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Khanna's concurrence: Same result, different road

Published 5 October 2026

Justice Sanjiv Khanna's concurring opinion runs 74 pages. He agrees "with the findings and conclusions recorded" by the Chief Justice, but says "my reasoning is different to arrive at the same conclusion, including application of the doctrine of proportionality". The result is therefore unanimous (five to nothing) on every operative direction, but the route is not. A reader who quotes "the Court held" needs to know which of the two opinions the line comes from. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The State's three defences, as he states them. First, donors fear retribution from other parties or actors, so their identities should stay confidential, and revealing identity would invade informational privacy under Puttaswamy. Second, the scheme, by "incentivising banking channels and providing confidentiality, checks the use of black or unaccounted money". Third, the scheme is "an improvement to the prior legal framework" with built-in safeguards: Donor KYC, bearer bonds valid for fifteen days, and recipients limited to recognised parties with more than 1 percent of votes at the last general election. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

His version of proportionality. He listed four steps (legitimate aim, rational connection, necessity or minimal impairment, and balancing), citing Aharon Barak, Proportionality (CUP 2012). He traced Indian use from Modern Dental College, with the Aadhaar bench (Puttaswamy 5J) as a "more tempered" form. He says the first two prongs "resemble a means-ends analysis", that necessity asks about a less restrictive and equally effective alternative, and that the balancing stage is the contested one, where he notes that German courts "enjoy a high judicial discretion" and that empirical studies give "a more solid foundation". To avoid making his opinion "complex", he puts a table of standards of review at Annexure A (pages 60 to 74). Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The donor-retribution defence. He wrote that "retribution, victimisation or retaliation cannot by any stretch be treated as a legitimate aim." The scheme fails the legitimate-purpose prong, is not rationally connected to that purpose, and would also fail necessity "even if we have to ignore the balancing stage". Retaliation against a donor, he wrote, 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." And: "Transparency and not secrecy is the cure and antidote." Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He said the Union's own safety valve, that details can be revealed on a court order or a criminal case, defeats the point: "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... The so-called protection exists only on paper." He said the party in power may have "asymmetric access to information with the authorised bank" and "the ability to use their power and authority ... to compel the revelation of Bond related information", so "the entire objective of the Scheme is contradictory and inconsistent." He noted that the Union itself said parties in power at the Centre and States get the highest donations, so "the argument of retribution, victimisation and retaliation is tempered and loses much of its force." He cited (footnote 108) a US case in which disclosure was waived for a minor party, the Socialist Workers Party, on "specific evidence of hostility, threats, harassment and reprisals", and said that case-by-case approach is not what this scheme does. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Black money: Rational connection and necessity. He wrote: "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." He noted the RBI's objection that bonds can change hands: "the purchaser who has completed the KYC, whose identity is thereupon completely concealed, may not be the actual contributor/donor", so the scheme "may enable the actual contributor/donor to not leave any traceability or money trail." Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He said quid pro quo political giving "may amount to money laundering" under the Prevention of Money Laundering Act 2002, citing the FATF Recommendations (2012, paragraph 3, section B) and Article 7(3) of the UN Convention against Corruption 2003, "signed and ratified" by India, which asks states to enhance transparency in political funding. He said pressure groups lobbying "with evidence and data" is fine, but money paid as quid pro quo for economic policy "would be an offence under the Prevention of Corruption Act, 1988 and also under the PMLA", and such offences by parties in power "can never see the light of the day if secrecy and anonymity of the donor is maintained." He said the petitioners' argument of no rational connection and an illegitimate aim "has merit and should be accepted". That is stronger than the Chief Justice, who assumes the aim and fails the scheme at necessity. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

On the alternative, he noted that the Electoral Trust Scheme of 2013 was meant to keep donors secret, but the ECI's guidelines of June 6, 2014 require trusts to give the ECI "full particulars" of depositors and of party-wise transfers, so disclosure occurs at the inflow and outflow points. He held the trust route "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", and that "the ECI, if required, can suitably modify the guidelines dated 06.06.2014." Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The balancing stage and the secret-ballot point. He took the Campbell v. MGM approach and a later House of Lords decision of Lord Steyn to two rights in conflict, and he said fundamental rights are not absolute. He wrote: "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." The scheme "overwhelmingly disavows and annuls the voter's right", and "neither the right of privacy nor the purpose of incentivising donations to political parties through banking channels" justifies it. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He set out his comparative and privacy reasoning. All opinions in Puttaswamy (9J) accept that privacy "has to be tested and is not absolute" and "must yield in given circumstances when dissemination of information is legitimate and required in state or public interest", with Justice Sanjay Kishan Kaul's opinion adding that restrictions are subject to proportionality. 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". He quoted the High Court of South Africa in My Vote Counts NPC v. President of the Republic of South Africa: "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." Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He wrote that individual rights in a democracy are secured by "ensuring each a share in political power", and that this is affected "when a few make large political donations to secure selective access to those in power". Pressure groups acting within law are fine, but "when money is exchanged as quid pro quo then the line between persuasion and corruption gets blurred." He drew on the High Court of Australia in McCloy v. State of New South Wales, which distinguishes three kinds of corruption: Quid pro quo corruption (a donor gives in return for a benefit); "clientelism" (those in power decide "not on merits or the desires of their constituencies, but according to the wishes and desires of those who make large contributions"); and "war-chest" corruption (the power of money threatens the electoral process itself). Footnotes cite Professor Lawrence Lessig on dependence "on the people alone". He noted that McCloy cites Harper v. Canada (Attorney General), which upheld limits on electoral advertising: The State can give a voice to those who would not otherwise be heard and restrict voices that dominate political discourse. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He turned to Buckley v. Valeo (US Supreme Court), which names three benefits of disclosure. It gives the electorate information on where campaign money comes from and how it is spent, which helps a voter predict "future performance in office". It checks actual corruption and the appearance of corruption "by exposing large contributions and expenditures to the light of publicity" (and "informed public opinion is the most potent of all restraints upon misgovernment", from Grosjean v. American Press Co.). And record-keeping and reporting are "essential means of gathering data necessary to detect violations of contribution limitations". He cited Nixon v. Shrink Missouri Government PAC: Large contributions given for a quid pro quo undermine representative democracy, and the harm extends "to the broader threat of the beneficiary being too compliant with the wishes of large contributors". He quoted Anoop Baranwal v. Union of India (a Constitution Bench on the appointment of Election Commissioners): "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." Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He cited the Law Commission's 255th Report (March 2015) on how financial superiority turns into electoral advantage, saying that lobbying and capture give undue weight to big donors "at the expense of the ordinary citizen", violating "the right of equal participation of each citizen in the polity" (quoting R.C. Poudyal). He used the data in Table K1 below. He did not apply proportionality "stricto sensu" at the balancing stage because "the data is not sufficient for us", and recorded that "we have not opened the sealed envelope given by the ECI pursuant to the directions of this Court dated 02.11.2023". He concluded that "the Scheme fails to meet the balancing prong of the proportionality test", on the data "currently available". Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Table K1. Party-wise bond income declared in audit reports, Rs crore (Khanna J)

The table is drawn from parties' annual audit reports; years are financial years, and "--" means no figure in his table. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Adding the BJP's figures for 2019-20 to 2022-23 gives Rs 4,905.2349 crore. Where sources differ: ADR's count from the ECI data for April 12, 2019 to February 15, 2024 is Rs 6,060.5111 crore for the BJP. The two cannot be compared as if they covered the same period, because the Court's table is by financial year and uses the parties' own audit figures, while the ECI data runs to February 15, 2024 and so includes much of 2023-24. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He noted that the "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." He cited an ADR table of corporate donations of any kind to national parties by financial year, 2016-17 to 2021-22: BJP Rs 3,299.85 crore in total, INC Rs 406.457 crore, NCP Rs 109.598 crore, AITC Rs 49.766 crore and CPI(M) Rs 29.1615 crore. This is a different data set from the bonds table. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Annexure A: His table of standards of review. Justice Khanna's table (pages 60 to 74 of his opinion) sets out the models of proportionality and its alternatives as jurists and foreign courts have used them. It begins by noting that proportionality "is a standard-based model" that "allows factual and contextual flexibility to judges", and that jurists who favour rule-based adjudication, citing Francisco Urbina and Ronald Dworkin, criticise its balancing prong as lacking legal certainty, while jurists who favour balancing, citing Robert Alexy, reply that neither rules nor principles are definitive but only prima facie. It then separates two models: Model I, with the traditional two stages of means-end comparison (rational connection, then necessity or minimal impairment), and Model II, which adds a fourth step, balancing, weighing the seriousness of the infringement against the importance and urgency of the factors that justify it. The table's own closing note says it "briefly summarises" the standards, does not elaborate them in detail, that the jurists' theories "are not followed in toto across the jurisdictions", and that it is not an exhaustive account. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The table then runs through six rows. The first is four-stage proportionality, which the table attributes to the German Constitutional Court from the 1950s, where, in Robert Alexy's account, rights and interests are "optimization requirements" that must be satisfied "to the greatest extent possible". Alexy's "weight formula" reduces the intensity of interference, the abstract weights of the colliding principles and the reliability of the empirical assumptions to numbers on an exponential scale (light, moderate and serious interference as 1, 2 and 4; reliable, plausible and not evidently false assumptions as 1, 0.5 and 0.25). The criticisms recorded are that balancing compares incommensurable values, fails to create predictability and is potentially dangerous for human rights, and is equally intrusive from the point of view of separation of powers. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The second row is three-stage proportionality, without the balancing stage, which the table attributes to Canada. Jochen von Bernstorff's argument against ad hoc balancing is set out: It fails to erect stable and predictable standards, allowing even the most intensive infringements "to be conveniently balanced out of existence when the stakes are high enough". He defends bright-line rules for the "core" or "essence" of a right. The table says that in Canada the onus of proof is on the person seeking to justify the limit, generally the government (R. V. Oakes), to the civil standard of balance of probabilities, that scientific or social-science evidence is required where it is available, and that where it is inconclusive "reason and logic may suffice". It adds that David Bilchitz's approach to necessity, which requires an alternative to be both equally effective and less restrictive, was followed in Aadhaar (5J), and that Anuradha Bhasin applied a moderate interpretation, comparing the measure with its feasible alternatives overall. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

The third row is the means-ends test, followed in Australia before proportionality, where courts ask whether a law is "reasonably appropriate and adapted" to a legitimate end compatible with the constitutionally prescribed system of representative and responsible government; the table's criticism is that it is simplistic, gives limited judicial flexibility and does not account for diverse factual scenarios. The fourth is calibrated scrutiny, an Australian development of the means-ends test, in which a judge first determines the nature and intensity of the burden on the right; the table says it is similar to some prongs of proportionality but more rule-oriented, and records the criticism that it takes away flexibility in factually diverse challenges. The fifth is strict scrutiny in the United States, with its tiered approach of strict scrutiny, intermediate scrutiny and rational basis, which places the burden on the government to show a compelling interest and a law that is narrowly tailored or the least speech-restrictive means, and removes the usual presumption of constitutionality; the criticism recorded is that only a limited number of laws survive it, so it is reserved for the most intensely protected rights. The sixth is Wednesbury unreasonableness, a decision being unreasonable when "no person acting reasonably could have arrived at it", which the table says is simplistic and traditionally used only for administrative decisions and delegated legislation. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Corporate giving and the remedy. He agreed with the Chief Justice on Section 182 of the Companies Act and the manifest arbitrariness of removing the cap. He noted that the petitioners "have not argued that corporate donations should be prohibited". They did argue that coercive threats extract money as "protection money", that opposition parties get small amounts "to keep them happy", that there should be a cap on donations and that funds should be used only for political purposes. He had "not in-depth examined these aspects to make a pronouncement. However, the issues raised do require examination and study." These are open questions, not holdings. He referred to the interim orders of March 26, 2021 and November 2, 2023, the latter being the sealed-cover data request to the ECI. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

He would direct the ECI to disclose full donor particulars and amounts, "restrict[ed] to any donations made on or after the interim order dated 12.04.2019". On the donors not being parties, he said "the principle of lis pendens applies, and it is too obvious that the donors/purchasers would be aware of the present litigation. Hence, they cannot claim surprise." He summarised the operative directions, which line up with the Chief Justice's: (i) the scheme struck down; (ii) the proviso to Section 29C(1) of the RPA, Section 182(3) of the Companies Act 2013 and Section 13A(b) of the Income Tax Act, as amended by the Finance Act 2017, struck down; (iii) deletion of the proviso to Section 182(1) struck down; (iv) Section 31(3) of the RBI Act and its Explanation struck down; (v) the ECI will ascertain details from the parties, the SBI and the parties' bankers and disclose donor names and amounts; (vi) no fresh bonds; (vii) bonds still within validity returned for refund, and if held by a party returned to the issuing bank which refunds the purchaser, and on failure "the amount will be credited to the Prime Ministers Relief Fund". He allowed the writ petitions. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

Where sources differ: He puts the ECI first in the chain ("the ECI will ascertain the details from the political parties and the State Bank of India"), while the majority's para 219 puts the SBI first (SBI to give the ECI the details; ECI to publish by March 13, 2024). The final effect is the same, and the March 11, 2024 order follows the majority. Source: Judgment, Khanna J concurring opinion, 2024 INSC 113

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