The Union government has no access to information on political funding through electoral bonds, solicitor general (SG) Tushar Mehta submitted in the Supreme Court on Wednesday, adding the bonds do not carry the name of the buyer or payee for protecting the “privacy” and “political affiliation” of the citizens who make such donations to political parties.

In written submissions filed before the top court on behalf of the Union government, the SG maintained that under the electoral bond (EB) scheme, even the incumbent government is not entitled to know the details of donations made by any donor because the underlying idea is to protect a donor from reprisal and retribution for not funding a particular political party.

Mehta sought to rebut an argument made by a group of petitioners that has challenged the validity of the 2018 scheme while claiming that the ruling dispensation can gain an access to the details of the funding by seeking such information from the State Bank of India (SBI), which is the only bank that issues electoral bonds.

“SBI is under no obligation at all to disclose to the government the details of funding received by parties through electoral bonds. This information is held by the bank in its fiduciary capacity, and the bank is duty-bound to maintain its confidentiality. Therefore, to suggest that the central government would in some manner extract this confidential information from SBI is an argument without any foundation in law whatsoever,” the SG maintained.

The assertion of the petitioner that because SBI in some manner may know the information therefore, by extension, the government in power may know the information, the SG said, is “wholly illusionary and based on conjectures” because the scheme clearly provides that the information furnished by the buyer shall be treated confidential by the authorised bank and shall not be disclosed to any authority for any purposes. The scheme makes an exception only for courts and law enforcement agencies regarding disclosure of the donor’s information.

He said that the petitioners cannot demand access to the information on each and every political donor and contributions through EBs since it is third-party information which is not even disclosed to the government. “It is submitted that the right to Information and transparency cannot be pressed against non-state actors for information which is not even in the knowledge of the State,” Mehta’s 123-page submissions stated.

Defending the confidentiality clause, the SG said that the scheme ensures that donations can even be made to parties not in power without there be fear of backlash or reprisals.

“Electoral bonds do not carry the name of the buyer or payee in order to protect the citizen’s right to privacy to its own political affiliation and to choose to fund a political party of its own choice, without the fear of being targeted or suffering vindicative repercussion for owning such a choice. It is in furtherance of the State’s positive obligation to safeguard the privacy of its citizens, which necessarily includes the citizens’ right to informational privacy, including the right to secure the political affiliation of its citizens,” stated the submissions.

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The right of a citizen to know how political parties are being funded, Mehta contended, must be balanced against the right of people to maintain privacy of their political affiliations.

“No right can be absolute and unqualified and the right to know is no different. It is submitted that the right to know would be required to be balanced against the equally fundamental right to privacy. Political self-expression, either through voting or donations to one’s preferred party or candidate lies at the heart of the zone of privacy which the government is constitutionally obligated to respect. Therefore, any inroad into this private zone could be made only upon some compelling interest being demonstrated,” said the SG, opposing a bundle of petitions that have pressed for people’s right to have access to the details of contribution to political parties.

The intent behind the non-disclosure of the personal details of the donor is only to safeguard the privacy of the donor and to protect them from being targeted by political opponents, if elected, according to Mehta, who further said that the elements of anonymity and the privacy of information are important in order to incentive and popularise the scheme in order to shift the cash-based economy to the regulated legal economy.

“If this confidentiality, which is the heart and soul of the scheme and necessary to achieve the object of utilising clean money for political donations, is removed, the scheme will become redundant, and the country would go back to the era where donations to political parties were substantially made in cash. The concept of ‘free and fair elections’ is furthered by allowing the persons to make donations without having to be worried about censures, reprimands or retaliation by the stakeholders,” Mehta said.

It cannot be disputed that the reduction of black money inflow into elections is a legitimate state aim, pressed Mehta, arguing the anonymity requirement of the scheme certainly has a rational relation with the goal of encouraging people to use banking channels and thereby reducing black money.

The SG also said that the present scheme is not a be all and end all solution to the problem of political donations in the country. “However, it represents an important first step towards ensuring free and fair elections and the purity to elections…all governmental or legislative policy is ever evolving and often sequential,” he added.