Q.1 “The Doctrine of Basic Structure is the prerequisite of democracy in India”. Comment.

Ans.
The “Doctrine of Basic Structure” is a fundamental concept in Indian constitutional law, established by the Supreme Court of India in the landmark case of Kesavananda Bharati v. State of Kerala (1973).

• This doctrine asserts that certain fundamental features of the Constitution cannot be altered or destroyed, even through amendments by the Parliament.
• The Doctrine of Basic Structure of the Constitution is not expressly provided for in the Constitution. It is, actually, a judicial doctrine, which has evolved through a series of judgments of the Supreme Court on cases related to the amending power of the Parliament.

Some of the major elements of the Basic Structure of the Constitution are:

• Supremacy of the Constitution
• Rule of Law
• Freedom and Dignity of the Individual
• Judicial Review
• Secular Character of the Constitution, etc.

Role of the Doctrine: Supports Various Facets of Democracy

• Ensure Laws Align with Constitutional Principles – The doctrine upholds the Constitution’s primacy, ensuring all laws and amendments adhere to its core principles and preserving the democratic framework.
• Protect the Democratic and Secular Character of State Polity – The doctrine preserves India’s sovereignty, democracy, and republicanism, preventing changes that could alter its governance structure.
• Preventing Tyranny of the Majority
  • A popularly elected Parliament could theoretically pass laws that erode democratic rights if unchecked.
  • The doctrine ensures that even with a large mandate, fundamental democratic principles cannot be easily overridden.
• Ensure Effective Protection of Fundamental Rights – The doctrine prevents Parliament from altering the core essence of fundamental rights, ensuring they remain available to citizens.
• Promote Regional Autonomy – The doctrine protects the federal structure, supporting decentralized governance and regional autonomy.
• Free and Fair Election – The doctrine upholds free and fair elections as a fundamental aspect of state policy, ensuring a representative and democratic government.
• Protects Independence of Judiciary – The doctrine safeguards the independence of the judiciary, ensuring that judicial functions remain impartial and unaffected by legislative changes.
• Limited Power of Parliament to Amend the Constitution – The doctrine imposes limits on the power of Parliament to amend the Constitution, ensuring that essential democratic principles cannot be altered, thus protecting the Constitution’s integrity.
• Effective Access to Justice – By preserving fundamental rights and judicial review, the doctrine ensures that citizens have effective access to justice, which is vital for maintaining the rule of law and democratic governance.

Criticism of the Doctrine

• Lack of Constitutional Basis – A common criticism is that the doctrine lacks explicit support from any provision in the Constitution.
• Lack of Clarity – This doctrine is criticized for its lack of precise definition and clarity regarding its elements.
  • This ambiguity allows for judicial discretion and interpretation, leading to uncertainty and inconsistency in its application.
• Judicial Activism – Critics argue that the Basic Structure doctrine grants excessive power to the judiciary, enabling judges to engage in judicial activism and make subjective determinations about constitutional amendments.
• Violation of Separation of Powers – Allowing the judiciary to intervene in the legislative and constituent power of Parliament leads to a violation of the principle of separation of powers.
• Undemocratic Nature – It can lead to undemocratic practices by allowing unelected judges to override decisions made by democratically elected representatives.
• Stifling Constitutional Evolution – By imposing rigid constraints on the amending power of the legislature, the doctrine may impede the evolution of the Constitution in response to new challenges and societal needs.

Despite some limitations, the Doctrine of Basic Structure plays a crucial role in safeguarding the core principles of Indian democracy. It maintains a balance between democratic governance and the protection of fundamental rights.

Q2. Write a note about the Electoral Bond Scheme. Why did the Supreme Court declare it unconstitutional?

Ans.
The Electoral Bonds Scheme was launched in 2018 to cleanse political funding in India.

• The central idea behind the electoral bonds scheme was to bring about transparency in electoral funding in India.
• Electoral bonds are money instruments like promissory notes, which can be bought by companies and individuals in India and donated to a political party, which can then encash these bonds.

Eligibility of Borrower:

• Any citizen of India or entities incorporated or established in India can purchase these Bonds.
• Citizens can buy electoral bonds either singly or jointly with other individuals.

Eligibility of Political Party:

• Only political parties registered under Section 29A of the Representation of the People Act, 1951 and which secured not less than 1% of votes polled in the last general election to the House of the People or the Legislative Assembly of the State, are eligible to receive electoral bonds.

Validity:

• The Electoral Bonds shall be valid for fifteen calendar days from the date of issue and no payment shall be made to any payee Political Party if the Electoral Bond is deposited after the expiry of the validity period.

Issuing Authority:

• The State Bank of India (SBI) issues electoral bonds in January, April, July and October.
• The electoral bonds are available in denominations from Rs 1,000 to Rs 1 crore.

The Government’s Reasoning for Introducing the Electoral Bonds Scheme:

• Transparency in Political Funding – Electoral bonds offer a clear and transparent method for parties to gather funds since they are sold exclusively through SBI and only to individuals who have completed KYC verification.
• Reduced Chances of Misuse of Bonds – The restricted sale window and short maturity period (bonds have a lifespan of only 15 days) make it challenging to misuse these bonds.
• Protection of Anonymity – Bearer bonds ensure donor anonymity, preventing post-election intimidation or harassment by political opponents.
• Political Accountability – Political parties must report contributions received through electoral bonds to the Election Commission, ensuring accountability.
• Reduction of Use of Black Money for Political Funding – The Electoral Bond Scheme has reduced the amount a party can accept in cash from anonymous sources from Rs 20,000 to Rs 2,000, thereby decreasing the use of black money in elections.

The Supreme Court struck down the Electoral Bonds Scheme for several key reasons:

• Violation of the Right to Information –
  • The court found that the scheme violated the fundamental right to information under Article 19(1)(a) of the Constitution by permitting anonymous political donations.
  • This lack of transparency undermines participatory democracy by preventing accountability in government.
• Not Least Restrictive Method –
  • The court used a fairness test from an earlier case to check if the Electoral Bonds Scheme was a reasonable way to prevent black money.
  • It decided the scheme wasn’t the best or least restrictive method.
  • Other options, like limiting anonymous donations to ₹20,000 and using Electoral Trusts, were seen as more effective and less restrictive.
• Right to Donor Privacy Doesn’t Apply to Political Donations –
  • The Court distinguished between genuine political support and donations potentially made to influence policies.
  • The latter loses the privacy protection.
• Unlimited Corporate Donations –
  • The amendment to Section 182 of the Companies Act, 2013, allowing unlimited political contributions by companies was deemed manifestly arbitrary.
  • The removal of the 7.5% cap on donations and the requirement for companies to disclose political contributions were criticized for undermining free and fair elections.
• Disclosure Requirements Weakened –
  • The court struck down the amendment that kept electoral bond donations secret.
  • It upheld the original rule requiring disclosure of donations over ₹20,000, as it balanced transparency with donor privacy.

The court’s ruling emphasizes the need for a more transparent and accountable system for political funding while protecting both donor privacy and democratic integrity.

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