The New Challenges to Indian Democracy
Chapter Eighty-Six
Syllabus topic 4.2.4, "Challenges to Indian Democracy - Old and New"
Pages 448 to 453 of 506
In one line
The newer threats are money on a scale that decides who can compete, information environments in which voters are addressed separately and cannot check what they are told, and pressure on the institutions whose job is to say no.
In the wording a student can write in an exam: the newer challenges to Indian democracy are the scale and opacity of political finance; the transformation of the information environment by social media, targeted messaging and coordinated disinformation; the concentration of media ownership; pressure on the independence of institutions charged with holding governments to the rules; surveillance and the erosion of privacy; the shrinking of legislative deliberation; and the rise of a majoritarian conception of democracy in which winning an election is treated as authorising anything.
The challenges
1. Money, and the electoral bonds judgment
The problem. Elections cost sums no ordinary candidate can raise, so parties depend on those who can supply them, and a contributor who cannot be identified cannot be held to account by anybody.
Facts. Association for Democratic Reforms v. Union of India, decided 15 February 2024. The Finance Act 2017 introduced the Electoral Bond Scheme and made four connected amendments: to section 31 of the Reserve Bank of India Act, to section 29C of the Representation of the People Act 1951, to section 13A of the Income Tax Act, and to section 182 of the Companies Act. Together these permitted contributions to parties through bearer instruments bought from a bank, exempted parties from disclosing contributions received in that form, exempted them from maintaining records of those contributors, and removed the previous cap on the proportion of profits a company could contribute. Petitioners under article 32 sought a declaration that the Scheme and those provisions were unconstitutional.
Held. A Constitution Bench held that information about the funding of a political party is essential for a voter to exercise the freedom to vote in an effective manner, so that the Scheme and the impugned provisions, to the extent that they infringe the voter's right to information by anonymising contributions, violate article 19(1)(a). Applying the proportionality standard, which requires a legitimate goal, a suitable means, the least restrictive and equally effective alternative, and a balance between the restriction and the goal, the Court held the infringement unjustified. It declared unconstitutional the Electoral Bond Scheme, the proviso to section 29C(1) of the Representation of the People Act as amended, section 182(3) of the Companies Act as amended, and section 13A(b) of the Income Tax Act as amended. It further held that the deletion of the proviso to section 182(1) of the Companies Act, which had permitted unlimited corporate contributions, is arbitrary and violative of article 14. And it directed disclosure of the information on contributions already received under the Scheme.
The New Challenges to Indian Democracy
Why it matters. It is the Indian decision holding that money in politics is a constitutional question. Its reasoning descends directly from the voter's right to know at chapter 820: an election consents to nothing unless the voter can know what they are consenting to, and who paid for a party is part of that.
2. The information environment
Targeted messaging. A party can address different messages to different voters, each unseen by the others, so that no common account of what a party is promising exists and inconsistent claims cannot be compared.
Coordinated disinformation. Organised production of false material, distributed at a scale and speed that correction cannot match.
Encrypted messaging. Much Indian political communication moves through closed groups, where material is neither public nor attributable, so it cannot be checked, answered or regulated in the way a broadcast can.
Why this is a democratic problem and not merely a nuisance. The condition at chapter 820 is that the voter must be able to know what they are choosing. An environment in which the voter is addressed privately, cannot verify what they are told, and shares no common set of facts with other voters, defeats that condition without any law being broken.
3. Concentration and dependence in the media
Ownership of news media concentrated in a small number of hands, several with substantial interests in regulated industries, so that the outlet's commercial position depends on the government's decisions in an unrelated field. Dependence on government advertising has the same effect. Neither requires any instruction to be given.
4. Pressure on the institutions that say no
Chapter 830 held that the crucial condition is institutions able to rule against the government and be obeyed. The pressure takes the form of appointments, of resources and staffing, of the timing of decisions, of transfers, and of the treatment of officials who decide inconveniently. None of it breaks a rule, which is what makes it decay rather than illegality.
5. Surveillance and privacy
The capacity of a state to know what citizens read, say and do is now vastly greater than any previous government's. A person who believes they are watched will not organise, criticise or associate freely, which affects the freedoms on which the whole arrangement rests, and it does so whether or not the surveillance is actually taking place.
6. The shrinking of deliberation
Fewer sitting days, fewer bills referred to committees, guillotined debates, and the use of the money bill route to avoid the second chamber. Government by discussion is a phrase for what a legislature is supposed to do, and it is measurable by how much discussion there is.
The New Challenges to Indian Democracy
7. Majoritarianism
The claim that winning an election authorises whatever the winner chooses to do. Chapter 820 separated democracy from constitutionalism precisely to answer this: a majority decides who governs, and the Constitution decides what may be done.
Why these are harder than the old challenges
This is the analytical point of the chapter and an answer should make it.
They are not violations. The old challenge of article 356 was answered because a proclamation is an identifiable act that a court can review. Most of the new challenges consist of lawful acts, private conduct or the absence of regulation, and there is often nothing to strike down.
They are transnational. Disinformation, platform design and media concentration are not confined to any jurisdiction, and a national regulator has limited reach.
They move faster than law. A statute takes years and a distribution technique takes weeks.
And the remedy can become the problem. Powers taken to combat disinformation can be used against criticism, which is why every proposal in this area has to be examined for what a future government could do with it.
What has worked
Disclosure. The Indian courts' consistent remedy, in the 2002 decision on candidate affidavits and in the electoral bonds judgment on party funding. It does not prohibit anything; it makes the fact known.
Proportionality. The standard applied in the electoral bonds judgment gives courts a structured method for testing a restriction, and it is now the standard instrument for the new challenges.
Independent research and journalism, which is where almost everything known about political finance and about coordinated disinformation comes from.
Federalism, which keeps an alternative in existence.
And an honest limit. Disclosure works only if the electorate acts on what is disclosed, and the evidence about whether it does is mixed. A court can supply information and cannot supply a response to it.
A worked example
A party runs a campaign in a State election. Consider four features, none of which is unlawful when it happens.
It funds the campaign through instruments whose purchasers are not disclosed. Lawful until the scheme is struck down, and it was struck down for exactly this reason: the voter's right to know under article 19(1)(a).
It runs different advertisements for different groups of voters, targeted by data, so that no voter sees what another is told. Lawful. No court has yet held that this defeats the right to know, and the reasoning of the electoral bonds judgment is the obvious foundation for an argument that it does.
Most of its material circulates in closed messaging groups. Lawful, unattributable, and outside the reach of the rules that govern broadcasting.
The New Challenges to Indian Democracy
And the outlets that would investigate depend on government advertising and are owned by companies in regulated industries. Lawful, and it requires nobody to give an instruction.
The four together defeat the condition that the voter must know what they are choosing, and not one of them can be prosecuted. That is the difference between the new challenges and the old, and it is the answer to MU's question.
Distinctions that carry marks
| Old challenges | New challenges | |
|---|---|---|
| Origin | India's social and constitutional structure, from 1950 | Money, technology and institutional practice |
| Form | Conditions, or identifiable acts | Lawful acts, private conduct, or the absence of regulation |
| Reviewable by a court? | Often yes: article 356, article 329A | Often nothing to review |
| Confined to India? | Largely | No, they are transnational |
| Speed | Slow | Faster than legislation |
| Principal remedy | Judicial review of an act | Disclosure, proportionality, and the voter |
| Challenge | Condition eroded | Indian legal response |
|---|---|---|
| Political finance | The voter's right to know | Electoral bonds judgment: scheme and provisions unconstitutional under article 19(1)(a); unlimited corporate funding arbitrary under article 14 |
| Targeted messaging | A common set of facts | None yet |
| Disinformation | Informed choice | Fragmentary |
| Media concentration | Scrutiny of government | Competition and broadcasting law, weakly |
| Pressure on institutions | Bodies able to say no | Judicial review; appointments litigation |
| Surveillance | Free association and criticism | The privacy jurisprudence |
| Shrinking deliberation | Government by discussion | Committee practice; none binding |
| Majoritarianism | Constitutionalism | Basic structure doctrine |
What these challenges are NOT
They are not replacements for the old ones. Poverty, caste and communalism persist, and the new challenges operate on top of them.
They are not arguments against technology. The same platforms have made political organisation possible for people with no access to a newspaper.
They are not peculiar to India. Every established democracy is arguing about the same list, which is why comparison is useful and why the assumption that this is an Indian failing misdescribes it.
And they are not beyond remedy. The electoral bonds judgment is proof that at least one of them can be decided, and the method it used, the right to know plus proportionality, is available for the others.
Quick revision
- Seven new challenges: political finance; the information environment, including targeted messaging, disinformation and closed messaging groups; media concentration and dependence; pressure on independent institutions; surveillance; the shrinking of deliberation; and majoritarianism.
- The electoral bonds judgment, 15 February 2024: information about a party's funding is essential for a voter to vote effectively, so the Scheme and the amendments to section 29C of the Representation of the People Act, section 182(3) of the Companies Act and section 13A(b) of the Income Tax Act violate article 19(1)(a); the infringement fails the proportionality standard; and the removal of the cap on corporate contributions is arbitrary and violates article 14. Disclosure of past contributions was directed.
- Why they are harder: they are not violations; they are transnational; they move faster than law; and the remedy can become the problem.
- What has worked: disclosure, proportionality, independent research and journalism, and federalism.
- The honest limit: a court can supply information and cannot supply a response to it, and the evidence that disclosure changes votes is mixed.
The New Challenges to Indian Democracy
Test yourself
1. What did the electoral bonds judgment decide? That information about the funding of a political party is essential for a voter to exercise the freedom to vote in an effective manner, so that the Electoral Bond Scheme and the connected provisions, to the extent that they anonymise contributions and thereby infringe the voter's right to information, violate article 19(1)(a). Applying the proportionality standard the Court held the infringement unjustified and declared unconstitutional the Scheme, the proviso to section 29C(1) of the Representation of the People Act, section 182(3) of the Companies Act and section 13A(b) of the Income Tax Act as amended by the Finance Act 2017. It further held the deletion of the cap on corporate contributions arbitrary and violative of article 14, and directed disclosure of contributions already received.
2. Why is the transformation of the information environment a democratic problem? Because the condition on which an election operates as consent is that the voter can know what they are choosing. Targeted messaging allows a party to address different voters with different and possibly inconsistent claims, none of which the others see, so no common account of what is being promised exists. Coordinated disinformation distributes false material faster than correction can follow. And material circulating in closed messaging groups is neither public nor attributable, so it cannot be checked, answered or regulated as broadcast material can. The condition is defeated without any law being broken.
3. Why are the new challenges harder to answer than the old ones? Because most of them are not violations. The misuse of article 356 was answered because a proclamation is an identifiable act that a court can review against a standard, whereas the new challenges consist largely of lawful acts, private conduct or the absence of regulation, and often there is nothing to strike down. They are also transnational, so a national regulator has limited reach; they change faster than legislation can; and the powers taken to combat them, particularly against disinformation, can be turned against criticism, so every proposed remedy must be examined for what a future government could do with it.
4. What is the pattern of the Indian judicial response, and what are its limits? Disclosure, tested by proportionality. In 2002 the Court required candidates to file affidavits about criminal cases, assets and educational qualifications; in 2024 it struck down a scheme that anonymised party funding. Neither decision prohibits anything: they make facts known and leave the decision to the voter. The limit is that disclosure works only if the electorate acts on what is disclosed, and the evidence about whether it does is mixed. A court can supply the information and cannot supply the response, which is the honest boundary of the judicial remedy.
The New Challenges to Indian Democracy
5. Are the new challenges peculiar to India? No. Political finance, targeted messaging, coordinated disinformation, media concentration, surveillance and pressure on independent institutions are debated in every established democracy, which is why comparison is useful and why treating the list as an Indian failing misdescribes it. What is distinctive is the scale, the number of voters reached through closed messaging groups, and the fact that these challenges operate on top of the older ones of poverty, caste and communalism rather than in place of them.
The rest of this subject
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