IT IS imperative for the State to protect the fundamental right to privacy of a citizen donating to a political party because the donation is a reflection of her “political affiliation” which is in the “core zone of privacy”.
This argument that Solicitor General of India Tushar Mehta put before the Supreme Court Wednesday is at the heart of the Centre’s defence of the structural opaqueness in the electoral bond scheme.
Indeed, the Government’s case is that the donor’s right to privacy over-rides the voter’s right to know, even if in protecting that privacy, the state gives itself an exemption.
This point was flagged by Chief Justice of India D Y Chandrachud who observed during the hearing, the donor of an electoral bond is not exactly anonymous. While the State, through law enforcement agencies and the State Bank of India, is privy to the donor’s identity and, therefore, expression of “political affiliation”, this information is protected from the voter exercising her fundamental right to participate in a democracy.
A citizen’s fundamental right is exercised against the state. It flows from Article 13 of the Constitution, which mandates that the state cannot make any laws inconsistent with or interrogation of fundamental rights.
The secret ballot system of voting, an example of expression of political affiliation, is protected against the State. The constitution places the responsibility to protect is right with an independent arm of the state, the Election Commission.
“The electoral bond(s) 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 vindictive 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,” Mehta said in his 123-page submission to the Court.
The Centre stand relies heavily on the Supreme Court’s landmark 2017 ruling in KS Puttaswamy v Union of India, in which a nine-judge bench unanimously reaffirmed the right to privacy as a fundamental right under the Constitution.
Ironically, the government, in that case, had argued that citizens do not have a fundamental right to privacy since it did not specifically find a place in the Constitution.
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The Centre had taken this stand — against elevating the right to privacy to the status of a fundamental right — since 2014 even before smaller benches of the Supreme Court.
In 2021, the Supreme Court. in the Pegasus spyware case, refused to accept the government’s blanket national security alibi to violate the fundamental right to privacy. Mehta had refused to file a detailed affidavit and had argued that these matters concerned national security and so could not be disclosed in public.
“This free flow of information from the Petitioners and the State, in a writ proceeding before the Court, is an important step towards Governmental transparency and openness, which are celebrated values under our Constitution,” the court had then said.