fundamental rights - On an overall comparison
of the measure and the alternative, the alternative is better suited
because it realizes the purposes to a considerable extent and
imposes a lesser restriction on the fundamental rights — Having
concluded that Clause 7(4) of the Scheme is not the least restrictive
means to balance the fundamental rights, there is no necessity
of applying the balancing prong of the proportionality standard.
[Paras 160-164, 168]

Doctrine/Principles — Doctrine of proportionality, when applied:
Held: (Per Sanjiv Khanna, J.) Proportionality principle is applied
by courts when they exercise their power of judicial review in
cases involving a restriction on fundamental rights — It is applied
to strike an appropriate balance between the fundamental right
and the pursued purpose and objective of the restriction. [Para 24]

Doctrine/Principles — Doctrine of proportionality — Application
of proportionality test to Electoral Bond Scheme, 2018 -
Legitimate purpose prong — Retribution, victimisation or
retaliation, if can be treated as a legitimate aim:

Held: (Per Sanjiv Khanna, J.) Retribution, victimisation or
retaliation cannot by any stretch be treated as a legitimate aim — This
would not satisfy the legitimate purpose prong of the proportionality
test — Neither the Scheme nor the amendments to the Finance
Act, 2017, rationally connected to the fulfilment of the purpose to
counter retribution, victimisation or retaliation in political donations
— It will also not satisfy the necessity stage of the proportionality
even if the balancing stage is ignored - Retribution, victimisation
or retaliation against any donor exercising their choice to donate
to a political party is an abuse of law and power - This has to be
checked and corrected — As it is a wrong, the wrong itself cannot
be a justification or a purpose — Cloak of secrecy, leads to severe
restriction and curtailment of the collective’s right to information
and the right to know — Transparency and not secrecy is the cure
and antidote. [Para 39]

Doctrine/Principles — Doctrine of proportionality — Application
of proportionality test to Electoral Bond Scheme, 2018 -
Rational nexus prong:
Held: (Per Sanjiv Khanna, J.) Donor may like to keep his identity
anonymous is a mere ipse dixit assumption — Plea of infringement
432 [2024] 2 S.C.R.
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of the right to privacy has no application at all if the donor makes
the contribution, that too through a banking channel, to a political
party — Identity of the purchaser of the Bond can always be revealed
upon registration of a criminal case or by an order/direction of the
court — Thus, the fear of reprisal and vindictiveness does not end
— So-called protection exists only on paper but in practical terms
is not a good safeguard even if it is accepted that the purpose
is legitimate — Under the Scheme, political parties in power may
have asymmetric access to information with the authorised bank
— They also retain the ability to use their power and authority of
investigation to compel the revelation of Bond related information
— Thus, the entire objective of the Scheme is contradictory and
inconsistent — Rational connection test fails since the purpose of
curtailing black or unaccounted-for money in the electoral process
has no connection or relationship with the concealment of the
identity of the donor - Payment through banking channels is easy
and an existing antidote — On the other hand, obfuscation of the
details may lead to unaccounted and laundered money getting
legitimised. [Paras 41, 42, 44]

Doctrine/Principles — Doctrine of proportionality — Application
of proportionality test to Electoral Bond Scheme, 2018 -
Necessity prong:
Held: (Per Sanjiv Khanna, J.) As per the Electoral Trust Scheme,
contributions could be made by a person or body corporate to the
trust which would transfer the amount to the political party — Trust is
thus, treated as the contributor to the political party and guidelines
were issued by the ECI to ensure transparency and openness in
the electoral process - When the necessity test is applied, the
Trust Scheme achieves the objective of the Union of India in a
real and substantial manner anc is also a less restrictive alternate
measure in view of the disclosure requirements, viz. the right to
know of voters — Trust Scheme is in force and is a result of the
legislative process — In a comparison of limited alternatives, it is
a measure that best realises the objective of the Union of India in
a real and substantial manner without significantly impacting the
fundamental right of the voter to know. [Paras 50-51]

Doctrine/Principles — Doctrine of proportionality — Application
of proportionality test to Electoral Bond Scheme, 2018 — Fourth
prong-the balancing prong of proportionality:
[2024] 2 S.C.R. 433
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Held: (Per Sanjiv Khanna, J.) On application of the balancing
prong of proportionality, the Electoral Bond Scheme falls foul and
negates and overwhelmingly disavows and annuls the voters right in
an electoral process as neither the right of privacy nor the purpose
of incentivising donations to political parties through banking
channels, justify the infringement of the right to voters — Voters
right to know and access to information is far too important in a
democratic set-up so as to curtail and deny ‘essential’ information
on the pretext of privacy and the desire to check the flow of
unaccounted money to the political parties — While secret ballots
are integral to fostering free and fair elections, transparency-not
secrecy-in funding of political parties is a prerequisite for free and
fair elections — Confidentiality of the voting booth does not extend
to the anonymity in contributions to political parties. [Para 57]

Constitution of India — Balancing of conflicting fundamental
rights-right to information and the right to informational
privacy — Standard to be followed:
Held: (per Dr Dhananjaya Y Chandrachud, ७३.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) First
exercise that the Court must undertake while balancing two
fundamental rights is to determine if the Constitution creates a
hierarchy between the two rights in conflict, if yes, then the right
which has been granted a higher status would prevail over the
other right involved — And if not, the following standard must be
employed from the perspective of both the rights where rights A
and B are in conflict, whether the measure is a suitable means
for furthering right A and right B, whether the measure is least
restrictive and equally effective to realise right A and right B, and
whether the measure has a disproportionate impact on right A and
right B — Courts have used the collective interest or the public
interest standard, the single proportionality standard, and the
double proportionality standard to balance the competing interests
of fundamental rights — There is no constitutional hierarchy between
the right to information and the right to informational privacy of
political affiliation. [Paras 145-146, 157, 159]

Constitution of India —- Fundamental right —- Breach of — Burden
of proof:
Held: (per Dr Dhananjaya Y Chandrachud, Cul, (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ): Courts
434 [2024] 2 S.C.R.
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cannot carve out an exception to the evidentiary principle which is
available to the legislature based on the democratic legitimacy which
it enjoys — In the challenge to electoral law, like all legislation, the
petitioners would have to prima facie prove that the law infringes
fundamental rights or constitutional provisions, upon which the
onus would shift to the State to justify the infringement [Para 45]
— Held: (per Sanjiv Khanna, J.) Once the petitioners are able to
prima facie establish a breach of a fundamental right, then the onus
is on the State to show that the right limiting measure pursues a
proper purpose, has rational nexus with that purpose, the means
adopted were necessary for achieving that purpose, and lasily
proper balance has been incorporated. [Para 17]

Constitution of India — Art. 14 — Doctrine of manifest
arbitrariness — Application of:
Held: (per Dr Dnhananjaya ४ Chandrachud, Cul.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Doctrine
of manifest arbitrariness can be used to strike down a provision
where the legislature fails to make a classification by recognizing
the degrees of harm; and the purpose is not in consonance with
constitutional values — Legislative action can also be tested for
being manifestly arbitrary — There is, and ought to be, a distinction
between plenary legislation and subordinate legislation when they
are challenged for being manifestly arbitrary — Manifest arbitrariness
of a subordinate legislation has to be primarily tested vis-a-vis its
conformity with the parent statute — Doctrines/Principles. [Paras
198, 209]
Constitution of India — Art 19(1)(a) - Right to information,
scope of — Evolution of jurisprudence on right to information:
Held: (per Dr Dhananjaya ४ Chandrachud, Cul.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Right
to information can be divided into two phases - In the first phase,
the right to information is traced to the values of good governance,
transparency and accountability — In the second phase, the
importance of information to form views on social, cultural and
political issues, and participate in and contribute to discussions
is recognised — Crucial aspect of the expansion of the right to
information in the second phase is that right to information is not
restricted to information about state affairs, that is, public information
— It includes information which would be necessary to further
[2024] 2 S.C.R. 435
Association for Democratic Reforms & Anr. v. Union of India & Ors.

participatory democracy in other forms — Right to information has
an instrumental exegesis, which recognizes the value of the right
in facilitating the realization of democratic goals — Beyond that, it
has an intrinsic constitutional value; one that recognizes that it is
not just a means to an end but an end in itself. [Paras 60, 64, 65]

Constitution of India — Art. 19(1)(a) - Right to vote - Right to
know — Significance:
Held: (Per Sanjiv Khanna, J.) Right to vote is a constitutional
and statutory right, grounded in Art 19(1)(a), as the casting of a
vote amounts to expression of an opinion by the voter — Citizens’
right to know stems from this very right, as meaningfully exercising
choice by voting requires information — Representatives elected
as a result of the votes cast in their favour, enact new, and amend
existing laws, and when in power, take policy decisions — Access
to information which can materially shape the citizens’ choice is
necessary for them to have a say — Thus, the right to know is
paramount for free and fair elections and democracy — Denying
voters the right to know the details of funding of political parties
would lead to a dichotomous situation — Funding of political
parties cannot be treated differently from that of the candidates
who contest elections - Democratic legitimacy is drawn not only
from representative democracy but also through the maintenance
of an efficient participatory democracy — In the absence of fair
and effective participation of all stakeholders, the notion of
representation in a democracy would be rendered hollow. [Paras
19, 21, 22]
Constitution of India - Fundamental rights — Conflict of -
Voter’s right to know vis-a-vis right to privacy:
Held: (Per Sanjiv Khanna, J.) Fundamental rights are not
absolute, legislations/policies restricting the rights may be enacted
in accordance with the scheme of the Constitution — Thread of
reasonableness applies to all such restrictions — Furthermore, Art.
14 includes the facet of formal equality and substantive equality —
Thus, the principle ‘equal protection of law’ requires the legislature
and the executive to achieve factual equality — This principle can
be extended to any restriction on fundamental rights which must
be reasonable to the identified degree of harm - If the restriction
is unreasonable, unjust or arbitrary, then the law should be struck
down - Further, it is for the legislature to identify the degree of
436 [2024] 2 S.C.R.
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harm — Voters right to know and access to information is far too
important in a democratic set-up so as to curtail and deny ‘essential’
information on the pretext of privacy and the desire to check the
flow of unaccounted money to the political parties. [Paras 56, 57]

Elections — Electoral Bond Scheme, 2018 — Clause 7(4), 2(a)
— Features of the Scheme:

Held: (per Dr Dhananjaya ४ Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Scheme
defines electoral bond “as a bond issued in the nature of promissory
note which shall be a bearer banking instrument and shall not carry
the name of the buyer or payee” — The Scheme also stipulates
that the information furnished by the buyer shall be treated as
confidential which shall not be disclosed by any authority except
when demanded by a competent court or by a law enforcement
agency upon the registration of criminal case — 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 — Electoral bonds
provide economically resourced contributors who already have a
seat at the table selective anonymity vis-a-vis the public and not
the political party. [Paras 102, 103]

Elections — Electoral process - Focal point of the electoral
process-candidate or political party:
Held: (per Dr Dhananjaya ४ Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Statutory
provisions relating to elections accord considerable importance to
political parties, signifying that political parties have been the focal
point of elections — ‘Political party’ is a relevant political unit in the
democratic electoral process in India — Voters associate voting
with political parties because of the centrality of symbols and its
election manifesto in the electoral process — Form of government
where the executive is chosen from the legislature based on the
political party or coalition of political parties which has secured the
majority — Prominence accorded to political parties by the Tenth
Schedule of the Constitution — Law recognises the inextricable link
between a political party and the candidate though vote is cast for
a candidate — Voters casts their votes based on two considerations:
[2024] 2 S.C.R. 437
Association for Democratic Reforms & Anr. v. Union of India & Ors.

the capability of the candidate as a representative and the ideology
of the political party. [Paras 80, 86, 89, 94]

Elections — Electoral democracy in India - Basis of:
Held: (per Dr Dhananjaya ४ Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ)
Electoral democracy in India is premised on the principle of political
equality, guaranteed by the Constitution in two ways - Firstly, by
guaranteeing the principle of “one person one vote” which assures
equal representation in voting, and secondly, the Constitution
ensures that socio-economic inequality does not perpetuate
political inequality by mandating reservation of seats for Scheduled
Castes and Scheduled Tribes in Parliament and State Assemblies
— Constitution guarantees political equality by focusing on the
‘elector’ and the ‘elected’ — However, political inequality continues
to persist in spite of the constitutional guarantees — Difference in
the ability of persons to influence political decisions because of
economic inequality is one of the factors — Economic inequality
leads to differing levels of political engagement because of the
deep association between money and politics — It is in light of the
nexus between economic inequality and political inequality, and the
legal regime in India regulating party financing that the essentiality
of the information on political financing for an informed voter must
be analyzed. [Paras 96-100]

Elections — Electoral process in India - Nexus between money
and electoral democracy:
Held: (per Dr Dhananjaya ४ Chandrachud, CuI.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Law
does not bar electoral financing by the public — Both corporates
and individuals are permitted to contribute to political parties which
is crucial for the sustenance and progression of electoral politics
— Primary way through which money directly influences politics is
through its impact on electoral outcomes — One way in which money
influences electoral outcomes is through vote buying — Another way
in which money influences electoral outcomes is through incurring
electoral expenditure for political campaigns — Enhanced campaign
expenditure proportionately increases campaign outreach which
influences the voting behavior of voters - Money also creates
entry-barriers to politics by limiting the kind of candidates and
political parties which enter the electoral fray — Challenge to the
438 [2024] 2 S.C.R.
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statutory amendments-provisions dealing with electoral finance
and the Electoral Bond Scheme cannot be adjudicated in isolation
without a reference to the actual impact of money on electoral
politics. [Paras 46-51, 55]

Election Symbols (Reservation and Allotment) Order, 1968 -
Allotment of symbols to political parties — Significance:
Held: (per Dr Dnananjaya ४ Chandrachud, CUI.) (for himself and
for B R Gavai, J B Pardiwala and Manoj Misra, JJ) In terms of
the provisions of the Symbols Order, the ECI shall allot a symbol to
every candidate contesting the election - Symbols Order classifies
political parties into recognised political parties and unrecognised
political parties — Difference in the procedure under the Symbols
Order for allotting symbols to recognised political parties, registered
but unrecognised political parties and independent candidates
indicates both the relevance and significance of political parties in
elections in India — Purpose of allotting symbols to political parties
is to aid voters in identifying and remembering the political party —
Law recognises the inextricable link between a political party and
the candidate though the vote is cast for a candidate — Most of
the voters identified a political party only with its symbol and this
still continues to the day — Symbols also gain significance when
the names of political parties sound similar. [Paras 81, 84, 86, 87]

Words and Phrases — Privacy — Definition:
Held : (per Dr Dhananjaya Y Chandrachud, 3.) (for himself
and for B R Gavai, J B Pardiwala and Manoj Misra, JJ) Privacy
is not limited to private actions and decisions — Privacy is defined
as essential protection for the exercise and development of other
freedoms protected by the Constitution, and from direct or indirect
influence by both State and non-State actors — Viewed in this
manner, privacy takes within its fold, decisions which also have a
‘public component’. [Para 133]

Case Law Cited

In the Judgment of Dr Dhananjaya ४ Chandrachud, Cul
Roger Mathew v. South Bank of India, CA No. 8588/2019;
PUCL v. Union of India, [2003]
2 SCR 1136 : (2003) 4
SCC 399; ADR v. Union of India, [2002]
3 SCR 696 :
(2002) 5 SCC 294; Anjali Bhardwaj v. Union of India,
[2024] 2 S.C.R. 439
Association for Democratic Reforms & Anr. v. Union of India & Ors.

[2019] 2 SCR 199 : (2019) 18 SCC 246; Kanwar Lal Gupta
v. Amar Nath Chawla, [1975] 2 SCR 259 : 1975 SCC
(3) 646; Subash Chandra v. Delhi Subordinate Services
Selection Board, [2009] 12 SCR 978 : (2009) 15 SCC
458; Gujarat Mazdoor Sabha ५ State of Gujarat, [2020]
13 SCR 886 : (2020) 10 SCC 459; Ramesh Chandra
Sharma ५४ State of Uttar Pradesh, [2023] 2 SCR 422 :
(2023) SCC OnLine SC 162; Shayara Bano v. Union
of India, [2017] 9 SCR 797 : (2017) 9 SCC 1; Rustom
Cavasjee Cooper ५ Union of India, [1970] 3 SCR 530 :
(1970) 1 SCC 248; A.K Garg v. Union of India, [1982]_
1 SCR 947 : (1981) 4 SCC 675; Premium Granites v.
State of Tamil Nadu, [1994] 1 SCR 579 : (1994) 2 SCC
691; Peerless General Finance and Investment Co v.
RBI, [1992] 1 SCR 406 : (1992) 2 SCC 343; BALCO
Employees Union v. Union of India, [2001] Suppl. 5 SCR.
511 : (2002) 2 SCC 333; DG of Foreign Trade v. Kanak
Exports, [2015] 15 SCR 287 : (2016) 2 SCC 226; Swiss
Ribbons v. Union of India, [2019] 3 SCR 535 : (2019) 4
SCC 17; Pioneer Urban Land and Infrastructure Limited
v. Union of India, [2019]
10 SCR 381 : (2019) 8 SCC
416; State of Bombay v. FN Balsara, [1951]
1 SCR 682;
Dharam Dutt v. Union of India, [2003] Suppl. 6 SCR_
151 : AIR 2004 SC 1295; Ramlila Maidan Incident, In
re, [2012] 4 SCR 971 : (2012) 5 SCC 1; Ameerunissa
Begum v. Mahboob Begum, [1953] 1 SCR 404 : (1952)
2 SCC 697; Vatal Nagaraj v. R Dayanand Sagar, [1975]
2 SCR 384 : (1975) 4 SCC 127; P Nalla Thampy Terah
v. Union of India, [1985]Supp. 1 SCR 622 : (1985) Supp
SCC 189; Common Cause (A Registered Society) v.
Union of India, [1996] 3 SCR 1208 : (1996) 2 SCC 752;
State of Punjab v. Sodhi Sukhdev Singh, [1961] 2 SCR_
371; State of Uttar Pradesh v. Raj Narain, [1975]
3 SCR_
333 : (1975) 4 SCC 428; SP Gupta v. Union of India,
(1981) Supp SCC 87; Dinesh Trivedi v. Union of India,
[1997] 3 SCR 93 : (1997) 4 SCC 306; Secy., Ministry
of Information & Broadcasting, Govt. of India v. Cricket
Assn. of Bengal, [1995] 1 SCR 1036 : (1995) 2 SCC 161;
Indian Express Newspapers ५ Union of India, [1985]2
SCR 287 : AIR 1986 SC 515; Romesh Thappar v. State
of Madras, [1950] 1 SCR 594 : AIR 1950 SC 124; DC
Saxena v. Hon’ble The Chief Justice of India, [1996]_
440 [2024] 2 S.C.R.
Digital Supreme Court Reports

Suppl.
3 SCR 677 : (1996) 5 SCC 216; Supriyo v. Union
of India, 2023 INSC 920; Union of India v. Association
for Democratic Reforms, [2002]
3 SCR 696 : (2002) 5
SCC 294; Rameshwar Prasad v. Union of India, [2006]1.
SCR 562 : (2006) 2 SCC 1; Kihoto Hollohon v. Zachilfhu,
[1992] 1 SCR 686 : (1992) Supp (2) SCC 651; Ravi S
Naik v. Union of India, [1994]
1 SCR 754 : AIR 1994 SC
1558; Subash Desai v. Principal Secretary, Governor of
Maharashtra, WP (C) No. 493 of 2022; Modern Dental
College & Research Centre v. State of Madhya Pradesh,
[2016] 3 SCR 575 : (2016) 4 SCC 346; Media One ४
Union of India, Civil Appeal No. 8129 of 2022; Sakal
Papers v. The Union of India, [1962] 3 SCR 842 : AIR
1962 SC 305; Express Newspapers v. Union of India,
[1959] 1 SCR 12 : AIR 1958 SC 578; Sodhi Shamsher
v. State of Pepsu, AIR 1954 SC 276; Kaushal Kishor v.
State of Uttar Pradesh, Writ Petition (Criminal) No. 113
of 2016; Superintendent, Central Prison, Fatehgarh v. Dr
Ram Manohar Lohia, [1960]
2 SCR 821 : AIR 1960 SC
633; Justice KS Puttaswamy v. Union of India, [2017] 10°
SCR 569 : (2017) 10 SCC 1; In Re Noise Pollution, [2005]
Suppl. 1 SCR 624 : (2005) 5 SCC 733; Subramanian
Swamy v. Union of India, [2016] 3 SCR 865 : (2016) 7
SCC 221; Asha Ranjan v. State of Bihar, [2017] 1 SCR_
945 : (2017) 4 SCC 397; Mazdoor Kisan Shakti Sangathan
v. Union of India, [2018]
11 SCR 586 : (2018) 17 SCC
324; Sahara India Real Estate Corporation Limited v.
Securities and Exchange Board of India, [2012] 12 SCR_
256 : (2012) 10 SCC 603; Justice KS Putiaswamy v. Union
of India, [2018]
8 SCR 1 : (2019) 1 SCC 1; Central Public
Information Officer, Supreme Court of India v. Subash
Chanara Agarwal, [2010] 13 SCR 1120 : Civil Appeal No.
10044 of 2010; Aishat Shifa v. State of Karnataka, [2022]
5 SCR 426 : (2023) 2 SCC 1; Jayantilal Ranchhoddas
Koticha ५ Tata Iron and Steel Co. Ltd., AIR 1958 Bom
155; Basheshar Nath v. CIT, [1959] Supp 1 SCR 528;
State of West Bengal v. Anwar Ali Sarkar, [1952] 1 SCR_
284 : (1951) 1 SCC 1; Kathi Raning Rawat v. State of
Saurashtra, [1952] 1 SCR 435 : (1952) 1 SCC 215;
Budhan Chowdhury v. State of Bihar, [1955] 1 SCR 1045;
Ram Krishna Dalmia v. S R Tendolkar, [1959] SCR 279;
E P Royappa v. State of Tamil Nadu, [1974] 2 SCR 348 :
[2024] 2 S.C.R. 441
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

(1974) 4 SCC 3; Ajay Hasia v. Khalid Mujib Seheravardi,
[1981] 2 SCR 79 : (1981) 1 SCC 722; Sharma Transport
v. Government of Andhra Pradesh, [2001] Suppl. 5 SCR_
390 : (2002) 2 SCC 188; State of Tamil Nadu v. Ananthi
Ammal, Suppl.
[1994] 5 SCR 666 : (1995) 1 SCC 519;
Dr. K R Lakshmanan v. State of Tamil Nadu, [1996]1_
SCR 395 : (1996) 2 SCC 226; State of Andhra Pradesh
v. McDowell & Co., [1996] 3 SCR 721 : (1996) 3 SCC
709; Malpe Vishwanath Acharya v. State of Maharashtra,
[1997]
Suppl. 6 SCR 717 : (1998) 2 SCC 1; Mardia
Chemicals Ltd. v. Union of India, [2004] 3 SCR 982 : (2004)
4 SCC 311; Natural Resources Allocation, In Re Special
Reference No. 1 of 2012, [2012] 9 SCR 311 : (2012) 10
SCC 1; Maneka Gandhi v. Union of India, [1978] 2 SCR
621 : (1978) 1 SCC 248; Naviej Singh Johar v. Union
of India, [2018] 7 SCR 379 : (2018) 10 SCC 1; Joseph
Shine v. Union of India, [2018] 11 SCR 765 : (2019) 3
SCC 39; Mohd. Hanif Quareshi v. State of Bihar, [1959]
SCR 629 : AIR 1958 SC 731; Binoy Viswam v. Union of
India, [2017] 7 SCR 1 : (2017) 7 SCC 59; Charanjit Lal
Chowdhuri v. Union of India, 1950 SCC 833; In Re Dethi
Laws Act 1912, 1951 SCC 568; Gwalior Rayon Silk Mfg.
(Wvg.) Co. Lid. v. Assistant Commissioner of Sales Tax
and others, [1974] 2 SCR 879 : (1974) 4 SCC 98; Shri
Sitaram Sugar Co. Ltd. v. Union of India, [1990] 1 SCR_
909 : (1990) 3 SCC 223; Khoday Distilleries Ltd. V. State
of Karnataka, Suppl.
[1995] 6 SCR 759 : (1996) 10 SCC
304; State of Tamil Nadu ५ P Krishnamurthy, [2006]3_
SCR 396 : (2006) 4 SCC 517; Kesavananda Bharati v.
State of Kerala, Suppl.
[1973] 1 SCR 1 : (1973) 4 SCC
225; Indira Nehru Gandhi v. Raj Narain, [1978]
2 SCR_
405: (1975) Supp SCC 1; Digvijay Mote v. Union of India,
[1993] Suppl. 1 SCR 553 : (1993) 4 SCC 175; Kuldip
Nayar v. Union of India, [2006] Suppl. 5 SCR 1 : (2006)
7 SCC 1; People’s Union for Civil Liberties v. Union of
India, [2013] 12 SCR 283 : (2013) 10 SCC 1; Mohinder
Singh Gill v. Chief Election Commissioner, [1978]
2 SCR_
272 : (1978) 1 SCC 405 - referred to.
FCC v. National Citizens Committee for Broadcasting,
436 US 775 (1978); *Campbell v. MGM Limited,
[2004] UKHL 22; Citizens United v. Federal Election
Commission, 558 U.S 310 - referred to.
442 [2024] 2 S.C.R.
Digital Supreme Court Reports

In the Judgment of Sanjiv Khanna, J
Swiss Ribbons (P.) Ltd. and Another ५ Union of India
and Others, [2019] 3 SCR 535 : (2019) 4 SCC 17;
Pioneer Urban Land and Infrastructure and Another v.
Union of India and Others, [2019]
10 SCR 381 : (2019)
8 SCC 416 — held inapplicable.
Rojer Matthew v. South Indian Bank Ltd. And Ors., [2019]
16 SCR 1 : Civil Appeal No. 8588 of 2019; A.K. Garg
v. Union of India and Others, [1982]
1 SCR 947 : (1981)
4 SCC 675; Bhavesh D. Parish and Others v. Union of
India and Others, Suppl.
[2000] 1 SCR 291 : (2000)
5 SCC 471; Directorate General of Foreign Trade and
Others v. Kanak Exports and Another, [2015] 15 SCR_
287 : (2016) 2 SCC 226; Union of India v. Association for
Democratic Reforms and Another, [2002] 3 SCR 696 :
(2002) 5 SCC 294; People’s Union of Civil Liberties
(PUCL) and Another v. Union of India and Another, [2003]
2 SCR 1136 : (2003) 4 SCC 399; Kanwar Lal Gupta v.
Amar Nath Chawla & Ors., [1975]
2 SCR 259 : (1975)
3 SCC 646; K. S. Puttaswamy and Anr. v. Union of
India and Ors. [2017] 10 SCR 569 : (2017) 10 SCC 1;
Modern Dental College & Research Centre and Others
v. State of Madhya Pradesh and Others, [2016] 3 SCR_
579 : (2016) 7 SCC 353; K. 5. Puttaswamy (Retired)
and Anr. v. Union of India and Anr., [2018]
8 SCR 1:
(2019) 1 SCC 1; Gujarat Mazdoor Sabha and Another
v. State of Gujarat, [2020]
13 SCR 886 : (2020) 10 SCC
459; Ramesh Chandra Sharma and Others v. State of
U.P. and Others, 2023 SCC OnLine SC 162; Anuradha
Bhasin v. Union of India and Others, [2020]
1 SCR 812 :
(2020) 3 SCC 637; Rustom Cavasjee Cooper v. Union of
India, [1970] 3 SCR 530 : (1970) 1 SCC 248; Maneka
Gandhi v. Union of India and Another, [1978]
2 SCR 621
: (1978) 1 SCC 248; Anoop Baranwal v. Union of India,
[2023] 9 SCR 1 : (2023) 6 SCC 161; A.C.Poudyal v.
Union of India and Others, [1993]1 SCR 891 : (1994)
Supp 1 SCC 324; Shayara Bano v. Union of India, [2017]
9 SCR 797 : (2017) 9 SCC 1 — referred to.
Libman v. Quebec (A. G.), [1997] 3 SCR 569; RJR-
MacDonald Inc. ५ Canada (Attorney General), [1995]
[2024] 2 S.C.R. 443
Association for Democratic Reforms & Anr. v. Union of India & Ors.

3 SCR 199; Thomson Newspapers Co. v. Canada
(A.G.), [1998] 1 SCR 877; R. v. Sharpe, [2001] 1 SCR
45; Harper ५ Canada (A.G.), [2004] 1 SCR 827; R. v.
Bryan, [2007] 1 SCR 527; Mounted Police Association
of Ontario v. Canada (Attorney General), [2015] 1 SCR_
3; Brown v. Socialist Workers Comm., 459 U.S. 87
(1982); Campbell v. MGM Limited, [2004] 2 AC 457;
My Vote Counts NPC v. President of the Republic of
South Africa and Ors., (2017) ZAWCHC 105, para
67; Jeffery Raymond McCloy and Others v. State
of New South Wales and Another, (2015) HCA 34;
Bernstein and Ors. v. Bester NO and Others, (1996) _
ZACC 2; Federal Election Commission v. National
Right to Work Committee, 459 U.S. 197 (1982);
Buckley v. R Valeo, 424 U.S. 1 (1976); Grosjean v.
American Press Co., 297 U.S. 233 (1936); Nixon,
Attorney General of Missouri, et al v. Shrink Missouri
Government PAC et al, 528 U.S. 377 (2000); In re.S,
[2005] 1 AC 593; /n Re. W, [2005] EWHC 1564 (Fam);
R. v. Oakes, [1986] 1 SCR 103; Canada (Attorney
General) v. JTl-Macdonald Corp., [2007] 2 S.C.R._
610; Alberta v. Hutterian Brethren of Wilson Colony,
and [2009]
2 S.C.R. 567; Clubb v. Edwards, (2019)
93 ALJR 448; Associated Provincial Picture Houses
Ltd v. Wednesbury Corporation, (1948) 1 KB 223 -
referred to.

Books and Periodicals Cited

In the Judgment of Dr Dhananjaya ४ Chandrachud, Cul
Gayatri Devi and Santha Rama Rau, A Princess
remembers: The Memoirs of the Maharani of Jaipur,
(Rupa Publications 1995) [801]; Michael A. Collins,
Navigating Fiscal Constraints in “Costs of Democracy:
Political Finance in India” (edited by Devesh Kapur and
Milan Vaishnav) OUP 2018; Neelanjan Sircar, Money
in Elections: the Role of Personal Wealth in Election
Outcomes in Costs of Democracy: Political Finance in
India (ed. By Devesh Kapur and Milan Vaishnav) OUP
2018; Aradhya Sethia, “Where's the party?: towards a
constitutional biography of political parties, Indian Law
444 [2024] 2 S.C.R.

Digital Supreme Court Reports

Review, 3:1, 1-32 (2019); Law Commission of India,
770th Report on the Reform of the Electoral Laws
(1999); Lok Sabha Debates, Companies Bill (16 May
1985); Santhanam Committee Report on Prevention of
Corruption, 1964 — referred to.

John Hart Ely Democracy and Distrust: A Theory of
Judicial Review (Harvard University Press, 2002);
Conrad Foreman, Money in Politics: Campaign Finance
and its Influence over the Political Process and Public
Policy, 52 UIC J. Marshall L. Rev. 185 (2018); D
Sunshine Hillygus, Campaign Effects on Vote Choice
in “The Oxford Handbook of American Elections and
Political Behavior” (Ed. Jan E. Leighley 2010); David
P. Baron, Electoral Competition with informed and
uninformed voters, American Political Science Review,
Vol. 88, No. 1 March 1994; Dominik Hangartner,
Nelson A Ruiz, Janne Tukiainen, Open or Closed? How
List Type Affects Electoral Performance, Candidate
Selection, and Campaign Effort, VAT Institute for
Economic Research Working Papers 120 (2019); Ben
Ansell and Jean Gingrich J (2021). Political Inequality.
The IFS Deaton Review of Inequalities, London:
Institute for Fiscal Studies; Joshua L. Kalla and David
E. Broockman, “Campaign Contributions Facilitate
Access to Congressional Officials: A Randomized
Field Experiment” (2016 60(3)) American Journal of
Political Science; Philip N Howard and Daniel Kreiss,
Political Parties and Voter privacy: Australia, Canada,
the United Kingdom, and United States in Comparative
Perspective, First Monday 15(12) 2010; Colin
Bennet, The politics of privacy and privacy of politics:
Parties, elections, and voter surveillance in Western
Democracies. First Monday, 18(8) 2013; Hon’ble Mr
Justice Andrew Cheung Pu, Conflict of fundamental
rights and the double proportionality test, A lecture in
the Common Law Lecture Series 2019 delivered at
the University of Hong Kong (17 September 2019);
Report of the Committee on Prevention of Corruption,
1964 [11.5] — referred to.
[2024] 2 S.C.R. 445
Association for Democratic Reforms & Anr. v. Union of India & Ors.

In the Judgment of Sanjiv Khanna, J
Suchindran Bhaskar Narayan and Lalit Panda, Money
and Elections-Necessary Reforms in Electoral Finance,
Vidhi 2018 at p. 19; Law Commission of India, Electoral
Reforms, Report No. 255, March 2015 - referred to.
John Parkinson and Jane Mansbridge (eds),
Deliberative Systems (1st edn, Cambridge University
Press 2012) 11; James S Fishkin, When the
People Speak: Deliberative Democracy and Public
Consultation (Oxford University Press 2011) 33- 34;
Aharon Barak, “Proportionality — Constitutional Rights
and their Limitations”, Cambridge University Press,
2012; David Bilchitz, “Necessity and Proportionality:
Towards a Balance Approach?*, (Hart Publishing,
Oxford and Portland, Oregon 2016); Aparna Chandra,
“Proportionality: A Bridge to Nowhere?”, (Oxford
Human Rights Journal 2020); Jochen von Bernstroff,
Proportionality Without Balancing: Why Judicial
Ad Hoc Balancing is Unnecessary and Potentially
Detrimental to Realisation of Collective and Individual
Self Determination, Reasoning Rights-Comparative
Judicial Engagement, (Ed. Liaora Lazarus); Bernhard
Schlink, ‘Abwagung im Verfassungsrecht, Duncker
& Humblot, 1976, and Francisco J. Urbina, ‘/s It
Really That Easy? A Critique of Proportionality and
Balancing as Reasoning’ Canadian Journal of Law
and Jurisprudence, 2014; Robert Alexy, A Theory of
Constitutional Rights (Julian Rivers, trans. Oxford
Univ. Press 2002); Cabinet Directive on Law-making
in Guide to Making Federal Acts and Regulations
(2nd edn, Government of Canada; Niels Petersen,
‘Proportionality and judicial Activism: Fundamental
Rights Adjudication in Canada, Germany and South
Africa, (CUP 2017); Yun-chien Chand & Peng-Hsiang
Wang, The Empirical Foundation of Normative
Arguments in Legal Reasoning (Univ. Chicago
Coase-Sandor Inst. For L. & Econ., Res. Paper No.
745, 2016); Lee Epstein & Andrew D. Martin, An
Introduction to Empirical Legal Research 6 (2014);
Joshua B. Fischman, Reuniting “Is” and “Ought” in
Empirical Legal Scholarship, 162 U. Pa. L. Rev. 117
446 [2024] 2 S.C.R.
Digital Supreme Court Reports

(2013); Marilyn Strathern, /mproving Ratings: Audit in
the British University System, European review, Vol.
5 Issue 3, pp. 305-321 (1997); Lord Neill of Bladen,
QC, ‘Fifth Report of the Committee on Standards
in Public Life: The Funding of Political Parties in
the United Kingdom’, 1998 pp 61-62; Francisco J.
Urbina, A Critique of Proportionality, American Journal
of Jurisprudence, Vol 57, 2012; Ronald Dworkin,
Taking Rights Seriously (Bloomsbury 2013), pp 41-
42; Robert Alexy, A Theory of Constitutional Rights,
(translated by Julian Rivers, first published 2002,
OUP 2010), pp. 47-48; Robert Alexy, A Theory of
Constitutional Rights (Julian Rivers, trans. Oxford
Univ. Press 2002); David Bilchitz, Necessity and
Proportionality: Towards a Balance Approach?, (Hart
Publishing, Oxford and Portland, Oregon 2016);
Adrienne Stone, Proportionality and its Alternatives,
Melbourne Legal Studies Research Paper Series
No. 848; John Braithwaite, Rules and Principles:
a Theory of Legal Certainty, Australian Journal of
Legal Philosophy 47 (2002); Harrison Moore, The
Constitution of the Commonwealth of Australia;
Jennifer L. Greenblatt, Putting the Government to
the (Heightened, Intermediate, or Strict) Scrutiny
Test: Disparate Application Shows Not All Rights and
Powers Are Created Equal, (2009) 10 Fla Coastal L
Rev 421 — referred to.

Website

In the Judgment of Dr Dhananjaya ४ Chandrachud, Cul
Election Commission of India, Instructions to political
parties on manifestos dated 24.04.2015, hitps://
www.eci.gov.in/election-manifestos/; Election
Commission of India, Letter dated 26 May 2017,
No. 56/PPEMS/Transparency/2017 — referred to.

In the Judgment of Sanjiv Khanna, J
Charterpedia, Department of Justice, Government
of Canada, available at: https://www.justice.
[2024] 2 S.C.R. 447
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

gc.ca/eng/csj-sjc/rfc-dic/cerf-ccdl/check/art1.htm
— referred to.

List of Acts

In the Judgment of Dr Dhananjaya Y Chandrachud, Cul

Constitution of India; Finance Act, 2017; Companies Act,
1956; Reserve Bank of India Act, 1934; Representation of
the People Act, 1951; Income Tax Act, 1961; Companies
Act, 2013; Companies (Amendment) Act, 1960; Companies
(Amendment) Act, 1969; Companies (Amendment) Act, 1985;
Taxation Laws (Amendment) Act, 1978; Evidence Act, 1872;
Election and Other Related Laws (Amendment) Act, 2003;
Election Symbols (Reservation and Allotment) Order, 1968;
Conduct of Election Rules, 1961.

In the Judgment of Sanjiv Khanna, J
Constitution of India; Companies Act, 1956; Companies Act
of 2013; Finance Act, 2017; Income Tax Act, 1961; Reserve
Bank of India Act, 1934; Representation of the People Act,
1951; Foreign Contribution Regulation Act, 2010; Prevention
of Money Laundering Act, 2002.

List of Keywords

In the Judgment of Dr Dhananjaya Y Chandrachud, Cul

Electoral bond scheme, 2018; Electoral bond; Corporate
contributions; Curbing black money; Transparency; Judicial
review; Close association of politics and money; Non-
disclosure of information on electoral financing; Right to
information; Electoral process; Donor privacy; Informational
privacy of financial contributions to political parties; Privacy
vis-a-vis political party; Right to informational privacy; Judicial
approach; Balancing fundamental rights; Double proportionality
standard; Arbitrariness; Manifest arbitrariness; Indian
jurisprudence; Anonymous financial contributions to political
parties; Financial contributions to political parties; Financial
448 [2024] 2 S.C.R.
Digital Supreme Court Reports

contributions; Election Commission of India; Transparency of
political finance; Quid pro quo arrangements; Free and fair
elections; Presumption of constitutionality; Corporate funding;
Electoral campaigns; Excessive delegation; Principle of ‘one
person-one vote’; Non-disclosure of funding by companies;
Public domain; Corporate donations; Anonymity of donations
to political parties; Judicial restraint; Symbols Order; Electoral
democracy; Proportionality standard; Electoral Trusts; Political
contribution; Electronic transfer other than electoral bonds;
Right to informational privacy of political affiliation; Privacy;
Political beliefs; Political affiliation; Privacy of political affiliation;
Electoral franchise; Corrupt practices; Single proportionality
standard; Plenary legislation; Subordinate legislation; Removal
of contribution restrictions; Loss-making companies; Profit-
making companies.

In the Judgment of Sanjiv Khanna, J

Electoral Bonds Scheme, 2018; Electoral bonds; Electoral
process; Doctrine of proportionality; Corporate funding;
Ban on contributions to political parties; Contributions
by companies; Electronic Clearing System; Economic
policy; Judicial review; Electoral democracy; Burden of
proof; Doctrine of presumption of constitutionality; Test of
proportionality; Structured proportionality; Right to vote;
Right to know; Symbol allotted to political parties; Funding of
political parties; Democratic legitimacy; Substantive balance;
Diversity; Conscientiousness; Equal consideration; Donors of
a political party; Informational privacy of donors; Black money
in electoral finance; Retribution; Victimisation; Retaliation;
Quid pro quo; Multiple donors; Double proportionality; Single
proportionality standard; Principle of reasonableness; Right
of privacy; Balancing prong of proportionality; Principle of /is
pendens; Necessity test; Rational connection test; Standard
based review; Rule based legal adjudication; Empirical
deference; Transparency; Secrecy; Identities of donor;
Money laundering; Alternative measures; Electoral Trust
[2024] 2 S.C.R. 449
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Scheme; Fundamental rights; Complementary rights; Law
Commission of India; Party wise donation; Test of manifest
arbitrariness.

Case Arising From
CIVIL ORIGINAL JURISDICTION : Writ Petition (Civil) No.880 of 2017
(Under Article 32 of the Constitution of India)
With
Writ Petition (Civil) Nos.59 of 2018, 975 And 1132 of 2022

Appearances for Parties
Kapil Sibal, Sr. Adv., Prashant Bhushan, Ms. Neha Rathi, Pranav
Sachdeva, Ms. Alice Raj, Ms. Shivani Kapoor, Kamal Kishore, Ms.
Kajal Giri, Varinder Kumar Sharma, Varun Thakur, Gautam Bhatia,
Pradanns. S, Ms. Rupali Samuel, Ms. Aprajits Jamuel, Rishabh Parikh,
Shsntanu Sharma, Ms. Deeksha Gaur, Y K Prasad, Shadan Farasat,
Ms. Hrishika Jain, Aman Naqvi, Ms. Natasha Maheshwari, Rizwan,
Ms. Sachi Chopra, Nizam Pasha, Javedur Rahman, Mudassir, Arif
Ali, Ms. Aayushi Mishra, Advs. for the Petitioners.

नि Venkataramani, AG, Tushar Mehta, SG, R Balasubramanian, Sr.
Adv., Raj Bahadur Yadav, Ms. Seema Bengani, Shyam Gopal, Ms.
Chinmayee Chandra, Kanu Agrawal, Rajat Nair, Raman Yadav,
Chitvan Singhal, Mrs. Shraddha Deshmukh, Ms. Sonali Jain, Abhishek
Kumar Pandey, Kartikay Aggarwal, Rajan Kumar Chourasia, Ms.
Shraddha Deshmukh, Ankur Talwar, Arvind Kumar Sharma, Amit
Sharma, Dipesh Sinha, Ms. Pallavi Barua, Ms. Aparna Singh, Advs.
for the Respondents.
Vijay Hansaria, Sanjay R Hegde, Sr. Advs. Ms. Sneha Kalita,
Ms. Kavya Jhawar, K.S.bhati, Ms. Jessy Kurian, Ms. Sr. Leona,
Pawanshree Agarwala, Suren Uppal, Aviral Kashyap, Shahrukh Ali,
Sanjeev Menon, Ms. Stuti Srivastava, Ms. Vimal Sinha, Rajesh Kumar,
P.B. Suresh, Prasanna S., Ms. Disha Wadekar, Ms. Deeksha Dwivedi,
Ms. Swati Arya, Yuvraj Singh Rathore, Varun K Chopra, Mehul
Sharma, Abhishek Kandwal, M/S. Vkc Law Offices, Kaleeswaram
Raj, Ms. Thulasi K Raj, Ms. Aparna Menon, Mohammed Sadique
T.A., Advs. for the Intervenors.
450 [2024] 2 S.C.R.
Digital Supreme Court Reports

Judgment / Order of the Supreme Court

Judgment
Dr Dhananjaya Y Chandrachud, CJl*

A. Background 4

I. Corporate Contributions .......................-------------------- 5

li. Curbing black MOMeY ..................-.---.----------०-००००००००००--- 10

जी. TPAMSPALONCY ........................---.----------००००००*******००५०५०५०*८- 11

iv. Objections of RBI and ECI to the Electoral
BOnd SCNOME ...................-------००००००००००००००००००००००००००००००००८०० 13

v. Electoral Bond Scheme ...............------------------०००००००००००- 18

B. ISSUOS .................-----०००>ननलल
बट हट टटडट टट हट टटह हट हट हट ट हट टट हट टट ट टट हट हट ह हट ८०० 23

८... 5प्र०79581075 ......................---------------००--०-००००००-०००००००००००००००००००-- 24

I. Submissions of petitioners ...................---------००-००------ 24

li. Submissions of Union of India ......................----------- 36

D. The Scope of Judicial RCVIOW ..........................--..----------- 40

E. The close association of politics and money ...............- 44

F. The challenge to non-disclosure of information
ON ClectOral FINANCING ......................--------०००लललल
जज हट न ट हट ०० 50

i. Infringement of the right to information of the voter.. 51

a. The scope of Article 19(1)(a): tracing the right to
INFOPIMALION ...................---------------०------०--०००--००००----०--- 51

b. Right to information of a voter: exploring the
judgments in ADR and PUCL .............................- 55

c. The focal point of the electoral process:
candidate or political party ................................---- 64
[2024] 2 S.C.R. 451
Association for Democratic Reforms & Anr. v. Union of India & Ors.

d. The essentiality of information about political
funding for the effective exercise of the choice of
11/0)
| [0 eee 73

li. Whether the infringement of the right to
information of the voter is justified ........................- 78

a. Curbing Black money ...............................--.----------- 80

0. 2010 PrivaCy ..........................-----------------०००००००००००--- 95

I. Informational privacy of financial contributions to 96
POlitiCAl [21163 ..............................-------------------------

Il. Privacy vis-a-vis political party ........................------- 103

Ill. Balancing the right to information and the right
to informational PrivACy ..........................--.......------ 103

a) Judicial Approach towards balancing
fundamental rights: establishing the double
proportionality standard .................................- 103

b) Validity of the Electoral Bond Scheme,
Section 11 of the Finance Act and Section
137 of the Finance ACt ..........................---------- 113

c. Validity of Section 154 of the Finance Act amending
Section 182(3) to the Companies Acct ................... 120

G. Challenge to unlimited corporate fUNCING ....................- 124

i. The application of the principle of non-arbitrariness 127

a. Arbitrariness as a facet of Article 14 ....................- 127

b. Beyond Shayara Bano: entrenching manifest
arbitrariness in Indian jurisprudence ....................- 131

li. Validity of Section 154 of the Finance Act 2017
omitting the first proviso to Section 182 of the
Companies ACt ...............---------००००--००-०००००००००००००००००००००००००- 140

H. CONCIUSION ANd DITCCTIONS. ..........................-------------------- 149
452 [2024] 2 S.C.R.
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The petitioners have instituted proceedings under Article 32 of the
Constitution challenging the constitutional validity of the Electoral
Bond Scheme’ which introduced anonymous financial contributions to
political parties. The petitioners have also challenged the provisions
of the Finance Act 2017? which, among other things, amended the
provisions of the Reserve Bank of India Act 1934°, the Representation
of the People Act 19514, the Income Tax Act 1961°, and the Companies
Act 20137,
A. Background
Section 31 of the RBI Act stipulates that only the RBI or the Central
Government authorized by the RBI Act shall draw, accept, make, or
issue any bill of exchange or promissory note for payment of money
to the bearer of the note or bond. The Finance Act amended the RBI
Act by including Section 31 (3) which permits the Central Government
to authorize any scheduled bank to issue electoral bonds.
To understand the context in which the legislative amendments
were introduced, it is necessary to juxtapose the amendments with
the regime on financial contributions to political parties. The law
relating to financial contributions to political parties focusses on (a)
contributions by corporate entities; (0) disclosure of information on
contributions; and (c) income tax exemptions for donations.
|. Corporate Contributions
The Companies Act 1956 and the provisions of the RPA, when they
were enacted did not regulate contributions to political parties by
companies and individuals. The Companies (Amendment) Act 1960
included Section 293A’ to regulate contributions by companies.

“Electoral Bond Scheme” or “Scheme”
=

“Finance Act”
WD

Section 135 of the Finance Act 2017; “RBI Act”
Section 137 of the Finance Act 2017;“RPA”
+

Section 11 of the Finance Act 2017; “IT Act”
oO

Section 154 of the Finance Act 2017; “Companies Act”
NO

“293A. (1) Notwithstanding anything contained in section 293, neither a company in general meeting
nor its Board of directors shall, after the commencement of the Companies (Amendment) Act, 1960,
contribute-
(a) To any political party, or
(b) For any political purpose to any individual or body, any amount or amounts which or the aggregate
of which will, in any financial year, exceed twenty-five thousand rupees or five per cent of its
average net profits as determined in accordance with the provisions of sections 349 and 350 during
[2024] 2 S.C.R. 453
Association for Democratic Reforms & Anr. v. Union of India & Ors.

The provision stipulated that companies cannot contribute to (a)
any political party; and (b) to any individual or body for any political
purpose, amounts exceeding twenty-five thousand rupees in a
financial year or five percent of its average net profits during the three
financial years immediately preceding the contribution, whichever
is greater. Companies were also required to disclose the amount
contributed in a financial year in their profit and loss accounts and
furnish particulars of the total amount contributed and the name of
the party, individual or entity to which or to whom such amount was
contributed. Companies defaulting in complying with the disclosure
requirement were punishable with a fine which could extend to
rupees five thousand.
5. |The Companies (Amendment) Act 1969 amended Section 293A® so
as to ban contributions to political parties and for political purposes.
Companies acting in contravention of the prohibition were punishable
with a fine which could extend to five thousand rupees, and every
officer who defaulted was punishable with imprisonment which could
extend to three years, besides being liable to fine.

6. The Companies (Amendment) Act 1985 amended Section 293A% to

the three financial years immediately preceding, whichever is greater.
Explanation- Where a portion of a financial year of the company falls before the commencement of the
Companies (Amendment) Act, 1960, and a portion falls after such commencement, the latter portion
shall be deemed to be a financial year within the meaning, and for the purposes, of this sub-section.
(2) Every company shall disclose in its profit and loss account any amount or amounts contributed by it
under sub-section (1) to any political party or for any political purpose to any individual or body during
the financial year to which the account relates, giving particulars of the total amount contributed and the
name of the party, individual or body to which or to whom such amount has been contributed.
(3) If a company makes a default in complying with the provisions of sub-section (2), the company, and
every officer of the company who is in default shall be punishable with fine which may extend to five
thousand rupees.”
8 “Section 293A. (1) Notwithstanding anything contained in any other provision of this Act, neither a
company in general meeting nor its Board of directors shall, after the commencement of the Companies
(Amendment) Act 1960 contribute any amount or amounts-
(a) To any political party or
(b) For any political purpose to an individual or body.
(2) If a company contravenes the provisions of sub-section (1) then-
(i) | the company shall be punishable with fine which may extend to five thousand rupees; and
(ii) | every officer of the company who is in default shall be punishable with imprisonment for a
term which may extend to three years and shall also be liable to fine”
9 “293A. (1) Notwithstanding anything contained in any other provision of this Act-
(a) No Government company; and
(6) No other company which has been in existence for less than three financial years,
shall contribute any amount or amounts, directly or indirectly, -
(i) To any political party; or
(ii) | For any political purpose to any person.
(2) A company, not being a company referred to in clause (a) or clause (b) of sub-section (1), may
454 [2024] 2 S.C.R.
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permit contributions to political parties and for political purposes once
again. The explanation of the phrase “political purpose” included
donations made to a person who in the knowledge of the donor is
carrying out any activity at the time of donation which can be regarded
as public support to a political party. Further, the direct or indirect
expenditure by companies on advertisements by or on behalf of
political parties or publications for the advantage of a political party
were also regarded as contributions for political purposes. Three other
restrictions, in addition to the earlier restriction prescribing a cap on
contributions and disclosure requirement were included. First, the
company (which is not a government company) should have been
in existence for more than three years; second, contributions could
only be made when a resolution authorizing the contributions had
been passed at a meeting of the Board of Directors; and third, the
penal consequences attached to the violations of the provision were

contribute any amount or amounts directly or indirectly-
(a) 10 any political party,-
(b) for any political purpose to any person:
Provided that the amount or, as the case may be, the aggregate of the amounts which may be so
contributed by a company in any financial year shall not exceed five percent of its average net profits
determined in accordance with the provisions of sections 349 and 350 during the three preceding
financial years.
Explanation.- Where a portion of a financial year of the company falls before the commencement of the
Companies (Amendment) Act, 1985, and a portion falls after such commencement, the latter portion
shall be deemed to be a financial year within the meaning, and for the purposes of this sub-section:
Provided further that no such contribution shall be made by a company unless a resolution authorizing
the making of such contribution is passed at a meeting of the Board of Directors and such resolution
shall, subject to the other provisions of this section, be deemed to be justification in law for the making
and the acceptance of the contribution authorized by it.
(3) Without prejudice to the generality of the provisions of sub-sections (1) and (2)-
(a) 8 donation or subscription or payment caused to be given by a company on its behalf or on its
account to a person who, to its knowledge, is carrying on any activity which, at the time at which
such donation or subscription or payment was given or made, can reasonably be regarded as likely
to effect public support for a political party shall also be deemed to be contribution of the amount of
such donation, subscription or payment to such person for a political purpose;
(6b) the amount of expenditure incurred, directly or indirectly, by a company on advertisement in any
publication (being a publication in the nature of a souvenir brochure, tract, pamphlet or the like) by
or on behalf of a political party or for its advantage, shall also be deemed,-
(i) | where such publication is by or on behalf of a political party, to be a contribution of such
amount to such political party, and
(ii) | where such publication is not by or on behalf of but for the advantage of a political party, to
be a contribution for a political purpose to the publishing it.
(4) Every company shall disclose in its profit and loss account any amount or amounts contributed by
it to any political party or for any political purpose to any person during the financial year to which that
account relates, giving particulars of the total amount contributed and the name of the party or person to
which or to whom such amount has been contributed.
(5) If a company makes any contribution in contravention of the provisions of this section-
(a) the company shall be punishable with fine which may extend to three times the amount so
contributed; and
(b) every officer of the company who is in default shall be punishable with imprisonment for a term
which may extend to three years and shall also be liable to fine.
[2024] 2 S.C.R. 455
Association for Democratic Reforms & Anr. v. Union of India & Ors.

made more stringent. A fine extendable to three times the amount
contributed could be imposed, and every officer of the company who
was in default of the provision was punishable for a term which could
extend to three years and be liable for fine.
Section 182 of the Companies Act 2013 substantively incorporated
the provisions of Section 293-A of the 1956 Act, as amended in
1985. Section 182 enables a company to contribute any amount
directly or indirectly to any political party. The provision bars a
Government company and a company which has been in existence
for less than three financial years from contributing to a political
party. The provisos to the provision prescribe the following two
conditions:
a. The aggregate of the amount contributed by the company in
any financial year shall not exceed seven and a half per cent of
its average net profits during the three immediately preceding
financial years;’° and

b. A contribution can be made only if the Board of Directors
issues a resolution authorizing the contribution at a meeting.
Such a resolution shall, subject to the other provisions of the
Section, be deemed to be a justification in law for the making
and acceptance of the contribution authorized by the Board."
Sub-section (3) of Section 182 mandates every company to disclose
in its profit and loss account any amount contributed by it to any
political party during the financial year with specific particulars of the
total amount contributed along with the name of the political party
to which the contribution was made.
Section 182 of the Companies Act 2013 made two modifications
from Section 293-A of the Companies Act 1956: (a) the cap on the
contributions which can be made by companies was increased from
5 % to 7.5% of their average net profits; and (b) more stringent
consequences for violation of were imposed. The fine was extendable
to five times (instead of three times prescribed in the earlier provision)
of the contribution.

10 Companies Act, First proviso to Section 182(1).
11 Companies Act, second proviso to Section 182(1)
456 [2024] 2 S.C.R.
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10. The Finance Act 2017 made three changes to Section 182 of the
Companies Act:
a. The first proviso to Section 182(1) which prescribed a cap on
corporate funding was omitted;
b. Section 182(3) was amended to only require a disclosure of
the total amount contributed to political parties by a company
in a financial year and excluded the requirement to disclose
the particulars of the amount contributed to each political
party; and
c. Sub-section 3A was introduced, by which a company could
contribute to a political party only by a cheque, bank draft, or
electronic clearing system. The proviso to the sub-section states
that a company may also contribute through any instrument
issued pursuant to any scheme notified under any law for the
time being in force for contribution to political parties.
ll. Curbing black money
11. The Taxation Laws (Amendment) Act 1978 included Section 13A to
the IT Act exempting the income of political parties through financial
contributions and investments from income tax. The objects and
reasons of the Amending Act stipulated that tax exemption would
increase disposable funds from “legitimate sources”. However, to
secure the benefit of exemption, the following conditions prescribed
in the proviso were required to be fulfilled:
a. The political party was required to keep and maintain books of
account and other documents which would enable the Assessing
Officer to properly deduce its income;'?
b. The political party had to maintain a record of voluntary
contributions in excess of twenty thousand rupees"’, along
with the name and address of the person who made such
contributions;'* and

12 IT Act, Proviso (a) to Section 13A
13 It was ten thousand rupees when Section 13A was introduced. It was increased to twenty thousand
rupees by the Election and Other Related Laws (Amendment) Act 2003
14 IT Act, Proviso (0) to Section 13A
[2024] 2 S.C.R. 457
Association for Democratic Reforms & Anr. v. Union of India & Ors.

c. The accounts of the political party were required to be audited
by an accountant.'®
12. By the Election and Other Related Laws (Amendment) Act 2003,
Sections 80GGB" and 80GGC"’ were inserted in the IT Act making
contributions made to political parties tax deductible. The speech of Mr
Arun Jaitley, the then Minister of Law and Justice while moving the Bill
indicates that contributions were made tax deductible to “incentivize
contributions” through cheque and other banking channels.
13. The Finance Act 2017 made the following amendments to Section
13A of the IT Act:
a. The political party was not required to maintain a record of
contributions if the contribution was received by electoral
bonds;'® and

b. The political party must receive a donation in excess of two
thousand rupees only by a cheque, bank draft, electronic clearing
system or through an electoral bond.'?
ili. Transparency
14. The Election and Other Related Laws (Amendment) Act 2003
amended the provisions of the RPA. Section 29C of the RP Act was
introduced for requiring each political party to declare the details of the
contributions received. The treasurer of a political party or any other
person authorized by the political party must in each financial year
prepare a report in respect of the contributions in excess of twenty
thousand rupees received by the party from a person or company

IT Act, Proviso (c) to Section 13A
80GGB. “Deduction in respect of contributions made by companies to political parties-In computing the
total income of an assessee, being an Indian company, there shall be deducted any sum contributed by
it, in the previous year to any political party or an electoral trust:
Provided that no deduction shall be allowed under this section in respect of any sum contributed by way
of cash.”
80 GGC. “Deduction in respect of contributions made by any person to political parties- In computing the
total income of an assessee, being any person, except local authority and every artificial juridical person
wholly or partly funded by the Government, there shall be deducted any amount of contribution made by
him, in the previous year, to a political party [or an electoral trust] :
[Provided that no deduction shall be allowed under this section in respect of any sum contributed by
way of cash.]
Explanation.— For the purposes of sections 80GGB and 80GGC, “political party” means a political party
registered under section 29A of the Representation of the People Act, 1951 (43 of 1951).”
18 IT Act, amendment to Proviso (b) to Section 13A
19 IT Act, Proviso (d) to Section 13A
458 [2024] 2 S.C.R.
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other than Government companies in that financial year. The report
prepared must be submitted to the Election Commission before
the due date for furnishing a return of income of that financial year
under the IT Act.”° A political party which fails to submit the report
shall not be entitled to any tax relief as provided under the IT Act.?'
15. The provision was amended by the Finance Act 2017 to include
a proviso by which the political party was not required to disclose
details of contributions received by electoral bonds.
Annexure | to this Judgment depicts in a tabular form the amendments
to the provisions of the RP Act, the IT Act, the Companies Act, and
the RBI Act by the Finance Act 2017.
16. The effect of the amendments introduced by the Finance Act to the
above legislations is that:
a. Anew scheme for financial contribution to political parties is
introduced in the form of electoral bonds;
b. The political parties need not disclose the contributions received
through electoral bonds;
c. Companies are not required to disclose the details of
contributions made in any form; and
d. Unlimited corporate funding is permissible.
iv. Objections of RBI and ECI to the Electoral Bond Scheme
17. On 2 January 2017, the RBI wrote a letter to the Joint Secretary in
the Ministry of Finance on the proposal of the Government of India
to enable Scheduled Banks to issue electoral bearer bonds for the
purpose of donations to political parties before the Finance Act 2017
was enacted. The RBI objected to the proposal on the ground that:
a. 16 amendment would enable multiple non-sovereign entities to
issue bearer instruments. The proposal militated against RBI’s
sole authority for issuing bearer instruments which has the
potential of becoming currency. Electoral bonds can undermine
the faith in banknotes issued by the Central Bank if the bonds
are issued in sizable quantities;

20 RPA, Section 29C (3)
21 RPA, Section 29C (4)
[2024] 2 S.C.R. 459
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Though the identity of the person or entity purchasing the bearer
bond will be known because of the Know Your Customer
requirement, the identities of the intervening persons/entities
will not be known. This would impact the principles of the
Prevention of Money Laundering Act 2002; and
The intention of introducing electoral bonds can be accomplished
by cheque, demand draft, and electronic and digital payments.
There is no special need for introducing a new bearer bond in
the form of electoral bonds.
18. On 30 January 2017, the Finance Ministry responded to the
observations of RBI and stated that:
a. RBI has not understood the core purpose of electoral bonds
which is to keep the identity of the donor secret while at the
same time ensuring that the donation is only made from tax
paid money; and
The fear that electoral bonds might be used as currency is
unfounded because there is a time limit for redeeming the bonds.
19. By a letter dated 4 August 2017, the Deputy Governor of the RBI
stated that India can consider issuing the electoral bonds on a
transitional basis through the RBI under the existing provisions of
Section 31(1) of the RBI Act. The RBI recommended the incorporation
of the following safeguards to minimize the inherent scope of misuse
of the bonds for undesirable activities:
a. The electoral bonds may have a maximum tenure of fifteen days;
b. The electoral bonds can be purchased for any value in multiples
of a thousand, ten thousand, or a lakh of rupees;

The purchase of electoral bonds would be allowed from a KYC
compliant bank account of the purchaser;
The electoral bonds can be redeemed only upon being deposited
into the designated bank account of an eligible political party;
The sale of electoral bonds will be open only for a limited period,
may be twice a year for seven days each; and
The electoral bonds will be issued only at RBI, Mumbai.

“KYC”
22
460 [2024] 2 S.C.R.
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20. The draft of the Electoral Bond Scheme was circulated to the RBI for its
comments. The draft conferred notified scheduled commercial banks,
apart from the RBI, with the power to issue electoral bonds. The RBI
objected to the draft Scheme by a letter dated 14 September 2017. The
RBI stated that permitting a commercial bank to issue bonds would “have
an adverse impact on public perception about the Scheme, as also the
credibility of India’s financial system in general and the central bank
in particular.” The RBI again flagged the possibility of shell companies
misusing bearer bonds for money laundering transactions. The RBI
recommended that electoral bonds may be issued in electronic form
because it would (a) reduce the risk of their being used for money
laundering; (b) reduce the cost; and (c) be more secure.
21. The Electoral Bond Scheme was placed for deliberation and guidance
by the RBI before the Committee of the Central Board. The Committee
conveyed serious reservations on the issuance of electoral bonds
in the physical form. The reservations were communicated by the
RBI to the Finance Minister by a letter dated 27 September 2017.
The reservations are catalogued below:
a. Issuance of currency is a ‘monopolistic function’ of a central
authority which is why Section 31 of the RBI Act bars any person
other than the RBI from issuing bearer bonds;
b. Issuance of electoral bonds in the scrips will run the risk of money
laundering since the consideration for transfer of scrips from
the original subscriber to a transferee will be paid in cash. This
will not leave any trail of transactions. While this would provide
anonymity to the contributor, it will also provide anonymity to
several others in the chain of transfer;

c. Issuance of electoral bonds in the scrip form could also expose
it to the risk of forgery and cross-border counterfeiting besides
offering a convenient vehicle for abuse by “aggregators”; and
d. The electoral bond may not only be seen as facilitating money
laundering but could also be projected (albeit wrongly) as
enabling it.
22. On 26 May 2017, the Election Commission of India”? wrote to the
Ministry of Law and Justice that the amendments to the IT Act,

“ECD
23
[2024] 2 S.C.R. 461
Association for Democratic Reforms & Anr. v. Union of India & Ors.

RPA, and Companies Act introduced by the Finance Act 2017
will have a “serious impact on transparency of political finance/
funding of political parties.” The letter notes that the amendment
to the RPA by which donations through electoral bonds were not
required to be disclosed is a retrograde step towards transparency
of donations:
“O(il) It is evident from the Amendment which has been
made, that any donation received by a political party
through electoral bond has been taken out of the ambit
of reporting under the Contribution Report as prescribed
under Section 29C of the Representation of the People
Act 1951 and therefore, this is a retrograde step as far as
transparency of donations is concerned and this proviso
needs to be withdrawn.
(ili) Moreover, in a situation where contributions received
through Electoral Bonds is not reported, on perusal of
the Contribution reports of the political parties, it cannot
be ascertained whether the political party has taken any
donation in violation of provisions under Section 29B of
the Representation of the People Act 1951 which prohibits
the political parties from donations from Government
Companies and Foreign sources.”
23. Referring to the deletion of the provision in the Companies Act
requiring companies to disclose particulars of the amount contributed
to specific political parties, the EC] recommended that companies
contributing to political parties must declare party-wise contributions
in the profit and loss account to maintain transparency in the financial
funding of political parties. Further, the ECI also expressed its
apprehension to the deletion of the first proviso to Section 182(1)
by which the cap on corporate donations was removed. The ECI
recommended that the earlier provision prescribing a cap on corporate
funding be reintroduced because:
a. Unlimited corporate funding would increase the use of black
money for political funding through shell companies; and
b. Capped corporate funding ensured that only profitable
companies with a proven track record could donate to political
parties.
462 [2024] 2 S.C.R.
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V. Electoral Bond Scheme

24. On 2 January 2018, the Ministry of Finance in the Department of
Economic Affairs notified the Electoral Bond Scheme 2018 in exercise
of the power under Section 31(3) of the RBI Act. The Electoral Bond
is a bond issued in the nature of promissory note which is a bearer
banking instrument and does not carry the name of the buyer.”* The
features of the Scheme are as follows:
a. The Bond may be purchased by a person who is (i) a citizen
of India; or (ii) incorporated or established in India.” ‘Person’
includes (a) an individual; (0) a Hindu undivided family; (c) a
company; (c) a firm; (d) an association of persons or a body
of individuals, whether incorporated or not; (e) every artificial
juridical person, not falling within any of the above categories;
and (f) any agency, office, or branch owned or controlled by
such a person. An individual can buy bonds either singly or
jointly with other individuals;7°
An Electoral Bond can only be encashed by an eligible political
party.” A political party, to be eligible to receive an electoral
bond, has to be registered under Section 29A of the RP Act,
and ought to have secured not less than one per cent of the
votes polled in the last general election to the House of the
People or the Legislative Assembly of the State.”® An eligible
political party can encash a bond only through a bank account
with an authorised bank.?? The scheme has notified the State
Bank of India as the bank authorised to issue and encash
bonds;*°
The instructions issued by the Reserve Bank of India regarding
KYC apply to buyers of the bond. The authorised bank may
call for additional KYC documents if necessary;*'

24 Electoral Bond Scheme, Clause 2(a)
25 Electoral Bond Scheme, Clause 3(1)
26 Electoral Bond Scheme, clause 3(3)
27 Electoral Bond Scheme, Clause 12
28 Electoral Bond Scheme, Clause 3(8)
29 Electoral Bond Scheme, Clause 3(4)
30 Electoral Bond Scheme, Clause 2(b)
31 Electoral Bond Scheme, Clause 4(2)
[2024] 2 S.C.R. 463
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Payments for the issuance of the bond are accepted in Indian
rupees, through demand draft, cheque, Electronic Clearing
System or direct debit to the buyer’s account. Where payment
is made by cheque or demand draft, it must be drawn in favour
of the issuing bank at the place of issue;*?
The bonds are issued in denominations of Rs 1000, 10,000,
1,00,000, 10,00,000 and 1,00,00,000;%°

The bond is valid for fifteen days from the date of issue. No
payment will be made to a political party if the bond is deposited
after the expiry of fifteen 08५57. If the bond is not encashed
within fifteen days, it will be deposited by the authorised bank
with the Prime Minister’s Relief Fund;*5

A buyer who wishes to purchase electoral bond(s) can apply
in the format specified in Annexure II of the Scheme.** The
issuing branch shall issue the bond if all the requirements are
fulfilled.” The application shall be rejected if the application
is not KYC compliant or if the application does not meet the
requirements of the scheme;*°
h. The bond issued is non-refundable;*°

The information furnished by the buyer is to be treated as
confidential by the authorized bank. It shall be disclosed only
when demanded by a competent court or upon the registration
of criminal case by any law enforcement agency;*°
The bond shall be available for purchase for a period of ten days
on a quarterly basis, in the months of January, April, July, and
October as specified by the Central Government.*’ Bonds will

32 Electoral Bond Scheme, Clause 11
33 Electoral Bond Scheme, Clause 5
34 Electoral Bond Scheme, Clause 6
35 Electoral Bond Scheme, Clause 12(2)
36 Electoral Bond Scheme, Clause 7(1)
37 Electoral Bond Scheme, Clause 7(3)
38 Electoral Bond Scheme, Clause 7(4)
39 Electoral Bond Scheme, Clause 7(6)
40 Electoral Bond Scheme, Clause 7(4)
41 Electoral Bond Scheme, Clause 8(1)
464 [2024] 2 S.C.R.
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be available for an additional period of thirty days as specified
by the Central Government in a year when General Elections
to the House of People are to be held;*?
k. No interest is payable on the bond.** No commission, brokerage,
or any other charges for issue of a bond shall be payable by
the buyer against purchase of the bond;
The value of the bonds shall be considered as income by way
of voluntary contributions received by an eligible political party
for the purpose of exemption from Income Tax under Section
13A of the IT Act;*° and

m. The bonds are not eligible for trading.*
25. The petitioners instituted proceedings under Article 32 seeking a
declaration that Electoral Bond Scheme and the following provisions
be declared unconstitutional:
a. Section 135 of the Finance Act 2017 and the corresponding
amendment in Section 31 of the RBI Act;

b. Section 137 of the Finance Act 2017 and the corresponding
amendment in Section 29C of the RP Act;

c. Section 11 of the Finance Act 2017 and the corresponding
amendment in Section 13A of the IT Act; and

d. Section 154 of the Finance Act 2017 and the corresponding
amendment to Section 182 of the Companies Act.
26. In its order dated 13 April 2019, this Court observed that the
amendments which have been challenged give rise to weighty
issues which have a bearing on the sanctity of the electoral
process. This Court directed all political parties, in the interim to
submit details of contributions received through electoral bonds
(with particulars of the credit received against each bond, date of
credit, and particulars of the bank account to which the amount

42 Electoral Bond Scheme, Clause 8(2)
43 Electoral Bond Scheme, Clause 9
44 Electoral Bond Scheme, Clause 10
45 Electoral Bond Scheme, Clause 13
46 Electoral Bond Scheme, Clause 14
[2024] 2 S.C.R. 465
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

has been credited) to the ECI in a sealed cover. The prayer for
interim relief was rejected by observing that the operations under
the scheme are not placed behind “iron curtains incapable of
being pierced”:
“25. The financial statements of companies registered
under the Companies Act, 2013 which are filed with the
Registrar of Companies, are accessible online on the
website of the Ministry of Corporate Affairs for anyone.
They can also be obtained in physical form from the
Registrar of Companies upon payment of prescribed
fee. Since the Scheme mandates political parties to
file audited statement of accounts and also since the
Companies Act requires financial statements of registered
companies to be filed with the Registrar of Companies,
the purchase as well as encashment of the bonds,
happening only through banking channels, is always
reflected in documents that eventually come to the
public domain. All that is required is a little more effort
to cull out such information from both sides (purchaser
of bond and political party) and do some “match the
following”. Therefore, it is not as though the operations
under the Scheme are behind iron curtains incapable
of being pierced.”
27. The petitioners have also challenged the introduction of the Finance
Act as a Money Bill under Article 110 of the Constitution. The issue
of the scope of Article 110 has been referred to a seven-Judge
Bench and is pending adjudication.*’ The petitioners submitted
that they would press the grounds of challenge to the Finance Act
independent of the issue on Money Bills in view of the upcoming
elections to Parliament.
28. By an order dated 31 October 2023, the batch of petitions was
directed to be listed before a Bench of at least five-Judges in view
of the provisions of Article 145(8) of the Constitution. It is in this
background that the challenge to the Electoral Bond Scheme and
the amendments is before the Constitution Bench.

47 Roger Mathew v. South Bank of India, CA No. 8588/2019
466 [2024] 2 S.C.R.
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Issues

29. The present batch of petitions gives rise to the following issues:
a. Whether unlimited corporate funding to political parties,
as envisaged by the amendment to Section 182(1) of the
Companies Act infringes the principle of free and fair elections
and violates Article 14 of the Constitution; and

Whether the non-disclosure of information on voluntary
contributions to political parties under the Electoral Bond Scheme
and the amendments to Section 29C of the RPA, Section
182(3) of the Companies Act and Section 13A(b) of the IT Act
are violative of the right to information of citizens under Article
19(1)(a) of the Constitution.
C. Submissions

Submissions of petitioners
30. Mr Prashant Bhushan, learned counsel made the following
submissions:
a. There is no rational basis for the introduction of electoral bonds.
The main objective of introducing the Electoral Bond Scheme
as reflected in the article written by the then Finance Minister,
Mr. Arun Jaitley was that it would enhance transparency in
electoral funding since electoral bond transactions can only
be made through legitimate banking channels. However, cash
donations are still permitted even after the introduction of the
Electoral Bond Scheme;

The Central Government ignored the objections which were
raised by both the RBI and the ECI to the Electoral Bond Scheme;
The statutory amendments and the Electoral Bond Scheme
which mandates non-disclosure of information of electoral
funding are unconstitutional because:
i. They defeat the purpose of introducing provisions
mandating disclosure of information on political funding in
the RPA and the Companies Act which was to enhance
transparency in electoral funding;
ll. 169५ violate Article 19(1)(a) which guarantees to the voter
the right to information concerning the affairs of the public
[2024] 2 S.C.R. 467
Association for Democratic Reforms & Anr. v. Union of India & Ors.

and the government.* This includes the right to information
about financial contributions to political parties because the
Constitution through the Tenth Schedule recognizes that
political parties have a decisive control over the formation
of Government and voting by members of the Legislature
in the Legislative Assembly;
iil. They violate Article 21 because the non-disclosure of
information of political contributions promotes corruption”
and quid pro quo arrangements. The available data
indicates that more than ninety four percent of the total
electoral bonds are purchased in denominations of rupees
one crore. This indicates that bonds are purchased by
corporates and not individuals. The limited disclosure
clause in the Electoral Bond Scheme prevents investigating
agencies such as the Central Bureau of Investigation and
Enforcement Directorate from identifying corruption; and
They violate the rights of shareholders of Companies who are
donating money to political parties by preventing disclosure of
information to them; and

The statutory amendments and the Electoral Bond Scheme
subvert democracy and interfere with free and fair elections
because the huge difference in the funds received by ruling
parties in the States and Centre vitiates a level playing field
between different parties and between parties and independent
candidates.
31. MrKapil Sibal, learned senior counsel made the following submissions:

a. The amendments and the Electoral Bond Scheme skew free
and fair elections by permitting unlimited contributions to political
parties by corporate entities and removing the requirement of
disclosure of information about political funding;
Freedom of a voter in the negative connotation refers to the
freedom to cast their vote without interference and intimidation.
Freedom in the positive connotation includes the freedom to

48 Relied on PUCL v. Union of India, [2003]2 SCR 1136 : (2003) 4 SCC 399; ADR v. Union of India, [2002]
3 SCR 696 : (2002) 5 SCC 294; Anjali Bhardwaj v. Union of India, [2019]
2 SCR 199 : (2019) 18 SCC 246
49 Relied on Kanwar Lal Gupta ५ Amar Nath Chawla, [1975]
2 SCR 259 : 1975 SCC (3) 646
468 [2024] 2 S.C.R.
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vote on the basis of complete and relevant information. This
includes information about financial contributions to political
parties;

The argument of the Union of India that Courts should show
judicial restraint is erroneous because the amendments in
question relate to the electoral process and do not pertain to
economic policy;
The presumption of constitutionality should not apply to
statutes which alter the ground rules of the electoral process.
The principle underlying the presumption of constitutionality is
that the legislature represents the will of the people and that
it is validly constituted through free and fair elections. It would
be paradoxical to accord a presumption of constitutionality to
the very laws or rules that set the conditions under which the
legislature comes into being*°;
Corporate funding per se is violative of the Constitution because
corporate entities are not citizens and thus, are not entitled to
rights under Article 19(1)(a);
The funds contributed to the Electoral Bond Scheme can be
used in any manner and their use is not restricted to electoral
campaigns;
The Electoral Bond Scheme severs the link between elections
and representative democracy because those elected are
inclined to fulfill the wishes of the contributors and not the voters.
This could be through direct guid pro quo where an express
promise is made to enact a policy in favour of the donor and
indirect quid pro quo where there is an influence through access
to policy makers;
h. The Scheme promotes information asymmetry where the
information about political donations is not disclosed to voters
but the Central Government is privy to such information through
the State Bank of India which is the authorized bank under the
Scheme. The information asymmetry will ensure that a larger
portion of the donations would be made to the ruling party at the

50 ~—-Relied on Subash Chandra v. Delhi Subordinate Services Selection Board, [2009]
12 SCR 978 : (2009)
15 SCC 458
[2024] 2 S.C.R. 469
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Centre. According to the data, the political party at the center
has received fifty seven percent of the total contributions made
through electoral bonds;
The Electoral Bond Scheme skews the principle of one person,
one vote because it gives the corporates a greater opportunity
to influence political parties and electoral outcomes;
The amendment to Section 182(3) permits: (i) loss making
companies to contribute to political parties; (ii) unlimited
contributions to political parties enabling significant policy
influence; and (ili) non-disclosure of information on political
funding to shareholders;
The amendments permitting non-disclosure of information on
political funding are violative of the right to information under
Article 19(1)(a). The right to information on funding of political
parties is a natural consequence of the judgment of this Court
in ADR (supra) and PUCL (supra) because the underlying
principle in the judgments is that an informed voter is essential
for a functioning democracy. Information about funding to political
parties is necessary for an informed voter since the Symbols
Order 1968 and the provisions of the Tenth Schedule allow
political parties to influence legislative outcomes and policies;
The infringement of the right to information does not satisfy the
proportionality standard vis-a-vis the purpose of curbing black
money. Even if the argument that the Electoral Bond Scheme fulfills
the purpose is accepted, non-disclosure of information on political
funding is not the least restrictive means to achieve the purpose;
m. The infringement of the right to information does not satisfy the
proportionality standard vis-a-vis the purpose of guaranteeing
informational privacy because:
i. Protecting donor privacy is not a legitimate purpose.
There is no legitimate expectation of informational privacy
to political contributions. The argument that it lies at the
heart of privacy conflates speech with money. Secrecy of
voting cannot be equated to political donations because
while the former is an expression of political equality, the
latter is contrary to political equality because it depends
on the economic capacity of the contributor;
470 [2024] 2 S.C.R.
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li. Political funding is made to influence public policy. They
are public acts which are by their very nature subject to
public scrutiny; and
ili. Even if donor privacy is necessary, on a balance, the
public interest in free and fair elections trumps the private
interest in confidentiality. Further, this Court has to balance
between the possibility of victimization on the disclosure of
information and the infringement of the right to know; and

1. The amendment to Section 31 of the RBI Act is unconstitutional
because of excessive delegation since it does not set out the
contours of the Scheme.
32. Mr Shadan Farasat, learned counsel made the following submissions:

a. The Scheme does not effectively curb black money. Clause
14 of the Electoral Bond Scheme prohibits de jure trading of
the bonds. However, trading is de facto permissible. Nothing
prevents person A from purchasing the bond and trading it with
person B who pays through cash;
The right to information on political funding which is traceable to
Article 19(1)(a) can only be restricted on the grounds stipulated
in Article 19(2). The purposes of curbing black money and
recognizing donor privacy is not traceable to the grounds in
Article 19(2);
Even if the purposes are traceable to Article 19(2), the Scheme is
unreasonable and disproportionate to the purpose of “increasing
political funding through banking channels and reducing political
funding through non-banking channels” because:
i. The purpose is not satisfied: The regime still permits cash
funding up to Rupees two thousand. The operation of the
Scheme increases anonymous funding through electoral
bonds at the cost of contributions through regular banking
channels;

ii. There is no rational nexus between the means and the
purpose;

iil. | Other less restrictive means of contributing through banking
channels are available; and
[2024] 2 S.C.R. 471
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

iv. The fifth prong of the proportionality analysis as laid down
in Gujarat Mazdoor Sabha v. State of Gujarat®’ and
Ramesh Chandra Sharma v. State of Uttar Pradesh”
that the legislation should have sufficient safeguard to
prevent abuse has also not been satisfied.
The statutory amendments and the Scheme are manifestly
arbitrary because (i) large scale corruption and quid pro quo
arrangements would go unidentified due to the non-disclosure
of information about political funding; (1) they enable capture
of democracy by wealthy interests; and (1) they infringe the
principle of ‘one person-one vote’ because a selected few
overpower the voice of the masses because of their economic
wealth;

The deletion of the limit on corporate contributions is
manifestly arbitrary? because it (i) permits donations by loss
making companies; (ii) removes the control of shareholders
over the decisions of the Board; (ili) permits unlimited
contribution by corporates and thereby abrogates democratic
principles;
The provision permitting non-disclosure of funding by companies
is violative of the shareholders’ rights under:
|. Article 25 which includes the right of the shareholder to
know how the resources generated from their property are
utilized. Once a shareholder comes to know that a company
is financing a political party and their conscience does not
permit it, as an exercise of the right to conscience, the
shareholder should be entitled to sell those shares; and
li. If the shareholder feels that the political contributions are
not a sound business decision, they must be entitled to
exit the business by selling the shares. The information
that would enable the shareholder to make such a decision
is not disclosed, thus, infringing upon their right under
Article 19(1)(g).

51 [2020]
13 SCR 886 : (2020) 10 SCC 459
52 [2023]
2 SCR 422 : 2023 SCC OnLine SC 162
53 Relied on Shayara Bano v. Union of India, [2017]
9 SCR 797 : (2017) 9 SCC 1
472 [2024] 2 S.C.R.
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33. Mr Nizam Pasha, learned counsel made the following submissions:

a. The Electoral Bond Scheme and the amendments are arbitrary
as they permit Indian registered companies to purchase electoral
bonds without considering their ownership and control. This goes
against foreign investment laws in India, treating companies
owned or controlled by non-resident Indian citizens as ‘foreign
owned or controlled companies,’ without rational justification;

The Electoral Bond Scheme is arbitrary due to its discriminatory
and non-transparent nature. It contradicts existing laws requiring
transparency and verification of the beneficial ownership and
source of funds; and

The amendments to Section 29C of the RPA and Section 182
of the Companies Act serve no purpose other than perpetuating
illegal ends, as they exempt companies’ purchase of electoral
bonds from public disclosure. This fails to achieve the scheme’s
stated objective of curbing cash donations.
34. Mr Vijay Hansaria, learned senior counsel made the following
submissions:
a. The objects and reasons of the Election and Other Related
Laws (Amendment) Act 2003 which amended the Companies
Act 1956, IT Act 1961, and the RPA indicates that the
amendments were made to incentivize contributions through
banking channels. Thus, the amendments to Section 13A of
the Income Tax Act and Section 29C of the RPA are contrary
to the object of inserting Section 138A and Section 80GGB and
Section 80GGC of the Income Tax Act;

Since 1959, when companies were permitted to contribute to
political parties, all companies were required to mandatorily
disclose the total contributions made and the name of party
to which they have contributed. Further, ceiling limits for total
contribution by companies were prescribed. The Finance Act
2017 does away with these transparency requirements; and
International perspectives on political funding regulations,
including those from the United States, the United Kingdom,
Switzerland and Singapore, emphasize the importance of
transparency, disclosure, and reporting in political contributions.
[2024] 2 S.C.R. 473
Association for Democratic Reforms & Anr. v. Union of India & Ors.

These examples underscore the global consensus on
transparency in the political funding process.
35. Mr Sanjay R. Hegde, learned senior counsel made the following
submissions:
a. Public listed companies are subject to scrutiny since they raise
funds from the public. Information pertaining to the company is
essential to be brought to the public domain. This will enable
informed debates and discussions regarding the use of money
by such companies. Such information must particularly be made
available to shareholders to enable them to make an informed
choice with regard to trading of securities. Thus, the amendment
to the Companies Act which removes the requirement of
disclosure of information about political contributions is violative
of the right to information of shareholders which flows from
Article 19(1)(a);
Public listed companies should not be allowed to make
contributions without the consent of the majority of the
shareholders or the consent of three-fourths of shareholders;
Non-disclosure of information about political funding denies
shareholders the right to choice that flows from Article 21.
Shareholders are incapacitated from making a choice about
whether they wish to invest in shares of a company which has
contributed to a political party whose ideology that shareholder
does not agree with; and
The amendment to Section 182(3) perpetuates the pre-existing
inequality in power between shareholders and the Board/
Promoters/management and puts the shareholders in an even
weaker position violating the right to substantive equality under
Article 14.
36. Mr PB Suresh, learned counsel made the following submissions:
a. The Scheme and amendments violate Articles 14 and 15 by
disproportionately impacting regional political parties and political
parties which represent marginalised and backward sections
of the society. The representation of the backward classes is
low in the corporate sector. Thus, the Scheme has a disparate
impact on parties whose social base is derived from the SC/
STs and backward classes;
474 [2024] 2 S.C.R.
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The presumption of constitutionality does not apply in full rigour
to electoral laws because the incumbent legislators have a
vested interest in shaping the laws that would make it easier
for them to be re-elected;
The removal of the cap on corporate donations has strengthened
the position of major political parties and created more barriers
for the entry of new political parties; and
Political parties have a right to know the funding sources of rival
political parties to enable them to critique it before the public.
Submissions of Union of India

37. Thelearned Attorney General for India made the following submissions:
a. Political parties are an integral product of a free and open society
and play an important role in the administration of the affairs
of the community. Accordingly, they are entitled to receive all
support, including financial contributions;
The Electoral Bond Scheme allows any person to transfer funds
to political parties of their choice through legitimate banking
channels instead of other unregulated ways such as direct
transfer through cash;
The Scheme ensures confidentiality of the contributions made
to political parties. The benefit of confidentiality to contributors
ensures and promotes contribution of clean money to political
parties;
Citizens do not have a general right to know regarding the
funding of political parties. Right to know is not a general right
available to citizens;
This Court has evolved the right to know for the specific
purpose of enabling and furthering the voter’s choice of electing
candidates free from blemish; and

The influence of contributions by companies to political parties
ought not to be examined by this Court. It is an issue of
democratic significance and should be best left to the legislature.
38. The learned Solicitor General of India made the following submissions:
a. The legal framework prior to the enactment of the Electoral Bond
Scheme was mostly cash-based which incentivized infusion of
[2024] 2 S.C.R. 475
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

black money into political parties, and consequently, into the
electoral process in India. The Electoral Bond Scheme is an
improvement on the prior legal framework;
Donors to a political party often apprehended retribution from
other political parties. Such apprehension incentivized donors
to contribute unaccounted money to political parties to avoid
identification and victimization by other political parties. The
Electoral Bond Scheme maintains the confidentiality of donors
and thereby incentivizes them to contribute clean money to
political parties;
In case the donor is a public company, they will have to declare
the amount contributed in their books of account without
disclosing the name of the political party. Similarly, the political
parties will also have to disclose the total amount received
through electoral bonds in their annual audited accounts filed
before the Election Commission of India. This framework ensures
a balance between clean money coming into the system as
against the right to information of citizens;
The state has a positive obligation to safeguard the privacy
of its citizens, which necessarily includes the citizens’ right to
political affiliation. The right of a buyer to purchase electoral
bonds without having to disclose their preference of political
party secures the buyer’s right to privacy;
The Electoral Bond Scheme has been enacted in pursuance
of a legitimate state interest - to shift from cash driven,
unregulated and unaccounted cash based political donations
to a regulated, digital and legal political donation framework.
The provisions of the Electoral Bond Scheme have a specific
object and purpose of curbing black money and protecting
donor privacy:
|. Clause 3(3) imposes a pre-condition that only a registered
political party which has secured at least 1 per cent of the
votes polled in the last general election would be eligible to
receive bonds. This provision ensures that ghost political
parties are barred from seeking and receiving political
funding;
476 [2024] 2 S.C.R.
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ll. Clause 4 requires a buyer of electoral bonds to meet the
requisite KYC Norms. This ensures that only KYC compliant
persons are entitled to buy electoral bonds;
iil. The limited validity period of fifteen days ensures that the
bond is not used as a parallel currency;
iv. Clause 7(4) mandates the authorized bank to treat the
information furnished by a buyer as confidential which shall
not be disclosed to any authority, except when directed
by a competent court or upon registration of criminal case
by any law enforcement agency. This provision protects
the privacy and personal details of the buyer vis-a-vis the
state; and

v. Clause 11 mandates that all payments for the purchase
of electoral bonds shall be accepted through banking
channels. This provision curbs the circulation of black
money.
The right of a citizen to know how political parties are being
funded must be balanced against the right of a person to
maintain privacy of their political affiliations. Donating money to
one’s preferred party is a form political self-expression, which
lies at the heart of privacy;
Maintaining anonymity of donations to political parties is a part of
the concept of secret ballot because it enables a person to make
political choices without any fear of victimization or retaliation;
h. The right to information only operates against information in the
possession or in the knowledge of the state. It cannot operate
for seeking information not in the knowledge or possession of
the state;

The amendments to the RBI Act, RPA, and the IT Act are
intended to curb donations made by way of cash and other
means to political parties and secure the anonymity of donors;
The amendment to Section 182 of the Companies Act removes
the limitation of seven and a half percent of the net profits on
the amount contributed by political parties. The removal of the
contribution limit was intended to disincentivize creation of shell
companies;
[2024] 2 S.C.R. 477
Association for Democratic Reforms & Anr. v. Union of India & Ors.

k. This Court has recognized that the legislature has a wide
latitude in matters concerning economic policy. Further, the
mere possibility that the law might be abused cannot be a
ground for holding the provision procedurally or substantially
unreasonable; and

The fact that one party receives substantially more support
through donations than other parties cannot in itself be a legal
ground to challenge the validity of the Electoral Bond Scheme.
D. The Scope of Judicial Review
39. The Union of India submitted that this Court must exercise judicial
restraint while deciding the challenge to the Electoral Bond Scheme
and the statutory amendments because they relate to economic policy.
For this purpose, the Union of India relied on a series of decisions
where this Court has held that Courts must follow judicial restraint
in matters concerning economic and financial policy.**
AO. It is a settled position of law that Courts must adopt a less stringent
form of judicial review while adjudicating challenges to legislation
and executive action which relate to economic policy as compared
to laws relating to civil rights such as the freedom of speech or the
freedom of religion.®° More recently, in Swiss Ribbons v. Union of
India®, this Court while deciding a challenge to the constitutional
validity of provisions of the Insolvency and Bankruptcy Code 2016
observed that the legislature must be given “free play” in the joints
to experiment with economic policy. This position was also followed
in Pioneer Urban Land and Infrastructure Limited v. Union of
India°’’, where amendments to the Insolvency and Bankruptcy Code
were challenged.
41. The question is whether the amendments under challenge relate
to economic policy. While deciding on a constitutional challenge,
the Court does not rely on the ipse dixit of the government, that a

54 Rustom Cavasjee Cooper ५. Union of India, [1970]
3 SCR 530 : (1970) 1 SCC 248; R.K Garg ५. Union
of India, [1982]
1 SCR 947 : (1981) 4 SCC 675; Premium Granites v. State of Tamil Nadu, [1994]
1 SCR
579 : (1994) 2 SCC 691; Peerless General Finance and Investment Co v. RBI, [1992]
1 SCR 406 : (1992)
2 SCC 343, BALCO Employees Union v. Union of India, [2001] Suppl. 5 SCR 511 : (2002) 2 SCC 333.
55 RK Garg v. Union of India, [1982] 1 SCR 947 : (1981) 4 SCC 675 [8]; See Balco Employees Union v.
Union of India, [2001] Suppl. 5 SCR 511 : (2002) 2 SCC 333; DG of Foreign Trade v. Kanak Exports,
(2016) 2 SCC 226
56 [2019]
3 SCR 535 : (2019) 4 SCC 17
57 [2019]
10 SCR 381 : (2019) 8 SCC 416
478 [2024] 2 S.C.R.
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legislation is an economic legislation. Courts before classifying the
policy underlying a legislation as economic policy must undertake
an analysis of the true nature of the law. The amendment to Section
31 of the RBI Act can be classified as a financial provision to the
extent that it seeks to introduce a new form of a bearer banking
instrument. However, any resemblance to an economic policy ends
there. The amendments in question can be clubbed into two heads:
first, provisions mandating non-disclosure of information on electoral
financing; and second, provisions permitting unlimited corporate
funding to political parties. Both these amendments relate to the
electoral process.
42. In fact, it is evident from the correspondence between the Ministry
of Finance and RBI (which have been summarized above) on the
apprehensions of the Bonds being used as an alternative currency
that the Bonds were introduced only to curb black money in the
electoral process, and protect informational privacy of financial
contributors to political parties. The Union of India has itself classified
the amendments as an “electoral reform”. Thus, the submission of
the Union of India that the amendments deal with economic policy
cannot be accepted.
43. The second argument that this Court needs to address is to determine
the scope of judicial review to decide this batch of petitions. The
petitioners submitted that the presumption of constitutionality does
not apply since the Scheme deals with the electoral process. The
premise of the argument is that the presumption of constitutionality is
based on the principle that the elected body must be trusted to make
decisions and that principle should not be applied when the rules
changing the electoral process are themselves in challenge.*® It was
submitted that in such cases if a prima facie case of constitutional
violation is made out, the State bears a heavy burden of justifying
the law.
44. The presumption of constitutionality is based on two premises. First,
it is based on democratic accountability, that is, legislators are elected
representatives who are aware of the needs of the citizens and are

58 For this purpose, the petitioners referred to the representation-reinforcement model of judicial review
propounded by John Hart Ely in his book Democracy and Distrust: A Theory of Judicial Review (Harvard
University Press, 2002) and the judgment of this Court in Subash Chandra v. Delhi Subordinate Service
Selection Board, [2009]
12 SCR 978 : (2009) 15 SCC 458
[2024] 2 S.C.R. 479
Association for Democratic Reforms & Anr. v. Union of India & Ors.

best placed to frame policies to resolve 18717, Second, legislators are
privy to information necessary for policy making which the Courts as
an adjudicating authority are not. However, the policy underlying the
legislation must not violate the freedoms and rights which are entrenched
in Part Ill of the Constitution and other constitutional provisions. It is
for this reason that previous judgments of this Court have held that the
presumption of constitutionality is rebutted when a prima facie case of
violation of a fundamental right is established. The onus then shifts on
the State to prove that the violation of the fundamental right is justified.
In Dharam Dutt v. Union of India®, a two-Judge Bench of this Court
elucidated the principle in the following terms:
“49. In spite of there being a general presumption in favour
of the constitutionality of the legislation, in a challenge
laid to the validity of any legislation allegedly violating any
right or freedom guaranteed by clause (1) of Article 19 of
the Constitution, on a prima facie case of such violation
having been made out, the onus would shift upon the
respondent State to show that the legislation comes within
the permissible limits of the most relevant out of clauses
(2) to (6) of Article 19 of the Constitution, and that the
restriction is reasonable. The Constitutional Court would
expect the State to place before it sufficient material
justifying the restriction and its reasonability. On the State
succeeding in bringing the restriction within the scope of
any of the permissible restrictions, such as, the sovereignty
and integrity of India or public order, decency or morality
etc. the onus of showing that restriction is unreasonable
would shift back to the petitioner. Where the restriction on
its face appears to be unreasonable, nothing more would
be required to substantiate the plea of unreasonability. Thus
the onus of proof in such like cases is an ongoing shifting
process to be consciously observed by the Court called
upon to decide the constitutional validity of a legislation
by reference to Article 19 of the Constitution.”

59 See State of Bombay v. FN Balsara, [1951]
1 SCR 682
60 [2003] Supp. 6 SCR 151 : AIR 2004 SC 1295; Also see Ramlila Maidan Incident, In re, [2012]
4 SCR
971 : (2012) 5 SCC 1; State of Bombay v. FN Balsara, [1951] 1 SCR 682; Ameerunissa Begum v.
Mahboob Begum, [1953]
1 SCR 404 : (1952) 2 SCC 697
480 [2024] 2 S.C.R.
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45. The broad argument of the petitioners that the presumption of
constitutionality should not apply to a specific class of statutes, that
is, laws which deal with electoral processes cannot be accepted.
Courts cannot carve out an exception to the evidentiary principle which
is available to the legislature based on the democratic legitimacy
which it enjoys. In the challenge to electoral law, like all legislation,
the petitioners would have to prima facie prove that the law infringes
fundamental rights or constitutional provisions, upon which the onus
would shift to the State to justify the infringement.
E. The close association of politics and money
46. The law does not bar electoral financing by the public. Both corporates
and individuals are permitted to contribute to political parties. The
legal regime has not prescribed a cap on the financial contributions
which can be received by a political party or a candidate contesting
elections. However, Section 77 of the RPA read with Rule 90 of
the Conduct of Election Rules 1961? prescribes a cap on the total
expenditure which can be incurred by a candidate or their agent in
connection with Parliamentary and Assembly elections between the
date on which they are nominated and the date of the declaration of
the result. The maximum limit for the expenditure in a Parliamentary
constituency is between Rupees seventy five lakhs to ninety five
lakhs depending on the size of the State and the Union Territory.
The maximum limit of election expenses in an Assembly constituency
varies between rupees twenty eight lakhs and forty lakhs depending
on the size of the State.®* However, the law does not prescribe any
limits for the expenditure by a political party. Explanation 1 to
Section 77 stipulates that the expenditure incurred by “leaders of a
political party” on account of travel for propagating the programme

61 Section 77 of the RPA read with Section 169 provides the Central Government in consultation with the
Election Commission, the power to prescribe the amount over which the total expenditure incurred by
the candidate or their agent in connection with Parliamentary election and Assembly election shall not
be exceeded. The total expenditure cap is prescribed in Rule 90 of the Conduct of Election Rules 1961
which is amended from time to time.
62 The expenditure limit is capped at seventy-five Lakhs for the states of Arunachal Pradesh, Goa, and
Sikkim, and the Union Territories of Andaman and Nicobar Islands, Chandigarh, Dadra and Nagar Haveli
and Daman and Diu, Lakshadweep, Puducherry, and Ladakh. For the remaining States and Union
Territories, the expenditure limit is capped at ninety-five Lakhs.
63 For State Assembly elections, the expenditure is capped at twenty-eight lakhs for the States of Arunachal
Pradesh, Goa, Manipur, Meghalaya, Mizoram, Nagaland, Sikkim, and Tripura. Amongst the Union
Territories, the expenditure is capped at twenty-eight Lakhs for Puducherry and forty Lakhs for Delhi and
Jammu and Kashmir.
[2024] 2 S.C.R. 481
Association for Democratic Reforms & Anr. v. Union of India & Ors.

of the political party shall not be deemed to be election expenditure.
Thus, there is an underlying dicohotomy in the legal regime. The
law does not regulate contributions to candidates. It only regulates
contributions to political parties. However, expenditure by the
candidates and not the political party is regulated. Be that as it may,
the underlying understanding of the legal regime regulating electoral
finance is that finance is crucial for the sustenance and progression
of electoral politics.
47. It is believed that money does not vote but people do. However,
studies have revealed the direct and indirect influence of money on
electoral politics.©* The primary way through which money directly
influences politics is through its impact on electoral outcomes.
48. One way in which money influences electoral outcomes is through
vote buying. Another way in which money influences electoral
outcomes is through incurring electoral expenditure for political
campaigns. Campaigns have a measurable influence on voting
behavior because of the impact of television advertisements,
campaign events, and personal canvassing.® An informed voter
is one who is assumed to be aware of the policy positions of the
candidate or the party they represent and votes on a thorough
analysis of the pros and cons of electing a candidate. On the other
hand, an uninformed voter is assumed to not possess knowledge of
the policy positions of the candidates.°® Campaigns have an effect
on the voting behavior of both an informed and an uninformed voter.
The impact of campaigns on an informed voter is supplementary
because campaign activities enable an informed voter to be further
informed about the policies and ideology of the political party and the
candidate, and their views on specific issues. Electoral campaigns
reduce the uncertainty about candidates for an informed voter.
For an uninformed voter, electoral campaigns play a much more
persuasive role in influencing electoral behavior because campaigns
throw more light on candidates.

64 See Conrad Foreman, Money in Politics: Campaign Finance and its Influence over the Political Process
and Public Policy, 52 UIC J. Marshall L. Rev. 185 (2018)
65 See D Sunshine Hillygus, Campaign Effects on Vote Choice in “The Oxford Handbook of American
Elections and Political Behavior” (Ed. Jan E. Leighley 2010)
66 See David P. Baron, Electoral Competition with informed and uninformed voters, American Political
Science Review, Vol. 88, No. 1 March 1994
482 [2024] 2 S.C.R.
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49. Political parties use innovative techniques of campaigning by going
beyond the traditional methods of advertisements, door-to-door
campaigning and processions to increase outreach. For example,
political parties sponsor religious festivals and community fairs,
organize sporting matches and literary competitions where cash
awards are given.®’ These outreach techniques leave a lasting
impression on the minds of uninformed voters. Thus, enhanced
campaign expenditure proportionately increases campaign outreach
which influences the voting behavior of voters.
50. Money also creates entry-barriers to politics by limiting the kind of
candidates and political parties which enter the electoral fray. Studies
have shown that money influences the selection of candidates by
political parties because parties would prefer fielding candidates who
would be able to substantially self-finance their campaign without
relying on the party for finance.® In this manner, candidates who
belong to socio-economically weaker sections face added barriers
because of the close association of money and politics.
51. Money also excludes parties which are new to the electoral fray, and in
particular, parties representing the cause of marginalized communities.
Political parties which do not have enough finance have had to form
electoral coalitions with other established political parties who would in
exchange shoulder a lion’s share of the campaign expenditure of the
newly established political party extending to costs related to coalition
propaganda, print and digital advertising, vehicle and equipment hire,
political rallies, food transportation, and daily expenditure for party
cadres®. The compromises which newly formed political parties have
to make lead to a dilution of the ideology of the party in exchange of
its political sustenance. In this manner, money creates an exclusionary
impact by reducing the democratic space for participation for both
candidates and newer and smaller political parties.
52. The judgments of this Court have recognized the influence of
money on politics. They take a critical view of the role played by

67 Michael A. Collins, Navigating Fiscal Constraints in “Costs of Democracy: Political Finance in India”
(edited by Devesh Kapur and Milan Vaishnav) OUP 2018
68 See Neelanjan Sircar, Money in Elections: the Role of Personal Wealth in Election Outcomes in Costs of
Democracy: Political Finance in India (ed. By Devesh Kapur and Milan Vaishnav) OUP 2018
69 Michael A. Collins, Navigating Fiscal Constraints in “Costs of Democracy: Political Finance in India”
(edited by Devesh Kapur and Milan Vaishnav) OUP 2018
[2024] 2 S.C.R. 483
Association for Democratic Reforms & Anr. v. Union of India & Ors.

big business and “big money” in the electoral process in India. The
decision in Kanwar Lal Gupta v. Amar Nath Chawla,” notices that
money serves as an asset for advertising and other forms of political
solicitation that increases a candidate’s exposure to the public. The
court observed that the availability of large funds allows a candidate
or political party “significantly greater opportunity for the propagation
of its programme?” in comparison to their political rivals. Such political
disparity, it was observed, results in “serious discrimination between
one political party or individual and another on the basis of money
power and that in turn would mean that “some voters are denied an
‘equal’ voice and some candidates are denied an ‘equal chance”.
53. In Vatal Nagaraj ५. R Dayanand Sagar,” Justice V R Krishna lyer
noted that candidates often evade the legal ceiling on expenditure
by using big money channelled by political parties. The court
acknowledged that large monetary inputs are “necessary evils of
modern elections”, which they hoped would be eradicated sooner
rather than later. In P Nalla Thampy Terah v. Union of India,”
a Constitution Bench of this Court was called upon to decide the
validity of Explanation 1 to Section 77 of the RPA which allowed
unlimited channelling of funds by political parties for the election of
their candidates. While upholding the constitutional validity of the
explanation, the Court noted that the petitioners were justified in
criticizing the statute for “diluting the principle of free and fair elections.”
54. In Common Cause (A Registered Society) v. Union of India,”
this Court dwelt on the ostentatious use of money by political parties
in elections to further the prospects of candidates set up by them.
Justice Kuldip Singh described the role of money in the electoral
process, which is relevant for contextualizing the issue:
“18. ... [The General Elections] is an enormous exercise
and amammoth venture in terms of money spent. Hundreds
and thousands of vehicles of various kinds are pressed
on to the roads in 543 parliamentary constituencies on
behalf of thousands of aspirants to power, many days

70 [1975]
2 SCR 259 : (1975) 3 SCC 646
71 [1975]
2 SCR 384 : (1975) 4 SCC 127
72 [1985]
Supp. 1 SCR 622 : 1985 Supp SCC 189
73 [1996]
3 SCR 1208 : (1996) 2 SCC 752
484 [2024] 2 S.C.R.
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before the general elections are actually held. Millions
of leaflets and many million posters are printed and
distributed or pasted all over the country. Banners by the
lakhs are hoisted. Flags go up, walls are painted, and
hundreds of thousands of loudspeakers play out the loud
exhortations and extravagant promises. VIPs and VVIPs
come and go, some of them in helicopters and air-taxis.
The political parties in their quest for power spend more
than one thousand crore of rupees on the General Election
(Parliament alone), yet nobody accounts for the bulk of
money so spent and there is no accountability anywhere.
Nobody discloses the source of the money. There are no
proper accounts and no audit. From where does the money
come from nobody knows. In a democracy where rule of
law prevails this naked display of black money, by violating
the mandatory provisions of law, cannot be permitted.”
55. The challenge to the statutory amendments and the Electoral Bond
Scheme cannot be adjudicated in isolation without a reference to
the actual impact of money on electoral politics. This Court has in
numerous judgments held that the effect and not the object of the
law on fundamental rights and other constitutional provisions must
be determined while adjudicating its constitutional validity. The effect
of provisions dealing with electoral finance cannot be determined
without recognizing the influence of money on politics. Therefore,
we must bear in mind the nexus between money and electoral
democracy while deciding on the issues which are before us in this
batch of petitions.
F. Thechallenge to non-disclosure of information on electoral
financing
56. Section 29C of the RPA as amended by the Finance Act 2017 stipulates
that the political party need not disclose financial contributions
received through electoral bonds. Similarly, Section 13A of the IT Act
aS amended does not require the political party to maintain a record
of contributions for contributions received through electoral bonds.
Section 182 of the Companies Act 2013 as amended by the Finance
Act 2017 by which the earlier requirement of disclosure of particulars
of the amount contributed by companies to political parties in their
profit and loss accounts was deleted. The company which has made
[2024] 2 S.C.R. 485
Association for Democratic Reforms & Anr. v. Union of India & Ors.

financial contributions is now only required to disclose the total amount
contributed to political parties without disclosing specific particulars
about the political party to which the contribution was made.
57. Maintaining the anonymity of the contributor is a crucial and primary
characteristic of the Electoral Bond Scheme. The electoral bond is
defined as a bearer banking instrument which does not carry the name
of the buyer.”* The law mandates the authorized bank to not disclose
the information furnished by the buyer except when demanded by a
competent court or upon the registration of a criminal case by law
enforcement agencies.”°
58. The amendments introduced by the Finance Act 2017 and the
Electoral Bond Scheme are challenged on the ground that the non-
disclosure of information about electoral contributions is violative of
the right to information of the voter which is traceable to Article 19(1)
(a) of the Constitution.
|. Infringement of the right to information of the voter
59. This segment of the judgment will discuss whether the amendments
and the Electoral Bond Scheme infringe the right to information of
the voter. For this purpose, we will discuss the scope of the right
to information, and whether the right extends to information on
contributions to political parties.
a. The scope of Article 19(1)(a): tracing the right to information
60. Article 19(1)(a) has been held to guarantee the right to information to
citizens. The judgments of this Court on the right to information can
be divided into two phases. In the first phase, this Court traced the
right to information to the values of good governance, transparency
and accountability. These judgments recognize that it is the role of
citizens to hold the State accountable for its actions and inactions
and they must possess information about State action for them to
accomplish this role effectively.
61. In the first phase, this Court delineated the scope of the right to
information in the context of deciding the disclosure of evidence
relating to affairs of the State. Provisions of the Indian Evidence Act

74 Electoral Bond Scheme, Clause 2(a)
75 Electoral Bond Scheme, Clause 7(4)
486 [2024] 2 S.C.R.
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stipulate that evidence which is relevant and material to proceedings
need not be disclosed to the party if the disclosure would violate
public interest.”© In the 1960’s, this Court framed the issue of
disclosure of documents related to the affairs of the State in terms
of a conflict between public interest and private interest. This Court
observed that the underlying principle in the provisions of the Indian
Evidence Act bearing on the disclosure of evidence related to the
affairs of the State is that if such disclosure is denied, it would
violate the private interest of the party.’”” So, when a party seeks
the disclosure of documents, and when such disclosure is denied
on the ground that it would violate public interest, there is a conflict
between private interest and public interest. In subsequent cases,
the courts cast the principle underlying the provisions of disclosure
in the Indian Evidence Act as a conflict between two conceptions
of public interest. This Court held that disclosure of information aids
the party to the proceedings. But beyond that, disclosure also serves
the public interest in the administration of justice.”
62. In State of Uttar Pradesh v. Raj Narain”, the respondent sought to
summon documents in an election petition. The State made a claim
of privilege from disclosure of documents. In his concurring opinion in
the Constitution Bench, Justice KK Mathew observed that there is a
public interest in the impartial administration of justice which can only
be secured by the disclosure of relevant and material documents.
The learned Judge reaffirmed this proposition by tracing the right to
information to Article 19(1)(a) of the Constitution:
“74. In a Government of responsibility like ours, where
all the agents of the public must be responsible for their
conduct, there can be but few secrets. The people of this
country have a right to know every public act, everything
that is done in a public way, by their public functionaries.
They are entitled to know the particulars of every public
transaction in all its bearing. The right to know, which is
derived from the concept of freedom of speech, though not

76 Indian Evidence Act 1872, Section 124
77 See State of Punjab v. Sodhi Sukhdev Singh, [1961]
2 SCR 371 : (1961) 2 SCR 371 [13]
78 See State of Punjab v. Sodhi Sukhdev Singh, [1961]
2 SCR 371 : (1961) 2 SCR 371 [Subba Rao J]
79 [1975]
3 SCR 333 : (1975) 4 SCC 428
[2024] 2 S.C.R. 487
Association for Democratic Reforms & Anr. v. Union of India & Ors.

absolute, is a factor which should make one wary, when
secrecy is claimed for transactions which can, at any rate,
have no repercussion on public security.[...]”
63. This principle was further elucidated in SP Gupta v. Union of
India®. The Union of India claimed immunity against the disclosure
of the correspondence between the Law Minister, the Chief Justice
of the High Court of Delhi, and the Chief Justice of India on the
reappointment of Additional Judges. Justice P N Bhagwati while
discussing the position of law on claims of non-disclosure, observed
that the Constitution guarantees the “right to know” which is necessary
to secure “true facts” about the administration of the country. The
opinion recognised accountability and transparency of governance
as important features of democratic governance. Democratic
governance, the learned Judge remarked, is not restricted to voting
once in every five years but is a continuous process by which the
citizens not merely choose the members to represent themselves but
also hold the government accountable for their actions and inactions
for which citizens need to possess information®"'.
64. Our discussion indicates that the first phase of the jurisprudence on
the right to information in India focussed on the close relationship
between the right and open governance. The judgments in this phase
were premised on the principle that the citizens have a duty to hold
the government of the day accountable for their actions and inactions,
and they can effectively fulfil this duty only if the government is open
and not clothed in secrecy.
65. In the second phase of the evolution of the jurisprudence on the right
to information, this Court recognised the importance of information to
form views on social, cultural and political issues, and participate in
and contribute to discussions.®* Courts recognised that the relevance
of information is to not only to hold the government accountable but
also to discover the truth in a marketplace of ideas which would

80 1981 Supp SCC 87
81 Also see Dinesh Trivedi v. Union of India, [1997]
3 SCR 93 : (1997) 4 SCC 306 where this Court observed
that sunlight is the best disinfectant.
82 Secy., Ministry of Information & Broadcasting, Govt. of India v. Cricket Assn. of Bengal, [1995] 1 SCR
1036 : (1995) 2 SCC 161; Indian Express Newspapers v. Union of India, [1985] 2 SCR 287 : AIR 1986
SC 515 ; Romesh Thappar v. State of Madras, [1950] 1 SCR 594 : AIR 1950 SC 124
488 [2024] 2 S.C.R.
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ultimately secure the goal of self-develooment.®? This Court also
recognised that freedom of speech and expression includes the
right to acquire information which would enable people to debate
on social, moral and political issues. These debates would not only
foster the spirit of representative democracy but would also curb the
prevalence of misinformation and monopolies on information. Thus,
in the second phase, the Court went beyond viewing the purpose of
freedom of speech and expression through the lens of holding the
government accountable, by recognising the inherent value in effective
participation of the citizenry in democracy. This Court recognised
that effective participation in democratic governance is not just a
means to an end but is an end in itself. This interpretation of Article
19(1)(a) is in line with the now established position that fundamental
freedoms and the Constitution as a whole seek to secure conditions
for self-development at both an individual and group level.® A crucial
aspect of the expansion of the right to information in the second
phase is that right to information is not restricted to information
about state affairs, that is, public information. It includes information
which would be necessary to further participatory democracy in other
forms and is not restricted to information about the functioning of
public officials. The right to information has an instrumental exegesis,
which recognizes the value of the right in facilitating the realization
of democratic goals. But beyond that, the right to information has an
intrinsic constitutional value; one that recognizes that it is not just a
means to an end but an end in itself.
b. — Right to information of a voter: exploring the judgments in ADR
and PUCL
66. In Union of India v. Association for Democratic Reforms®
(“ADR”), this Court traced the right of voters to have information about
the antecedents, including the criminal past, of candidates contesting
elections, to Article 19(1)(a) of the Constitution. In ADR (supra),
proceedings under Article 226 of the Constitution were instituted
before the High Court of Delhi seeking a direction to implement the
Law Commission’s recommendations to (a) debar candidates from

83 DC Saxena v. Hon’ble The Chief Justice of India, [1996]
Supp. 3 SCR 677 : (1996) 5 SCC 216 [29]
84 See Supriyo v. Union of India, 2023 INSC 920 [213, 214]
85 [2002]
3 SCR 696 : (2002) 5 SCC 294.
[2024] 2 S.C.R. 489
Association for Democratic Reforms & Anr. v. Union of India & Ors.

contesting elections if charges have been framed against them by a
Court in respect of certain offences; and (b) ensure that candidates
furnish details regarding criminal cases which are pending against
them. The High Court held that the Court cannot direct Parliament to
implement the recommendations of the Law Commission. However,
the High Court directed the ECI to secure information relating to (a)
the details of cases in which a candidate is accused of any offences
punishable with imprisonment;(b) assets possessed by a candidate,
their spouse and dependents; (c) facts bearing on the candidate’s
competence, capacity, and suitability for representing the people;
and (d) any other information which ECI considers necessary for
judging the capacity of the candidate fielded by the political party.
67. The Union of India appealed against the decision of the High Court
before this Court. This Court held that voters have a right to be
sufficiently informed about candidates so as to enable them to exercise
their democratic will through elections in an intelligent manner. Such
information was held to be necessary for elections to be conducted
in a “free and fair manner”:
“34. ...the members of a democratic society should be
sufficiently informed so that they may influence intelligently
the decisions which may affect themselves and this would
include their decision of casting votes in favour of a
particular candidate. If there is a disclosure by a candidate
as sought for then it would strengthen the voters in taking
appropriate decision of casting their votes.
[...] we fail to understand why the right of a citizen/voter — a
little man — to know about the antecedents of his candidate
cannot be held to be a fundamental right under Article 19(1)
(a). In our view, democracy cannot survive without free and
fair election, without free and fairly informed voters. Votes
cast by uninformed voters in favour of X or Y candidate
would be meaningless. As stated in the aforesaid passage,
one-sided information, disinformation, misinformation and
non-information, all equally create an uninformed citizenry
which makes democracy a farce. Therefore, casting of a
vote by a misinformed and non-informed voter or a voter
having one-sided information only is bound to affect the
democracy seriously. Freedom of speech and expression
490 [2024] 2 S.C.R.
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includes right to impart and receive information which
includes freedom to hold opinions.”
68. This Court rejected the argument that information about a candidate
contesting elections cannot be compelled to be disclosed because
it is not “public information”. The three-Judge Bench held that
information that candidates are required to disclose is only limited to
aiding the voters in assessing whether they could cast their vote ina
candidate’s favour. The Court observed that the criminal background
of a candidate and assets of the candidate (through which it could
be assessed if the candidate has amassed wealth through corruption
when they were elected previously) would aid the voters to cast their
vote in an informed manner. This Court directed the ECI to call for
the following information on affidavit as a part of nomination:
a. Whether the candidate has been convicted, acquitted or
discharged of any criminal offence in the past and if convicted,
whether they are punished with imprisonment or fine;
b. In the six months prior to the filling of nomination papers,
whether the candidate was accused in any pending case for an
offence punishable with imprisonment for two years or more,
and in which a charge is framed or cognizance is taken by the
court of law;
c. The assets (immovable, movable, bank balances and others)
of a candidate and of his/her spouse and that of dependents;
d. Liabilities, if any, particularly whether there are any over dues
to any public financial institution or government dues; and
e. The educational qualifications of the candidate.
69. This Court observed that the ECI can ask candidates to disclose
information about the expenditure incurred by political parties to
maintain the purity of elections.’ However, the operative portion of
the judgment did not reflect this observation.

86 Paragraph 64(4): “To maintain the purity of elections and in particular to bring transparency in the process
of election, the Commission can ask the candidates about the expenditure incurred by the political
parties and this transparency in the process of election would include transparency of a candidate who
seeks election or re-election. In a democracy, the electoral process has a strategic role. The little man of
this country would have basic elementary right to know full particulars of a candidate who is to represent
him in Parliament where laws to bind his liberty and property may be enacted.”
[2024] 2 S.C.R. 491
Association for Democratic Reforms & Anr. v. Union of India & Ors.

70. Pursuant to the decision of this Court in ADR (supra), Parliament
amended the RPA to incorporate some of the directions issued
by this Court.” Section 33-B of RPA stipulated that the candidate
need not disclose any other information (other than the information
required by law) notwithstanding any judgment. In PUCL v. Union
of India®*, proceedings were initiated before this Court under Article
32 for challenging Section 33-B of the RPA. Justice M B Shah,
writing for the majority, noted that the decision of the three-Judge
Bench in ADR (supra) tracing the right to know the antecedents of
candidates contesting elections had attained finality and Section
33-B was unconstitutional because it had the effect of rendering
the judgment of this Court inoperative. The learned Judge on an
independent interpretation also held that the right to information of
a voter is a facet of Article 19(1)(a).%
71. Justice Venkatarama Reddi observed in his concurring opinion
that there are two postulates which govern the right to vote : first,
the formulation of an opinion about candidates, and second, the
expression of choice based on the opinion formulated by casting
votes in favour of a preferred candidate. A voter must possess
relevant and essential information that would enable them to evaluate
a candidate and form an opinion for the purpose of casting votes.
The learned Judge observed that the Constitution recognises the
right of a voter to know the antecedents of a candidate though the
right to vote is a statutory right®' because the action of voting is a
form of expression protected by Article 19(1)(a):
“Though the initial right cannot be placed on the pedestal
of a fundamental right, but, at the stage when the voter
goes to the polling booth and casts his vote, his freedom
to express arises. The casting of vote in favour of one

87 Section 33-A of the RPA required the candidate to furnish the following information:
(a) He is accused of any offence punishable with imprisonment for two years or more in a pending
case in which a charge has been framed by the court of competent jurisdiction; and
(b) He has been convicted of an offence other than any offence referred to in sub-section (1) or sub-
section (2), or covered in sub-section (3), of Section 8 and sentenced to imprisonment for one
year or more.
88 [2003]
2 SCR 1136 : (2003) 4 SCC 399
89 [2003]
2 SCR 1136 : (2003) 4 SCC 399 [18, 27]
90 [2003]
2 SCR 1136 : (2003) 4 SCC 399 [96]
91 The right to vote is classified as a statutory vote because only citizens who fulfill certain conditions (such
as the age) laid down in a statute can vote.
492 [2024] 2 S.C.R.
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or the other candidate tantamounts to expression of his
opinion and preference and that final stage in the exercise
of voting right marks the accomplishment of freedom of
expression of the voter. That is where Article 19(1)(a) is
attracted.”
72. In the context of the decision of this Court in ADR (supra), the
learned Judge observed that the Court issued specific directions for
the disclosure of certain information about candidates because of
a legislative vacuum, and that the directions issued to the ECI will
fill the vacuum until Parliament legislates on the subject. Thus, the
five directions which were issued by this Court in ADR (supra) were
not construed to be inflexible and immutable theorems. The learned
Judge observed that though the voters have a fundamental right to
know the antecedents of candidates, all the conceptions of this right
formulated by this Court in ADR (supra) cannot be elevated to the
realm of fundamental rights.
73. The majority was of the view that the voters have a fundamental
right to all the information which was directed to be declared by this
Court in ADR (supra). Justice Venkatarama Reddi disagreed. In the
opinion of the learned Judge, only certain information directed to be
disclosed in ADR (supra) is “crucial” and “essential” to the right to
information of the voter:
“109. In my view, the points of disclosure spelt out by this
Court in Assn. for Democratic Reforms case [Ed.: See full
text at 2003 Current Central Legislation, Pt. Il, at p. 3]
should serve as broad indicators or parameters in enacting
the legislation for the purpose of securing the right to
information about the candidate. The paradigms set by the
Court, though pro tempore in nature as clarified supra, are
entitled to due weight. If the legislature in utter disregard of
the indicators enunciated by this Court proceeds to make
a legislation providing only for a semblance or pittance of
information or omits to provide for disclosure on certain
essential points, the law would then fail to pass the muster
of Article 19(1)(a). Though certain amount of deviation
from the aspects of disclosure spelt out by this Court
is not impermissible, a substantial departure cannot be
countenanced. The legislative provision should be such as
[2024] 2 S.C.R. 493
Association for Democratic Reforms & Anr. v. Union of India & Ors.

to promote the right to information to a reasonable extent, if
not to the fullest extent on details of concern to the voters
and citizens at large. While enacting the legislation, the
legislature has to ensure that the fundamental right to know
about the candidate is reasonably secured and information
which is crucial, by any objective standards, is not denied.
[...] The Court has to take a holistic view and adopt a
balanced approach, keeping in view the twin principles that
the citizens’ right to information to know about the personal
details of a candidate is not an unlimited right and that at
any rate, it has no fixed concept and the legislature has
freedom to choose between two reasonable alternatives.
[...] But, | reiterate that the shape of the legislation need
not be solely controlled by the directives issued to the
Election Commission to meet an ad hoc situation. As |
said earlier, the right to information cannot be placed in
straitjacket formulae and the perceptions regarding the
extent and amplitude of this right are bound to vary.”
74. Justice Reddi held that Section 33-B was unconstitutional because:

a. Parliament cannot impose a blanket ban on the disclosure of
information other than the disclosure of information required by
the provisions of RPA. The scope of the fundamental right to
information may be expanded in the future to respond to future
exigencies and necessities. The provision had the effect of
emasculating the freedom of speech and expression of which
the right to information is a facet; and

b. The provision failed to give effect to an essential aspect of the
fundamental right, namely the disclosure of assets and liabilities
of the candidates.
75. Justice Reddi then proceeded to juxtapose the directions for disclosure
issued by this Court in ADR (supra) with the scope of the provisions
of the RPA mandating disclosure. The learned judge observed that
the extent of disclosure mandated in RPA is fairly adequate with
respect to past criminal records but not with regard to pending cases.”

92 ADR required disclosure related to information of whether the candidate has been convicted/acquitted or
discharged of any criminal offence in the past, and whether six months prior to the filing of the nomination
paper, whether the candidate has been accused in any pending case for an offence punishable with
494 [2024] 2 S.C.R.
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With respect to assets and liabilities, the learned Judge observed
that the disclosure of assets and liabilities is essential to the right
to information of the voter because it would enable voters to form
an opinion about whether the candidate, upon being elected in the
past, had amassed wealth in their name or their family Additionally,
information about dues which are payable by the candidate to public
institutions would enable voters to know the candidate’s dealing with
public money in the past.
76. Justice Reddi observed that the requirement to disclose assets of
the candidate’s family was justified because of the prevalence of
Benami transactions. Though mandating the disclosure of assets
and liabilities would infringe the right to privacy of the candidate and
their family, the learned Judge observed that disclosure which is in
furtherance of the right to information would trump the former because
it serves the larger public interest. Justice Reddi then observed that
disclosure of the educational qualifications of a candidate is not an
essential component of the right to information because educational
qualifications do not serve any purpose for the voter to decide
which candidate to cast a vote for since the characteristics of duty
and concern of the people is not “monopolised by the educated”.
A conclusion to the contrary, in the learned Judge’s opinion, would
overlook the stark realities of the society.%
7. The following principles can be deduced from the decisions of this
Court in ADR (supra) and PUCL (supra):
a. The right to information of voters which is traced to Article
19(1)(a) is built upon the jurisprudence of both the first and
the second phases in the evolution of the doctrine, identified
above. The common thread of reasoning which runs through
both the first and the second phases is that information which
furthers democratic participation must be provided to citizens.

imprisonment for more than two years and in which charge has been framed or cognizance is taken by
the Court. With respect to the first direction, law created a distinction between serious and non-serious
offences and mandates disclosure only if a candidate has been convicted of a serious offence. With
respect to the second direction, the provision only mandated the disclosure of cases in which charge has
been framed and excluded the disclosure of cases in which cognizance has been taken. The learned
Judge held that while the non-disclosure of conviction in a serious offence is a reasonable balance which
does not infringe the right to information, the non-disclosure of cases in which cognizance has been
taken would seriously violate the right to information of the voter particularly because framing of charges
gets delayed in a lot of cases.
93 [2003]
2 SCR 1136 : (2003) 4 SCC 399 [122]
[2024] 2 S.C.R. 495
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Voters have a right to information which would enable them to
cast their votes rationally and intelligently because voting is one
of the foremost forms of democratic participation;
b. In ADR (supra), this Court observed that while the disclosure of
information may violate the right to privacy of candidates and their
families, such information must be disclosed because it furthers
public interest.%* The opinion of Justice Venkatarama Reddi in
PUCL (supra) also followed the same line of reasoning. Justice
M B Shah writing for himself and Justice D M Dharmadhikari
held that the right to privacy would not be infringed because
information about whether a candidate is involved in a criminal
case is a matter of public record. Similarly, the assets or income
are normally required to be disclosed under the provisions of
the Income Tax Act; and

c. The voters have a right to the disclosure of information which
is “essential” for choosing the candidate for whom a vote
should be cast. The learned Judges in PUCL (supra) differed
to the extent of what they considered “essential” information
for exercising the choice of voting.
78. While relying on the judgments of this Court in ADR (supra) and PUCL
(supra) the petitioners argue that non-disclosure of information on
the funding of political parties is violative of the right to information
under Article 19(1)(a). This Court needs to consider the following
two issues to answer the question:
a. Whether the requirements of disclosure of information about
“candidates” can be extended to “political parties”; and
b. If the answer to (a) above is in the affirmative, whether
information on the funding of political parties is “essential”
for exercising choice on voting.
c. The focal point of the electoral process: candidate or political
party
79. The decisions in ADR (supra) and PUCL (supra) recognise the right
to information of a voter about candidates, which enables them to

94 In ADR (supra), this Court notes that such information would enable voters to determine if the candidate
is corrupt and would further openness in democracy. [Paragraph 41].
496 [2024] 2 S.C.R.
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cast their vote in an effective manner. The relief which was granted
by this Court in PUCL (supra) and ADR (supra) was restricted
to the disclosure of information about candidates contesting the
election because of the limited nature of the reliefs sought. The
ratio decidendi of the two judgments of this Court is that voters
have a right to receive information which is essential for them to
cast their votes. This Court has to first analyse if the ‘political party’
is a relevant ‘political unit’ in the electoral process to answer the
question whether funding details of political parties are essential
information for the voter to possess.
80. The Constitution of India did not make a reference to political parties
when it was adopted. Areference was made when the Tenth Schedule
was included in the Constitution by the Constitution (Fifty-Second)
Amendment Act 1985. However, even though the Constitution on
its adoption did not make a reference to political parties, statutory
provisions relating to elections accorded considerable importance to
political parties, signifying that political parties have been the focal
point of elections.
81. The ECI notified the Election Symbols (Reservation and Allotment)
Order 19689 in exercise of the powers conferred by Article 344 of
the Constitution read with Section 29A of the RPA and Rules 5°
and 10% of the Conduct of Election Rules 1961. In terms of the
provisions of the Symbols Order, the ECI shall allot a symbol to
every candidate contesting the election. The Symbols Order classifies
political parties into recognised political parties and unrecognised
political parties. The difference in the procedure under the Symbols
Order for allotting symbols to recognised political parties, registered
but unrecognised political parties and independent candidates
indicates both the relevance and significance of political parties in
elections in India.

95 “Symbols Order 1968”
96 Rule 5 provides the ECI the power to specify by notification, the symbols which may be chosen by
candidates at elections in parliamentary or assembly constituencies.
97 Rule 10 deals with the preparation of list of contesting candidates. Rule 10(5) states that the allotment
of the returning officer of any symbol to a candidate shall be final except where it is inconsistent with the
directions issued by the ECI, in which case the ECI may revise the allotment. Rule 10(6) states that every
candidate shall be informed of the symbol allotted to the candidate.
[2024] 2 S.C.R. 497
Association for Democratic Reforms & Anr. v. Union of India & Ors.

82. A party is classified a National®® or a State recognised party”
based on the total percentage of votes secured at the last general
elections and (or) the number of candidates who have been returned
to the Legislative Assembly. Symbols are reserved for allocation to
recognised political parties.'°° All candidates who are being set up by
a national or a State recognised party are to be allotted the symbol
reserved for that party for the purpose of contesting elections.’
83. Symbols other than those reserved for recognised political parties shall
be available for allotment to independent candidates and candidates
set up by political parties which are not recognised political parties in
terms of the Symbols Order.'” Candidates set up by a registered but
unrecognised political party may also be allotted a common symbol
if they fulfil certain conditions laid down in the Symbols Order.'®
84. Thus, the Symbols Order creates a demarcation between candidates
set up by political parties and candidates contesting individually.
Political parties are allotted a Symbol such that all candidates who
are set up by that political party are allotted the Symbol of their
political party while contesting elections. Even within candidates
who are set up by political parties, the Symbols Order creates a
distinction between unrecognised but registered political parties and
recognised political parties. Recognised political parties shall continue
to be allotted the same symbol for all General elections until the time
these political parties fulfil the conditions for recognition under the
Symbols Order.'“ The effect of the provisions of the Symbols Order
is that the symbols of certain political parties, particularly those which
have enjoyed the status of a recognised political party for long are
entrenched in the minds of the voters that they associate the symbol
with the political party.

98 Symbols Order 1968, Rule 6B
99 Symbols Order 1968, Rule 6A
100 Symbols Order 1968, Rule 5
101 Symbols Order 1968, Rule 8(1)
102 Ibid.
103 Symbols Order 1968, Rule 10B. The party is required to set up candidates in at least five percent of the
assembly constituencies.
104 A recognised National or a State Party shall continue to be treated as a recognised party even if the
political party does not fulfil the conditions at the next election to the General Assembly stipulated for
recognition as a recognised political party. However, it shall continue to be treated as a recognised
political party at the subsequent general election only if the party fulfils the conditions laid down.
498 [2024] 2 S.C.R.
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85. For unrecognised but registered political parties, though a common
symbol is allotted for all candidates being set up by the political
parties, the symbol is not “reserved” for the Party. The ECI could allot
different symbols to that political party in each General election. The
candidates of a registered but unrecognised political party may be
represented by a common symbol but the people would not attach
a specific symbol to the political party because the symbol by which
it is represented may change with every election.
86. The purpose of allotting symbols to political parties is to aid voters in
identifying and remembering the political party. The law recognises the
inextricable link between a political party and the candidate though
the vote is cast for a candidate. The literacy rate in India was 18.33
percent when the first General Election was held in 1951. Most of
the voters identified a political party only with its symbol and this still
continues to the day. In a few cases, the voters would not possess
any knowledge of the candidate being set up by the political party.
They would vote solely based on the symbol which is allotted to
the political party; Knowledge of which they have obtained through
campaigning activities or its sustained presence in the electoral fray.
Gayatri Devi, the third Maharani consort of Jaipur who was later set
up as a candidate by the Swatantra Party, recalls in her Autobiography
that her team spent hours trying to persuade the voters that they had
to vote for the Symbol Star (which was the symbol of the Swatantra
Party) and not a symbol showing a horse and a rider because she
also rode a horse:'
“Since most of India is illiterate, at the polls people vote
according to a visual symbol of their party. [...] The
Swatantra Party had a star. Baby, all my other helpers
and | spent endless frustrating hours trying to instruct the
women about voting for the star. On the ballot sheet, we
said, over and over again, this is where the Maharani’s
name will appear and next to it will be a star. But it was
not as simple as that. They noticed a symbol showing a
horse and a rider, agree with each other that the Maharani
rides so that must be her symbol. Repeatedly we said,

105 Gayatri Devi and Santha Rama Rau, A Princess remembers: The Memoirs of the Maharani of Jaipur,
(Rupa Publications 1995) [301].
[2024] 2 S.C.R. 499
Association for Democratic Reforms & Anr. v. Union of India & Ors.

“No, no, that’s not the right one.” Then they caught sight
of the emblem of a flower. Ah, the flower of Jaipur — who
else could it mean but the Maharani? “No, no, no, not the
flower.” All right, the star. Yes, that seems appropriate for
the Maharani, but look, here is the sun. If the Maharani
is a star, then the sun must certainly mean the Maharaja.
We'll vote for both. Immediately the vote would have been
invalidated. Even up to the final day, Baby and | were far
from sure that we had managed to get our point across.”
87. Symbols also gain significance when the names of political parties
sound similar. For example, political parties by the names of “Dravida
Munnetra Kazhagam’, “All Indian Anna Dravida Munnetra Kazhagam’,
“Dravida Kazhagam”, “Desiya Murpokku Dravida Kazhagam’, “Makkal
Desiya Murpokku Dravida Kazhagam’, “Kongu Desa Makkal Katchi’,
“Kongunadu Makkal Desia Katchi’, and “Kongunadu Makkal Katchi”
contest elections in Tamil Nadu. The names of all the political parties
bear similarities due to the usage of the same words with certain
additions or deletions. The allocation of Symbols to political parties
would help voters identify and distinguish between political parties
which have similar sounding names. It is precisely because of the
close association of the symbol with the political party by voters that
both factions of the party vie for the symbol that is allotted to the
Party when there is a split in a recognised political party.
88. India follows the open-list first past the post form of election in which
votes are cast for a candidate and the candidate who secures the
highest number of votes is chosen to represent the people of that
constituency. It could be argued that this system of elections gives
prominence to candidates and not political parties unlike the system of
closed list of elections where the voters do not have any knowledge
of the candidates that are set up by the Political Party.'°°
89. However, it cannot be concluded that the decision of voting is solely
based on the individual candidate’s capabilities and not the political
party merely because the voter has knowledge of the candidate who
has been set up by the political party. Such a conclusion cannot be

106 See Dominik Hangartner, Nelson A Ruiz, Janne Tukiainen, Open or Closed? How List Type Affects
Electoral Performance, Candidate Selection, and Campaign Effort, VAT Institute for Economic Research
Working Papers 120 (2019)
500 [2024] 2 S.C.R.
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definitively drawn particularly in view of the design of the electoral
voting machine which has a list of the names of the candidates who
are contesting the election from the constituency along with the
symbol of the political party which is fielding the candidate. Voters
casts their votes based on two considerations: the capability of the
candidate as a representative and the ideology of the political party.
90. Political parties publish electoral manifestos containing the ideology
of the party, major policies of the political party, plans, programmes
and other considerations of governance which would be implemented
if they came to power.'*” While political manifestos do not necessarily
always translate to policies when the party is elected to power,
they throw light upon the integral nature of political parties in the
electoral system. By publishing an election manifesto, a political party
communicates to the voters that they must accord preference to
the political party. Party manifestos prod voters to look away from a
candidate centric and towards a party centric perception of elections.
91. Lastly, the prominence of political parties as electoral units is further
heightened by the form of government in India. India follows a
Westminister system of government which confers prominence to
political parties without strictly separating between the legislature
and the executive. The time-honoured convention of the cabinet form
of government is that the leader of the political party with absolute
majority must be called to form the government.’ The Council of
Ministers is appointed by the President on the aid and advice of
the Prime Minister.’ Political parties are intrinsic to this form of
government because of the very process of government formation.
The recommendations of the Sarkaria Commission on the exercise of
discretion by the Governor when no single political party commands
an absolute majority, which has been given judicial recognition in
Rameshwar Prasad v. Union of India,"° also prioritises political
parties making them central to the governance structure.™

107 Election Commission of India, Instructions to political parties on manifestos dated 24.04.2015, https://
www.eci.gov.in/election-manifestos/
108 Constitution of India 1950, Article 75. See, Aradhya Sethia, “Where’s the party?: towards a constitutional
biography of political parties, Indian Law Review, 3:1, 1-32 (2019)
109 Ibid.
110 [2006]
1 SCR 562 : (2006) 2 SCC 1
111 65. “Para 4.11.04 of the Sarkaria Commission Report specifically deals with the situation where no
single party obtains absolute majority and provides the order of preference the Governor should follow in
[2024] 2 S.C.R. 501
Association for Democratic Reforms & Anr. v. Union of India & Ors.

92. The centrality of political parties in the electoral system is further
accentuated by the inclusion of the Tenth Schedule. The Tenth
Schedule deals with disqualification on the ground of defection from
the political party which set up the elected individual as its candidate.
Paragraph 2 provides the following grounds of defection:
a. Voluntarily giving up membership of the political party; and
b. Voting or abstaining from voting in the House contrary to direction
issued by the political party without obtaining prior permission
from the political party and when such voting has not been
condoned by the political party.
93. The underlying principle of anti-defection law which has been
recognised by a seven-Judge Bench of this Court in Kihoto
Hollohon v. Zachillhu,"? is that a candidate set up by a political
party is elected on the basis of the programme of that political
party. In the course of years, while deciding disputes related to the
Tenth Schedule, judgments of this Court have further strengthened
the centrality of political parties in the electoral system. In Ravi
S Naik v. Union of India’, this Court observed that voluntarily
giving up membership of a political party has a wider connotation
and includes not just resignation of the member from the party
and an inference can also be drawn from the conduct of the
member. In Subash Desai v. Principal Secretary, Governor of
Maharashtra,'* a Constitution Bench of this Court while interpreting
the provisions of the Tenth Schedule held that the political party
and not the legislature party (which consists of the members of
the House belonging to a particular political party) appoints the
Whip of a political party for the purposes of Paragraph 2(1)(b) of
the Tenth Schedule."®

selecting a Chief Minister. The order of preference suggested is:
a. An alliance of parties that was formed prior to the elections. ;
b. The largest single party staking a claim to form the Government with the support of others,
including “independents”;
0. A post-electoral coalition of parties, with all the partners in the coalition joining the Government;
d. A post-electoral alliance of parties, with some of the parties in the alliance forming a Government
and the remaining parties, including “Independents” supporting the Government from outside.”
112 [1992]
1 SCR 686 : (1992) Supp (2) SCC 651 [4]
113 [1994]
1 SCR 754 : AIR 1994 SC 1558
114 WP (C) No. 493 of 2022
115 Subash Desai [113]
502 [2024] 2 S.C.R.
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94. In summation, a ‘political party’ is a relevant political unit in the
democratic electoral process in India for the following three
reasons:
a. Voters associate voting with political parties because of
the centrality of symbols in the electoral process;
b. The form of government where the executive is chosen
from the legislature based on the political party or coalition
of political parties which has secured the majority; and
c. |The prominence accorded to political parties by the Tenth
Schedule of the Constitution.
d. The essentiality of information about political funding for the
effective exercise of the choice of voting
95. In ADR (supra) and PUCL (supra), this Court held that a voter has
a right to information which is essential for them to exercise their
freedom to vote. In the previous section, we have concluded that
political parties are a relevant political unit. Thus, the observations
of this Court in PUCL (supra) and ADR (supra) on the right
to information about a candidate contesting elections is also
applicable to political parties. The issue whether information
about the funding received by political parties is essential for an
informed voter must be answered in the context of the core tenets
of electoral democracy. The Preamble to the Constitution resolves
to constitute a social, economic, and politically just society where
there is equality of status and opportunity. The discourse which
has emanated within and outside the Courts is often restricted
to the ideals of social and economic justice and rarely includes
political inequality.
96. Electoral democracy in India is premised on the principle of political
equality which the Constitution guarantees in two ways. First, by
guaranteeing the principle of “one person one vote” which assures
equal representation in voting. The Constitution prescribes two
conditions with respect to elections to seats in Parliament which
guarantee the principle of “one person one vote” with respect to
every voter and amongst every State:
a. Each State shall be divided into territorial constituencies in
such a manner that the ratio between the population of each
[2024] 2 S.C.R. 503
Association for Democratic Reforms & Anr. v. Union of India & Ors.

constituency and the number of seats allotted to it shall be the
same throughout the State;"® and
b. The total number of seats allotted to each State in Parliament
should be such that the ratio between the number of seats,
and the population of the State is the same for all States.”
97. Second, the Constitution ensures that socio-economic inequality
does not perpetuate political inequality by mandating reservation of
seats for Scheduled Castes and Scheduled Tribes in Parliament"®
and State Assemblies."'?
98. The Constitution guarantees political equality by focusing on the
‘elector’ and the ‘elected’. These two constitutional precepts foster
political equality in the following two ways. First, the Constitution
mandates that the value of each vote is equal. This guarantee ensures
formal political equality where every person’s vote is accorded equal
weightage. Second, the Constitution ensures that members of socially
marginalized groups are not excluded from the political process. This
guarantee ensures (a) equality in representation; and (b) equality in
influence over political decisions.
99. However, political inequality continues to persist in spite of the
constitutional guarantees. One of the factors which contributes to
the inequality is the difference in the ability of persons to influence
political decisions because of economic inequality. In a politically
equal society, the citizens must have an equal voice to influence
the political process.'*° We have already in the preceding section
elucidated the close association of money and politics where we
explained the influence of money over electoral outcomes. However,
the influence of money over electoral politics is not limited to its
impact over electoral outcomes. It also spills over to governmental

116 Constitution of India 1950, Article 81 (2)(b). Also see Constitution of India, Article 170(2) where the
Constitution prescribes the same principle with respect to the composition of seats in Legislative
Assemblies of State
117 Constitution of India 1950, Article 81(2)(b)
118 Constitution of India 1950, Article 330 guarantees “as nearly as may be” proportional representation for
Scheduled Castes and Scheduled Tribes in Parliament.
119 Constitution of India 1950, Article 332 guarantees “as nearly as may be” proportional representation for
Scheduled Castes and Scheduled Tribes in Legislative Assemblies of the States.
120 See Ben Ansell and Jean Gingrich J (2021). Political Inequality. The IFS Deaton Review of Inequalities,
London: Institute for Fiscal Studies
504 [2024] 2 S.C.R.
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decisions. It must be recalled here that the legal regime in India does
not distinguish between campaign funding and electoral funding. The
money which is donated to political parties is not used by the political
party only for the purposes of electoral campaign. Party donations are
also used, for instance, to build offices for the political party and pay
party workers. Similarly, the window for contributions is not open for
a limited period only prior to the elections. Money can be contributed
to political parties throughout the year and the contributed money
can be spent by the political party for reasons other than just election
campaigning. It is in light of the nexus between economic inequality
and political inequality, and the legal regime in India regulating party
financing that the essentiality of the information on political financing
for an informed voter must be analyzed.
100. Economic inequality leads to differing levels of political engagement
because of the deep association between money and politics. At
a primary level, political contributions give a “seat at the table”
to the contributor. That is, it enhances access to legislators.'*'
This access also translates into influence over policy-making. An
economically affluent person has a higher ability to make financial
contributions to political parties, and there is a legitimate possibility
that financial contribution to a political party would lead to quid pro
4७० arrangements because of the close nexus between money and
politics. Quid pro quo arrangements could be in the form of introducing
a policy change, or granting a license to the contributor. The money
that is contributed could not only influence electoral outcomes but
also policies particularly because contributions are not merely limited
to the campaign or pre-campaign period. Financial contributions
could be made even after a political party or coalition of parties form
Government. The possibility of a quid pro quo arrangement in such
situations is even higher. Information about political funding would
enable a voter to assess if there is a correlation between policy
making and financial contributions.

121 See Joshua L. Kalla and David E. Broockman, “Campaign Contributions Facilitate Access to Congressional
Officials: A Randomized Field Experiment” (2016 60(3)) American Journal of Political Science. A political
organization conducted an experiment to determine if there is a link between political contributions and
access to the policy makers. The Organization scheduled meetings between 191 Congressional offices
and the organization’s members who were campaign donors. When the Congressional offices were
informed that prospective attendees were political donor, policymakers made themselves available for
the meeting three to four times more often.
[2024] 2 S.C.R. 505
Association for Democratic Reforms & Anr. v. Union of India & Ors.

101. For the information on donor contributions to be relevant and essential,
it is not necessary that voters have to take the initiative to peruse the
list of contributors to find relevant information which would enable
them to cast their vote effectively. Electronic and print media would
present the information on contributions received by political parties,
and the probable link between the contribution and the licenses which
were given to the company in an accessible format. The responses
to such information by the Government and political parties would
go a long way in informing the voter.
102. However, to establish the argument of quid pro quo arrangements
between the contributor and the political party, it is necessary that
the political party has knowledge of the particulars of funding to its
party. The political party to whom contributions are made cannot
enter into a quid pro quo arrangements if It is unaware of the donor.
The Scheme defines electoral bond “as a bond issued in the nature
of promissory note which shall be a bearer banking instrument and
shall not carry the name of the buyer or payee.”'*? The Scheme also
stipulates that the information furnished by the buyer shall be treated
as confidential which shall not be disclosed by any authority except
when demanded by a competent court or by a law enforcement
agency upon the registration of criminal 0958.
103. 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

122 Electoral Bond Scheme; Clause 2(a)
123 Electoral Bond Scheme; Clause 7(4)
506 [2024] 2 S.C.R.
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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-a-vis
the public and not the political party.
104. In view of the above discussion, we are of the opinion that the
information about funding to a political party is essential for a voter to
exercise their freedom to vote in an effective manner. The Electoral
Bond Scheme and the impugned provisions to the extent that they
infringe upon the right to information of the voter by anonymizing
contributions through electoral bonds are violative of Article 19(1)(a).
il. | Whether the infringement of the right to information of the voter
is justified
105. The next issue which falls for analysis is whether the violation of
the right to information is justified. This Court has laid down the
proportionality standard to determine if the violation of the fundamental
right is justified.'*4 The proportionality standard is as follows:
a. The measure restricting a right must have a legitimate goal
(legitimate goal stage);
b. |The measure must be a suitable means for furthering the goal
(suitability or rational connection stage);
c. The measure must be least restrictive and equally effective
(necessity stage); and
d. The measure must not have a disproportionate impact on the
right holder (balancing stage).
106. The legitimate goal stage requires this Court to analyze if the objective
of introducing the law is a legitimate purpose for the infringement of
rights. At this stage, the State is required to discharge two burdens.
First, the State must demonstrate that the objective is legitimate.

124 Modern Dental College & Research Centre v. State of Madhya Pradesh, [2016]
3 SCR 575 : (2016) 4
SCC 346
[2024] 2 S.C.R. 507
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Second, the State must establish that the law is indeed in furtherance
of the legitimate aim that is contended to be served.'*6
107. The then Finance Minister, Mr. Arun Jaitley encapsulated the objective
of introducing the Electoral Bond Scheme thus:
a. An attempt was made in the past to incentivize donations to
political party through banking channels. Both the donor and
the donee were granted exemption from payment of tax if
accounts of contributions were maintained and returns were
filed. However, the situation had only marginally improved.
Political parties continued to receive funds through anonymous
sources; and

b. Donors have been reluctant in donating through the banking
channel because the disclosure of donor identity would entail
adverse consequences.
108. In other words, Mr. Jaitley stated that the main purpose of the
Scheme is to curb black money in electoral financing and this purpose
could be achieved only if information about political donations is
kept confidential. That is, donor privacy is a means to incentivize
contributions through the banking channel. However, Mr. Tushar
Mehta argued that protecting donor privacy is an end in itself. We
will now proceed to determine if the infringement of the right to
information of the voters is justified vis-a-vis the purposes of (a)
curbing black money; and (b) protecting donor privacy.
a. Curbing Black money
109. The petitioners argue that the infringement of the right to information
which is traceable to Article 19(1)(a) can only be justified if the
purpose of the restriction is traceable to the grounds stipulated in
Article 19(2). They argue that the purpose of curbing of black money
cannot be traced to any of the grounds in Article 19(2), and thus, is
not a legitimate purpose for restricting the right to information.
110. Article 19(2) stipulates that the right to freedom of speech and
expression can only be restricted on the grounds of: (a) the
sovereignty and integrity of India; (b) the security of the State; (c)
friendly relations with foreign states, (d) public order; (e) decency

125 See Media One v. Union of India, Civil Appeal No. 8129 of 2022 [77-79]
508 [2024] 2 S.C.R.
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or morality; (f) contempt of court; (g) defamation; and (h) incitement
to an offence. The purpose of curbing black money is traceable to
public interest. However, public interest is not one of the grounds
stipulated in Article 19(2). Of the rights recognized under Article 19,
only Article 19(1)(g) which guarantees the freedom to practice any
profession or to carry on any occupation, trade or business can be
restricted on the ground of public interest.77
111. In Sakal Papers v. The Union of India’‘”’, the constitutional validity of
the Newspaper (Price and Page) Act 1965 and the Daily Newspaper
(Price and Page) Order 1960 which regulated the number of pages
according to the price charged, prescribed the number of supplements
to be published and regulated the area for advertisements in the
newspapers was challenged on the ground that it violated the freedom
of press under Article 19(1)(a). The Union of India submitted that
the restriction on the freedom of press was justified because the
purpose of the law was to prevent unfair competition which was in
furtherance of public interest. It was argued that the restriction was
justified because the activities carried out by newspapers were also
traceable to the freedom to carry out a profession which could be
restricted on the ground of public interest under Article 19(6). Justice
JR Mudholkar writing for the Constitution Bench observed that the
impugned legislation “directly and immediately” curtails the freedom
of speech guaranteed under Article 19(1)(a), and the freedom cannot
be restricted on any ground other than the grounds stipulated in
Article 19(2).'°8 In Newspapers
Express v. Union of India,’ a
Constitution Bench while deciding the constitutional challenge to
the Working Journalists (Conditions of Service) and Miscellaneous
Provisions Act 1955 held that a law violating Article 19(1)(a) would be
unconstitutional unless the purpose of the law falls “squarely within
the provisions of Article 19(2)”.'°° In Kaushal Kishor v. State of Uttar

126 Constitution of India 1950; Article 19(6)
127 [1962]
3 SCR 842 : AIR 1962 SC 305
128 Ibid; Paragraph 36:”lf a law directly affecting it is challenged, it is no answer that the restriction enacted
by it are justifiable under clauses (3) to (6). For the scheme of Article 19 is to enumerate different
freedoms separately and then to specify the extent of restrictions to which they may be subjected and
the objects for securing which this could be done.”
129 [1959]
1 SCR 12 : AIR 1958 SC 578
130 Also see, Indian Express Newspapers (Bombay) Pvt Limited v. Union of India, AIR 1986 SC 515;Sodhi
Shamsher v. State of Pepsu, AIR 1954 SC 276; Romesh Thappar v. State of Madras, [1950] 1 SCR 594
[2024] 2 S.C.R. 509
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Pradesh,"*' a Constitution Bench of this Court answered the issue
whether the grounds stipulated in Article 19(1)(a) are exhaustive
of the restrictions which can be placed on the right to free speech
under Article 19(1)(a) affirmatively.
112. However, in the specific context of the right to information, this Court
has observed that the right can be restricted on grounds not traceable
to Article 19(1)(a). In PUCL (supra), one of the submissions was that
dangerous consequences would follow if the right to information is
culled out from Article 19(1)(a) because the grounds on which the
right can be restricted as prescribed in Article 19(2) are very limited.
Justice Reddi in his concurring opinion in PUCL (supra) observed
that the right under Article 19(1)(a) can be restricted on grounds
which are not “strictly within the confines of Article 19(2)”.'%* For
this purpose, Justice Reddi referred to the observations of Justice
Jeevan Reddy in The Secretary, Ministry of Information v. Cricket
Association of Bengal'*:
“99. [...] This raises the larger question whether apart
from the heads of restriction envisaged by sub-article (2)
of Article 19, certain inherent limitations should not be
read into the article, if it becomes necessary to do so in
national or societal interest. The discussion on this aspect
finds its echo in the separate opinion of Jeevan Reddy, J.
in Cricket Assn. case [(1975) 4 SCC 428] . The learned
Judge was of the view that the freedom of speech and
expression cannot be so exercised as to endanger the
interest of the nation or the interest of the society, even if
the expression “national interest” or “public interest” has
not been used in Article 19(2). It was pointed out that such
implied limitation has been read into the First Amendment
of the US Constitution which guarantees the freedom of
speech and expression in unqualified terms.”
113. In Association
Cricket of Bengal (supra), one of the submissions
of the petitioner (Union of India) was that the right to broadcast can
be restricted on grounds other than those stipulated in Article 19(2).

131 Writ Petition (Criminal) No. 113 of 2016
132 PUCL (supra), [111]
133 [1995]
1 SCR 1036 : 1995 AIR 1236
510 [2024] 2 S.C.R.
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Justice P B Sawant writing for himself and Justice S Mohan observed
while summarizing the law on freedom of speech and expression that
Article 19(1)(a) can only be restricted on the grounds mentioned in
Article 19(2).'54 The learned Judge specifically refuted the argument
that the right can be restricted on grounds other than those stipulated
in Article 19(2). Such an argument, the learned Judge states, is to
plead for unconstitutional measures. However, while observing so,
Justice P B Sawant states that the right to telecast can be restricted
on the grounds mentioned in Article 19(2) and the “dictates of public
interest”:
“78. [...] lf the right to freedom of speech and expression
includes the right to disseminate information to as wide a
section of the population as is possible, the access which
enables the right to be so exercised is also an integral
part of the said right. The wider range of circulation of
information or its greater impact cannot restrict the content
of the right nor can it justify its denial. The virtues of the
electronic media cannot become its enemies. It may
warrant a greater regulation over licensing and control
and vigilance on the content of the programme telecast.
However, this control can only be exercised within the
framework of Article 19(2) and the dictates of public
interest.”
(emphasis supplied)
114. Justice Jeevan Reddy in the concurring opinion segregated the
grounds stipulated in Article 19(2) into grounds in furtherance of
“national interest’ and “societal interest’. The learned Judge observed
that the grounds of sovereignty and integrity of India, the security of
the State, friendly relations with foreign State and public order are
grounds referable to national interest, and the grounds of decency,
morality, contempt of court, defamation and incitement of offence
are referable to state interest. The learned Judge then referred to
the judgment of the Supreme Court of the United States in FCC v.
National Citizens Committee for Broadcasting’, where it was
held that a station license can be denied on the ground of public

134 Ibid; [45].
135 436 US 775 (1978)
[2024] 2 S.C.R. 511
Association for Democratic Reforms & Anr. v. Union of India & Ors.

interest. Justice Reddy observed that public interest is synonymous
to state interest which is one of the grounds underlying Article 19(2):
“189. Reference may also be made in this connection to
the decision of the United States Supreme Court in FCC
v. National Citizens Committee for Broadcasting [56 L Ed
2d 697 : 436 US 775 (1978)] referred to hereinbefore,
where it has been held that “to deny a station licence
because the public interest requires it is not a denial
of free speech”. It is significant that this was so said
with reference to First Amendment to the United States
Constitution which guarantees the freedom of speech and
expression in absolute terms. The reason is obvious. The
right cannot rise above the national interest and the
interest of society which is but another name for the
interest of general public. It is true that Article 19(2)
does not use the words “national interest’, “interest of
society” or “public interest” but as pointed hereinabove,
the several grounds mentioned in clause (2) are
ultimately referable to the interests of the nation and
of the society.”
(emphasis supplied)
115. The observations of Justice Sawant and the concurring opinion of
Justice Jeevan Reddy in Association
Cricket of Bengal (supra)
that the right under Article 19(1)(a) can be restricted on the ground
of public interest even though it is not stipulated in Article 19(2)
must be understood in the specific context of that case. Cricket
Association of Bengal (supra), dealt with the access to and use
of a public good (that is, airwaves) for dissemination of information.
The Court distinguished airways from other means of dissemination
of information such as newsprint and held that since broadcasting
involves the use of a public good, it must be utilized to advance free
speech rights and plurality of opinion (that is, public interest).'°° The
observations in Association
Cricket of Bengal (supra) cannot be
interpreted to mean that other implied grounds of restrictions have
been read into Article 19(2).

136 Cricket Association of Bengal [201 (1)(a) and 201(1)(b)]
512 [2024] 2 S.C.R.
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116. From the above discussion, it is clear that the right to information
under Article 19(1)(a) can only be restricted based on the grounds
stipulated in Article 19(2). It could be argued that curbing black money
can be traced to the ground of “public order”. However, a Constitution
Bench of this Court has interpreted the ground “public order” to mean
“oublic safety and tranquility” and “disorder involving breaches of local
significance in contradistinction to national upheavals, such as civil
strife, war, affecting the security of the State.”"*” Thus, the purpose
of curbing black money is not traceable to any of the grounds in
Article 19(2).
117. We proceed to apply the subsequent prongs of the proportionality
standard, even assuming that curbing black money is a legitimate
purpose for restricting the right to information. The second prong of
the proportionality analysis requires the State to assess whether the
means used are rationally connected to the purpose. At this stage,
the court is required to assess whether the means, if realised, would
increase the likelihood of curbing black money. It is not necessary
that the means chosen should be the only means capable of realising
the purpose. It is sufficient if the means used constitute one of the
many methods by which the purpose can be realised, even if it only
partially gives effect to the purpose.'*®
118. The respondents submit that before the introduction of the Electoral
Bond Scheme, a major portion of the total contributions received
by political parties was from “unknown sources”. For example,
immediately preceding the financial year (2016-17) in which the
Electoral Bond Scheme was introduced, eighty one percent of the
contributions (Rupees 580.52 Crores) were received by political
parties through voluntary contributions. Since the amount of voluntary
contributions is not regulated, it allowed the circulation of black money.
However, after the introduction of the Electoral Bond Scheme, forty-
seven percent of the contributions were received through electoral
bonds which is regulated money. The Union of India submitted
that providing anonymity to the contributors incentivizes them to
contribute through the banking channel. Assuming, for the purpose
of hypothesis that the Union of India is right on this prong, what it

137 Superintendent, Central Prison, Fatehgarh v. Dr Ram Manohar Lohia, [1960]
2 SCR 821 : AIR 1960 SC
633 [18]
138 Media One (supra) [100]
[2024] 2 S.C.R. 513
Association for Democratic Reforms & Anr. v. Union of India & Ors.

urges Is that non-disclosure of information about political expenditure
has a rational nexus with the goal, that is, curbing black money or
unregulated money.
119. The next stage of the proportionality standard is the least restrictive
means stage. At this stage, this Court is required to determine if
the means adopted (that is, anonymity of the contributor) is the
least restrictive means to give effect to the purpose based on the
following standard:'°9
a. | Whether there are other possible means which could have been
adopted by the State;
b. Whether the alternative means identified realise the objective
in a ‘real and substantial manner’;

c. Whether the alternative identified and the means used by the
State impact fundamental rights differently; and
d. Whether on an overall comparison (and balancing) of the
measure and the alternative, the alternative is better suited
considering the degree of realizing the government objective
and the impact on fundamental rights.
120. Before we proceed to determine if the Electoral Bond Scheme is
the least restrictive means to curb black money in electoral funding,
it is important that we recall the regime on electoral funding. After
the amendments introduced by the Finance Act 2017, donations to
political parties exceeding rupees two thousand can only be made by
an account payee cheque drawn on a bank, an account payee bank
draft, the use of electronic clearing system through a bank account
or through an electoral bond.'*° All contributions to political parties
through cash cannot be assumed to be black money. For example,
individuals who contribute to political parties in small donations
during party rallies usually contribute through cash. On the other
hand, contributions through the banking channel are certainly a form
of accounted transaction. Restricting the contributions to political
parties in cash to less than rupees two thousand and prescribing
that contributions above the threshold amount must only be made

139 See Justice KS Puttaswamy (53) (supra) and Media One Broadcasting (supra) [103];
140 IT Act, Section 13A(q)
514 [2024] 2 S.C.R.
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through banking channels is itself intended to curb black money.
Thus, the legal regime itself provides other alternatives to curb black
money: contributions through cheques, bank draft, or electronic
clearing system. The Union of India submits that though there
are other alternatives through which circulation of black money in
electoral financing can be curbed, these alternatives do not realize
the objective in a “substantial manner” because most contributors
resort to cash donations as they “fear consequences from political
opponents” to whom donations were not made.
121. In addition to the alternatives identified above, the existing legal
regime provides another alternative in the form of Electoral Trusts
through which the objective of curbing black money in electoral
financing can be achieved. Section 2(22AA) of the IT Act defines an
Electoral Trust as a trust approved by the Board in accordance with
the scheme made in this regard by the Central Government. Section
13B of the IT Act states that any voluntary contributions received
by an electoral trust shall not be included in the total income of the
previous year of such electoral trust if the it distributes ninety five
percent of the aggregate donations received during the previous
year. In terms of Rule 17CA of the IT Rules 1962, the features of
an electoral trust are as follows:
a. An Electoral Trust may receive voluntary contribution from (i)
an individual who is a citizen of India; (li) a company registered
in India; (iii) a firm or Hindu undivided family or an Association
of persons or a body of individuals residing in India;
b. When a contribution is made to an electoral trust, a receipt
recording the following information shall, inter alia, be provided:
(i) Name and address of the contributor; (ii) Permanent account
number of the contributor or the passport number if the
contributor is not a resident of India; (iii) Amount contributed;
(iv) The mode of contribution including the name and branch
of the bank and the date of receipt of such contribution; and
(v) PAN of the electoral trust;
c. Contributions to the electoral trust can only be made through
cheque, bank draft and electronic transfer. Contributions made
in cash shall not be accepted by the Electoral Trust;
d. The Electoral Trust shall spend five percent of the total
contributions received in a year subject to a limit of Rupees five
[2024] 2 S.C.R. 515
Association for Democratic Reforms & Anr. v. Union of India & Ors.

hundred thousand in the first year of incorporation and Rupees
three hundred thousand in the second year.'*' The remaining
money (that is, ninety five percent of the total contributions
received in that financial year along with any surplus from the
previous year) shall be distributed to political parties registered
under Section 29A of the RP Act;'*°

e. The political party to which the trust donated money shall
provide a receipt indicating the name of the political party, the
PAN and the amount of contribution received from the trust;'**
f. |The trust shall also maintain a list of persons from whom
contributions have been received and to whom they have been
distributed;'** and

g. The trust shall furnish a certified copy of the list of contributors
and list of political parties to whom contributions have been
made to the Commissioner of Income Tax along with the audit
report.'45
122. In summary, an Electoral Trust is formed only for collecting political
contributions from donors. An electoral trust can contribute to more
than one party. To illustrate, if ten individuals and one company have
contributed to an Electoral Trust and the donations are contributed
to three political parties equally or unequally, the information about
which of the individuals contributed to which of the political parties
will not be disclosed. In this manner, the purpose of curbing black
money in electoral financing will be met. At the same time, there
would be no fear of consequences from political opponents because
the information as to which political party were made is not disclosed.
123. On 6 June 2014, the ECI circulated Guidelines for submission of
contribution reports of Electoral Trusts mandating in the interest of
transparency that all Electoral Trusts shall submit an Annual Report
containing details of contributions received and disbursed by them to
political parties. Pursuant to the Guidelines, Electoral Trusts submit

141 IT Rules 1962, Rule 17CA(8)(i)
142 IT Rules 1962, Rule 17CA(7) and Rules 17CA(8)(ii)
143 IT Rules 1962, Rule 17CA(9)
144 IT Rules 1962, Rule 17CA(11)(ii)
145 IT Rules 1962, Rule 17CA(14)
516 [2024] 2 S.C.R.
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Annual Reports to the ECI every year. For example, according to the
Annual Report of the Prudent Electoral Trust for the financial year 2021-
22, the Trust received contributions of a total of Rupees 4,64,83,00,116
from seventy contributors including individuals and companies. The
contributions were unequally distributed to the Aam Aadmi Party, All
India Congress Committee, Bharatiya Janata Party, Goa Congress
Committee, Goa Forward Party, Indian National Congress, Punjab Lok
Congress, Samajwadi Party, Shiromani Akali Dal, Telangana Rashtra
Samiti, and YSR Congress. From the report, it cannot be discerned
if contributor ‘A’ contributed to a particular political party. It can only
be concluded that contributor ‘A’ could have contributed to the Party.
124. Thus, even if the argument of the Union of India that the other
alternative means such as the other modes of electronic transfer
do not realize the objective of curbing black money substantially
because contributors would resort to cash donations due to the
fear of consequences is accepted, Electoral Trusts are an effective
alternative. There will be a lesser degree of “political consequences”
for contributions made to the Electoral Trust because the information
about which of the contributors contributed to which of the parties will
not be disclosed. It is only where the Electoral Trust contributes to one
political party, would there be a possibility of political consequences
and witch-hunting (assuming that there is a link between anonymity
and contributions). However, in that case, it is a choice expressly
made by the contributors. Additionally, the law mandates disclosure
only of contributions made above twenty thousand in a financial
year. So, for contributions less than twenty-five thousand, cheques
and other modes of electronic transfer are an effective alternative.
125. When these three methods of political contribution (electronic
transfer other than electoral bonds, contribution to Electoral Trust,
and Electoral Bonds) are placed on a continuum, transfer through
electronic means (other than electoral bonds) would be placed on
one end and Electoral Bonds would be placed on the other end. A
voter would receive complete information about contributions made
above twenty thousand to a political party in the case of electronic
transfer made directly to a political party other than through electoral
bonds.'“6

146 RPA; Section 29A
[2024] 2 S.C.R. 517
Association for Democratic Reforms & Anr. v. Union of India & Ors.

126. With respect to contributions through electoral bonds, the voter would
not receive any information about financial contributions in terms of
Section 29C of RPA as amended by the Finance Act. This Court in
the interim order dated 31 October 2023 in the specific context of
contributions made by companies through electoral bonds prima facie
observed the voter would be able to secure information about the
funding by matching the information of the aggregate sum contributed
by the Company (as required to be disclosed under Section 182(3)
of the Companies Act as amended by the Finance Act) with the
information disclosed by the political party. However, on a detailed
analysis of the Scheme and the amendments we are of the opinion
that such an exercise would not reveal the particulars of the donations
because the Company under the provisions of Section 182 and the
political party are only required to disclose the consolidated amount
contributed and received through Electoral Bonds respectively. The
particulars about the political party to which the contributions were
made which is crucial to the right to information of political funding
cannot be identified through the matching exercise.
127. With respect to contributions to an Electoral Trust, a voter receives
partial information. The voter would know the total amount contributed
by the donor and that the donor contributed to one of the political
parties (in case the Electoral Trust has made contributions to multiple
parties). But the donor would not be aware of the exact details of
the contribution.
128. Assuming that anonymity incentivizes contributions through banking
channels (which would lead to curbing black money in the electoral
process), electoral bonds would be the most effective means in
curbing black money, followed by Electoral Trust, and then other
means of electronic transfer. This conclusion is premised on the belief
that the Electoral Bond curbs black money. However, the Scheme
is not fool-proof. The Electoral Bond Scheme does not provide any
regulatory check to prevent the trading of bonds though Clause 14
of the Electoral Bond Scheme states that the bonds shall not be
eligible for trading.
129. On an overall balance of the impact of the alternative means on the
right to information and its ability to fulfill the purpose, for contributions
below twenty thousand rupees, contributions through other means
of electronic transfer is the least restrictive means. For contributions
518 [2024] 2 S.C.R.
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above twenty thousand rupees, contributions through Electoral Trust is
the least restrictive means. Having concluded that the Electoral Bond
Scheme is not the least restrictive means to achieve the purpose of
curbing black money in electoral process, there is no necessity of
applying the balancing prong of the proportionality standard.
130. Based on the above discussion, we conclude that Electoral Bond
Scheme does not fulfill the least restrictive means test. The Electoral
Bond Scheme is not the only means for curbing black money in
Electoral Finance. There are other alternatives which substantially
fulfill the purpose and impact the right to information minimally when
compared to the impact of electoral bonds on the right to information.
b. |Donor Privacy
131. The Union of India submitted that information about financial
contributions to political parties is not disclosed to protect the
contributor’s informational privacy to political affiliation. There are
two limbs to the argument of the Union of India with respect to the
purpose of donor privacy. First, that the State interest in introducing
the Electoral Bond Scheme which guarantees confidentiality (or
anonymity) to financial contributions is that it furthers donor privacy;
and second, this State interest facilitates a guaranteed fundamental
right. Thus, the submission of the State is that the right to information
can be restricted even if donor privacy is not traceable to the
grounds in Article 19(2) because privacy is a fundamental right in
itself. This Court needs to decide the following issues to determine
if the right to information of voters can be restricted on the ground
of donor privacy:
a. Whether the fundamental right to informational privacy
recognized by this Court in Puttaswamy
Justice KS (93) v.
Union of India’, includes information about a citizen’s political
affiliation; and

b. If (a) above is answered in the affirmative, whether financial
contribution to a political party is a facet of political affiliation.
If the right to informational privacy extends to financial contributions
to a political party, this Court needs to decide if the Electoral Bond

147 [2017]
10 SCR 569 : (2017) 10 SCC 1
[2024] 2 S.C.R. 519
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Scheme adequately balances the right to information and right to
informational privacy of political affiliation.
I. Informational privacy of financial contributions to political parties
132. In Justice KS Puttaswamy (9J) (Supra), a nine-Judge Bench of
this Court held that the Constitution guarantees the right to privacy.
This Court traced the right to privacy to the constitutional ideals of
dignity, liberty, and the thread of non-arbitrariness that runs through
the provisions of Part Ill. The scope of the right to privacy discussed
in Justice KS Puttaswamy (9J) (supra) is summarized below:
a. Theright to privacy includes “repose”, that is, the freedom from
unwanted stimuli, “sanctuary”, the protection against intrusive
observation into intimate decisions and autonomy with respect
to personal choices;

b. Privacy over intimate decisions includes decisions related to
the mind and body. Privacy extends to both the decision and
the process of arriving at the decision. A lack of privacy over
thought (which leads to decision-making) would suppress voices
and lead to homogeneity which is contrary to the values that
the Constitution espouses"*®;
c. Privacy over decisions and choices would enable the exercise
of fundamental freedoms such as the freedom of thought,
expression, and association freely without coercion;'*9
d. Privacy is attached to a person and not a space. The scope
of privacy cannot be restricted only to the “private” space; and
e. Privacy includes informational privacy. Information which may
seem inconsequential in silos can be used to influence decision
making behavior when aggregated. '*°
133. The content of privacy is not limited to “private” actions and decisions
such as the choice of a life partner, procreation and sexuality. Neither
is privacy merely defined from the point of direct State intrusion.

148 Justice Chandrachud (Paragraph 168), Justice Kaul (Paragraph 19)
149 Justice Chandrachud, Justice Chellameshwar, Justice Bobde (paragraph 25 and 29)
150 Justice Chandrachud (paragraph 170): “[...] Individually, these information silos may seem
inconsequential. In aggregation, they disclose the nature of the personality: food habits, language, health,
hobbies, sexual preferences, friendships, ways of dress and political affiliation. Justice Chelameshwar
(Paragraph 38), Justice Kaul (Paragaph 19)
520 [2024] 2 S.C.R.
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Privacy is defined as essential protection for the exercise and
development of other freedoms protected by the Constitution, and
from direct or indirect influence by both State and non-State actors.
Viewed in this manner, privacy takes within its fold, decisions which
also have a ‘public component’.
134. The expression of political beliefs is guaranteed under Article 19(1)
(a). Forming political beliefs and opinion is the first stage of political
expression. The freedom of political expression cannot be exercised
freely in the absence of privacy of political affiliation. Information
about a person’s political beliefs can be used by the State at a political
level, to suppress dissent, and at a personal level, to discriminate by
denying employment or subjecting them to trolls. The lack of privacy
of political affiliation would also disproportionately affect those whose
political views do not match the views of the mainstream.
135. In the specific context of exercising electoral franchise, the lack of
privacy of political affiliation would be catastrophic. It is crucial to
electoral democracy that the exercise of the freedom to vote is not
subject to undue influence. It is precisely for this reason that the law
recognizes certain ‘corrupt practices’ by candidates. These ‘corrupt
practices’ do not merely include ‘financial’ corrupt practices such as
bribery. They also include undue influence of the voters by an attempt
to interfere with the free exercise of electoral right"*', publication of
false information about the personal character of any candidate'*?,
and providing vehicles for the free conveyance of electors’. The
law penalizes practices which have the effect of dis-franchising the
voter through illegitimate means.
136. Information about a person’s political affiliation can be used to dis-
enfranchise voters through voter surveillance.'** Voter databases
which are developed through surveillance identify voting patterns of
the electors and attempt to interfere with their opinions based on the
information. For example, the data of online purchase histories such
as the books purchased (which would indicate the ideological leaning

151 RPA, Section 123(2). The provision includes the threatening with injury including social ostracism and
ex-communication from any caste or community.
152 RPA; Section 123(4)
153 RPA; Section 123(5)
154 See Philip N Howard and Daniel Kreiss, Political Parties and Voter privacy: Australia, Canada, the United
Kingdom, and United States in Comparative Perspective, First Monday 15(12) 2010
[2024] 2 S.C.R. 521
Association for Democratic Reforms & Anr. v. Union of India & Ors.

of the individual), clothing brands used (which would indicate the
social class to which the individual belongs) or the news consumed
or the newspapers subscribed (which would indicate the political
leanings or ideologies) can be used to draw on the relative political
affiliation of people. This information about the political affiliation of
individuals can then be used to influence their votes. Voter surveillance
gains particular significance when fewer people have attachments
to political parties.'°°
137. At a systemic level, information secured through voter surveillance
could be used to invalidate the foundation of the electoral system.
Information about political affiliation could be used to engage in
gerrymandering, the practice by which constituencies are delimited
based on the electoral preference of the voters.
138. Informational privacy to political affiliation is necessary to protect the
freedom of political affiliation and exercise of electoral franchise. Thus,
it follows from the judgment of this Court in Justice KS Puttaswamy
(93) (Supra) and the observations above that the Constitution
guarantees the right to informational privacy of political affiliation.
139. Having concluded that the Constitution guarantees a right to
informational privacy of political affiliation, it needs to be decided
if the right can be extended to the contributions to political parties.
The Electoral Bond Scheme has two manifestations of privacy:
first, informational privacy by prescribing confidentiality vis-a-vis the
political party; and second, informational privacy by prescribing non-
disclosure of the information of political contributions to the public.
The Union of India submitted that contributions made to political
parties must be protected both from the political party itself and
the public because donor privacy is an extension of the principle of
secret ballot and is a facet of free and fair elections. The petitioners
argue that equating political contributions with expression of political
preference through voting is flawed because it conflates money with
speech. The petitioners also argue that informational privacy does
not extend to political contributions because they are by their very
nature public acts which influence public policy, and thus, must be
subject to public scrutiny.

155 Colin Bennet, The politics of privacy and privacy of politics: Parties, elections, and voter surveillance in
Western Democracies. First Monday, 18(8) 2013
522 [2024] 2 S.C.R.
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140. The issue before this Court is not whether public funding of political
parties is permissible. Neither is the issue whether a restriction
can be placed on the contribution which can be made by a citizen
to a political party. If it was, then the question of whether financial
contribution to a political party is in furtherance of the right to freedom
of political soeech and expression under Article 19(1)(a) or the right
to freedom to form associations under Article 19(1)(c) would arise.
However, that not being the case, this Court is not required to decide
whether financial contribution to a political party is protected by
Articles 19(1)(a) and 19(1)(c).
141. This Court in Puttaswamy
Justice KS (93) (Supra) did not trace the
right to privacy to a particular provision of the Constitution such as
Article 21. Rather, this Court observed that privacy is crucial for the
fulfilment of the constitutional values of self-determination, autonomy
and liberty in addition to its essentiality for realizing the fundamental
freedoms such as the freedom of speech and expression. This Court
further held that the non-intrusion of the mind (the ability to preserve
beliefs, thoughts and ideologies) is as important as the non-intrusion
of the body. This Court (Supra) did not hold that privacy is extendable
to the action of speech or the action of expression, both of which
are required to possess a communicative element to receive the
protection under Article 19(1)(a).1°° Rather, the proposition in Justice
Puttaswamy
KS (9J) is that privacy (including informational privacy) is
extendable to thoughts, beliefs, and opinions formed for the exercise
of speech and action. Thus, informational privacy would extend to
financial contributions to political parties even if contributions are not
traceable to Article 19(1)(a) provided that the information on political
contributions indicates the political affiliation of the contributor.
142. Financial contributions to political parties are usually made for two
reasons. First, they may constitute an expression of support to
the political party and second, the contribution may be based on a
guid pro quo. The law as it currently stands permits contributions
to political parties by both corporations and individuals. The huge
political contributions made by corporations and companies should
not be allowed to conceal the reason for financial contributions made
by another section of the population: a student, a daily wage worker,

156 See Romesh Thappar v. State of Madras, [1950] 1 SCR 594 (602)
[2024] 2 S.C.R. 523
Association for Democratic Reforms & Anr. v. Union of India & Ors.

an artist, or a teacher. When the law permits political contributions
and such contributions could be made as an expression of political
support which would indicate the political affiliation of a person,
it is the duty of the Constitution to protect them. Not all political
contributions are made with the intent of attempting to alter public
policy. Contributions are also made to political parties which are not
substantially represented in the legislatures. Contributions to such
political parties are made purely with the intent of expressing support.
At this juncture, the close association of money and politics which
has been explained above needs to be recounted. Money is not
only essential for electoral outcomes and for influencing policies. It
is also necessary for true democratic participation. It is necessary for
enhancing the number of political parties and candidates contesting
the elections which would in-turn impact the demographics of
representatives in the Assembly. It is true that contributions made as
guid pro quo transactions are not an expression of political support.
However, to not grant the umbrella of informational privacy to political
contributions only because a portion of the contributions is made
for other reasons would be impermissible. The Constitution does
not turn a blind eye merely because of the possibilities of misuse.
ll. | Privacy vis-a-vis political party
143. The second issue is whether the right to privacy of political
contributions can be extended to include privacy vis-a-vis the political
party to which contributions are made since according to the Union
of India under the Electoral Bond Scheme, the political party to
which the contribution is made would not know the particulars of
the contributor. Hence, it is submitted that the scheme is akin to
the secret ballot.
144. We are unable to see how the disclosure of information about
contributors to the political party to which the contribution is made
would infringe political expression. The disclosure of the particulars
of the contributions may affect the freedom of individuals to the
limited extent that the political party with the information could coerce
those who have not contributed to them. However, we have already
held above that the scheme only grants de jure and not de facto
confidentiality vis-a-vis the political party. Under the current Scheme,
it is still open to the political party to coerce persons to contribute.
Thus, the argument of the Union of India that the Electoral Bond
524 [2024] 2 S.C.R.
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Scheme protects the confidentiality of the contributor akin to the
system of secret ballot is erroneous.
Il. Balancing the right to information and the right to informational
privacy
a) Judicial Approach towards balancing fundamental rights:
establishing the double proportionality standard
145. At the core of governance is the conflict between different constitutional
values or different conceptions of the same constitutional value.
Countries with a written Constitution attempt to resolve these conflicts
by creating a hierarchy of rights within the constitutional order where
a few fundamental rights are subjected to others. For example,
Article 25 of the Indian Constitution which guarantees the freedom of
conscience, and the profession, practice and propagation of religion is
subject to public order, morality, health and other provisions of Part
lll. The first exercise that the Court must undertake while balancing
two fundamental rights is to determine if the Constitution creates a
hierarchy between the two rights in conflict. If the Constitution does
not create a hierarchy between the conflicting rights, the Courts
must use judicial tools to balance the conflict between the two rights.
146. The judicial approach towards balancing fundamental rights has
evolved over the course of years. Courts have used the collective
interest or the public interest standard, the single proportionality
standard, and the double proportionality standard to balance the
competing interests of fundamental rights.
147. Before the proportionality standard was employed to test the validity
of the justification for the infringement of fundamental rights, Courts
balanced conflicting fundamental rights by according prominence
to one fundamental right over the other based on public interest.
This approach was undertaken through two modalities. In the
first modality, the Court while identifying the fundamental rights in
conflict circumscribed one of the fundamental rights in question
such that there was no real conflict between the rights. The Court
while circumscribing the right undertook an exercise of weighing the
relative constitutional values of the rights based on public interest. In
Re Noise Pollution"’’, writ petitions were filed seeking to curb noise

157 [2005] Suppl. 1 SCR 624 : (2005) 5 SCC 733
[2024] 2 S.C.R. 525
Association for Democratic Reforms & Anr. v. Union of India & Ors.

pollution. A two-Judge Bench of this Court observed that those who
make noise often justify their actions based on freedom of speech
and expression guaranteed under Article 19(1)(a). However, this
Court observed that the right to freedom of speech and expression
does not include the freedom to “engage in aural aggression”. In
this case, there was no necessity for this Court to “balance” two
fundamental rights because the right in question (freedom of speech
and expression) was circumscribed to not include the actions
challenged (noise pollution). In Subramanian Swamy v. Union of
India'®®, Sections 499 and 500 of the Indian Penal Code 1860 which
criminalized defamation were challenged. A two-Judge Bench of this
Court framed the issue as a conflict between the right to speech and
expression under Article 19(1)(a) and the right to reputation traceable
to Article 21. In this case, the two Judge Bench held that the right
to speech and expression does not include the right to defame a
person. Justice Dipak Misra (as the learned Chief Justice then was)
observed that a contrary interpretation would completely abrogate
the right to reputation.'*°
148. In the second modality of the public interest approach, the Courts
undertook a comparison of the values which the rights (and the
conceptions of the rights) espouse and gave more weightage to the
right which was in furtherance of a higher degree of public or collective
interest. In Asha Ranjan v. State of Bihar’®, this Court held that
when there is a conflict between two individuals with respect to their
right under Article 21, the facts and circumstances must be weighed
“on the scale of constitutional norms and sensibility and larger public
interest.” In PUCL (supra), one of the issues before this Court was

158 [2016] 3 SCR 865 : (2016) 7 SCC 221; Paragraph 11 “While one has a right to speech, others have a right
to listen or decline to listen. [...] Nobody can indulge in aural aggression. If anyone increases his volume
of speech and that too with the assistance of artificial devices so as to compulsorily expose unwilling
persons to hear a noise raised to unpleasant or obnoxious levels, then the person speaking is violating
the right of others to a peaceful, comfortable and pollution-free life guaranteed by Article 21. Article 19(1)
(a) cannot be pressed into service for defeating the fundamental right guaranteed by Article 21.”
159 144: “[...] Reputation being an inherent component of Article 21, we do not think it should be allowed
to be sullied solely because another individual can have its freedom. It is not a restriction that has an
inevitable consequence which impairs circulation of thought and ideas. In fact, it is control regard being
had to another person’s right to go to court and state that he has been wronged and abused. He can
take recourse to a procedure recognised and accepted in law to retrieve and redeem his reputation.
Therefore, the balance between the two rights needs to be struck. “Reputation” of one cannot be allowed
to be crucified at the altar of the other’s right of free speech. The legislature in its wisdom has not thought
it appropriate to abolish criminality of defamation in the obtaining social climate.”
160 [2017]
1 SCR 945 : (2017) 4 SCC 397
526 [2024] 2 S.C.R.
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whether the disclosure of the assets of the candidates contesting
the elections in furtherance of the right to information of the voters
violates the right to privacy of candidates.'*' Justice Reddi authoring
the concurring opinion observed that the right to information of the
assets of candidates contesting elections trumps the right to privacy
because the former serves a larger public interest. In Mazdoor
Kisan Shakti Sangathan v. Union of India'®, proceedings under
Article 32 were initiated challenging orders issued under Section
144 of the Code of Criminal Procedure prohibiting protests in certain
areas in Delhi. The issue before this Court was whether the total
ban of protests at the Jantar Mantar Road would violate the right
to protest which is traceable to Articles 19(1)(a) and 19(1)(b). One
of the inter-related issues was whether the right to hold peaceful
demonstrations violates the right of peaceful residence under Article
21, and if it does, how this Court should balance the conflicting
fundamental rights. This Court observed that the Court must while
balancing two fundamental rights examine where the larger public
interest lies.'°? This Court framed the following issue in the specific
context of the case: whether disturbances caused to residents by
the protest is a larger public interest which outweighs the rights of
protestors. The two-Judge Bench held that “demonstrations as it has
been happening” are causing serious discomfort to the residents,
and that the right to protest could be balanced with the right to
peaceful residence if authorities had taken adequate safeguards
such as earmarking specific areas for protest, placing restrictions
on the use of loudspeakers and on parking of vehicles around
residential places.
149. The judgment of this Court in Mazdoor Kisan Shakti (supra),
represents the gradual shift from the pre-proportionality phase to
the proportionality stage which signifies a shift in the degree of
justification and the employment of a structured analysis for balancing
fundamental rights. In Mazdoor Kisan Shakti (supra), this Court
applied one of the prongs of the proportionality standard (the least
restrictive means prong) while balancing the right to protest and
the right to peaceful residence. The Court identified other means

161 Ibid, [121]
162 [2018] 11 SCR 586 : (2018) 17 SCC 324
163 (2018)17 SCC 324 [58]
[2024] 2 S.C.R. 527
Association for Democratic Reforms & Anr. v. Union of India & Ors.

which would have infringed the right to a peaceful residence to a
lesser extent.
150. In 2012, a five-Judge Bench of this Court in Sahara India Real
Estate Corporation Limited v. Securities and Exchange Board
of 61974, used a standard which resembled the structured
proportionality standard used in Puttaswamy
Justice KS (5J) v.
Union of India’® to balance the conflict between two fundamental
rights. This judgment marked the first departure from the series of
cases in which this Court balanced two fundamental rights based on
doctrinal predominance. In Sahara (supra), the petitioner submitted
a proposal for the repayment of OFCDs (optionally fully convertible
bonds) to the investors. The details of the proposals were published
by a news channel. Interlocutory applications were filed in the Court
praying for the issuance of guidelines for reporting matters which are
sub-judice. This Court resolved the conflict between the freedom of
press protected under Article 19(1)(a) and the right to free trial under
Article 21 by evolving a neutralizing device. This Court held that it has
the power to evolve neutralizing devices such as the postponement
of trial, retrial, change of venue, and in appropriate cases, grant
acquittal in case of excessive media prejudicial publicity to neutralize
the conflicting rights. This Court followed the Canadian approach
in evolving a two prong standard to balance fundamental rights
through neutralizing devices which partly resembled the structured
proportionality standard. The two-pronged test was as follows:'®
a. There is no other reasonable alternative measure available
(necessity test); and
b. The salutary effects of the measure must outweigh the
deleterious effects on the fundamental rights (proportionality
standard).
151. Finally, this Court in Puttaswamy
Justice KS (5J) (supra) applied
the structured proportionality standard to balance two fundamental
rights. In this case, a Constitution Bench of this Court while testing the
validity of the Aadhar Act 2016 had to resolve the conflict between the

164 [2012] 12 SCR 256 : (2012) 10 SCC 603
165 [2018]8 SCR 1: (2019) 1 SCC 1
166 (2012) 10 SCC 603 [42, 22]
528 [2024] 2 S.C.R.
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right to informational privacy and the right to food. Justice Sikri writing
for the majority held that the Aadhar Act fulfills all the four prongs of
the proportionality standard. In the final prong of the proportionality
stage, that is the balancing stage, this Court held that one of the
considerations was to balance the right to privacy and the right to
food. On balancing the fundamental rights, this Court held that the
provisions furthering the right to food satisfy a larger public interest
whereas the invasion of privacy rights was minimal.'®”
152. However, the single proportionality standard which is used to test
whether the fundamental right in question can be restricted for the
State interest (that is, the legitimate purpose) and if it can, whether
the measure used to restrict the right is proportional to the objective
is insufficient for balancing the conflict between two fundamental
rights. The proportionality standard is an effective standard to test
whether the infringement of the fundamental right is justified. It would
prove to be ineffective when the State interest in question is also a
reflection of a fundamental right.
153. The proportionality standard is by nature curated to give prominence
to the fundamental right and minimize the restriction on it. If this
Court were to employ the single proportionality standard to the
considerations in this case, at the suitability prong, this Court would
determine if non-disclosure is a suitable means for furthering the
right to privacy. At the necessity stage, the Court would determine
if non-disclosure is the least restrictive means to give effect to the
right to privacy. At the balancing stage, the Court would determine
if non-disclosure has a disproportionate effect on the right holder.
In this analysis, the necessity and the suitability prongs will
inevitably be satisfied because the purpose is substantial: it is a
fundamental right. The balancing stage will only account for the
disproportionate impact of the measure on the right to information
(the right) and not the right to privacy (the purpose) since the Court
is required to balance the impact on the right with the fulfillment
of the purpose through the selected means. Thus, the Court while
applying the proportionality standard to resolve the conflict between
two fundamental rights preferentially frames the standard to give
prominence to the fundamental right which is alleged to be violated

167 (2019) 1 SCC 1 [308]
[2024] 2 S.C.R. 529
Association for Democratic Reforms & Anr. v. Union of India & Ors.

by the petitioners (in this case, the right to information).'©° This could
well be critiqued for its limitations.
154. In Campbell v. MGM Limited'®, Baroness Hale adopted the double
proportionality standard to adequately balance two conflicting
fundamental rights. In this case, the claimant, a public figure,
instituted proceedings against a newspaper for publishing details of
her efforts to overcome drug addiction. Baroness Hale applied the
following standard to balance the right to privacy of the claimant and
the right to a free press:
“141. [...] This involved looking first at the comparative
importance of the actual rights being claimed in the
individual case; then at the justifications for interfering
with or restricting each of those rights; and applying the
proportionality test to each”
155. In Central Public Information Officer, Supreme Court of India v.
Subash Chandra Agarwal'”, one of us (Justice 2 Y Chandrachud)
while authoring the concurring opinion adopted the double
proportionality standard as formulated in Campbell (supra). Referring
to the double proportionality standard, the concurring opinion observes
that the Court while balancing between two fundamental rights must
identify the precise interests weighing in favour of both disclosure and
privacy and not merely undertake a doctrinal analysis to determine
if one of the fundamental rights takes precedence over the other:
“113. Take the example of where an information applicant
sought the disclosure of how many leaves were taken by a
public employee and the reasons for such leave. The need
to ensure accountability of public employees is of clear
public interest in favour of disclosure. The reasons for the
leave may also include medical information with respect
to the public employee, creating a clear privacy interest in
favour of non-disclosure. It is insufficient to state that the
privacy interest in medical records is extremely high and

168 Hon’ble Mr Justice Andrew Cheung PJ, Conflict of fundamental rights and the double proportionality
test, A lecture in the Common Law Lecture Series 2019 delivered at the University of Hong Kong (17
September 2019)
169 [2004] UKHL 22
170 Civil Appeal No. 10044 of 2010
530 [2024] 2 S.C.R.
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therefore the outcome should be blanket non-disclosure.
The principle of proportionality may necessitate that the
number of and reasons for the leaves be disclosed and
the medical reasons for the leave be omitted. This would
ensure that the interest in accountability is only abridged
to the extent necessary to protect the legitimate aim of
the privacy of the public employee.”
156. Baroness Hale in Campbell (supra) employed a three step approach
to balance fundamental rights. The first step is to analyse the
comparative importance of the actual rights claimed. The second step
is to lay down the justifications for the infringement of the rights. The
third is to apply the proportionality standard to both the rights. The
approach adopted by Baroness Hale must be slightly tempered to
suit our jurisprudence on proportionality. The Indian Courts adopt a
four prong structured proportionality standard to test the infringement
of the fundamental rights. In the last stage of the analysis, the
Court undertakes a balancing exercise to analyse if the cost of the
interference with the right is proportional to the extent of fulfilment of
the purpose. It is in this step that the Court undertakes an analysis
of the comparative importance of the considerations involved in the
case, the justifications for the infringement of the rights, and if the
effect of infringement of one right is proportional to achieve the goal.
Thus, the first two steps laid down by Baroness Hale are subsumed
within the balancing prong of the proportionality analysis.
157. Based on the above discussion, the standard which must be followed
by Courts to balance the conflict between two fundamental rights
is as follows:

a. Does the Constitution create a hierarchy between the
rights in conflict? If yes, then the right which has been
granted a higher status will prevail over the other right
involved. If not, the following standard must be employed
from the perspective of both the rights where rights A and
B are in conflict;
b. Whether the measure is a suitable means for furthering
right A and right B;
c. Whether the measure is least restrictive and equally
effective to realise right A and right B; and
[2024] 2 S.C.R. 531
Association for Democratic Reforms & Anr. v. Union of India & Ors.

d. Whether the measure has a disproportionate impact on
right A and right B.
b) Validity of the Electoral Bond Scheme, Section 11 of the Finance
Act and Section 137 of the Finance Act
158. To recall, Section 13A of the IT Act before the amendment mandated
that the political party must maintain a record of contributions in
excess of rupees twenty thousand. Section 11 of the Finance Act 2017
amended Section 13A creating an exception for contributions made
through Electoral Bonds. Upon the amendment, political parties are
not required to maintain a record of any contribution received through
electoral bonds. Section 29C of the RPA mandated the political party
to prepare a report with respect to contributions received in excess
of twenty thousand rupees from a person or company in a financial
year. Section 137 of the Finance Act amended Section 29C of the RPA
by which a political party is now not required to include contributions
received by electoral bonds in its report. As explained earlier, the
feature of anonymity of the contributor vis-a-vis the public is intrinsic
to the Electoral Bond Scheme. Amendments had to be made to
Section 13A of the IT Act and Section 29C of the RPA to implement
the Electoral Bond Scheme because the EBS mandates anonymity
of the contributor. In this Section, we will answer the question of
whether the EBS adequately balances the right to informational
privacy of the contributor and the right to information of the voter.
159. In Puttaswamy
Justice KS (9J) (Supra), this Court did not trace
the right to privacy only to Article 21. This Court considered privacy
as an essential component for the effective fulfillment of the all
entrenched rights. Article 25 of the Constitution is the only provision
in Part Ill which subjects the right to other fundamental rights.
Article 25 guarantees the freedom of conscience which means the
freedom to judge the moral qualities of one’s conduct.'”’ Financial
contributions to a political party (as a form of expression of political
support and belief) can be traced to the exercise of the freedom of
conscience under Article 25.72 It can very well be argued that the
right to information of the voter prevails over the right to anonymity
of political contributions which may be traceable to the freedom of

171 See Supriyo (supra) [238 , 239]; Aishat Shifa v. State of Karnataka, [2022]
5 SCR 426 : (2023) 2 SCC 1;
172 See Justice KS Puttaswamy v. Union of India, [2017]
10 SCR 569 : (2017) 10 SCC 1 [372] (opinion of
Justice Chelameswar);
532 [2024] 2 S.C.R.
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conscience recognized under Article 25 since it is subject to all other
fundamental rights, including Article 19(1)(a). However, the right
to privacy of financial contributions to political parties can also be
traced to Article 19(1) because the informational privacy of a person’s
political affiliation is necessary to enjoy the right to political soeech
under Article 19(1)(a), the right to political protests under Article
19(1)(b), the right to form a political association under Article 19(1)
(c), and the right to life and liberty under Article 21. The Constitution
does not create a hierarchy amongst these rights. Thus, there is no
constitutional hierarchy between the right to information and the right
to informational privacy of political affiliation.
160. This Court must now apply the double proportionality standard, that
is, the proportionality standard to both the rights (as purposes) to
determine if the means used are suitable, necessary and proportionate
to the fundamental rights. The Union of India submitted that Clause
7(4) of the Electoral Bond Scheme balances the right to information
of the voter and the right to informational privacy of the contributor.
Clause 7(4) stipulates that the information furnished by the buyer
shall be treated as confidential by the authorized bank. The bank
has to disclose the information when it is demanded by a competent
court or upon the registration of a criminal case by a law enforcement
agency. It needs to be analyzed if the measure employed (Clause
7(4)) balances the rights or tilts the balance towards one of the
fundamental rights.
161. The first prong of the analysis is whether the means has a rational
connection with both the purposes, that is, informational privacy of
the political contributions and disclosure of information to the voter.
It is not necessary that the means chosen should be the only means
capable of realising the purpose of the state action. This stage of the
analysis does not prescribe an efficiency standard. It is sufficient if
the means constitute one of the many methods by which the purpose
can be realised, even if it only partially gives effect to the purpose.'”
162. This Court while applying the suitability prong to the purpose of
privacy of political contribution must consider whether the non-
disclosure of information to the voter and its disclosure only when
demanded by a competent court and upon the registration of criminal

173 Media One Broadcasting (supra), [101]
[2024] 2 S.C.R. 533
Association for Democratic Reforms & Anr. v. Union of India & Ors.

case has a rational nexus with the purpose of achieving privacy of
political contribution. Undoubtedly, the measure by prescribing non-
disclosure of information about political funding shares a nexus with
the purpose. The non-disclosure of information grants anonymity to
the contributor, thereby protecting information privacy. It is certainly
one of the ways capable of realizing the purpose of informational
privacy of political affiliation.
163. The suitability prong must next be applied to the purpose of disclosure
of information about political contributions to voters. There is no
nexus between the balancing measure adopted with the purpose of
disclosure of information to the voter. According to Clause 7(4) of
the Electoral Bond Scheme and the amendments, the information
about contributions made through the Electoral Bond Scheme is
exempted from disclosure requirements. This information is never
disclosed to the voter. The purpose of securing information about
political funding can never be fulfilled by absolute non-disclosure.
The measure adopted does not satisfy the suitability prong vis-a-
vis the purpose of information of political funding. However, let us
proceed to apply the subsequent prongs of the double proportionality
analysis assuming that the means adopted has a rational nexus with
the purpose of securing information about political funding to voters.
164. The next stage of the analysis is the necessity prong. At this stage,
the Court determines if the measure identified is the least restrictive
and equally effective measure. To recall, the Court must determine
if there are other possible means which could have been adopted
to fulfill the purpose, and whether such alternative means (a) realize
the purpose in a real and substantial manner; (b) impact fundamental
rights differently; and (c) are better suited on an overall comparison
of the degree of realizing the purpose and the impact on fundamental
rights.
165. The provisions of the RPA provide an alternative measure. Section
29C states that contributions in excess of rupees twenty thousand
received from a person or company for that financial year must be
disclosed by the political party through a report. The report must be
filled in the format prescribed in Form 24A of the Conduct of Election
Rules 1961. The form is annexed as Annexure II to this judgment.
A crucial component of this provision when juxtaposed with Section
13A of the IT Act must be noted. Section 13A of the IT Act requires
534 [2024] 2 S.C.R.
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the political party to maintain a record of the contributions made in
excess of rupees twenty thousand. Section 29C of the RPA requires
the political party to disclose information about contributions in
excess of rupees twenty thousand made by a person or company
in a financial year. Section 13७ mandates record keeping of every
contribution. On the other hand, Section 29C mandates disclosure
of information of contributions beyond rupees twenty thousand per
person or per company in one financial year.
166. Section 29C(1) is one of the means to achieve the purpose of
protecting the informational privacy of political affiliation of individuals.
Parliament in its wisdom has prescribed rupees twenty thousand as
the threshold where the considerations of disclosure of information
of political contribution outweigh the considerations of informational
privacy. ॥ could very well be debated whether rupees twenty thousand
is on the lower or higher range of the spectrum. However, that is
not a question for this Court to answer in this batch of petitions.
The petitioners have not challenged the threshold of rupees twenty
thousand prescribed for the disclosure of information prescribed by
Section 29C. They have only raised a challenge to the disclosure
exception granted to contributions by Electoral Bonds. Thus, this Court
need not determine if the threshold tilts the balance in favour of one
of the interests. We are only required to determine if the disclosure
of information on financial contributions in a year beyond rupees
twenty thousand is an alternative means to achieve the purposes of
securing the information on financial contributions and informational
privacy regarding political affiliation.
167. It must be recalled that we have held above that the right to information
of the voter includes the right to information of financial contributions
to a political party because of the influence of money in electoral
politics (through electoral outcomes) and governmental decisions
(through a seat at the table and quid pro quo arrangements between
the contributor and the political party). The underlying rationale of
Section 29C(1) is that contributions below the threshold do not have
the ability to influence decisions, and the right to information of
financial contributions does not extend to contributions which do not
have the ability to influence decisions. Similarly, the right to privacy
of political affiliations does not extend to contributions which may
be made to influence policies. It only extends to contributions made
as a genuine form of political support that the disclosure of such
[2024] 2 S.C.R. 535
Association for Democratic Reforms & Anr. v. Union of India & Ors.

information would indicate their political affiliation and curb various
forms of political expression and association.
168. It is quite possible that contributions which are made beyond
the threshold could also be a form of political support and not
necessarily a quid pro quo arrangement, and contributions below
the threshold could influence electoral outcomes. However, the
restriction on the right to information and informational privacy of
such contributions is minimal when compared to a blanket non-
disclosure of information on contributions to political parties. Thus,
this alternative realizes the objective of securing disclosure for
an informed voter and informational privacy to political affiliation
in a ‘real and substantial manner’. The measure in the Electoral
Bond Scheme completely tilts the balance in favor of the purpose
of informational privacy and abrogates informational interests.
On an overall comparison of the measure and the alternative,
the alternative is better suited because it realizes the purposes
to a considerable extent and imposes a lesser restriction on
the fundamental rights. Having concluded that Clause 7(4) of
the Scheme is not the least restrictive means to balance the
fundamental rights, there is no necessity of applying the balancing
prong of the proportionality standard.
169. The Union of India has been unable to establish that the measure
employed in Clause 7(4) of the Electoral Bond Scheme is the least
restrictive means to balance the rights of informational privacy
to political contributions and the right to information of political
contributions. Thus, the amendment to Section 13A(b) of the IT Act
introduced by the Finance Act 2017, and the amendment to Section
29C(1) of the RPA are unconstitutional. The question is whether this
Court should only strike down the non-disclosure provision in the
Electoral Bond Scheme, that is Clause 7(4). However, as explained
above, the anonymity of the contributor is intrinsic to the Electoral
Bond Scheme. The Electoral Bond is not distinguishable from other
modes of contributions through the banking channels such as cheque
transfer, transfer through the Electronic Clearing System or direct
debit if the anonymity component of the Scheme is struck down.
Thus, the Electoral Bond Scheme 2018 will also consequentially
have to be struck down as unconstitutional.
c. Validity of Section 154 of the Finance Act amending Section
182(3) to the Companies Act
536 [2024] 2 S.C.R.
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170. Before the 2017 amendment, Section 182(3) of the Companies Act,
mandated companies to disclose the details of the amount contributed
to a political party along with the name of the political party to which
the amount was contributed in its profit and loss account. After the
amendment, Section 182(3) only requires the disclosure of the
total amount contributed to political parties in a financial year. For
example, under Section 182(3) as it existed before the amendment,
ifa Company contributed rupees twenty thousand to a political party,
the company was required to disclose in its profit and loss account,
the details of the specific contributions made to that political party.
However, after the 2017 amendment, the Company is only required to
disclose that it contributed rupees twenty thousand to a political party
under the provision without disclosing the details of the contribution,
that is, the political party to which the contribution was made. The
profit and loss account of a company is included in the financial
statement which companies are mandated to prepare.'” A copy of
the financial statement adopted at the annual general meeting of the
company must be filed with the Registrar of Companies.'”
171. As discussed in the earlier segment of this judgment, the Companies
Act 1956 was amended in 1960 to include Section 293A by which
contributions by companies to political parties and for political
purposes were regulated. Companies were permitted to contribute
within the cap prescribed. All such contributions were required to
be disclosed by the Company in its profit and loss account with
details. Companies which contravened the disclosure requirement
were subject to fine. It is crucial to note here that contributions to
political parties by companies were regulated long before the IT
Act was amended in 1978 to exempt the income of political parties
through voluntary contributions for tax purposes (ostensibly to curb
black money). It is clear as day light that the purpose of mandating
the disclosure of contributions made by companies was not merely
to curb black money in electoral financing but crucially to make
the financial transactions between companies and political parties
transparent. Contributions for “political purposes” was widely defined
in the 1985 amendment (which was later incorporated in Section 182
of the Companies Act 2013) to include expenditure (either directly or

174 The Companies Act 2013; Section 2(40)
175 The Companies At 2013; Section 137
[2024] 2 S.C.R. 537
Association for Democratic Reforms & Anr. v. Union of India & Ors.

indirectly) for advertisement on behalf of political parties and payment
to a person “who is carrying activity which can be regarded as likely
to affect public support to a political party”. This indicates that the
legislative intent of the provision mandating disclosure was to bring
transparency to political contributions by companies. Companies have
always been subject to a higher disclosure requirement because
of their huge financial presence and the higher possibility of quid
pro quo transactions between companies and political parties. The
disclosure requirements in Section 182(3) were included to ensure
that corporate interests do not have an undue influence in electoral
democracy, and if they do, the electorate must be made aware of it.
172. Section 182(3) as amended by the Finance Act 2017 mandates
the disclosure of total contributions made by political parties. This
requirement would ensure that the money which is contributed to
political parties is accounted for. However, 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. Such information is also necessary
for exercising an informed vote.
173. Section 182(3) of the Companies Act and Section 29C of the RPA
as amended by the Finance Act must be read together. Section 29C
exempts political parties from disclosing information of contributions
received through Electoral Bonds. However, Section 182(3) not only
applies to contributions made through electoral bonds but through
all modes of transfer. In terms of the provisions of the RPA, if a
company made contributions to political parties through cheque or
ECS, the political party had to disclose the details in its report. Thus,
the information about contributions by the company would be in the
public domain. The only purpose of amending Section 182(3) was
to bring the provision in tune with the amendment under the RPA
exempting disclosure requirements for contributions through electoral
bonds. The amendment to Section 182(3) of the Companies Act
becomes otiose in terms of our holding in the preceding section that
the Electoral Bond Scheme and relevant amendments to the RPA
and the IT Act mandating non-disclosure of particulars on political
contributions through electoral bonds is unconstitutional.
538 [2024] 2 S.C.R.
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174 . Interms of Section 136 of the Companies Act, every shareholder ina
company has a right to a copy of the financial statement which also
contains the profit and loss account. The petitioners submitted that
the non-disclosure of the details of the political contributions made
by companies in the financial statement would infringe upon the
right of the shareholders to decide to sell the shares of a company
if a shareholder does not support the political ideology of the party
to which contributions were made. This it was contended, violates
Articles 19(1)(a), 19(1)(g), 21 and 25. We do not see the necessity
of viewing the non-disclosure requirement in Section 182(3) of the
Companies Act from the lens of a shareholder in this case when
we have identified the impact of non-disclosure of information on
political funding from the larger compass of a citizen and a voter. In
view of the above discussion, Section 182(3) as amended by the
Finance Act 2017 is unconstitutional.
G. Challenge to unlimited corporate funding
175. The Companies Act 1956,'” as originally enacted, did not contain any
provision relating to political contributions by companies. Regardless
of the same, many companies sought to make contributions to political
parties by amending their memorandum. In Jayantilal Ranchhoddas
Koticha ५. Tata Iron and Steel Co. Ltd.,'”” the decision of the
company to amend its memorandum enabling it to make contributions
to political parties was challenged before the High Court of Judicature
at Bombay. The High Court upheld the decision of the company to
amend its memorandum on the ground that there was no law prohibiting
companies from contributing to the funds of a party. Chief Justice M
C Chagla, cautioned against the influential role of “big business and
money bags’ in throttling democracy. The learned Judge emphasized
that it is the duty of Courts to “prevent any influence being exercised
upon the voter which is an improper influence or which may be looked
at from any point of view as a corrupt influence.” Chief Justice Chagla
highlighted the grave danger inherent in permitting companies to
donate to political parties and hoped Parliament would “consider under
what circumstances and under what limitations companies should be
permitted to make these contributions”.

176 “1956 Act”
177 AIR 1958 Bom 155
[2024] 2 S.C.R. 539
Association for Democratic Reforms & Anr. v. Union of India & Ors.

176. Subsequently, Parliament enacted the Companies (Amendment) Act
1960 to incorporate Section 293A in the 1956 Act. The new provision
allowed a company to contribute to: (a) any political party; or (b) for
any political purpose to any individual or body. However, the amount
of contribution was restricted to either twenty-five thousand rupees
in a financial year or five percent of the average net profits during
the preceding three financial years, whichever was greater. The
provision also mandated every company to disclose in its profit and
loss account any amount contributed by it to any political party or for
any political purpose to any individual or body during the financial
year to which that account relates by giving particulars of the total
amount contributed and the name of the party, individual, or body
to which or to whom such amount has been contributed.
177. In 1963, the Report of the Santhanam Committee on Prevention of
Corruption highlighted the prevalence of corruption at high political
levels due to unregulated collection of funds and electioneering by
political parties.'”® The Committee suggested “a total ban on all
donations by incorporated bodies to political parties.” Subsequently,
Section 293A of the 1956 Act was amended through the Companies
(Amendment) Act 1969 to prohibit companies from contributing funds to
any political party or to any individual or body for any political purpose.
178. In 1985, Parliament again amended Section 293A, in the process
reversing its previous ban on political contributions by companies.
It allowed a company, other than a government company and any
other company with less than three years of existence, to contribute
any amount or amounts to any political party or to any person for any
political purpose. It further provided that the aggregate of amounts
which may be contributed by a company in any financial year shall
not exceed five percent of its average net profits during the three
immediately preceding financial years. This provision was retained
under Section 182 of the Companies Act 2013. The only change was
that the aggregate amount donated by a company was increased to
seven and a half percent of its average net profits during the three
immediately preceding financial years. Section 154 of the Finance
Act 2017 amended Section 182 of the 2013 Act to delete this limit
contained in the first proviso of the provision.

178 Report of the Committee on Prevention of Corruption, 1964 [11.5].
540 [2024] 2 S.C.R.
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179. At the outset, it is important to be mindful of the fact that the petitioners
are not challenging the vires of Section 182 of the 2013 Act. Neither
are the petitioners challenging the legality of contributions made by
companies to political parties. The challenge is restricted to Section
154 of the Finance Act 2017 which amended Section 182 of the
2013 Act.
|. The application of the principle of non-arbitrariness
180. The petitioners argue that Section 154 of the Finance Act 2017
violates Article 14 of the Constitution. The primary ground of challenge
is that the amendment to Section 182 of the 2013 Act is manifestly
arbitrary as it allows companies, including loss-making companies,
to contribute unlimited amounts to political parties. It has also been
argued that the law now facilitates the creation of shell companies
solely for the purposes of contributing funds to political parties. On
the other hand, the respondent has questioned the applicability of
the doctrine of manifest arbitrariness for invalidating legislation.
a. _Arbitrariness as a facet of Article 14

181. At the outset, the relevant question that this Court has to answer is
whether a legislative enactment can be challenged on the sole ground
of manifest arbitrariness. Article 14 of the Constitution provides that
the State shall not deny to any person equality before the law or the
equal protection of laws within the territory of India. Article 14 is an
injunction to both the legislative as well the executive organs of the
State to secure to all persons within the territory of India equality
before law and equal protection of the laws.'” Traditionally, Article 14
was understood to only guarantee non-discrimination. In this context,
Courts held that Article 14 does not forbid all classifications but only
that which is discriminatory. In State of West Bengal v. Anwar Ali
Sarkar,'®° Justice 5 R Das (as the learned Chief Justice then was)
laid down the following two conditions which a legislation must satisfy
to get over the inhibition of Article 14: first, the classification must
be founded on an intelligible differentia which distinguishes those
that are grouped together from others; and second, the differentia
must have a rational relation to the object sought to be achieved

179 Basheshar Nath v. CIT, [1959]
Supp 1 SCR 528
180 [1952]
1 SCR 284 : (1951) 1 SCC 1; Also see State of Bombay v. FN Balsara, [1951]
1 SCR 682
[2024] 2 S.C.R. 541
Association for Democratic Reforms & Anr. v. Union of India & Ors.

by the legislation. In the ensuing years, this Court followed this
“traditional approach” to test the constitutionality of a legislation on
the touchstone of Article 14.18!
182. In E P Royappa v. State of Tamil Nadu,'*? this Court expanded
the ambit of Article 14 by laying down non-arbitrariness as a limiting
principle in the context of executive actions. Justice P N Bhagwati
(as the learned Chief Justice then was), speaking for the Bench,
observed that equality is a dynamic concept with many aspects
and dimensions which cannot be confined within traditional and
doctrinaire limits. The opinion declared that equality is antithetic to
arbitrariness, further finding that equality belongs to the rule of law in
a republic, while arbitrariness belongs to the whim and caprice of an
absolute monarch. In Ajay Hasia v. Khalid Mujib Seheravardi,'* a
Constitution Bench of this Court considered it to be well settled that
any action that is arbitrary necessarily involves negation of equality.
Justice Bhagwati observed that the doctrine of non-arbitrariness can
also be extended to a legislative action. He observed that:
“[w]herever therefore there is arbitrariness in State action
whether it be of the legislature or of the executive or of an
“authority” under Article 12, Article 14 immediately springs
into action and strikes down such State action.”
183. Immediately after the judgment in Ajay Hasia (supra), Justice
E S Venkataramaiah (as the learned Chief Justice then was) in
Indian Express Newspapers (Bombay) (P) Ltd. v. Union of
India,'* laid down the test of manifest arbitrariness with respect
to subordinate legislation. It was held that a subordinate legislation
does not carry the same degree of immunity enjoyed by a statute
passed by a competent legislature. Therefore, this Court held that
a subordinate legislation “may also be questioned on the ground
that it is unreasonable, unreasonable not in the sense of not
being reasonable, but in the sense that it is manifestly arbitrary.”

181 Kathi Raning Rawat v. State of Saurashtra, [1952]
1 SCR 435 : (1952) 1 SCC 215; Budhan Chowdhury
v. State of Bihar, [1955]
1 SCR 1045; Ram Krishna Dalmia v. S R Tendolkar, [1959]SCR 279.
182 [1974]
2 SCR 348 : (1974) 4SCC 3
183 [1981]
2 SCR 79 : (1981) 1 SCC 722
184 [1985]
2 SCR 287 : (1985) 1 SCC 641
542 [2024] 2 S.C.R.
Digital Supreme Court Reports

In Sharma Transport v. Government of Andhra Pradesh,'® this
Court reiterated Indian Express Newspapers (supra) by observing
that the test of arbitrariness as applied to an executive action cannot
be applied to delegated legislation. It was held that to declare a
delegated legislation as arbitrary, “it must be shown that it was not
reasonable and manifestly arbitrary.” This Court further went on to
define “arbitrarily” to mean “in an unreasonable manner, as fixed
or done capriciously or at pleasure, without adequate determining
principle, not founded in the nature of things, non-rational, not done or
acting according to reason or judgment, depending on the will alone.”
184. While this Court accepted it as a settled proposition of law that a
subordinate legislation can be challenged on the ground of manifest
arbitrariness, there was still some divergence as to the doctrine’s
application with respect to plenary legislation. In State of Tamil
Nadu v. Ananthi Ammal,'® a three-Judge Bench of this Court held
that a statute can be declared invalid under Article 14 if it is found
to be arbitrary or unreasonable. Similarly, in Dr. K R Lakshmanan
v. State of Tamil Nadu,'®’ a three-Judge Bench of this Court
invalidated a legislation on the ground that it was arbitrary and in
violation of Article 14. However, in State of Andhra Pradesh v.
McDowell & Co.,'®° another three-Judge Bench of this Court held
that a plenary legislation cannot be struck down on the ground that
it is arbitrary or unreasonable. In McDowell (supra), this Court held
that a legislation can be invalidated on only two grounds: first, the
lack of legislative competence; and second, on the violation of any
fundamental rights guaranteed in Part Ill of the Constitution or of
any other constitutional provision.
185. This divergence became more apparent when a three-Judge Bench of
this Court in Malpe Vishwanath Acharya ५. State of Maharashtra,"®°
invalidated certain provisions of the Bombay Rents, Hotel and Lodging
House Rates Control Act 1947 relating to the determination and fixation
of the standard rent. This Court declared the provisions in question
unreasonable, arbitrary, and violative of Article 14. However, the Court

185 [2001]
Suppl. 5 SCR 390 : (2002) 2 SCC 188
186 [1994] Suppl. 5 SCR 666 : (1995) 1 SCC 519
187 [1996]
1 SCR 395 : (1996) 2 SCC 226
188 [1996] 3 SCR 721 : (1996) 3 SCC 709
189 [1997] Suppl. 6 SCR 717 : (1998) 2 SCC 1
[2024] 2 S.C.R. 543
Association for Democratic Reforms & Anr. v. Union of India & Ors.

did not strike down the provisions on the ground that the extended
period of the statute was to come to an end very soon, requiring
the government to reconsider the statutory provisions. Similarly, in
Mardia Chemicals Ltd. ४. Union of India,'® another three-Judge
Bench of this Court invalidated Section 17(2) of the Securitization
and Reconstruction of Financial Assets and Enforcement of Security
Interest Act, 2002 for being unreasonable and arbitrary.
186. In Natural Resources Allocation, In Re Special Reference No. 1
2012,'*'
of a Constitution Bench of this Court referred to McDowell
(supra) to observe that a law may not be struck down as arbitrary
without a constitutional infirmity. Thus, it was held that a mere finding
of arbitrariness was not sufficient to invalidate a legislation. The
Court has to enquire whether the legislation contravened any other
constitutional provision or principle.
b. Beyond Shayara Bano: entrenching manifest arbitrariness in
Indian jurisprudence
187. In Shayara Bano ४. Union of India,'*? a Constitution Bench of this
Court set aside the practice of Talaq-e-Bidaat (Triple Talaq). Section
2 of the Muslim Personal Law (Shariat) Act 1937 was also impugned
before this Court. The provision provides that the personal law of
the Muslims, that is Shariat, will be applicable in matters relating to
marriage, dissolution of marriage and talaq. Justice R F Nariman,
speaking for the majority, held that Triple Talaq is manifestly arbitrary
because it allows a Muslim man to capriciously and whimsically break
a marital tie without any attempt at reconciliation to save it. Thus,
Justice Nariman applied the principle of manifest arbitrariness for
the purpose of testing the constitutional validity of the legislation on
the touchstone of Article 14.
188. Justice Nariman traced the evolution of non-arbitrariness jurisprudence
in India to observe that McDowells (supra) failed to consider two
binding precedents, namely, Ajay Hasia (supra) and KR Lakshmanan
(supra). This Court further observed that McDowells (supra) did not
notice Maneka Gandhi v. Union of India,'% where this Court held

190 [2004]
3 SCR 982 : (2004) 4 SCC 311
191 [2012]
9 SCR 311 : (2012) 10 SCC 1
192 [2017]
9 SCR 797 : (2017) 9 SCC 1
193 [1978]
2 SCR 621 : (1978) 1 SCC 248
544 [2024] 2 S.C.R.
Digital Supreme Court Reports

that substantive due process is a part of Article 21 which has to be
read along with Articles 14 and 19 of the Constitution. Therefore,
Justice Nariman held that arbitrariness of a legislation is a facet of
unreasonableness in Articles 19(2) to (6) and therefore arbitrariness
can also be used as a standard to strike down legislation under Article
14. It held McDowells (Supra) to be per incuriam and bad in law.
189. Shayara Bano (supra) clarified Reference
In Re Special No. 1 of
2012 (supra) by holding that a finding of manifest arbitrariness is in
itself a constitutional infirmity and, therefore, a ground for invalidating
legislation for the violation of Article 14. Moreover, it was held that
there is no rational distinction between subordinate legislation and
plenary legislation for the purposes of Article 14. Accordingly, the test
of manifest arbitrariness laid down by this Court in Indian Express
Newspapers (supra) in the context of subordinate legislation was
also held to be applicable to plenary legislation. In conclusion, this
Court held that manifest arbitrariness “must be something done
by the legislature capriciously, irrationally and/or without adequate
determining principle.” It was further held that a legislation which is
excessive and disproportionate would also be manifestly arbitrary. The
doctrine of manifest arbitrariness has been subsequently reiterated
by this Court in numerous other judgments.
190. The standard of manifest arbitrariness was further cemented by the
Constitution Bench of this Court in Navtej Singh Johar v. Union of
India.’% In_Navtej Singh Johar (supra), Section 377 of the Indian
Penal Code 1860 was challenged, inter alia, on the ground it is
manifestly arbitrary. Section 377 criminalized any person who has
had “voluntary carnal intercourse against the order of nature”. Chief
Justice Dipak Misra (writing for himself and Justice AM Khanwilkar)
held that Section 377 is manifestly arbitrary for failing to make a
distinction between consensual and non-consensual sexual acts
between consenting adults.'*® Justice Nariman, in the concurring
opinion, observed that Section 377 is manifestly arbitrary for penalizing
“consensual gay sex”. Justice Nariman faulted the provision for (a)
not distinguishing between consensual and non-consensual sex for
the purpose of criminalization; and (b) criminalizing sexual activity

194 [2018]7 SCR 379 : (2018) 10 SCC 1
195 WP (Criminal) 76 of 2016 [Chief Justice Misra, 239]
[2024] 2 S.C.R. 545
Association for Democratic Reforms & Anr. v. Union of India & Ors.

between two persons of the same gender.’ Justice DY Chandrachud
noted that Section 377 to the extent that it penalizes physical
manifestation of love by a section of the population (the LGBTQ+
community) is manifestly arbitrary.'?” Similarly, Justice Indu Malhotra
observed that the provision is manifestly arbitrary because the basis
of criminalization is the sexual orientation of a person which is not
a “rationale principle”.
191. In Joseph Shine v. Union of India,'*? a Constitution Bench of this
Court expressly concurred with the doctrine of manifest arbitrariness
as evolved in Shayara Bano (supra). In Joseph Shine (supra),
one of us (Justice D Y Chandrachud) observed that the doctrine
of manifest arbitrariness serves as a check against state action or
legislation “which has elements of caprice, irrationality or lacks an
adequate determining principle.” In Joseph Shine (supra), the validity
of Section 497 of the Indian Penal Code was challenged. Section
497 penalized a man who has sexual intercourse with a woman who
is and whom he knows or has a reason to believe to be the wife of
another man, without the “consent and connivance of that man” for
the offence of adultery. Justice Nariman observed that the provision
has paternalistic undertones because the provision does not penalize
a married man for having sexual intercourse with a married woman
if he obtains her husband’s consent. The learned Judge observed
that the provision treats a woman like a chattel:
“23. [...] This can only be on the paternalistic notion of
a woman being likened to chattel, for if one is to use
the chattel or is licensed to use the chattel by the —
licensorll, namely, the husband, no offence is committed.
Consequently, the wife who has committed adultery is not
the subject matter of the offence, and cannot, for the reason
that she is regarded only as chattel, even be punished as
an abettor. This is also for the chauvinistic reason that the
third-party male has seduced her, she being his victim.
What is clear, therefore, is that this archaic law has long

196 Ibid,[Justice Nariman, 82]
197 Ibid, [Justice DY Chandrachud, 29]
198 Ibid, [Justice Malhotra, paragraph 14.9]
199 [2018]
11 SCR 765 : (2019) 3 SCC 39
546 [2024] 2 S.C.R.
Digital Supreme Court Reports

outlived its purpose and does not square with today‘s
constitutional morality, in that the very object with which it
was made has since become manifestly arbitrary, having
lost its rationale long ago and having become in today‘s
day and age, utterly irrational. On this basis alone, the
law deserves to be struck down, for with the passage of
time, Article 14 springs into action and interdicts such law
as being manifestly arbitrary.”
192. The learned Judge further observed that the “ostensible object of
Section 497” as pleaded by the State which is to preserve the sanctity
of marriage is not in fact the object of the provision because: (a) the
sanctity of marriage can be destroyed even if a married man has
sexual intercourse with an unmarried woman or a widow; and (b)
the offence is not committed if the consent of the husband of the
woman is sought.
193. Justice DY Chandrachud in his opinion observed that a provision
is manifestly arbitrary if the determining principle of it is not in
consonance with constitutional values. The opinion noted that Section
497 makes an “ostensible” effort to protect the sanctity of marriage
but in essence is based on the notion of marital subordination of
women which is inconsistent with constitutional values.*°° Chief Justice
Misra (writing for himself and Justice AM Khanwilkar) held that the
provision is manifestly arbitrary for lacking “logical consistency” since
it does not treat the wife of the adulterer as an aggrieved person
and confers a ‘license’ to the husband of the woman.
194. It is now a settled position of law that a statute can be challenged
on the ground it is manifestly arbitrary. The standard laid down by
Justice Nariman in Shayara Bano (supra), has been citied with
approval by the Constitution Benches in Navtej Singh Johar (supra)
and Joseph Shine (supra). Courts while testing the validity of a
law on the ground of manifest arbitrariness have to determine if the
statute is capricious, irrational and without adequate determining
principle, or something which is excessive and disproportionate.
This Court has applied the standard of “manifest arbitrariness” in
the following manner:

200 (2019) 3 SCC 39 [Paragraph 35]
[2024] 2 S.C.R. 547
Association for Democratic Reforms & Anr. ५. Union of India & Ors.

a. A provision lacks an “adequate determining principle” if the
purpose is not in consonance with constitutional values. In
applying this standard, Courts must make a distinction between
the “ostensible purpose”, that is, the purpose which is claimed
by the State and the “real purpose”, the purpose identified by
Courts based on the available material such as a reading of
the provision?*'; and
b. A provision is manifestly arbitrary even if the provision does
not make a classification.*”
195. This Court in previous judgments has discussed the first of the above
applications of the doctrine by distinguishing between the “ostensible
purpose” and the “real purpose” of a provision with sufficient clarity.
The application of the doctrine of manifest arbitrariness by Chief
Justice Misra and Justice Nariman in Navtej Singh Johar (supra) to
strike down a provision for not classifying between consensual and
non-consensual sex must be understood in the background of two
jurisprudential developments on the interpretation of Part Ill of the
Constitution. The first, is the shift from reading the provisions of Part
Ill of the Constitution as isolated silos to understanding the thread of
reasonableness which runs through all the provisions and elevating
unreasonable (and arbitrary) action to the realm of fundamental
rights. The second is the reading of Article 14 to include the facets
of formal equality and substantive equality. Article 14 consists of two
components. “Equality before the law” which means that the law must
treat everybody equally in the formal sense. “Equal protection of the
laws” signifies a guarantee to secure factual equality. The legislature
and the executive makes classifications to achieve factual equality.
The underlying premise of substantive equality is the recognition that
not everybody is equally placed and that the degree of harm suffered
by a group of persons (or an individual) varies because of unequal
situations. This Court has in numerous judgments recognized that
the legislature is free to recognize the degrees of harm and confine
its benefits or restrictions to those cases where the need is the
clearest.2°° The corollary of the proposition that it is reasonable to

201 Justice Chandrachud, Justice Malhotra, and Justice Nariman in Navtej Singh Johar (supra); Justices
Chandrachud and Nariman in Joseph Shine (supra).
202 Chief Justice Misra in Navtej Singh Johar (supra)
203 Mohd. Hanif Quareshi v. State of Bihar, AIR 1958 SC 731; Binoy Viswam v. Union of India, [2017]
7 SCR
1: (2017) 7 SCC 59; Charanjit Lal Chowdhuri v. Union of India, (1950) SCC 833
548 [2024] 2 S.C.R.
Digital Supreme Court Reports

identify the degrees of harm, is that it is unreasonable, unjust, and
arbitrary if the Legislature does not identify the degrees of harm for
the purpose of law.
196. It is undoubtedly true that it is not the constitutional role of this Court
to second guess the intention of the legislature in enacting a particular
statute. The legislature represents the democratic will of the people,
and therefore, the courts will always presume that the legislature
is Supposed to know and will be aware of the needs of the people.
Moreover, this Court must be mindful of falling into an error of equating
a plenary legislation with a subordinate legislation. In Re Delhi Laws
Act 1912,7°* Justice Fazl Ali summed up the extent and scope of
plenary legislation and delegated legislation, in the following terms:
“32. The conclusions at which | have arrived so far may
now be summed up:
(1) The legislature must normally discharge its primary
legislative function itself and not through others.
(2) Once it is established that it has sovereign powers
within a certain sphere, it must follow as a corollary
that it is free to legislate within that sphere in any
way which appears to it to be the best way to give
effect to its intention and policy in making a particular
law, and that it may utilise any outside agency to any
extent it finds necessary for doing things which it is
unable to do itself or finds it inconvenient to do. In
other words, it can do everything which is ancillary
to and necessary for the full and effective exercise
of its power of legislation.
(3) It cannot abdicate its legislative functions, and
therefore while entrusting power to an outside agency,
it must see that such agency acts as a subordinate
authority and does not become a parallel legislature.
(4) The doctrine of separation of powers and the judicial
interpretation it has received in America ever since
the American Constitution was framed, enables the
American courts to check undue and excessive

204 (1951) SCC 568
[2024] 2 S.C.R. 549
Association for Democratic Reforms & Anr. v. Union of India & Ors.

delegation but the courts of this country are not
committed to that doctrine and cannot apply it in
the same way as it has been applied in America.
Therefore, there are only two main checks in this
country on the power of the legislature to delegate,
these being its good sense and the principle that it
should not cross the line beyond which delegation
amounts to “abdication and self-effacement”’.
197 . InGwalior Rayon Silk Mfg. (Wvg.) Co. Ltd. v. Assistant Commissioner
of Sales Tax and others,” a Constitution Bench of this Court held
that a subordinate legislation is ancillary to the statute. Therefore, the
delegate must enact the subordinate legislation “consistent with the
law under which it is made and cannot go beyond the limits of the
policy and standard laid down in the law.” Since the power delegated
by a statute is limited by its terms, the delegate is expected to “act in
good faith, reasonably, intra vires the power granted and on relevant
consideration of material facts.”°°° This Court has to be cognizant of this
distinction. In fact, the doctrine of manifest arbitrariness, as developed
by this Court in Indian Express Newspapers (supra) in the context
of subordinate legislation, was applicable to the extent that “it is so
arbitrary that it could not be said to be in conformity with the statute
or that it offends Article 14 of the Constitution.”2°”
198. The above discussion shows that manifest arbitrariness of a
subordinate legislation has to be primarily tested vis-a-vis its
conformity with the parent statute. Therefore, in situations where
a subordinate legislation is challenged on the ground of manifest
arbitrariness, this Court will proceed to determine whether the
delegate has failed “to take into account very vital facts which either
expressly or by necessary implication are required to be taken into
consideration by the statute or, say, the Constitution.”*°° In contrast,

205 [1974]
2 SCR 879 : (1974) 4 SCC 98
206 Shri Sitaram Sugar Co. Ltd. v. Union of India, (1990) 3 SCC 223
207 In Khoday Distilleries Ltd. V. State of Karnataka, (1996) 10 SCC 304, this Court reiterated Indian Express
Newspapers (supra) by holding that a delegated legislation is manifestly arbitrary if it “could not be
reasonably expected to emanate from an authority delegated with the law-making power.” Similarly, in
State of Tamil Nadu v. P Krishnamurthy, [2006]
3 SCR 396 : (2006) 4 SCC 517 this Court held that
subordinate legislation can be challenged on the ground of manifest arbitrariness to an extent “where the
court might well say that the legislature never intended to give authority to make such rules.”
208 Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, [1985]
2 SCR 287 : (1985) 1 SCC 641
550 [2024] 2 S.C.R.
Digital Supreme Court Reports

application of manifest arbitrariness to a plenary legislation passed by
a competent legislation requires the Court to adopt a different standard
because it carries greater immunity than a subordinate legislation.
We concur with Shayara Bano (supra) that a legislative action can
also be tested for being manifestly arbitrary. However, we wish to
clarify that there is, and ought to be, a distinction between plenary
legislation and subordinate legislation when they are challenged for
being manifestly arbitrary.
ll. Validity of Section 154 of the Finance Act 2017 omitting the
first proviso to Section 182 of the Companies Act
199. We now turn to examine the vires of Section 154 of the Finance
Act 2017. The result of the amendment is that: (a) a company, other
than a government company and a company which has been in
existence for less than three financial years, can contribute unlimited
amounts to any political party; and (b) companies, regardless of
the fact whether they are profit making or otherwise, can contribute
funds to political parties. The issue that arises for consideration is
whether the removal of contribution restrictions is manifestly arbitrary
and violates Article 14 of the Constitution.
200. As discussed in the earlier section, this Court has consistently
pointed out the pernicious effect of money on the integrity of the
electoral process in India. The Law Commission of India in its
170" Report also observed that “most business houses already
know where their interest lies and they make their contributions
accordingly to that political party which is likely to advance their
interest more.” This issue becomes particularly problematic
when we look at the avenues through which political parties
accumulate their capital. Section 182 of the 2013 Act is one such
legal provision allowing companies to contribute to political parties.
The question before us is not how political parties expend their
financial resources, but how they acquire their financial resources
in the first instance.
201. The Preamble to the Constitution describes India as a “democratic
republic”: a democracy in which citizens are guaranteed political
equality irrespective of caste and class and where the value of

209 Law Commission of India, 170th Report on the Reform of the Electoral Laws (1999)
[2024] 2 S.C.R. 551
Association for Democratic Reforms & Anr. v. Union of India & Ors.

every vote is equal. Democracy does not begin and end with
elections. Democracy sustains because the elected are responsive
to the electors who hold them accountable for their actions and
inactions. Would we remain a democracy if the elected do not
heed to the hue and cry of the needy? We have established the
close relationship between money and politics above where we
explained the importance of money for entry to politics, for winning
elections, and for remaining in power. That being the case, the
question that we ask ourselves is whether the elected would truly
be responsive to the electorate if companies which bring with them
huge finances and engage in quid pro quo arrangements with
parties are permitted to contribute unlimited amounts. 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 favors
through guid pro quo arrangements.
202. In Kesavananda Bharati v. State of Kerala,?'° the majority of this
Court held that “republican and democratic form of government”
form the basic elements of the constitutional structure. Subsequently,
in Indira Nehru Gandhi v. Raj Narain,?" Justice H R Khanna
reiterated that the democratic set up of government is a part of the
basic features of the Constitution. Elections matter in democracy
because they are the most profound expression of the will of the
people. Our parliamentary democracy enables citizens to express
their will through their elected representatives. The integrity of the
electoral process is a necessary concomitant to the maintenance of
the democratic form of government.?'?
203. This Court has also consistently held that free and fair elections
form an important concomitant of democracy.?'? In Kuldip Nayar

210 [1973] Suppl. 1 SCR 1 : (1973) 4 SCC 225
211 [1978] 2 SCR 405 : (1975) Supp SCC 1
212 In Indira Nehru Gandhi v. Raj Narain, [1978] 2 SCR 405 : (1975) Supp SCC 1, Justice Khanna observed
that periodical elections are a necessary postulate of a democratic setup as it allows citizens to elect their
representatives. He further observed that democracy can function “only upon the faith that elections are
free and fair and not rigged and manipulated, that they are effective instruments of ascertaining popular
will both in reality and form and are not mere rituals calculated to generate illusion of defence to mass
opinion.”
213 Digvijay Mote v. Union of India, (1993) 4 SCC 175; Union of India v. Association for Democratic Reforms,
(2002) 5 SCC 294.
552 [2024] 2 S.C.R.
Digital Supreme Court Reports

Union
v. of India,?'* a Constitution Bench of this Court held that
a democratic form of government depends on a free and fair
election system. In People’s Union for Civil Liberties v. Union
India,?'*
of this Court held that free and fair elections denote equal
opportunity to all people. It was further observed that a free and
fair election is one which is not “rigged and manipulated and the
candidates and their agents are not able to resort to unfair means
and malpractices.”
204. The integrity of the election process is pivotal for sustaining the
democratic form of government. The Constitution also places the
conduct of free and fair elections in India on a high pedestal. To this
purpose, Article 324 puts the Election Commission in charge of the
entire electoral process commencing with the issue of the notification
by the President to the final declaration of the result.2"° However,
it is not the sole duty of the Election Commission to secure the
purity and integrity of the electoral process. There is also a positive
constitutional duty on the other organs of the government, including
the legislature, executive and the judiciary, to secure the integrity of
the electoral process.
205. During the course of the arguments, the learned Solicitor General
submitted that the limit of seven and a half percent of the average
net profits in the preceding three financial years was perceived as
a restriction on companies who would want to donate in excess of
the statutory cap. The learned Solicitor General further submitted
that companies who wanted to donate in excess of the statutory cap
would create shell companies and route their contributions through
them. Therefore, it was suggested that the statutory cap was removed
to discourage the creation of shell companies.
206. The limit on restrictions to political parties was incorporated in
Section 293A of the 1956 Act through the Companies (Amendment)
Bill 1985. The original restriction on contribution was five per cent
of a company’s average net profits during the three immediately
preceding financial years. The Lok Sabha debates pertaining to the
Companies Bill furnish an insight into why contribution restrictions

214 [2006] Suppl. 5 SCR 1: (2006) 7 SCC 1
215 [2013]
12 SCR 283 : (2013) 10 SCC 1
216 Mohinder Singh Gill v. Chief Election Commissioner, [1978]
2 SCR 272 : (1978) 1 SCC 405
[2024] 2 S.C.R. 553
Association for Democratic Reforms & Anr. v. Union of India & Ors.

were imposed in the first place. The then Minister of Chemicals and
Fertilizers and Industry and Company Affairs justified the contribution
restrictions, stating that:

“Since companies not having profits should not be
encouraged to make political contributions, monetary
ceiling as an alternative to a certain percentage of profits
for arriving at the permissible amount of political donation
has been done away with.”2'”
207. Thus, the object behind limiting contributions was to discourage
loss-making companies from contributing to political parties. In 1985,
Parliament prescribed the condition that only companies which
have been in existence for more than three years can contribute.
This condition was also included to prevent loss-making companies
and shell companies from making financial contributions to political
parties. If the ostensible object of the amendment, as contended
by the learned Solicitor General, was to discourage the creation of
shell companies, there is no justification for removing the cap on
contributions which was included for the very same purpose: to deter
shell companies from making political contributions. In fact, when
the proposal to amend Section 182 of the 2013 Act was mooted by
the Government in 2017, the Election Commission of India opposed
the amendment and suggested that the Government reconsider
its decision on the ground that it would open up the possibility of
creating shell companies. The relevant portion of the opinion of the
ECI is reproduced below:
“Certain amendments have been proposed in Section 182
of the Companies Act, where the first proviso has been
omitted and consequently the limit of seven and a half
percent (7.5 %) of the average net profits in the preceding
three financial years on contributions by companies has
been removed from the statute. This opens up the possibility
of shell companies being set up for the sole purpose of
making donations to political parties with no other business
of consequence having disbursable profits.”2'8

217 Lok Sabha Debates, Companies Bill (16 May 1985).
218 Election Commission of India, Letter dated 26 May 2017, No. 56/PPEMS/Transparency/2017
554 [2024] 2 S.C.R.
Digital Supreme Court Reports

208. After the amendment, companies similar to individuals, can make
unlimited contributions and contributions can be made by both profit-
making and loss-making companies to political parties. Thus, in
essence, it could be argued that the amendment is merely removing
classification for the purpose of political contribution between
companies and individuals on the one hand and loss-making and
profit-making companies on the other.
209. The proposition on the principle of manifest arbitrariness culled out
above needs to be recalled. The 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.
210. One of the reasons for which companies may contribute to political
parties could be to secure income tax benefit.2"° However, companies
have been contributing to political parties much before the Indian
legal regime in 2003 exempted contributions to political parties.
Contributions are made for reasons other than saving on the Income
Tax. The chief reason for corporate funding of political parties is
to influence the political process which may in turn improve the
company’s business performance.”° A company, whatever may
be its form or character, is principally incorporated to carry out the
objects contained in the memorandum. However, the amendment
now allows a company, through its Board of Directors, to contribute
unlimited amounts to political parties without any accountability
and scrutiny. Unlimited contribution by companies to political
parties is antithetical to free and fair elections because it allows
certain persons/companies to wield their clout and resources to
influence policy making. The purpose of Section 182 is to curb
corruption in electoral financing. For instance, the purpose of
banning a Government company from contributing is to prevent
such companies from entering into the political fray by making
contributions to political parties. The amendment to Section 182
by permitting unlimited corporate contributions (including by shell
companies) authorizes unrestrained influence of companies on
the electoral process. This is violative of the principle of free and

219 IT Act, Section 80 GGB
220 Jayantilal Ranchhoddas Koticha ५. Tata Iron & Steel Co. Ltd (supra)
[2024] 2 S.C.R. 555
Association for Democratic Reforms & Anr. v. Union of India & Ors.

fair elections and political equality captured in the value of “one
person one vote”.
211. The amendment to Section 182 of the Companies Act must be read
along with other provisions on financial contributions to political parties
under the RPA and the IT Act. Neither the RPA nor the IT Act place
a cap on the contributions which can be made by an individual. The
amendment to the Companies Act when viewed along with other
provisions on electoral funding, seek to equalize an individual and
a company for the purposes of electoral funding.
212. The ability of a company to influence the electoral process through
political contributions is much higher when compared to that of an
individual. A company has a much graver influence on the political
process, both in terms of the quantum of money contributed to political
parties and the purpose of making such contributions. Contributions
made by individuals have a degree of support or affiliation to a political
association. However, contributions made by companies are purely
business transactions, made with the intent of securing benefits in
return. In Citizens United v. Federal Election Commission,7*'
the issue before the Supreme Court of the United States was
whether a corporation can use the general treasury funds to pay
for electioneering communication. The majority held that limitations
on corporate funding bans political speech (through contributions)
based on the corporate identity of the contributor. Justice Steven
writing for the minority on the issue of corporate funding observed
that companies and natural persons cannot be treated alike for the
purposes of political funding:
“In the context of election to public office, the distinction
between corporate and human speakers is significant.
Although they make enormous contributions to our society,
corporations are not actually members of it. They cannot
vote or run for office. Because they may be managed and
controlled by non-residents, their interests may conflict in
fundamental respects with the interests of eligible voters.
The financial resources, legal structure, and instrumental
orientation of corporations raise legitimate concerns about
their role in the electoral process.”

221 558 U.S 310
556 [2024] 2 S.C.R.
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213. In view of the above discussion, we are of the opinion that companies
and individuals cannot be equated for the purpose of political
contributions.
214. Further, Companies before the amendment to Section 182 could
only contribute a certain percentage of the net aggregate profits.
The provision classified between loss-making companies and profit-
making companies for the purpose of political contributions and for
good reason. The underlying principle of this distinction was that it is
more plausible that loss-making companies will contribute to political
parties with a quid pro quo and not for the purpose of income tax
benefits. The provision (as amended by the Finance Act 2017) does
not recognize that the harm of contributions by loss-making companies
in the form of quid pro quo is much higher. Thus, the amendment to
Section 182 is also manifestly arbitrary for not making a distinction
between profit-making and loss-making companies for the purposes
of political contributions.
215. Thus, the amendment to Section 182 is manifestly arbitrary for (a)
treating political contributions by companies and individuals alike; (b)
permitting the unregulated influence of companies in the governance
and political process violating the principle of free and fair elections;
and (c) treating contributions made by profit-making and loss-making
companies to political parties alike. The observations made above
must not be construed to mean that the Legislature cannot place
a cap on the contributions made by individuals. The exposition is
that the law must not treat companies and individual contributors
alike because of the variance in the degree of harm on free and
fair elections.
H. Conclusion and Directions
216. In view of the discussion above, the following are our conclusions:
a. The Electoral Bond Scheme, the proviso to Section 29C(1) of the
Representation of the People Act 1951 (as amended by Section
137 of 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 Finance Act
2017) are violative of Article 19(1)(a) and unconstitutional; and
b. The deletion of the proviso to Section 182(1) of the Companies
Act permitting unlimited corporate contributions to political parties
is arbitrary and violative of Article 14.
[2024] 2 S.C.R. 557
Association for Democratic Reforms & Anr. v. Union of India & Ors.

217. We direct the disclosure of information on contributions received
by political parties under the Electoral Bond Scheme to give
logical and complete effect to our ruling. On 12 April 2019, this
Court issued an interim order directing that the information of
donations received and donations which will be received must be
submitted by political parties to the ECI in a sealed cover. This
Court directed that political parties submit detailed particulars
of the donors as against each Bond, the amount of each bond
and the full particulars of the credit received against each bond,
namely, the particulars of the bank account to which the amount
has been credited and the date on which each such credit was
made. During the course of the hearing, Mr Amit Sharma, Counsel
for the ECI, stated that the ECI had only collected information on
contributions made in 2019 because a reading of Paragraph 14
of the interim order indicates that the direction was only limited
to contributions made in that year. Paragraphs 13 and 14 of the
interim order are extracted below:
“13. In the above perspective, according to us, the just
and proper interim direction would be to require all the
political parties who have received donations through
Electoral Bonds to submit to the Election Commission of
India in sealed cover, detailed particulars of the donors
835 against each bond; the amount of each such bond
and the full particulars of the credit received against
each bond, namely, the particulars of the bank account
to which the amount has been credited and the date of
each such credit.

14. The above details will be furnished forthwith in respect
of Electoral Bonds received by a political party till date.
The details of such other bonds that may be received by
such a political party upto the date fixed for issuing such
bonds as per the Note of the Ministry of Finance dated
28.2.2019, i.e 15.5.2019 will be submitted on or before 30"
May, 2019. The sealed covers will remain in the custody
of the Election Commission of India and will abide by such
orders as may be passed by the Court.”
218. Paragraph 14 of the interim order does not limit the operation of
Paragraph 13. Paragraph 13 contains a direction in unequivocal
558 [2024] 2 S.C.R.
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terms to political parties to submit particulars of contributions received
through Electoral Bonds to the ECI. Paragraph 14 only prescribes a
timeline for the submission of particulars on contributions when the
window for Electoral Bond contributions was open in 2019. In view
of the interim direction of this Court, the ECI must have collected
particulars of contributions made to political parties through Electoral
Bonds.
219. In view of our discussion above, the following directions are issued:
a. The issuing bank shall herewith stop the issuance of Electoral
Bonds;
SBI shall submit details of the Electoral Bonds purchased since
the interim order of this Court dated 12 April 2019 till date to
the ECI. The details shall include the date of purchase of each
Electoral Bond, the name of the purchaser of the bond and the
denomination of the Electoral Bond purchased;
SBI shall submit the details of political parties which have
received contributions through Electoral Bonds since the interim
order of this Court dated 12 April 2019 till date to the ECI. SBI
must disclose details of each Electoral Bond encashed by
political parties which shall include the date of encashment and
the denomination of the Electoral Bond;

SBI shall submit the above information to the ECI within three
weeks from the date of this judgment, that is, by 6 March 2024;

The ECI shall publish the information shared by the SBI on its
official website within one week of the receipt of the information,
that is, by 13 March 2024; and

Electoral Bonds which are within the validity period of fifteen
days but that which have not been encashed by the political
party yet shall be returned by the political party or the
purchaser depending on who is in possession of the bond
to the issuing bank. The issuing bank, upon the return of
the valid bond, shall refund the amount to the purchaser’s
account.
220. Writ petitions are disposed of in terms of the above judgment.
221. Pending applications(s), if any, stand disposed of.
[2024] 2 S.C.R. 559

Association for Democratic Reforms & Anr. v. Union of India & Ors.

ANNEXURE I

Section 29C, Representation of the People Act 1951
Prior to Amendment by the Finance Upon Amendment by Section 137
Act 2017 of the Finance Act, 2017
29C. Declaration of donation Section 29C. Declaration of donation
received by the political parties. - received by the political parties. —
(1) The treasurer of a political (1) The treasurer of a political
party or any other person party or any other person
authorized by the political authorized by the political
party in this behalf shall, in party in this behalf shall, in
each financial year, prepare each financial year, prepare
a report in respect of the a report in respect of the
following, namely; following, namely:
(a) thecontribution in excess (a) the contribution in excess
of twenty thousand of twenty thousand
rupees received by such rupees received by such
political party from any political party from any
person in that financial person in that financial
year; year;
the contribution in excess the contribution in excess
of twenty thousand of twenty thousand
rupees received by rupees received by
such political party from such political party from
companies other than companies other than
Government companies Government companies
in that financial year. in that financial year.
(2) The report under sub-section Provided that nothing contained
(1) shall be in such form as in this subsection shall apply
may be prescribed. to the contributions received
by way of an electoral bond.
(3) The report for a financial
Explanation — For the purposes of
year under subsection (1)
this subsection, “electoral bond”
shall be submitted by the
means a bond referred to in the
treasurer of a political party or
Explanation to sub-section (3) of
any other person authorized
section 31 of the Reserve Bank
by the political party in this
of India Act, 1934.
behalf before the due date for
furnishing a return of income (2) The report under sub-section
of that financial year under (1) shall be in such form as
section 139 of the Income-tax may be prescribed.
Act, 1961 (43 of 1961), to the
Election Commission.
560 [2024] 2 S.C.R.
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Where the treasurer of any (3) The report for a financial
political party or any other year under subsection
person authorized by the (1) shall be submitted by
political party in this behalf the treasurer of a political
fails to submit a report party or any other person
under sub-section (3) then, authorized by the political
notwithstanding anything party in this behalf before
contained in the Income-tax the due date for furnishing
Act, 1961 (43 of 1961), such a return of income of that
political party shall not be financial year under section
entitled to any tax relief under 139 of the Income-tax Act,
that Act. 1961 (43 of 1961), to the
Election Commission.

Where the treasurer of any
political party or any other
person authorized by the
political party in this behalf
fails to submit a report
under sub-section (3) then,
notwithstanding anything
contained in the Income-tax
Act, 1961 (43 of 1961), such
political party shall not be
entitled to any tax relief under
that Act.
Section 182, Companies Act 2013
Prior to Amendment by the Finance Upon Amendment by Section 154
Act, 2017 of the Finance Act, 2017
182.Prohibitions and restrictions 182.Prohibitions and restrictions
regarding political contributions. regarding political contributions.

1) Notwithstanding anything 1) Notwithstanding anything
contained in any other provision contained in any other provision
of this Act, a company, other of this Act, a company, other
than a Government company than a Government company
and a company which has and a company which has
been in existence for less been in existence for less
than three financial years, than three financial years,
may contribute any amount may contribute any amount
directly or indirectly to any directly or indirectly to any
political party: political party:
[2024] 2 S.C.R. 561

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Provided that the amount referred (First proviso omitted)
to in subsection (1) or, as the case
Provided that no such contribution
may be, the aggregate of the amount
shall be made by a company unless
which may be so contributed by the
a resolution authorising the making
company in any financial year shall
of such contribution is passed at a
not exceed seven and a half per
meeting of the Board of Directors
cent of its average net profits during
and such resolution shall, subject to
the three immediately preceding
the other provisions of this section,
financial years:
be deemed to be justification in law
Provided further that no such for the making of the contribution
contribution shall be made by authorised by it.
a company unless a resolution
authorising the making of such
contribution is passed at a meeting
of the Board of Directors and such
resolution shall, subject to the other
provisions of this section, be deemed
to be justification in law for the
making and the acceptance of the
contribution authorised by it.
Section 182 (3) Every company Section 182 (3) Every company
shall disclose in its profit and loss shall disclose in its profit and
account any amount or amounts loss account the total amount
contributed by it to any political contributed by it under this
party during the financial year to section during the financial year
which that account relates, giving to which the account relates.
particulars of the total amount (3A) Notwithstanding anything
contributed and the name of the contained in subsection (1), the
party to which such amount has contribution under this section shall
been contributed. not be made except by an account
payee cheque drawn on a bank
or an account payee bank draft or
use of electronic clearing system
through a bank account:
Provided that a company may
make contribution through any
instruments, issued pursuant to
any scheme notified under any
law for the time being in force,
for contribution to the political
parties.
562 [2024] 2 S.C.R.
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Section 13A, Income Tax Act 1995
Prior to Amendment by the Finance Upon Amendment by Section 11 of
Act, 2017 the Finance Act, 2017
13A. Special provision relating to 13A. Special provision relating to
incomes of political parties incomes of political parties

Any income of a political party Any income of a political party
which is chargeable under the head which is chargeable under the
“Income from house property” or head “Income from house property”
“Income from other sources” or or “Income from other sources” or
any income by way of voluntary any income by way of voluntary
contributions received by a political contributions received by a political
party from any person shall not party from any person shall not
be included in the total income of be included in the total income of
the previous year of such political the previous year of such political
party: party:

Provided that- Provided that-

(a) such political party keeps (a) such political party keeps
and maintains such books of and maintains such books of
account and other documents account and other documents
as would enable the Assessing as would enable the Assessing
Officer to properly deduce its Officer to properly deduce its
income therefrom; income therefrom;

in respect of each such in respect of each such
voluntary contribution in voluntary contribution other
excess of ten thousand than contribution by way
rupees, such political party of electoral bond in excess
keeps and maintains a record of ten thousand rupees, such
of such contribution and the political party keeps and
name and address of the maintains a record of such
person who has made such contribution and the name and
contribution; and address of the person who
has made such contribution;
the accounts of such political
and
party are audited by an
accountant as defined in the the accounts of such political
Explanation below sub- section party are audited by an
(2) of section 288. accountant as defined in
the Explanation below sub-
section (2) of section 288;
and
[2024] 2 S.C.R. 563

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Explanation.- For the purposes of (d) no donation exceeding
this section, “political party” means two thousand rupees is
an association or body of individual received by such political
citizens of India registered with the party otherwise than by an
Election Commission of India as a account payee cheque drawn
political party under paragraph 3 of on a bank or an account
the Election Symbols (Reservation payee bank draft or use of
and Allotment) Order, 1968, and electronic clearing system
includes a political party deemed to through a bank account or
be registered with that Commission through electoral bond.
under the proviso to subparagraph
Explanation.- For the purposes
(2) of that paragraph.
of this proviso, “electoral bond”
means a bond referred to in the
Explanation to sub- section (3) of
section 31 of the Reserve Bank of
India Act, 1934;
Provided also that such political
party furnishes a return of income
for the previous year in accordance
with the provisions of sub-section
(4B) of section 139 on or before the
due date under that section.
Section 31, Reserve Bank of India Act 1931
Prior to Amendment by the Finance Upon Amendment by Section 11 of
Act, 2017 the Finance Act, 2017
31. Issue of demand bills and 31. Issue of demand bills and
notes. notes.

1) | No person in India other than 1) | No person in India other than
the Bank or, as expressly the Bank or, as expressly
authorized by this Act, the authorized by this Act, the
Central Government shall Central Government shall
draw, accept, make or draw, accept, make or
issue any bill of exchange, issue any bill of exchange,
hundi, promissory note or hundi, promissory note or
engagement for the payment engagement for the payment
of money payable to bearer of money payable to bearer
on demand, or borrow, owe on demand, or borrow, owe
or take up any sum or sums or take up any sum or sums
of money on the bills, hundis of money on the bills, hundis
or notes payable to bearer on or notes payable to bearer on
demand of any such person: demand of any such person:
[2024] 2 S.C.R.
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Ee that cheques or drafts, Provided that cheques or drafts,
including hundis, payable to bearer including hundis, payable to bearer
on demand or otherwise may be on demand or otherwise may be
drawn on a person’s account with drawn on a person’s account with
a banker, shroff or agent. a banker, shroff or agent.
2) Notwithstanding anything 2) Notwithstanding anything
contained in the Negotiable contained in the Negotiable
Instruments Act, 1881, no Instruments Act, 1881, no
person in India other than person in India other than
the Bank or, as expressly the Bank or, as expressly
authorised by this Act, the authorised by this Act, the
Central Government shall Central Government shall
make or issue any promissory make or issue any promissory
note expressed to be payable note expressed to be payable
to the bearer of the instrument. to the bearer of the instrument.
3) Notwithstanding anything
contained in this section,
the Central Government may
authorise any scheduled
bank to issue electoral bond
Explanation.-For the purposes
of this subsection, ‘electoral
bond’ means a bond issued by
any scheduled bank under the
scheme as may be notified by the
Central Government.
[2024] 2 S.C.R. 565

Association for Democratic Reforms & Anr. v. Union of India & Ors.

ANNEXURE II
Conduct of Elections Rules, 1961
(Statutory Rules and Order)
2227FORM 24A
(See rule 85B)
[This form should be filed with the Election Commission before the
due date for furnishing a return of the Political Party’s income of the
concerned financial year under section 139 of the Income-tax Act,
1961 (43 of 1961) and a certificate to this effect should be attached
with the Income-tax return to claim exemption under the Income-tax
Act, 1961 (43 of 1961).]
1. Name of Political Party:
2. Status of the Political Party:
(recognised/unrecognised)
Address of the headquarters of the Political Party:
wo

Date of registration of Political Party with Election
Commission:

5. Permanent Account Number (PAN) and Income-tax Ward/
Circle where return of the political party is filed:__
6. Details of the contributions received, in excess of rupees
twenty thousand, during the Financial Year:20 - . -20 .

Serial | Name and PAN (if Amount of Mode of Remarks
number | complete any_ and | contribution | contribution
address Income- Tax (Rs.) *(cheque/
of the Ward/Circle demand
contributing draft/cash)
person/
company

222 Ins. By Notifin. No. 5.0. 1283(E), dated the 10th November, 2003.
566 [2024] 2 S.C.R.
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“In case of payment by cheque/demand draft, indicate name of the
bank and branch of the bank on which the cheque/demand draft
has been drawn.
7. ॥ case the contributor is a company, whether the conditions
laid down under section 293A of the Companies Act, 1956 (1
of 1956) have been complied with (A copy of the certificate
to this obtained from the company should be attached).
Verification

|, (full name in Block letters),
son/daughter of solemnly declare
that to the best of my knowledge and belief, the information given
in this Form is correct, complete and truly stated.
| further declare that | am verifying this form in my capacity as
on behalf of the Political Party above
named and I am also competent to do so.

(Signature and name of the Treasurer/Authorised person)]

Date:

Place:
[2024] 2 S.C.R. 567
Association for Democratic Reforms & Anr. v. Union of India & Ors.

Sanjiv Khanna, J.
| have had the benefit of perusing the judgment authored by Dr. D.Y.
Chandrachud, the Hon’ble Chief Justice. | respectfully agree with the
findings and conclusions recorded therein. However, since my reasoning
is different to arrive at the same conclusion, including application of the
doctrine of proportionality, | am penning down my separate opinion.
To avoid prolixity, the contentions of the parties are not referred to
separately and the facts are narrated in brief.
Corporate funding of political parties has been a contentious issue
with the legislature’s approach varying from time to time. The
amendments to the Companies Act, 1956 reveal the spectrum of
views of the legislature. It began with regulations and restrictions in
1960' to acomplete ban on contributions to political parties in 19697.
The ban was partially lifted in 1985 with restrictions and stipulations.®
The aggregate amount contributed to a political party in a financial
year could not exceed 5% of the average net profit during the three
immediately preceding financial years.* A new condition stipulated
that the board of directors? in their meeting would pass a resolution
giving legitimacy and authorisation to contributions to a political party.®
The Companies Act of 2013 replaced the Companies Act of 1956.
Section 182(1) of the Companies Act, 2013’ permitted contributions
by companies of any amount to any political party, if the said company
had been in existence for more than three immediately preceding
financial years and is not a government company. The requirement
of authorisation vide Board resolution is retained.? The cap of 5%
is enhanced to 7.5% of the average net profits during the three

The Companies (Amendment) Act 1960, s 100 inserted into the Companies Act 1956, s 293A which
stipulates that contributions to political parties cannot exceed 5% of the average net profit of the company
during the three immediately preceding financial years.
The Companies (Amendment) Act 1969, s 3 substituted of the Companies Act 1956, s 293A introducing
a ban on contributions to political parties.
The Companies (Amendment) Act 1985, s 2 replaced of the Companies Act 1956, s 293A bringing back
the 5% cap on contributions to political parties.
The Companies Act 1956, s 293A.
fF

For short, the “Board”.
Oo

Second proviso to Section 293A(2), Companies Act, 1956.
As originally enacted.
ON

Unamended second proviso to Section 182(1) of the Companies Act, 2013. This condition continues to
remain.
568 [2024] 2 S.C.R.
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immediately preceding financial years.° It is also mandated that
the company must disclose the amount contributed by it to political
parties in the profit and loss account, including particulars of name
of political party and the amount contributed.'° In case of violation
of the terms, penalties stand prescribed.
The Finance Act, 2017 made several amendments to the Companies
Act, 2013, Income Tax Act, 1961, Reserve Bank of India" Act,
1934, the Representation of the People Act, 1951, and the Foreign
Contribution Regulation Act, 2010. These changes were brought
in to allow contributions/donations through Electoral Bonds". The
changes made by the Finance Act, 2017 to these legislations were
provided in a tabular format by the petitioners. For clarity, | have
reproduced the table below. The specific changes are highlighted
in bold and italics for ease of reference:
Section 182 of the Companies Act, 2013
Prior to Amendment by the Finance Post Amendment by Section 154 of the
Act, 2017 Finance Act, 2017
182. Prohibitions and restrictions 182. Prohibitions and restrictions
regarding political contributions- regarding political contributions-

(1) Notwithstanding anything contained (1) Notwithstanding anything contained
in any other provision of this Act, a in any other provision of this Act, a
company, other than a Government company, other than a Government
company and a company which has company and a company which has
been in existence for less than three been in existence for less than three
financial years, may contribute any financial years, may contribute any
amount directly or indirectly to any amount directly or indirectly to any
political party: political party:
Provided that the amount referred [First proviso omitted]
to in sub-section (1) or, as the case
may be, the aggregate of the amount
which may be so contributed by the
company in any financial year shall
not exceed seven and a half per
cent of its average net profits during
the three immediately preceding
financial years:

Unamended first proviso to Section 182(1) of the Companies Act, 2013.
10 Unamended Section 182(3) of the Companies Act, 2013.
11 For short, “RBI”.
12 For short, “Bonds”.
[2024] 2 S.C.R. 569

Association for Democratic Reforms & Anr. v. Union of India & Ors.

Provided further that no such Provided that no such contribution
contribution shall be made by acompany shall be made by a company unless
unless a resolution authorising the a resolution authorising the making of
making of such contribution is passed such contribution is passed at a meeting
at a meeting of the Board of Directors of the Board of Directors and such
and such resolution shall, subject to resolution shall, subject to the other
the other provisions of this section, provisions of this section, be deemed
be deemed to be justification in law to be justification in law for the making
for the making and the acceptance of of the contribution authorised by it.
the contribution authorised by it.
182 (3) Every company shall disclose 182 (3) Every company shall disclose
in its profit and loss account any in its profit and loss account the total
amount or amounts contributed amount contributed by it under this
by it to any political party during the section during the financial year to
financial year to which that account which the account relates.
relates, giving particulars of the
(3A) Notwithstanding anything
total amount contributed and the
contained in sub-section (1), the
name of the party to which such
contribution under this section shall
amount has been contributed.
not be made except by an account
payee cheque drawn ona bank or an
account payee bank draft or use of
electronic clearing system through
a bank account:
Provided that a company may make
contribution through any instrument,
issued pursuant to any scheme
notified under any law for the time
being in force, for contribution to the
political parties.

Section 13-A of the Income Tax Act, 1961
Prior to Amendment by the Finance Post Amendment by Section 11 of the
Act, 2017 Finance Act, 2017
13-A. Special provision relating to 13-A. Special provision relating to
incomes of political parties.— Any incomes of political parties.— Any
income of a political party which is income of a political party which is
chargeable under the head “Income chargeable under the head “Income
from house property” or “Income from house property” or “Income
from other sources” or “capital gains from other sources” or “capital gains
or’ any income by way of voluntary or any income by way of voluntary
contributions received by a political contributions received by a political
party from any person shall not be party from any person shall not be
included in the total income of the included in the total income of the
previous year of such political party: previous year of such political party:
570 [2024] 2 S.C.R.
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Provided that— Provided that—

(a) such political party keeps and (a) such political party keeps and
maintains such books of account and maintains such books of account and
other documents as would enable the other documents as would enable the
Assessing Officer to properly deduce Assessing Officer to properly deduce
its income therefrom; its income therefrom;

(b) in respect of each such voluntary (b) in respect of each such voluntary
contribution in excess of twenty contribution other than contribution
thousand rupees, such political party by way of electoral bond in excess of
keeps and maintains a record of twenty thousand rupees, such political
such contribution and the name and party keeps and maintains a record of
address of the person who has made such contribution and the name and
such contribution; and address of the person who has made
such contribution;
(c) the accounts of such political
party are audited by an accountant (c) the accounts of such political party
as defined in the Explanation below are audited by an accountant as defined
sub-section (2) of Section 288: in the Explanation below sub-section
(2) of Section 288 and:
Provided further that if the Treasurer of
such political party or any other person (d) no donation exceeding two
authorised by that political party in this thousand rupees is received by such
behalf fails to submit a report under political party otherwise than by an
sub-section (3) of Section 29-C of account payee cheque drawn on a
the Representation of the People Act, bank or an account payee bank draft
1951 (43 of 1951) for a financial year, or use of electronic clearing system
no exemption under this section shall through a bank account or through
be available for that political party for electoral bond.
such financial year.
Explanation. — For the purposes of this
Explanation.—For the purposes of proviso, “electoral bond” means a
this section, “political party” means a bond referred to in the Explanation
political party registered under Section to sub-section (3) of Section 31 of
29-A of the Representation of the the Reserve Bank of India Act, 1934
People Act, 1951 (43 of 1951). (2 of 1934).
Provided further that if the Treasurer of
such political party or any other person
authorised by that political party in this
behalf fails to submit a report under
sub-section (3) of Section 29-C of
the Representation of the People Act,
1951 (43 of 1951) for a financial year,
no exemption under this section shall
be available for that political party for
such financial year.
[2024] 2 S.C.R. 571
Association for Democratic Reforms & Anr. v. Union of India & Ors.

| also that such political party
furnishes a return of income for the
previous year in accordance with
the provisions of sub-section (4B) of
Section 139 on or before the due date
under that section.

Explanation.—For the purposes of
this section, “political party” means a
political party registered under Section
29-A of the Representation of the
People Act, 1951 (43 of 1951).

Section 31 of the Reserve Bank of India Act, 1934
Prior to Amendment by the Finance Post Amendment by Section 135 of
Act 2017 the Finance Act 2017
Section 31. Issue of demand bills Section 31. Issue of demand bills and
and notes.— notes. —

(1) No person in India other than the (1) No person in India other than the
Bank, or, as expressly authorized by Bank, or, as expressly authorized by
this Act the Central Government shall this Act the Central Government shall
draw, accept, make or issue any bill draw, accept, make or issue any bill
of exchange, hundi, promissory note of exchange, hundi, promissory note
or engagement for the payment of or engagement for the payment of
money payable to bearer on demand, money payable to bearer on demand,
or borrow, owe or take up any sum or or borrow, owe or take up any sum or
sums of money on the bills, hundis or sums of money on the bills, hundis or
notes payable to bearer on demand notes payable to bearer on demand of
of any such person: any such person:

Provided that cheques or drafts, Provided that cheques or drafts,
including hundis, payable to bearer on including hundis, payable to bearer on
demand or otherwise may be drawn demand or otherwise may be drawn
on 8 person’s account with a banker, on a person’s account with a banker,
shroff or agent. shroff or agent.

(2) Notwithstanding anything contained 2) Notwithstanding anything contained
in the Negotiable Instruments Act, in the Negotiable Instruments Act,
1881 (26 of 1881), no person in India 1881 (26 of 1881), no person in India
other than the Bank or, as expressly other than the Bank or, as expressly
authorised by this Act, the Central authorised by this Act, the Central
Government shall make or issue Government shall make or issue
any promissory note expressed to any promissory note expressed to
be payable to the bearer of the be payable to the bearer of the
instrument. instrument.
572 [2024] 2 S.C.R.
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BS
Notwithstanding anything
contained in this section, the Central
Government may authorise any
scheduled bank to issue electoral
bond.

Explanation. — For the purposes of
this sub-section, “electroal bond”
means a bond issued by any
scheduled bank under the scheme
as may be notified by the Central
Government.

Section 29-C of the Representation of the People Act 1951
Prior to Amendment by the Finance Post Amendment by Section 137 of
Act 2017 the Finance Act 2017
29-C. Declaration of donation received 29-C. Declaration of donation received
by the political parties.— by the political parties.—
(1) The treasurer of the political party (1) The treasurer of the political party
or any other person authorised by the or any other person authorised by the
political party in this behalf shall, in political party in this behalf shall, in
each financial year, prepare a report each financial year, prepare a report
in respect of the following, namely:— in respect of the following, namely:—

(a) the contribution in excess of twenty (a) the contribution in excess of twenty
thousand rupees received by such thousand rupees received by such
political party from any person in that political party from any person in that
financial year; financial year;
(b) the contribution in excess of twenty (b) the contribution in excess of twenty
thousand rupees received by such thousand rupees received by such
political party from companies other political party from companies other
than Government companies in that than Government companies in that
financial year. financial year.
(2) The report under sub-section Provided that nothing contained in
(1) shall be in such form as may be this sub-section shall apply to the
prescribed. contributions received by way of an
electoral bond.
(3) The report for a financial year under
sub-section (1) shall be submitted by Explanation.— For the purposes of
the treasurer of a political party or this sub-section, “electoral bond”
any other person authorised by the means a bond referred to in the
political party in this behalf before Explanation to sub-section (3) of
the due date for furnishing a return Section 31 of the Reserve Bank of
of its income of that financial year India Act, 1934 (2 of 1934).
under Section 139 of the Income
(2) The report under sub-section (1) shall
Tax, 1961 (43 of 1961) to the Election
be in such form as may be prescribed.
Commission.
[2024] 2 S.C.R. 573

Association for Democratic Reforms & Anr. v. Union of India & Ors.

बा Where the treasurer of any political (3) The report for a financial year under
party or any other person authorised sub-section (1) shall be submitted by
by the political party in this behalf fails the treasurer of a political party or
to submit a report under sub-section any other person authorised by the
(3), then, notwithstanding anything political party in this behalf before
contained in the Income Tax Act, 1961 the due date for furnishing a return
(43 of 1961), such political party shall of its income of that financial year
not be entitled to any tax relief under under Section 139 of the Income Tax,
that Act. 1961 (43 of 1961) to the Election
Commission.

(4) Where the treasurer of any political
party or any other person authorised
by the political party in this behalf fails
to submit a report under sub-section
(3), then, notwithstanding anything
contained in the Income Tax Act, 1961
(43 of 1961), such political party shall
not be entitled to any tax relief under
that Act.

Section 2 of the Foreign Contribution Regulation Act, 2010
Prior to Amendment by the Finance Post Amendment by Section 236 the
Act 2017 Finance Act 2017
Section 2 (1) (j) Section 2 (1) (j)

() “foreign source” includes,— () “foreign source” includes,—

(1) the Government of any foreign (0 the Government of any foreign
country or territory and any agency country or territory and any agency of
of such Government; such Government;

(if) any international agency, not (if) any international agency, not
being the United Nations or any of being the United Nations or any of
its specialised agencies, the World its specialised agencies, the World
Bank, International Monetary Fund Bank, International Monetary Fund
or such other agency as the Central or such other agency as the Central
Government may, by notification, Government may, by notification,
specify in this behalf; specify in this behalf;

(ii) a foreign company; (iii) a foreign company;

(iv) a corporation, not being a foreign (iv) a corporation, not being a foreign
company, incorporated in a foreign company, incorporated in a foreign
country or territory; country or territory;

(v) amulti-national corporation referred (v) a multi-national corporation referred
to in sub-clause (iv) of clause (७); to in sub-clause (iv) of clause (g);
574 [2024] 2 S.C.R.
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= a company within the meaning of (vi) a company within the meaning of
the Companies Act, 1956 (1 of 1956), the Companies Act, 1956 (1 of 1956),
and more than one-half of the nominal and more than one-half of the nominal
value of its share capital is held, either value of its share capital is held, either
singly or in the aggregate, by one or singly or in the aggregate, by one or
more of the following, namely— more of the following, namely—

(A) the Government of a foreign (A) the Government of a foreign country
country or territory; or territory;

(B) the citizens of a foreign country (B) the citizens of a foreign country or
or territory; territory;

(C) corporations incorporated in a (C) corporations incorporated in a
foreign country or territory; foreign country or territory;

(D) trusts, societies or other (D) trusts, societies or other associations
associations of individuals (whether of individuals (whether incorporated or
incorporated or not), formed or not), formed or registered in a foreign
registered in a foreign country or country or territory;
territory;
(E) foreign company;
(E) foreign company;
Provided that where the nominal
value of share capital is within the
limits specified for foreign investment
under the Foreign Exchange
Management Act, 1999 (42 of 1999),
or the rules or regulations made
thereunder, then, notwithstanding
the nominal value of share capital of
a company being more than one-half
of such value at the time of making
the contribution, such company shall
not be a foreign source.

The amended Companies Act, 2013 removes the cap on corporate
funding.'? The requirement that the contribution will require a resolution
passed at the meeting of the Board is retained. In the profit and loss
account, a company is now only required to disclose the total amount
contributed to political parties in a financial year.'* The requirement
to disclose the specific amounts contributed and the names of the
political parties is omitted. Section 182(3A), as introduced, stipulates
that the company could contribute to a political party only by way

13 First proviso to Section 182(1), Companies Act, 2013 has been omitted vide the Finance Act, 2017.
14 Section 182(3) of the Companies Act, 2013.
[2024] 2 S.C.R. 575
Association for Democratic Reforms & Anr. v. Union of India & Ors.

of a cheque, Electronic Clearing System", or demand draft.'® The
proviso to Section 182(3A) permits a company to contribute through
any instrument issued pursuant to any scheme notified under the
law, for the time being in force, for contribution to political parties.
Section 13A of the Income Tax Act, 1961,'” exempts income of political
parties, including financial contributions and investments, from income
tax. The object of providing a tax exemption is to increase the funds
of political parties from legitimate sources. However, conditions
imposed require political parties to maintain books of accounts and
other documents to enable the assessing officer to properly deduce
their income."® Political parties are required to maintain records of the
name and addresses of persons who make voluntary contributions in
excess of Rs.20,000/-.'? Accounts of the political parties are required
to be audited.”°
In 2003, Section 80GGB and 80GGC were inserted in the Income
Tax Act, 1961, permitting contributions to political parties. These
contributions are tax deductible, though they are not expenditure for
purposes of business, to incentivise contributions through banking
channels.”
By the Finance Act, 2017, Section 13A of the Income Tax Act, 1961,
was amended. Section 13A now stipulates that a political party is
not required to maintain a record of the contributions received by
Bonds.” Further, donations over Rs.2,000/- are only permitted through
cheques, bank drafts, ECS or Bonds.”
10. Section 29C of the Representation of the People Act, 1951 was
introduced in 2003.74 The section requires each political party to
file a report for all contributions over Rs.20,000/- to the Election

15 For short, “ECS”.
16 Section 182(3A) of the Companies Act, 2013 was introduced vide Section 154 of the Finance Act, 2017.
17 As amended in 1978.
18 First proviso 1(a) to the unamended Section 13A of the Income Tax Act, 1961.
19 Second proviso to the unamended Section 13A of the Income Tax Act, 1961.
20 Third proviso to Section 13A Income Tax Act, 1961.
21 See Section 37 of the Income Tax Act, 1961.
22 Second proviso to Section 13A of the Income Tax Act, 1961.
23 Fourth proviso to Section 13A of the Income Tax Act, 1961.
24 Introduced vide Section 2, Election and Other Related Laws (Amendment) Act, 2003.
576 [2024] 2 S.C.R.
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Commission of India.” The report is required to be filed before the
due date of filing income tax returns of the financial year under
the Income Tax Act, 1961. Failure to submit a report disentitles a
political party from any tax relief, as provided under the Income
Tax Act, 1961. Section 29C of the Finance Act, 2017, as amended,
stipulates that political parties are not required to disclose the details
of contributions received by Bonds.”
11. Section 31(3) of the RBI Act, 1934 was added by the Finance Act,
2017 to effectuate the issuance of the Bonds which, as envisaged,
are not to mention the name of the political party to whom they are
payable, and hence are in the nature of bearer demand bill or note.
12. On 02.01.2018, the Department of Economic Affairs, Ministry of Finance,
notified the Electoral Bonds Scheme, 2018” in terms of Section 31(3)
of the RBI Act, 1934.78 The salient features of this Scheme are:

=> Bonds are in the nature of a promissory note and bearer
instrument.”° They do not carry the name of the buyer or payee.*°
= Bonds can be purchased by any ‘person”' who is a citizen of
India or who is a body corporate incorporated or established in
India.* Any ‘person’ who is an individual can purchase Bonds
either singly or jointly with other individuals.*%
= Bonds are to be issued in denominations of Rs.1,000/-,
Rs.10,000/-, Rs.1,00,000/-, Rs.10,00,000/- and Rs.1,00,00,000/-.**
They are valid for a period of 15 days from the date of issue.*
The amount of Bonds not encashed within the validity period

25 For short, “ECI’.
26 Proviso to Section 29C(1) of the Representation of the People Act, 1951.
27 For short, “the Scheme”.
28 Finance Act, 2017 has also amended and added Section 31(3) to the RBI Act, 1934 as the Bonds in
question are bearer bonds like Indian currency. However, we do not think this amendment is required to
be separately adjudicated as it merely effectuates the Bonds scheme.
29 Paragraph 2(a) of the Scheme.
30 Ibid.
31 Paragraph 2(d) of the Scheme defines a ‘person’ to include an individual, Hindu undivided family,
company, firm, an association of persons or body of individuals, whether incorporated or not. It also
includes every artificial judicial person and any agency, office or branch owned by such ‘person’.
32 Paragraph 3(1) of the Scheme.
33 Paragraph 3(2) of the Scheme.
34 Paragraph 5 of the Scheme.
35 Paragraph 6 of the Scheme.
[2024] 2 S.C.R. 577
Association for Democratic Reforms & Anr. v. Union of India & Ors.

of 15 days, would be deposited by the authorised bank to the
Prime Minister Relief Fund.*%°
= 116 Bond is non-refundable.*’”

=> A ‘person’ who wishes to purchase a Bond is required to apply
in the specified format.’® Non-compliant applications are to be
rejected.
=> Topurchase Bonds, a buyer is required to apply to the authorised
bank.*° RBI’s Know Your Customer*? requirements apply and
the authorised bank could ask for additional KYC documents,
if necessary."
= The payments for the issuance of Bonds are required to be
made in Indian rupees through demand draft, cheque, ECS or
direct debit to the buyer’s account.”
= The identity and information furnished by the buyer for the
issuance of Bonds is to be treated as confidential by the
authorised issuing bank.** The details, including identity, can
be disclosed only when demanded by a competent court or on
registration of any criminal case by any law enforcement agency.“
=> Only eligible political parties, meaning a party that is registered
under Section 29A of the Representation of the People Act, 1951,
and has secured not less than 1% of the votes polled in the
last general election to the House of People or the Legislative
Assembly, can receive a Bond.*®

= The eligible political party can encash the Bond through their
bank account in the authorised bank.*

36 Paragraph 12(2) of the Scheme.
37 Paragraph 7(6) of the Scheme.
38 Paragraph 7 of the Scheme.
39 Paragraph 2(b) of the Scheme defines an authorized bank as the State Bank of India and its specified
branches.
40 For short, “KYC
41 Paragraph 4 of the Scheme.
42 Paragraph 11 of the Scheme.
43 Paragraph 7(4) of the Scheme.
44 Ibid.
45 Paragraph 3(3) of the Scheme.
46 Paragraph 3(4) of the Scheme.
578 [2024] 2 S.C.R.
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= The Bonds are made available for purchase for a period of 10
days every quarter, in the months of January, April, July and
October, as may be specified by the Central Government.*’
They are also made available for an additional period of 30
days, as specified by the central government in a year where
general elections to the House of People are held.*8
= 116 Bonds are not eligible for trading,*? and commission,
brokerage or other charges are not chargeable/payable for
issuance of a Bond.
=> The value of the Bond is considered as income by way of
voluntary contributions to eligible political parties for the
purposes of tax exemption under Section 13A of the Income
Tax Act, 1961.°"
13. In the afore-mentioned writ petitions filed under Article 32 of the
Constitution of India,°? the petitioners are seeking a declaration that
the Scheme and the relevant amendments made by the Finance Act,
2017, are unconstitutional.

14. The question of the constitutional validity of the Scheme and the
amendments introduced by the Finance Act, 2017 are being examined
by us. The question of introducing these amendments through a money
bill under Article 110 of the Constitution is not being examined by ५5.7
The scope of Article 110 of the Constitution has been referred to a
seven-judge Bench and is sub-judice.** Further, a batch of petitions
challenging the amendments to the Foreign Contribution Regulation
Act, 2010 by the Finance Acts of 2016 and 2018 are pending. The
challenge to the said amendments is not being decided by us.
15. | fully agree with the Hon’ble Chief Justice, that the Scheme cannot
be tested on the parameters applicable to economic policy. Matters of

47 Paragraph 8(1) of the Scheme.
48 Paragraph 8(2) of the Scheme.
49 Paragraph 14 of the Scheme.
50 Paragraph 12 of the Scheme.
51 Paragraph 13 of the Scheme.
52 For short, “the Constitution”.
53 The Finance Act, 2017 was introduced and passed as a money bill by the Parliament under Article 110
of the Constitution.
54 Rojer Matthew v. South Indian Bank Ltd. and Ors., [2019]
16 SCR 1 : Civil Appeal No. 8588 of 2019.
[2024] 2 S.C.R. 579
Association for Democratic Reforms & Anr. v. Union of India & Ors.

economic policy normally pertain to trade, business and commerce,
whereas contributions to political parties relate to the democratic
polity, citizens’ right to know and accountability in our democracy.
The primary objective of the Scheme, and relevant amendments
introduced by the Finance Act, 2017, is electoral reform and not
economic reform. Thus, the dictum and the principles enunciated
by this Court in Swiss Ribbons (2) Ltd. and Another v. Union of
India and Others, and Pioneer Urban Land and Infrastructure
and Another ५ Union of India and Others,” relating to judicial
review on economic policy matters have no application to the present
case. To give the legislation the latitude of economic policy, we will be
diluting the principle of free and fair elections. Clearly, the importance
of the issue and the nexus between money and electoral democracy
requires us to undertake an in-depth review, albeit under the settled
powers of judicial review.
16. Even otherwise, it is wrong to state as a principle that judicial review
cannot be exercised over every matter pertaining to economic policy.°’
The law is that the legislature has to be given latitude in matters
of economic policy as they involve complex financial issues.*® The
degree of deference to be shown by the court while exercising the
power of judicial review cannot be put in a straitjacket.
17. On the question of burden of proof, | respectfully agree with the
observations made by the Hon’ble Chief Justice, that once the
petitioners are able to prima facie establish a breach of a fundamental
right, then the onus is on the State to show that the right limiting
measure pursues a proper purpose, has rational nexus with that
purpose, the means adopted were necessary for achieving that
purpose, and lastly proper balance has been incorporated.
18. The doctrine of presumption of constitutionality has its limitations
when we apply the test of proportionality. In a way the structured
proportionality places an obligation on the State at a higher level, as
it is a polycentric examination, both empirical and normative. While

55 [2019]
3 SCR 535 : (2019) 4 SCC 17.
56 [2019]
10 SCR 381 : (2019) 8 SCC 416.
57 R.K. Garg ५. Union of India and Others, (1981) 4 SCC 675.
58 Ibid. See also Bhavesh D. Parish and Others v. Union of India and Others, (2000) 5 SCC 471, and
Directorate General of Foreign Trade and Others v. Kanak Exports and Another, [2015]
15 SCR 287 :
(2016) 2 SCC 226.
580 [2024] 2 S.C.R.
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the courts do not pass a value judgment on contested questions of
policy, and give weight and deference to the government decision
by acknowledging the legislature’s expertise to determine complex
factual issues, the proportionality test is not based on preconceived
notion or presumption. The standard of proof is a civil standard or a
balance of probabilities;°? where scientific or social science evidence
is available, it is examined; and where such evidence is inconclusive
or does not exist and cannot be developed, reason and logic may
suffice.
19. The right to vote is a constitutional and statutory 16911," grounded in
Article 19(1)(a) of the Constitution, as the casting of a vote amounts
to expression of an opinion by the voter.® The citizens’ right to know
stems from this very right, as meaningfully exercising choice by
voting requires information. Representatives elected as a result of the
votes cast in their favour, enact new, and amend existing laws, and
when in power, take policy decisions. Access to information which
can materially shape the citizens’ choice is necessary for them to
have a say in how their lives are affected. Thus, the right to know
is paramount for free and fair elections and democracy.
20. The decisions in Association for Democratic Reforms (supra) and
People’s Union of Civil Liberties (PUCL) (supra) should not be
read as restricting the right to know the antecedents of a candidate
contesting the elections.® The political parties select candidates who
contest elections on the symbol allotted to the respective political
parties. Upon nomination, the candidates enjoy the patronage of
the political parties, and are financed by them. The voters elect a
candidate with the objective that the candidate’s political party will
come to power and fulfil the promises.

59 R. v. Oakes, [1986]
1 SCR 103.
60 See Libman v. Quebec (A.G.), [1997]
3 SCR 569; RUR-MacDonald Inc. v. Canada (Attorney
General), [1995] 3 SCR 199; Thomson Newspapers Co. ५. Canada (A.G.), [1998] 1 S.C.R. 877; R.
v. Sharpe, [2001] 1 SCR 45; Harper v. Canada (A.G.), [2004] 1 SCR 827, at paragraph 77; FR. ५.
Bryan, [2007] 1 SCR 527, at paragraphs 16-19, 29; Mounted Police Association of Ontario v. Canada
(Attorney General), [2015] 1 SCR 3, at paragraphs 143-144.
61 Article 326, Constitution.
62 Union of India v. Association for Democratic Reforms and Another, [2002] 3 SCR 696 : (2002) 5 SCC
294, and People’s Union of Civil Liberties (PUCL) and Another v. Union of India and Another, [2003] 2
SCR 1136 : (2003) 4 SCC 399.
63 Ibid.
64 The Representation of the People Act, 1951 permits candidates not set up by a recognized political party,
that is independent candidates, to contest elections as well.
[2024] 2 S.C.R. 581
Association for Democratic Reforms & Anr. v. Union of India & Ors.

21. The Hon’ble Chief Justice has referred to the Tenth Schedule of
the Constitution. The Schedule incorporates a provision for the
disqualification of candidates on the ground of defection, which
reflects the importance of political parties in our democracy. Section
77 of the Representation of the People Act, 1951, requires monetary
limits to be prescribed for expenditures incurred by candidates.® As
political parties are at the helm of the electoral process, including its
finances, the argument that the right of the voter does not extend to
knowing the funding of political parties and is restricted to antecedents
of candidates, will lead to an incongruity. |, respectfully, agree with
Hon'ble the Chief Justice, that denying voters the right to know the
details of funding of political parties would lead to a dichotomous
situation. The funding of political parties cannot be treated differently
from that of the candidates who contest elections.
22. Democratic legitimacy is drawn not only from representative democracy
but also through the maintenance of an efficient participatory
democracy. In the absence of fair and effective participation of all
stakeholders, the notion of representation in a democracy would be
rendered hollow. In a democratic set-up, public participation is meant
to fulfil three functions; the epistemic function of ensuring reasonably
sound decisions,® the ethical function of advancing mutual respect
among citizens, and the democratic function of promoting “an inclusive
process of collective choice”.® James Fishkin lists five criteria which
define the quality of a deliberative process.® These are:
> — Information (the extent to which participants are given access
to accurate and reliable information);

65 Under Explanation 1 to Section 77 of the Representation of the People Act, 1951, the expenditure
incurred by ‘leaders of political parties’ on account of travel for propagating the programme of the political
party, is not deemed to be election expenditure.
66 See observations of this court in Kanwar Lal Gupta v. Amar Nath Chawla & Ors., [1975]
2 SCR 259 :
(1975) 3 SCC 646.
67 This function is elaborated as to “produce preferences, opinions, and decisions that are appropriately
informed by facts and logic and are the outcome of substantive and meaningful consideration of relevant
reasons(...). Because the topics of these deliberations are issues of common concern, epistemically
well-grounded preferences, opinions, and decisions must be informed by, and take into consideration,
the preferences and opinions of fellow citizens”, Jane Mansbridge and others, ‘A Systemic Approach to
Deliberative Democracy’ in John Parkinson and Jane Mansbridge (eds), Deliberative Sysiems (1st edn,
Cambridge University Press 2012) 11.
68 Ibid at 12.
69 James 5 Fishkin, When the People Speak: Deliberative Democracy and Public Consultation (Oxford
University Press 2011) 33- 34.
582 [2024] 2 S.C.R.
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> Substantive balance (the extent to which arguments offered by
one side are answered by considerations offered by those who
hold other perspectives);
» Diversity (the extent to which major positions in the public are
represented by participants);
>» Conscientiousness, (the degree to which participants sincerely
weigh the merits of the arguments); and
» Equal consideration (the extent to which arguments offered by
all participants are considered on its merits regardless of who
offered them).”
23. The State has contested the writ petitions primarily on three grounds:
(i) | Donors of a political party often apprehend retribution from other
political parties or actors and thus their identities should remain
anonymous. The Bonds uphold the right to privacy of donors
by providing confidentiality. Further, donating money to one’s
preferred political party is a matter of self-expression by the
donor. Therefore, revealing the identity invades the informational
privacy of donors protected by the Constitution.” The identity
of the donor can be revealed in exceptional cases, for instance
on directions of a competent court, or registration of a criminal
case by any law enforcement agency.”
(ili) The Scheme, by incentivising banking channels and providing
confidentiality, checks the use of black or unaccounted money
in political contributions.”
(iii) The Scheme is an improvement to the prior legal framework. It
has inbuilt safeguards such as compliance of donors with KYC
norms, bearer bonds having a limited validity of fifteen days
and recipients belonging to a recognised political party that
has secured more than 1% votes in the last general elections.
24. Hon'ble the Chief Justice has rejected the Union of India’s submissions
by applying the doctrine of proportionality. This is a principle applied

70 This is equally important from the perspective of the test of proportionality.
71 See K.S. Putlaswamy and Anr. v. Union of India and Ors. (9J) (Privacy), (2017) 10 SCC 1.
72 Paragraph 7(4) of the Scheme.
73 See Arun Jaitley, ‘Why Electoral Bonds Are Necessary’, Press Information Bureau, 2018.
[2024] 2 S.C.R. 583
Association for Democratic Reforms & Anr. v. Union of India & Ors.

by courts when they exercise their power of judicial review in cases
involving a restriction on fundamental rights. It is applied to strike an
appropriate balance between the fundamental right and the pursued
purpose and objective of the restriction.
25. The test of proportionality comprises four steps:
(i) The first step is to examine whether the act/measure restricting
the fundamental right has a legitimate aim (legitimate aim/
purpose).
(ii) The second step is to examine whether the restriction has
rational connection with the aim (rational connection).
(iii) The third step is to examine whether there should have been
a less restrictive alternate measure that is equally effective
(minimal impairment/necessity test).
(iv) The last stage is to strike an appropriate balance between the
fundamental right and the pursued public purpose (balancing
act).
26. In Modern Dental College & Research Centre and Others v.
State of Madhya Pradesh and Others,” this Court had applied
proportionality in its four-part doctrinal form’® as a standard for
reviewing right limitations in India. This test was modified in K.S.
Puttaswamy (Retired) and Anr. (Aadhar) v. Union of India and
Anr. (9०), ” where this Court adopted a more tempered and nuanced
approach.” The Court, inter alia, imposed a stricter test for the third
and fourth prongs, namely necessity and balancing stages of the
test of proportionality, as reproduced below.
“155. ...1In order to preserve a meaningful but not unduly
strict role for the necessity stage, Bilchitz proposes the

74 See Aharon Barak, “Proportionality - Constitutional Rights and their Limitations”, Cambridge University
Press, 2012.
75 [2016]
3 SCR 579 : (2016) 7 SCC 353.
76 In Gujarat Mazdoor Sabha and Another v. Siate of Gujarat, (2020) 10 SCC 459, the Court added fifth
prong to proportionality test. It stipulated that the state should provide sufficient safeguards against the
abuse of such restriction. This was relied upon in Ramesh Chandra Sharma and Others v. State of U.P.
and Others, 2023 SCC OnLine SC 162.
77 [2018]
8 SCR 1 : (2019) 1 SCC 1.
78 See David Bilchitz, “Necessity and Proportionality: Towards a Balance Approach?“, (Hart Publishing,
Oxford and Portland, Oregon 2016). Also see Aparna Chandra, “Proportionality: A Bridge to Nowhere?”,
(Oxford Human Rights Journal 2020).
584 [2024] 2 S.C.R.
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following inquiry. First, a range of possible alternatives
to the measure employed by the Government must be
identified. Secondly, the effectiveness of these measures
must be determined individually; the test here is not whether
each respective measure realises the governmental
objective to the same extent, but rather whether it realises
it in a “real and substantial manner”. Thirdly, the impact
of the respective measures on the right at stake must be
determined. Finally, an overall judgment must be made as
to whether in light of the findings of the previous steps, there
exists an alternative which is preferable; and this judgment
will go beyond the strict means-ends assessment favoured
by Grimm and the German version of the proportionality
test; it will also require a form of balancing to be carried
out at the necessity stage.
156. Insofar as second problem in German test is
concerned, it can be taken care of by avoiding “ad hoc
balancing” and instead proceeding on some “bright-line
rules” i.e. by doing the act of balancing on the basis of
some established rule or by creating a sound rule...

XX XX XX

158. ... This Court, in its earlier judgments, applied German
approach while applying proportionality test to the case at
hand. We would like to proceed on that very basis which,
however, is tempered with more nuanced approach as
suggested by Bilchitz. This, in fact, is the amalgam of
German and Canadian approach. We feel that the stages,
as mentioned in Modern Dental College & Research Centre
and recapitulated above, would be the safe method in
undertaking this exercise, with focus on the parameters as
suggested by Bilchitz, as this projects an ideal approach
that need to be adopted.”
27. The said test was also referred to in Anuradha Bhasin v. Union
of India and Others,” with the observation that the principle of
proportionality is inherently embedded in the Constitution under

79 [2020]
1 SCR 812 : (2020) 3 SCC 637.
[2024] 2 S.C.R. 585
Association for Democratic Reforms & Anr. v. Union of India & Ors.

the doctrine of reasonable restriction. This means that limitations
imposed on a right should not be arbitrary or of excessive nature
beyond what is required in the interest of public. This judgment
thereupon references works of scholars/jurists who have argued that
if the necessity prong of the proportionality test is applied strictly,
legislations and policies, no matter how well intended, would fail the
proportionality test even if any other slightly less drastic measure
exists.8° Thereupon, the Court accepted the suggestion in favour of
a moderate interpretation of the necessity test. Necessity involves a
process of reasoning designed to ensure that only measures with a
strong relationship to the objective they seek to achieve can justify
an invasion of fundamental rights. The process thus requires a court
to reason through the various stages of moderate interpretation of
necessity in the following manner:
“(MN1) All feasible alternatives need to be identified, with
courts being explicit as to criteria of feasibility;
(MN2) The relationship between the government measure
under consideration, the alternatives identified in MN1 and
the objective sought to be achieved must be determined.
An attempt must be made to retain only those alternatives
to the measure that realise the objective in a real and
substantial manner;

(MN3) The differing impact of the measure and the
alternatives (identified in MN2) upon fundamental rights
must be determined, with it being recognised that this
requires a recognition of approximate impact; and
(MN4) Given the findings in MN2 and MN38, an overall
comparison (and balancing exercise) must be undertaken
between the measure and the alternatives. A judgment
must be made whether the government measure is the
best of all feasible alternatives, considering both the
degree to which it realises the government objective
and the degree of impact upon fundamental rights (“the
comparative component’).
28. Dr. Justice D.Y. Chandrachud, as his Lordship then was, in K.S.

80 Anuradha Bhasin (supra) at paragraph 71.
586 [2024] 2 S.C.R.
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Puttaswamy (5J)(Aadhar) (supra), had observed that the objective
of the second prong of rational connection test is essential to the
test of proportionality.2" Sanjay Kishan Kaul, J. in his concurring
opinion in Puttaswamy
K.S. (9J) (Privacy) (supra) had held that
actions not only should be sanctioned by law, but the proposed
actions must be necessary in a democratic society for a legitimate
aim. The extent of interference must be proportionate to the need for
such interference and there must be procedural guarantees against
abuse of such interference.
29. The test of proportionality is now widely recognised and employed
by courts in various jurisdictions like Germany, Canada, South Africa,
Australia and the United Kingdom.®? However, there isn’t uniformity
in how the test is applied or the method of using the last two prongs
in these jurisdictions.
30. The first two prongs of proportionality resemble a means-ends review
of the traditional reasonableness analysis, and they are applied
relatively consistently across jurisdictions. Courts first determine if the
ends of the restriction serve a legitimate purpose, and then assess
whether the proposed restriction is a suitable means for furthering the
same ends, meaning it has a rational connection with the purpose.
31. In the third prong, courts examine whether the restriction is necessary
to achieve the desired end. When assessing the necessity of the
measure, the courts consider whether a less intrusive alternative is
available to achieve the same ends, aiming for minimal impairment.
As elaborated above, this Court Anuradha Bhasin (supra), relying
on suggestions given by some jurists,?? emphasised the need to
employ a moderate interpretation of the necessity prong. To conclude
its findings on the necessity prong, this Court is inter alia required
to undertake an overall comparison between the measure and its
feasible alternatives.**

81 Dr. Justice D.Y. Chandrachud was in minority in K.S. Puttaswamy (Aadhaar) (supra), albeit his
observations on the objective of the second prong of rational connection are good and in consonance
with the law on the subject.
82 We will be referring to certain facets of the proportionality enquiry employed by these countries in our
judgment. The test is also employed in various other jurisdictions like Israel, New Zealand, and the
European Union.
83 See David Bilchitz at supra note 76.
84 In Anuradha Bhasin (supra), the Court stipulated the following requirement for a conclusion of findings
on the necessity prong: “...A judgment must be made whether the government measure is the best of all
feasible alternatives, considering both the degree to which it realises the government objective and the
[2024] 2 S.C.R. 587
Association for Democratic Reforms & Anr. v. Union of India & Ors.

32. We will now delve into the fourth prong, the balancing stage, in some
detail. This stage has been a matter of debate amongst jurists and
courts. Some jurists believe that balancing is ambiguous and value-
based.® This stems from the premise of rule-based legal adjudication,
where courts determine entitlements rather than balancing interests.
However, proportionality is a standard-based review rather than a rule-
based one. Given the diversity of factual scenarios, the balancing stage
enables judges to consider various factors by analysing them against the
standards proposed by the four prongs of proportionality. This ensures
that all aspects of a case are carefully weighed in decision-making.
This perspective finds support in the work of jurists who believe that
constitutional rights and restrictions/measures are both principles, and
thus they should be optimised/balanced to their fullest extent.®°
While balancing is integral to the standard of proportionality, such
an exercise should be rooted in empirical data and evidence. In
most countries that adopt the proportionality test, the State places
on record empirical data as evidence supporting the enactment
and justification for the encroachment of rights.®” This is essential
because the proportionality enquiry necessitates objective evaluation
of conflicting values rather than relying on perceptions and biases.
Empirical deference is given to the legislature owing to their
institutional competence and expertise to determine complex factual
legislation and policies. However, factors like lack of parliamentary
deliberation and a failure to make relevant enquiries weigh in on
the court’s decision. In the absence of data and figures, there is
a lack of standards by which proportionality stricto sensu can be

degree of impact upon fundamental rights...”
85 See Jochen von Bernstroff, Proportionality Without Balancing: Why Judicial Ad Hoc Balancing is
Unnecessary and Potentially Detrimental to Realisation of Collective and Individual Self Determination,
Reasoning Rights — Comparative Judicial Engagement, (Ed. Liaora Lazarus); Bernhard Schlink,
‘Abwagung im Verfassungsrecht’, Duncker & Humblot, 1976, and Francisco J. Urbina, ‘Is It Really
That Easy? A Critique of Proportionality and Balancing as Reasoning’ Canadian Journal of Law and
Jurisprudence, 2014.
86 According to Robert Alexy, the ‘Law of Balancing’ is as follows: “...the greater the degree of non-
satisfaction of, or detriment to, one principle, the greater must be the importance of satisfying the
other...” See Robert Alexy, A Theory of Constitutional Rights (Julian Rivers, trans. Oxford Univ. Press
2002).
87 For instance, in Canada, where the doctrine of proportionality is employed by courts, a cabinet directive
requires the standard to be incorporated into law-making. These guidelines stipulate that prior to
enactment of laws, the matter and its alternate solutions must be analysed, the relevant ministerial
department should engage in consultation with those who have an interest in the matter, and they should
analyse the impact of the proposed solution. See Cabinet Directive on Law-making in Guide to Making
Federal Acts and Regulations (2nd edn, Government of Canada).
588 [2024] 2 S.C.R.
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determined. Nevertheless, many of the constitutional courts have
employed the balancing stage ‘normatively’®® by examining the
weight of the seriousness of the right infringement against the
urgency of the factors that justify it. Examination under the first three
stages requires the court to first examine scientific evidence, and
where such evidence is inconclusive or does not exist and cannot
be developed, reason and logic apply. We shall subsequently be
referring to the balancing prong during our application of the test
of proportionality.
34. In Germany, the courts enjoy a high judicial discretion. The parliament
and the judiciary in Germany have the same goal, that is, to realise the
values of the German Constitution.®® Canadian courts, some believe,
in practice give wider discretion to the legislature when a restriction
is backed by sufficient data and evidence.*° The constitutional court
in South Africa, as per some jurists, collectively applies the four
prongs of proportionality instead of a structured application.°' While
proportionality is the predominant doctrine in Australia, an alternate
calibrated scrutiny test is applied by a few judges. It is based on
the premise that a contextual, instead of broad standard of review,
is required to be adopted for constitutional adjudication.
35. Findings of empirical legal studies provide a more solid foundation for
normative reasoning®? and enhance understanding of the relationship
between means and ends. In our view, proportionality analyses
would be more accurate when empirical inquiries on causal relations
between a legislative measure under review and the ends of such a
measure are considered. It also leads to better and more democratic
governance. While one cannot jump from “is” to “ought”, to reach an
“ought” conclusion, one has to rely on accurate knowledge of “is”,
for “is” and “ought” to be united. While we emphasise the need

88 The first and second steps, legitimate aim and rational connection prong, and to some extent necessity
prong, are factual.
89 See Article 1 and 20, Basic Law for the Federal Republic of Germany.
90 Niels Petersen, ‘Proportionality and judicial Activism: Fundamental Rights Adjudication in Canada,
Germany and South Africa, (CUP 2017).
91 Ibid.
92 See Annexure A.
93 See Yun-chien Chand & Peng-Hsiang Wang, The Empirical Foundation of Normative Arguments in Legal
Reasoning (Univ. Chicago Coase-Sandor Inst. For |. & Econ., Res. Paper No. 745, 2016).
94 Lee Epstein & Andrew D. Martin, An Introduction to Empirical Legal Research 6 (2014).
95 See Joshua B. Fischman, Reuniting “Is” and “Ought” in Empirical Legal Scholarship, 162 U. Pa. L. Rev.
[2024] 2 S.C.R. 589
Association for Democratic Reforms & Anr. v. Union of India & Ors.

of addressing the quantitative/empirical deficit for a contextual and
holistic balancing analysis, the pitfalls of selective data sharing must
be kept in mind. After all, if a measure becomes a target, it ceases
to be a good measure.**
36. To avoid this judgment from becoming complex, | have enclosed as
an annexure a chart giving different viewpoints on the doctrine of
proportionality as a test for judicial review exercised by the courts to
test the validity of the legislation. The same is enclosed as Annexure-A
to this judgment.%”
37. When we turn to the reply or the defence of the Union of India in
the present case, which we have referred to above, the matter of
concern is the first submission made regarding the purpose and
rationale of the Scheme and amendments to the Finance Act of
2017. Lest remains any doubt, | would like to specifically quote from
the transcript of hearing dated 01.11.2023, where on behalf of the
Union of India it was submitted:
“the bottom line is this. What was really found? That
what is the reason, why a person who contributes to a
political party chooses the mode of unclean money as
a payment mode and Your Lordships would immediately
agree with me if we go by the practicalities of life. What
happens is, suppose one state is going for an election.
There are two parties, there are multiple parties, but
by and large there are two parties which go neck to
neck. Suppose | am a contractor. I’m not a company or
anything. | am a contractor and |’m supposed to give
my political contribution to Party A and Party B or Party
A or Party B, as the case may be. But the fear was if
| give by way of accounted money or by clean money,
by way of cheque, it would be easily identifiable. If |
give to party A and Party B forms the Government, |
would be facing victimization and retribution and vice

117 (2013).
96 Marilyn Strathern, Improving Ratings: Audit in the British University System, European review, Vol. 5
Issue 3, pp. 305-321 (1997).
97 Annexure A should not be read as an opinion of this Court or even as obiter dicta expressed by this Court.
The Annexure is only for the purpose of pointing out different viewpoints on the test of proportionality.
98 See paragraph 23 of this judgment.
590 [2024] 2 S.C.R.
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versa. If | give money to Party 3 and Party A continues
to be in Government, then | would be facing retribution
or victimization. Therefore, the safest course was to
pay by cash, so that none of the parties know what |
paid to which party, and both parties are happy that |
have paid something. So, that, the payment by cash
ensured confidentiality. Both parties would say that
one party would be given 100 crores, one party would
be given 40 crores, depending upon my assessment of
their winnability. But both would not know who is paid
what. My Lord, sometimes what used to happen is in
my business, | get only clean money or substantial
part of the clean money, but practicalities require that |
contribute to the political parties, and practicality again
requires that | contribute with a degree of confidentiality
so that | am not victimized in the future. And therefore
clean money used to be converted into unclean money.
White money is being converted into black money so
that it can be paid, according to them anonymously, and
according to me with confidentiality. And this is disastrous
for the economy when white money is converted into
black money.”
While introducing the Finance Act of 2017, the then Finance Minister
had elucidated that the main purpose of the Scheme was to curb the
flow of black money in electoral finance.°%? This, it is stated, could be
achieved only if information about political donations and the donor
were kept confidential.’ It was believed that this would incentivise
donations to political parties through banking channels.
38. | am of the opinion that retribution, victimisation or retaliation cannot
by any stretch be treated as a legitimate aim. This will not satisfy the
legitimate purpose prong of the proportionality test. Neither is the
Scheme nor the amendments to the Finance Act, 2017, rationally
connected to the fulfilment of that purpose, namely, to counter
retribution, victimisation or retaliation in political donations. In our
opinion, it will also not satisfy the necessity stage of the proportionality
even if we have to ignore the balancing stage.

99 See Speech of Arun Jaitley, Minister of Finance, at paragraph 165, Budget 2017-18.
100 Ibid.
[2024] 2 S.C.R. 591
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39. Retribution, victimisation or retaliation against any donor exercising
their choice to donate to a political party is an abuse of law and
power. This has to be checked and corrected. As it is a wrong, the
wrong itself cannot be a justification or a purpose. The argument,
therefore, suffers on the grounds of inconsistency and coherence
as it seeks to perpetuate and accept the wrong rather than deal
with the malady and correct it. The inconsistency is also apparent
as the change in law, by giving a cloak of secrecy, leads to severe
restriction and curtailment of the collective’s right to information and
the right to know, which is a check and counters cases of retribution,
victimisation and retaliation. Transparency and not secrecy is the
cure and antidote.
AO. Similarly, the second argument that the donor may like to keep his
identity anonymous is a mere 1098 dixit assumption. The plea of
infringement of the right to privacy has no application at all if the
donor makes the contribution, that too through a banking channel, to
a political party. It is the transaction between the donor and the third
person. The fact that donation has been made to a political party
has to be specified and is not left hidden and concealed.'®' What
is not revealed is the quantum of the contribution and the political
party to whom the contribution is made. Further, when a donor goes
to purchase a Bond, he has to provide full particulars and fulfil the
KYC norms of the bank.’ His identity is then asymmetrically known
to the person and the officers of the bank from where the Bond is
purchased.'°? Similarly, the officers in the branch of the authorised
bank'™ where the political party has an account and encashes the
Bond are known to the officers in the said bank.'®
41. The argument raised by the Union of India that details can be
revealed when an order is passed by a court or when it is required for
investigation pursuant to registration of a criminal case’” overlooks the
fact that it is their stand that the identities of the contributors/donors

101 Section 182(3) of the Companies Act, 2013 requires companies to mention the total political contributions
made.
102 Paragraph 4 of the Scheme.
103 In terms of paragraph 2(b) of the Scheme, only State Bank of India and its specified branches are
allowed to issue Bonds.
104 Ibid.
105 Paragraph 3(4) of the Scheme.
106 See paragraph 7(4) of the Scheme.
592 [2024] 2 S.C.R.
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should be concealed because of fear of retaliation, victimisation and
reprisal. That fear would still exist as the identity of the purchaser
of the Bond can always be revealed upon registration of a criminal
case or by an order/direction of the court. Thus, the fear of reprisal
and vindictiveness does not evaporate. The so-called protection
exists only on paper but in practical terms is not a good safeguard
even if we accept that the purpose is legitimate. It fails the rational
nexus prong.
42. The fear of the identities of donors being revealed exists in another
manner. Under the Scheme, political parties in power may have
asymmetric access to information with the authorised bank. They
also retain the ability to use their power and authority of investigation
to compel the revelation of Bond related information.’”’ Thus, the
entire objective of the Scheme is contradictory and inconsistent.
43. Further, it is the case of the Union of India that parties in power at
the Centre and State are the recipients of the highest amounts of
donations through Bonas. If that is the case, the argument of retribution,
victimisation and retaliation is tempered and loses much of its force.’
44. The rational connection test fails since the purpose of curtailing
black or unaccounted-for money in the electoral process has no
connection or relationship with the concealment of the identity of the
donor. Payment through banking channels is easy and an existing
antidote. On the other hand, obfuscation of the details may lead to
unaccounted and laundered money getting legitimised.
45. The RBI had objected to the Scheme since the Bonds could change
hands after they have been issued. There is no check for the same
as the purchaser who has completed the KYC, whose identity is
thereupon completely concealed, may not be the actual contributor/
donor. In fact, the Scheme may enable the actual contributor/donor
to not leave any traceability or money trail.

107 Ibid.
108 In Brown ५. Socialist Workers Comm., 459 U.S. 87 (1982), the Supreme Court of the United States of
America held that disclosure laws requiring the reporting of names and addresses of every campaign
contributor could be waived when “specific evidence of hostility, threats, harassment and reprisals”
existed, thus adopting a case-by-case approach. Marshall J., delivering the opinion of the court observed
that the Socialist Workers Party, a minor political party had historically been the object of harassment by
government officials and private parties. Therefore, the court held that the government was prohibited
from compelling disclosures from the said party, a minor political party, since there existed a reasonable
probability that the compelled disclosures would subject their donors, if identified, to threats, harassment
or reprisals.
[2024] 2 S.C.R. 593
Association for Democratic Reforms & Anr. v. Union of India & Ors.

46. Money laundering can be undertaken in diverse ways. Political
contributions for a quid pro quo may amount to money laundering,
as defined under the Prevention of Money Laundering Act, 2002'”.
The Financial Action Task Force"® has observed that the signatory
States are required to check money laundering on account of
contributions made to political parties. Article 7(3) of the United
Nations Convention against Corruption, 2003 mandates the state
parties to enhance transparency in political funding of the candidates
and parties." The said convention is signed and ratified by India.
By ensuring anonymity, the policy ensures that the money laundered
on account of quid pro quo or illegal connection escapes eyeballs
of the public.
47. The economic policies of the government have an impact on
business and commerce. Political pressure groups promote different
agendas, including perspectives on economic policies. As long as
these pressure groups put forward their perspective with evidence
and data, there should not be any objection even if they interact with
elected representatives. The position would be different if monetary
contributions to political parties were made as a quid pro quo to
secure a favourable economic policy. This would be an offence
under the Prevention of Corruption Act, 1988 and also under the
PMLA. Such offences when committed by political parties in power
can never see the light of the day if secrecy and anonymity of the
donor is maintained.
48. In view of the aforesaid observations, the argument raised by the
petitioners that there is no rational connection between the measure
and the purpose, which is also illegitimate, has merit and should be
accepted.
49. On the question of alternative measures, that is the necessity prong
of the proportionality test, it is accepted that post the amendments
brought about by the Finance Act, 2017, political parties cannot
receive donations in cash for amounts above Rs.2,000/-. However,
political parties do not have to record the details and particulars of

109 For short, “PMLA”.
110 For short, “FATF”.
111 Paragraph 3, Section B, International Standards on Combating Money Laundering and the Financing of
Terrorism and Proliferation - The FATF Recommendations, 2012.
112 See also United Nations General Assembly Resolution A/RES/S-32/1, 02.06.2021, para 12.
594 [2024] 2 S.C.R.
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donations received for amounts less than Rs.20,000/-.''? Therefore,
the reduction of the upper limit of cash donations from Rs.20,000/-
to Rs.2,000/- serves no purpose. It is open to the political parties to
bifurcate the law and camouflage larger donations in smaller stacks.
There is no way or method to verify the donor if the amount shown
in the books of the political party is less than Rs.2,000/-.
50. It is an accepted position that the Electoral Trust Scheme’ was
introduced in 2013 to ensure the secrecy of contributors. As per
the Trust Scheme, contributions could be made by a person or
body corporate to the trust. The trust would thereafter transfer the
amount to the political party. The trust is, therefore, treated as the
contributor to the political party. Interestingly, it is the EC! that had
issued guidelines dated 06.06.2014 whereby the trusts were required
to specify and give full particulars to the ECI of the depositors with
the trust and amounts which were subsequently transferred as a
contribution to the political party. The guidelines were issued by the
ECI to ensure transparency and openness in the electoral process."*
51. The trust can have multiple donors. Similarly, contributions are made
by the trust to multiple political parties. The disclosure requirements
provided in ECI’s guidelines dated 06.06.2014 only impose disclosure
requirements at the inflow and outflow points of the trust’s donations,
that is, the trust is required to provide particulars of its depositors
and the amounts donated to political parties, including the names of
the political parties. Thus, the Trust Scheme protects the anonymity
of the donors vis-a-vis their contributions to the political party. When
we apply the necessity test propounded in Anuradha Bhasin
(supra), the Trust Scheme achieves the objective of the Union of

113 This is inapplicable to Bonds under proviso (b) to Section 13A of the Income Tax Act, 1961.
114 For short, “Trust Scheme”.
115 Similarly, early campaign finance laws in the United Kingdom permitted trusts to donate to political
parties. It came to be disallowed since it was contrary to openness and accountability. See Suchindran
Bhaskar Narayan and Lalit Panda, Money and Elections — Necessary Reforms in Electoral Finance,
Vidhi 2018 at p. 19. See also Lord Neill of Bladen, QC, ‘Fifth Report of the Committee on Standards in
Public Life: The Funding of Political Parties in the United Kingdom’, 1998 pp 61-62.
116 As elaborated in paragraph 27] of this judgement, Anuradha Bhasin (supra) proposes a four sub-pronged
inquiry at the necessity stage of proportionality, that is (MN1) to (MN4). To arrive at the conclusion of
the necessity inquiry, this Court has proposed at (MN4) that: “...an overall comparison (and balancing
exercise) must be undertaken between the measure and the alternatives. A judgment must be made
whether the government measure is the best of all feasible alternatives, considering both the degree
to which it realises the government objective and the degree of impact upon fundamental rights (the
comparative component).”
[2024] 2 S.C.R. 595
Association for Democratic Reforms & Anr. v. Union of India & Ors.

India in a real and substantial manner and is also a less restrictive
alternate measure in view of the disclosure requirements, viz. the
right to know of voters. The Trust Scheme is in force and is a result
of the legislative process. In a comparison of limited alternatives, it
is a measure that best realises the objective of the Union of India
in a real and substantial manner without significantly impacting the
fundamental right of the voter to know. The ECIl, if required, can
suitably modify the guidelines dated 06.06.2014.
52. | would now come to the fourth prong. | would begin by first referring
to the judgment cited by Hon’ble the Chief Justice in the case
of Campbell v. MGM Limited’. This judgment adopts double
proportionality standard to adequately balance two conflicting
fundamental rights. Double proportionality has been distinguished
from the single proportionality standard in paragraph 152 of the
judgment authored by Hon’ble the Chief Justice. Campbell (supra)
states that the single proportionality test and the principle of
reasonableness are applied to determine whether a private right claim
offers sufficient justification for the interference with the fundamental
rights. However, this test may not apply when two fundamental rights
are at conflict and one has to balance the application of one right
and restriction of the other.
53. In Campbell (supra), Baroness Hale has suggested a three-step
approach to balance conflicting fundamental rights, when two rights
are in play. The first step is to analyse the comparative importance
of the fundamental rights being claimed in the particular case. In the
second step, the court should consider the justification for interfering
with or restricting each of these rights. The third step requires the
application of a proportionality standard to both these rights.
54. In a subsequent decision, the House of Lords (Lord Steyn) in In
re.S"®, distilled four principles to resolve the question of conflict of
rights as under:
“17. (...) First, neither article has as such precedence
over the other. Secondly, where the values under the two
articles are in conflict, an intense focus on the comparative
importance of the specific rights being claimed in the

117 [2004]
2 AC 457.
118 [2005]
1 AC 593.
596 [2024] 2 S.C.R.
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individual case is necessary. Thirdly, the justifications for
interfering with or restricting each right must be taken into
account. Finally, the proportionality test must be applied to
each. For convenience | will call this the ultimate balancing
test. This is how | will approach the present case.”
55. The fourth principle, that is, the ultimate balancing test, was elaborated
upon by Sir Mark Potter in In Re. ॥/71 in the following terms:
“53. (...) each Article propounds a fundamental right which
there is a pressing social need to protect. Equally, each
Article qualifies the right it propounds so far as it may be
lawful, necessary and proportionate to do so in order to
accommodate the other. The exercise to be performed
is one of parallel analysis in which the starting point is
presumptive parity, in that neither Article has precedence
over or “trumps” the other. The exercise of parallel analysis
requires the court to examine the justification for interfering
with each right and the issue of proportionality is to be
considered in respect of each. It is not a mechanical
exercise to be decided upon the basis of rival generalities.
An intense focus on the comparative importance of the
specific rights being claimed in the individual case is
necessary before the ultimate balancing test in terms of
proportionality is carried out.”
56. Fundamental rights are not absolute, legislations/policies restricting
the rights may be enacted in accordance with the scheme of the
Constitution. However, it is now well settled that the provisions of
fundamental rights in Part Ill of the Constitution are not independent silos
and have to be read together as complementary rights.'?° Therefore, the
thread of reasonableness applies to all such restrictions.'*' Secondly,
Article 14, as observed by the Hon’ble Chief Justice in his judgment’
includes the facet of formal equality and substantive equality. Thus,
the principle ‘equal protection of law’ requires the legislature and the
executive to achieve factual equality. This principle can be extended

119 [2005]
EWHC 1564 (Fam).
120 Rustom Cavasjee Cooper v. Union of India, (1970) 1 SCC 248; K.S. Puttaswamy (9J) (Privacy) (supra),
and Maneka Gandhi v. Union of India and Another, (1978) 1 SCC 248.
121 The test of single proportionality will apply.
122 See paragraphs 191 to 195 of the Hon’ble Chief Justice’s judgment.
[2024] 2 S.C.R. 597
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to any restriction on fundamental rights which must be reasonable
to the identified degree of harm. If the restriction is unreasonable,
unjust or arbitrary, then the law should be struck down. Further, it is
for the legislature to identify the degree of harm. | have referred to the
said observation in the context that there appears to be a divergent
opinion in Puttaswamy
K.S. (9-J) (Privacy) (supra) as to whether
right of privacy is an essential component for effective fulfilment of
all fundamental rights or can be held to be a part or a component of
Article 21 and Article 19(1)(a) of the Constitution.
57. When we apply the fourth prong, that is the balancing prong of
proportionality, | have no hesitation or doubt, given the findings
recorded above, that the Scheme falls foul and negates and
overwhelmingly disavows and annuls the voters right in an electoral
process as neither the right of privacy nor the purpose of incentivising
donations to political parties through banking channels, justify the
infringement of the right to voters. The voters right to know and
access to information is far too important in a democratic set-up so
as to curtail and deny ‘essential’ information on the pretext of privacy
and the desire to check the flow of unaccounted for money to the
political parties. While secret ballots are integral to fostering free
and fair elections, transparency—not secrecy — in funding of political
parties is a prerequisite for free and fair elections. The confidentiality
of the voting booth does not extend to the anonymity in contributions
to political parties.
58. In Puttasamy
K.S. (9-J) (Privacy) (supra), all opinions accept that
the right to privacy has to be tested and is not absolute. The right
to privacy must yield in given circumstances when dissemination
of information is legitimate and required in state or public interest.
Therefore, the right to privacy is to be applied on balancing the
said right with social or public interest. The reasonableness of
the restriction should not outweigh the particular aspect of privacy
claimed.'*3 Sanjay Kishan Kaul, J., in his opinion in Puttasamy
K.S.
(9-J) (Privacy) (supra), has said that restriction on right to privacy
may be justifiable and is subject to the principle of proportionality
when considering the right to privacy in relation to its function in
society.

123 While giving the aforesaid finding, we are applying the single proportionality test.
598 [2024] 2 S.C.R.
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59. As observed above, the right to privacy operates in the personal
realm, but as the person moves into communal relations and activities
such as business and social interaction, the scope of personal space
shrinks contextually.'”4 In this context, the High Court of South Africa
in My Vote Counts NPC v. President of the Republic of South
Africa and Ors.'*° observes that:
“(...) given the public nature of political parties and the
fact that the private funds they receive have a distinctly
public purpose, their rights to privacy can justifiably be
attenuated. The same principles must, as a necessary
corollary, apply to their donors. (...)”
(emphasis supplied)
60. The great underlying principle of the Constitution is that rights of
individuals in a democratic set-up is sufficiently secured by ensuring
each a share in political power.'?° This right gets affected when a
few make large political donations to secure selective access to
those in power. We have already commented on pressure groups
that exert such persuasion, within the boundaries of law. However,
when money is exchanged as quid pro quo then the line between
persuasion and corruption gets blurred.
61. Itis in this context that the High Court of Australia in Jeffery Raymond
McCloy and Others v. State of New South Wales and Another’,
observes that corruption can be of different kinds. When a wealthy
donor makes contribution to a political party in return of a benefit, it
is described as quid pro quo corruption. More subtle corruption arises
when those in power decide issues not on merits or the desires of
their constituencies, but according to the wishes and desires of those
who make large contributions. This kind of corruption is described as
‘clientelism’. This can arise from the dependence’® on the financial
support of a wealthy patron to a degree that it compromises the

124 See Bernstein and Ors. v. Bester NO and Others, (1996) ZACC 2, para 67.
125 My Vote Counts NPC v. President of the Republic of South Africa and Ors. ZAWCHC
(2017) 105, para
67.
126 Harrison Moore, The Constitution of the Commonwealth of Australia, p.329 (1902).
127 (2015)
HCA 34.
128 James Madison in the Federalist Paper No. 52 notes that a government must “depend on the people
alone”. This condition, according to Professor Lawrence Lessig, has two elements -— first, it identifies a
proper dependency (“on the people”) and second, it describes that dependence as exclusive (“alone”).
[2024] 2 S.C.R. 599
Association for Democratic Reforms & Anr. v. Union of India & Ors.

expectation, fundamental to representative democracy, that public
power will be exercised in public interest. This affects the vitality as
well as integrity of the political branches of government. While quid
pro quo and clientelistic corruption erodes quality and integrity of
government decision making, the power of money may also pose
threat to the electoral process itself. This phenomenon is referred
to as ‘war-chest’ corruption.'°
62. In Jefferey Raymond (supra), the High Court of Australia had
referred to the decision of the Supreme Court of Canada in Harper
v. Canada (Attorney General)'**, which upheld the legislative
restriction on electoral advertising. In Harper (supra), the Supreme
Court of Canada has held that the State can provide a voice to
those who otherwise might not be heard and the State can also
restrict voices that dominate political discourse so that others can
be heard as well.
63. The Supreme Court of the United States in Buckley ५ R Valeo'*"
has commented on the concern of quid pro quo arrangements and
its dangers to a fair and effective government. Improper influence
erodes and harms the confidence in the system of representative
government. Contrastingly, disclosure provides the electorate with
information as to where the political campaign money comes from
and how it is spent. This helps and aides the voter in evaluating
those contesting elections. It allows the voter to identify interests
which candidates are most likely to be responsive to, thereby
facilitating prediction of future performance in office. Secondly,
it checks actual corruption and helps avoid the appearance of
corruption by exposing large contributions and expenditures to
the light of publicity. Relying upon Grosjean v. American Press
Co."*?, it holds that informed public opinion is the most potent of all
restraints upon misgovernment. Thirdly, record keeping, reporting
and disclosure are essential means of gathering data necessary to
detect violations of contribution limitations.

129 See Federal Election Commission v. National Right to Work Committee, 459 U.S. 197 (1982), where the
petitioners submitted: “...substantial aggregations of wealth amassed by the special advantages which
go with the corporate form of organization should not be converted into political “war chests” which could
be used to incur political debts from legislators who are aided by the contributions...”
130 [2004]
1 SCR 827.
131 424 U.S. 1 (1976).
132 297 U.S. 233 (1936).
600 [2024] 2 S.C.R.
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64. In Nixon, Attorney General of Missouri, et al v. Shrink Missouri
Government PAC et 3/,27 the Supreme Court of the United States
observes that large contributions given to secure a political quid pro
guo undermines the system of representative democracy. It stems
public awareness of the opportunities for abuse inherent in a regime
of large contributions. This effects the integrity of the electoral process
not only in the form of corruption or quid pro quo arrangements, but
also extending to the broader threat of the beneficiary being too
compliant with the wishes of large contributors.
65. Recently, a five judge Constitution Bench of this Court in Anoop
Baranwal v. Union of India‘** has highlighted the importance of
purity of electoral process in the following words:
“215. ...Without attaining power, men organised as political
parties cannot achieve their goals. Power becomes,
therefore, a means to an end. The goal can only be to govern
so that the lofty aims enshrined in the directive principles
are achieved while observing the fundamental rights as
also the mandate of all the laws. What is contemplated is
a lawful Government. So far so good. What, however, is
disturbing and forms as we understand the substratum of
the complaints of the petitioner is the pollution of the stream
or the sullying of the electoral process which precedes the
gaining of power. Can ends justify the means?
216. There can be no doubt that the strength of a
democracy and its credibility, and therefore, its enduring
nature must depend upon the means employed to gain
power being as fair as the conduct of the Government after
the assumption of power by it. The assumption of power
itself through the electoral process in the democracy cannot
and should not be perceived as an end. The end at any
rate cannot justify the means. The means to gain power
in a democracy must remain wholly pure and abide by
the Constitution and the laws. An unrelenting abuse of the
electoral process over a period of time is the surest way
to the grave of the democracy. Democracy can succeed

133 528 U.S. 377 (2000).
134 [2023] 9 SCR 1 : (2023) 6 SCC 161.
[2024] 2 S.C.R. 601
Association for Democratic Reforms & Anr. v. Union of India & Ors.

only insofar as all stakeholders uncompromisingly work at
it and the most important aspect of democracy is the very
process, the electoral process, the purity of which alone
will truly reflect the will of the people so that the fruits of
democracy are truly reaped.
217. The essential hallmark of a genuine democracy is
the transformation of the “Ruled” into a citizenry clothed
with rights which in the case of the Indian Constitution
also consist of fundamental rights, which are also being
freely exercised and the concomitant and radical change
of the ruler from an “Emperor” to a public servant. With
the accumulation of wealth and emergence of near
monopolies or duopolies and the rise of certain sections
in the Media, the propensity for the electoral process to
be afflicted with the vice of wholly unfair means being
overlooked by those who are the guardians of the rights
of the citizenry as declared by this Court would spell
disastrous consequences.”
66. The Law Commission of India in its 2557 Report noted the concern
of financial superiority translating into electoral advantage.'*° It was
observed that lobbying and capture give undue importance to big
donors and certain interest groups, at the expense of the ordinary
citizen, violating “the right of equal participation of each citizen in the
polity.”'%6 While noting the candidate-party dichotomy in the regulations
under Section 77 of the Representation of the People Act, 1951,
the Law Commission of India recommends to require candidates
to maintain an account of contributions received from their political
party (not in cash) or any other permissible donor.
67. At this stage, we would like to refer to the data as available on the
website of the ECI and the data submitted by the petitioners for a
limited purpose and objective to support our reasoning while applying
balancing. We have not stricto sensu applied proportionality as the
data is not sufficient for us. | also clarify that we have not opened
the sealed envelope given by the ECI pursuant to the directions of
this Court dated 02.11.2023.

135 Law Commission of India, Electoral Reforms, Report No. 255, March 2015.
136 A.C.Poudyalv. Union of India and Others, [1993]
1 SCR 891 : (1994) Supp 1 SCC 324.
602 [2024] 2 S.C.R.
Digital Supreme Court Reports

68. An analysis of the annual audit reports of political parties from 2017-
18 to 2022-23 showcases party-wise donations received through the
Bonds as reproduced below:
PARTY-WISE DONATION THROUGH BONDS (IN RS. CR)

Party 2017-18 | 2018-19 | 2019-20
9-20 | | 2020-21 | | 2021-22
-22 | | 2022-23 |
BJP 210.00 | 1,450.890 | 2.555.000 | 22.385 | 1,033.7000 | 1294.1499
INC 5.00 383.260 | 317.861 10.075 | 236.0995 | 171.0200
AITC | 0.00 | 97.280 | 100.4646 | 42.000 | 528.1430 | 325.1000
NCP | 0.00 | 29.250 20.500 0.000 14.0000 | me
TRS | 0.00 | 141.500 89.153 0.000 153.0000 | me
TDP | 0.00 | 27.500 81.600 0.000 3.5000 34.0000
YSR-C | 0.00 99.840 74.350 96.250 60.0000 52.0000
BJD | 0.00 213.500 50.500 67.000 | 291.0000 | 152.0000
DMK | 0.00 0.000 45.500 80.000 | 306.0000 | 185.0000
| SHS || 0.00 60.400 40.980 0.000 pe | |. - |
AAP* | 0.00 po | 17.765 5.950 25.1200 45.4500
JDU | 0.00 0.000 13.000 1.400 10.0000 |. - |
| SP | 0.00 | 0.000 10.840 0.000 3.2100 0.0000
JDS 6.03 35.250 7.500 0.000 0.0000 | me
SAD | 0.00 | 0.000 6.760 0.000 0.5000 0.0000
AIADMK | 0.00 | 0.000 6.050 0.000 0.0000 0.0000
RJD | 0.00 | 0.000 2.500 0.000 0.0000 | me
JMM | 0.00 | 0.000 1.000 0.000 0.0000 |. +- |
507 | 0.00 | 0.500 0.000 0.000 0.0000 0.0000
MGP | 0.00 | 0.000 0.000 0.000 0.5500 |. + |
TOTAL | 221.03.
03 || 2,539.170 | 3,441,324
324 | | 325.060 | 2,664.8225 |. + |

Asterisk (*) means that the AAP had declared their donations through Bonds/
Electoral Trust, but the party had not declared a separate amount for Bonds.

69. It is clear from the available data that majority of contribution through
Bonds has gone to political parties which are ruling parties in the
Centre and the States. There has also been a substantial increase
in contribution/donation through Bonds.
[2024] 2 S.C.R. 603

Association for Democratic Reforms & Anr. v. Union of India & Ors.

70. Petitioner no. 1 —Association for Democratic Reforms has submitted
the following table which showcases party-wise donation by corporate
houses to national parties:
PARTY-WISE CORPORATE DONATION
(NATIONAL PARTIES) (IN RS. Cr)
Party | 2016-17 | 2017-18 | 2018-19 | 2019-20
9-20 | | 2020-21 | | 2021-22
-22 | Total
BJP | 515.500
5.500 || 400.200 | 698.140 | 720.407 | 416.794 | 548.808 | 3,299.8500
INC 36.060 | 19.298 | 127.602 | 133.040 | 35.890 | 54.567 | 406.4570
NCP 6.100 1.637 | 11.345 | 57.086 | 18.150 | 15.280 | 109.5980
CPI(M) | 3.560 0.872 1.187 6.917 9.815 6.811 | 20.1615 |
AITC 2.030 0.000 | 42.986 | 4.500 0.000 0.250 49.7660
CPI 0.003 0.003 0.000 0.000 0.000 0.000 | 0.0055 |
| BSP | 0.000 0.000 0.000 0.000 0.000 0.000 0.0000
TOTAL | 563.253 | | 422.010 0 || 881.260 | 921.950
950 | 480.649 | 625.716 | 3,894.8380

As per the said table, the data shows that the party-wise donation
by the corporate houses has been more or less stagnant from the
years 2016-17 to 2021-22. We do not have the comments or official
details in this regard from the Union of India or the ECI. The figures
support our conclusion, but | would not, without certainty, base my
analysis on these figures. However, we do have data of denomination/
sale of Bonds, as submitted by the petitioners, during the 27 phases
from March 2018 to July 2023, which is as under:
DENOMINATION WISE SALE OF EB DURING 27 PHASES
(MARCH, 2018-JULY, 2023)

No. of Electoral Amount
Denomination
Bonds Sold (In Rupees)
1 Crore 12,999 12,999 Crore
(54.13%) (94.25%)
7,618 761.80 Crore
10 Lakhs (31.72%) (5.52%)
3,088 30.88 Crore
1 Lakh (12.86%) (0.22%)
208 20.80 Lakh
10 Thousand (0.86%) (0.001%)
1 Thousand 99 99,000
(0.41%) ,
Total | 24012 13791.8979 Cr.
604 [2024] 2 S.C.R.
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Analysis of this data shows that more than 50% of the Bonds in
number, and 94% of the Bonds in value terms were for Rs.1 crore.
This supports our reasoning and conclusion on the application of
the doctrine of proportionality. This is indicative of the quantum of
corporate funding through the anonymous Bonds.
71. The share of income from unknown sources for national parties
rose from 66% during the years 2014-15 to 2016-17 to 72% during
the years 2018-19 to 2021-22. Between the years 2019-20 to
2021-22 the Bond income has been 81% of the total unknown
income of national parties. The total unknown income, that is
donations made under Rs.20,000/-, sale of coupons etc. has not
shown ebbing and has substantially increased from Rs.2,550
crores during the years 2014-15 to 2016-17 to Rs.8,489 crores
during the years 2018-19 to 2021-22. To this we can add total
income of the national political parties without other known
sources, which has increased from Rs.3,864 crores during the
years 2014-15 to 2016-17 to Rs.11,829 crores during the years
2018-19 to 2021-22. The Bonds income between the years 2018-
19 to 2021-22 constitutes 58% of the total income of the national
political parties.'%”
72. Based on the analysis of the data currently available to us, along
with our previous observation asserting that voters’ right to know
supersedes anonymity in political party funding, | arrive at the
conclusion that the Scheme fails to meet the balancing prong of the
proportionality test. However, | would like to reiterate that | have not
applied proportionality stricto sensu due to the limited availability of
data and evidence.
73. | respectfully agree with the reasoning and the finding recorded by
Hon’ble the Chief Justice, holding that the amendment to Section
182 of the Companies Act, deleting the first proviso thereunder
should be struck down. While doing so, | would rather apply the
principle of proportionality which, in my opinion, would subsume
the test of manifest arbitrariness.'*° In addition, the claim of privacy

137 “Parties’ unknown income rise despite electoral bonds”, The Hindu, 02.11.2023, pg.7.
138 The proportionality test, as adopted and applied by us, essentially checks, invalidates and does not
condone manifest arbitrariness. Proportionality analysis recognizes the thread of reasonableness which
[2024] 2 S.C.R. 605
Association for Democratic Reforms & Anr. v. Union of India & Ors.

by a corporate or a company, especially a public limited company
would be on very limited grounds, restricted possibly to protect the
privacy of the individuals and persons responsible for conducting the
business and commerce of the company. It will be rather difficult for
a public (or even a private) limited company to claim a violation of
privacy as its affairs have to be open to the shareholders and the
public who are interacting with the body corporate/company. This
principle would be equally, with some deference, apply to private
limited companies, partnerships and sole proprietorships.
74. In consonance with the above reasoning and on application of
the doctrine of proportionality, proviso to Section 29C(1) of the
Representation of the People Act 1951, Section 182(3) of the
Companies Act 2013 (as amended by the Finance Act 2017),
Section 13A(b) of the Income Tax Act 1961 (as amended by the
Finance Act 2017), are held to be unconstitutional. Similarly, Section
31(3) of the RBI Act 1934, along with the Explanation enacted by
the Finance Act 2017, has to be struck down as unconstitutional,
as it permits issuance of Bonds payable to a bearer on demand
by such person.
75. The petitioners have not argued that corporate donations should
be prohibited. However, it was argued by some of the petitioners
that coercive threats are used to extract money from businesses
as contributions virtually as protection money. Major opposition
parties, which may come to power, are given smaller amounts to
keep them happy. It was also submitted that there should be a cap
on the quantum of donations and the law should stipulate funds to
be utilised for political purposes given that the income of the political
parties is exempt from income tax. Lastly, suggestions were made
that corporate funds should be accumulated and the corpus equitably
distributed amongst national and regional parties. | have not in-depth
examined these aspects to make a pronouncement. However, the
issues raised do require examination and study.

is the underlying principle behind the first three prongs, legitimate aim, rational connection and necessity
test. The balancing analysis of the permissible degree of harm for a constitutionally permissible purpose
effectuates the guarantee of reasonableness. Therefore, any legislative action which is manifestly
arbitrary, would be disproportionate and will fall foul when we apply the principle of proportionality. See
also Shayara Bano v. Union of India, (2017) 9 SCC 1, where the Court held at paragraph 95, that
rationality, logic and reasoning are the triple underpinnings of the test of manifest arbitrariness.
606 [2024] 2 S.C.R.
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76. By an interim order dated 26.03.2021, this Court in the context of
contributions made by companies through Bonds had prima facie
observed that the voter would be able to secure information about
the funding by matching the information of aggregate sum contributed
by the company as required to be disclosed under Section 182(8) of
the Companies Act, as amended by the Finance Act 2017, with the
information disclosed by the political party. Dr. D.Y. Chandrachud,
Hon'ble the Chief Justice, rightly observes in his judgment that this
exercise would not reveal the particulars of donations, including the
name of the donor.
7. By the order dated 02.11.2023, this Court had asked for ECIl’s
compliance with the interim order of this Court dated 12.04.2019.
Relevant portion whereof is reproduced below:
“In the above perspective, according to us, the just and
proper interim direction would be to require all the political
parties who have received donations through Electoral
Bonds to submit to the Election Commission of India in
sealed cover, detailed particulars of the donors as against
the each Bond; the amount of each such bond and the
full particulars of the credit received against each bond,
namely, the particulars of the bank account to which the
amount has been credited and the date of each such
credit.”
The intent of the order dated 12.04.2019 is that the ECI will continue
to maintain full particulars of the donors against each Bond; the
amount of each such Bond and the full particulars of the credit
received against each Bond, that is, the particulars of the bank
account to which the amount has been credited and the date of
each such credit. This is clear from paragraph 14 of the order
dated 12.04.2019 which had directed that the details mentioned
in paragraph 13 of the order dated 12.04.2019 will be furnished
forthwith in respect of the Bonds received by a political party till the
date of passing of the order.
78. In view of the findings recorded above, | would direct the ECI to
disclose the full particular details of the donor and the amount donated
to the particular political party through Bonds. | would restrict this
direction to any donations made on or after the interim order dated
[2024] 2 S.C.R. 607
Association for Democratic Reforms & Anr. v. Union of India & Ors.

12.04.2019. The donors/purchasers being unknown and not parties,
albeit the principle of /is pendens applies, and it is too obvious that
the donors/purchasers would be aware of the present litigation.
Hence, they cannot claim surprise.
79. |, therefore, respectfully agree and also conclude that:
the Scheme Is unconstitutional and is accordingly struck down;
proviso to Section 29C(1) of the Representation of the People
Act, Section 182(3) of the Companies Act, 2013, and Section
13A(b) of the Income Tax Act, 1961, as amended by the Finance
Act, 2017, are unconstitutional, and are struck down;

deletion of proviso to Section 182(1) to the Companies Act
of 2013, thereby permitting unlimited contributions to political
parties is unconstitutional, and is struck down;

sub-section (3) to Section 31 of the RBI Act, 1934 and the
Explanation thereto introduced by the Finance Act, 2017 are
unconstitutional, and are struck down;

the ECI will ascertain the details from the political parties and
the State Bank of India, which has issued the Bonds, and the
bankers of the political parties and thereupon disclose the
details and names of the donor/purchaser of the Bonds and
the amounts donated to the political party. The said exercise
would be completed as per the timelines fixed by the Hon’ble
the Chief Justice;
Henceforth, as the Scheme has been declared unconstitutional,
the issuance of fresh Bonds is prohibited;
In case the Bonds issued (within the validity period) are with
the donor/purchaser, the donor/purchaser may return them
to the authorised bank for refund of the amount. In case the
Bonds (within the validity period) are with the donee/political
party, the donee/political party will return the Bonds to the
issuing bank, which will then refund the amount to the donor/
purchaser. On failure, the amount will be credited to the Prime
Ministers Relief Fund.
80. The writ petitions are allowed and disposed of in the above terms.
608 [2024] 2 S.C.R.
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Annexure - A

Standards of Review - Proportionality & Alternatives
Proportionality is a standard-based model. It allows factual and contextual
flexibility to judges who encounter diverse factual scenarios to analyse
and decide the outcome of factual clashes against the standards.
Proportionality, particularly its balancing prong, has been criticized by
jurists who contend that legal adjudication should be rule-based rather
than principle-based.'*° They argue that this provides legal certainty by
virtue of rules being definitive in nature. In response, jurists in favour
of balancing contend that neither rules nor principles are definitive but
rather prima facie.'*° Therefore, both rights and legislations/policies are
required to be balanced and realized to the optimum possible extent.
This jurisprudential clash is visible in the various forms and structures
of adoptions of proportionality. Generally, two models can be
differentiated from works of jurists.
1) Model I - Firstly, the traditional two stages of the means—end
comparison is applied. After having ascertained the legitimate
purpose of the law, the judge asks whether the imposed
restriction is a Suitable means of furthering this purpose (rational
connection). Additionally in this model, the judge ascertains
whether the restriction was necessaryto achieve the desired end.
The reasoning focuses on whether a less intrusive means existed
to achieve the same ends (minimal impairment/necessity).
2) Model Il - This model adds a fourth step to the first model,
namely the balancing stage, which weighs the seriousness
of the infringement against the importance and urgency of the
factors that justify it.
In the table provided below, we have summarised the different
models of proportionality and its alternatives, as propounded by jurists
and adopted by courts internationally. We have also summarized
other traditional standards of review like the means-ends test and
Wednesbury unreasonableness for contextual clarity. In the last
column we have captured the relevant criticisms, as propounded
by jurists, to each such model.

139 Francisco J. Urbina, A Critique of Proportionality, American Journal of Jurisprudence, Vol 57, 2012. Also
see Ronald Dworkin, Taking Rights Seriously (Bloomsbury 2013), pp 41-42.
140 Robert Alexy, A Theory of Constitutional Rights, (translated by Julian Rivers, first published 2002, OUP
2010), pp. 47-48.
*PIq| Stl
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/9919॥0०0 40] [0799 AjUO /॥॥४५७०॥०४- Ainqsaupam ‘A 1 saesnoy ‘uolsioap 5,/0410५0॥82 9|५॥० ४ Jo malAal [2/0/|[01[ Ainqseupe; /
S| 2५४ 91191|0 ७।७ Ss! 199] 9५1 OINJIId [BIDUIAOId pajelzossy 91 JO} pasn SI SSous|qeuOseaiun JO [210[20215V ssoug|qeuosealun
616 [2024] 2 S.C.R.
Digital Supreme Court Reports

(ii) the theories propounded by the jurists are not followed in
toto across the jurisdictions and this has been pointed out
appropriately; and
(iii) the table does not provide an exhaustive account of the full
range of standards of review employed internationally and is
restricted to the tests identified therein.

Headnotes prepared by: Nidhi Jain Result of the case:
Writ Petitions disposed of.