Electoral bonds cannot be brought back in present form through ordinance: Former ASG Vikas Singh

Vikas Singh on why ordinance may not be an option to bring back electoral bonds

The government cannot bring back the electoral bonds scheme in its existing form through an ordinance without rectifying the defects pointed out by the Supreme Court, which struck down its validity, former additional solicitor general Vikas Singh told Moneycontrol.

“The government cannot overcome the judgment; they have to bring in a law which is in conformity with the judgment. Once a judgment strikes down a particular law, the government cannot bring back the same law in the same avatar,” he said.

According to Singh, it is legally impermissible to bring back a law without making any modifications after being struck down by the court. If the government intends to promulgate an ordinance, it will have to remove the element of anonymity from the current electoral bonds scheme.

A five-judge bench of the Supreme Court unanimously scrapped the electoral bond scheme as ‘unconstitutional’ on February 15. The SC held the scheme violated Article 19 of the Constitution by not disclosing the funding to political parties.

The SC consequently struck down provisions related to electoral bonds in the Companies Act, the Income Tax Act and the Representation of the People Act. The court held that the electoral bonds scheme infringed upon the right to information of the voter by anonymising contributions.

Legal options

According to Singh, the government can file a review petition and if the petition is not entertained, it could file a curative petition.

“Review is definitely an option with the government,” he said. “However, it does not make too much sense because they are heard in chambers and they are very rarely entertained. Curative is also heard in the chambers.”

Article 137 of the Constitution of India empowers the Supreme Court to review its own rulings. The procedure and the threshold for reviewing a case is laid down in the Supreme Court Rules, 2013.

A review petition will have to necessarily tell the court why its judgement is not correct, either on facts or on law or both. While many review petitions are filed, the courts allow only a handful of them every year. Review petitions are not heard in open court but are heard in the judge’s chambers.

A curative petition is usually filed after a review is dismissed. It is the final remedy to reconsider dismissed review petitions. Such petitions are considered only if a litigant is likely to suffer grave injustice on account of an SC judgement.

Bold judgement

“The judgment, according to me, is a very bold one,” Singh said. “The court should have also appreciated that these political parties have unjustly enriched themselves under an unconstitutional scheme. If the money was taken by them under an unconstitutional scheme, they should have been asked to refund the money. However, if the donor does not want it, they can continue holding it.”

As a consequence of striking down the electoral bonds scheme, the State Bank of India, which was mandated to issue such bonds, has been asked to stop issuing them with immediate effect.

SBI has also been directed to submit the details of the purchase of electoral bonds along with the details of their encashment by political parties to the Election Commission of India by March 6. The commission has been directed to publish all the details on its website one week after it receives this information.