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Electoral Bonds Case : Petitioner Seeks Reference To Constitution Bench; Supreme Court To Hear In January 2023
LIVELAW NEWS NETWORK
15 Dec 2022 7:56 AM GMT
The Supreme Court on Thursday adjourned till the last week of January 2023 the hearing in the cases challenging the Electoral Bonds scheme.Advocate Prashant Bhushan, appearing for one of the petitioners Association for Democratic Reforms, submitted before a bench comprising Justices BR Gavai and Vikram Nath, that the matter should be referred to a Constitution Bench as "weighty issues of...
The Supreme Court on Thursday adjourned till the last week of January 2023 the hearing in the cases challenging the Electoral Bonds scheme.
Advocate Prashant Bhushan, appearing for one of the petitioners Association for Democratic Reforms, submitted before a bench comprising Justices BR Gavai and Vikram Nath, that the matter should be referred to a Constitution Bench as "weighty issues of public importance" are involved, on which an "authoritative pronouncement" is required.
The bench said that even for reference, a preliminary hearing is required. The bench also expressed difficulty in hearing the matter today, considering the large number of cases listed.
"This has been pending since 2015. What is the pressing urgency that it has to be heard on the penultimate day before vacation?", Justice Gavai asked Bhushan. Bhushan replied that urgent hearing was requested in the case on may occasions.
A plea filed by Congress leader Dr. Jaya Thakur challenging the recent notification of the Centre allowing additional window for electoral bonds' sale in the year of assembly elections is also listed today along with the batch.
ADR recently filed an affidavit producing certain RTI documents which show that officials of the Ministries had expressed reservations against amending the electoral bonds scheme to allow additional sale window when the issue is pending before the Supreme Court.
In 2021, the Supreme Court had refused to stay the scheme ahead of assembly elections in some states, saying that sufficient safeguards are inbuilt in it.
Background
The petitions were filed in 2017 challenging the provisions of Finance Act 2017 which paved the way for anonymous electoral bonds. The Finance Act 2017 introduced amendments in Reserve Bank of India Act, Companies Act, Income Tax Act, Representation of Peoples Act and Foreign Contributions Regulations Act to make way for electoral bonds.
The petitions have been filed by political party Communist Party of India(Marxist), and NGOs Common Cause and Association for Democratic Reforms(ADR),which challenge the scheme as "an obscure funding system which is unchecked by any authority". The petitioners voiced the apprehension that the amendments to Companies Act 2013 will lead to "private corporate interests taking precedence over the needs and rights of the people of the State in policy considerations".
However, the case became alive only by March 2019, by which time most of the electoral bonds have been purchased.
On April 12, 2019, after several sessions of hearing held during the run up to the 2019 Lok Sabha polls, a three judges bench of the SC comprising the then CJI Ranjan Gogoi, Justice Deepak Gupta and Sanjiv Khanna had directed the political parties to submit the details of donations received to the ECI in sealed cover by May 30.
The Election Commission of India has already filed a counter-affidavit in the case expressing its concerns about the anonymous nature of bonds. The ECI has described this a "retrograde step as far as transparency of donations is concerned" and called for its withdrawal.
By virtue of the 2017 amendment made to Section 29C of the Representation of Peoples Act 1951(RPA), political parties need not report to ECI the donations received through electoral bonds. The ECI has described this a "retrograde step as far as transparency of donations is concerned" and called for withdrawal of the amendment.
The ECI said that if contributions are not reported, it will not be possible to ascertain if political parties have taken donations from government companies and foreign sources, which is prohibited under Section 29B of RPA.
The amendments made to Companies Act 2013 were also flagged by the ECI. The amendment to Section 182 of the Act took away the restriction that contribution can be made only to the extent of 7.5% of net average profit of three preceding financial years, enabling even newly incorporated companies to donate via electoral bonds.
"This opens up the possibility of shell companies being set up for the sole purpose of making donations to political parties, with no other business consequence of having disbursable profits", said the ECI.
Also, the amendment to Section 182(3) abolished the provision that companies should declare their political contributions in their profit and loss accounts. Now, this requirement is diluted to only showing the total expenditure under the head. This would "compromise transparency" and could lead to the "increased use of black money for political funding through shell companies" expressed the ECI.
ECI had urged the Ministry to ensure that only profitable companies with proven track record should be permitted to make political donations.
The ECI had informed the Ministry that these amendments will have "serious repercussions/impact on the transparency aspect of political finance/funding of political parties".
It has also taken a stand against the amendment to Foreign Contributions Regulation Act with permitted acceptance of donations from foreign companies with retrospective effect. "This would allow unchecked foreign funding of political parties in India which could lead to Indian policies being influenced by foreign companies", said the ECI.
The ECI added that it had suggested amendments to RPA Act to make reporting compulsory even for cash donations less than the existing limit of Rs.20,000, if the total cash contributions exceeds 20 crores or 20 percentage of total contributions, whichever is lesser. It further suggested that reports of contributions of political parties should be uploaded in the website of ECI. It had also suggested that anonymous contributions above or equal to Rs.2000 should be prohibited, instead of the present limit of Rs.20,000.
But the scheme was implemented without paying any heed to the concerns expressed by the poll body.
The petitions also raise the contention that the scheme was made into effect through amendments made to RP Act, IT Act and RBI Act through a money bill - the Finance Act. This is alleged to be a colourable exercise of the money bill provision in order to circumvent scrutiny by the Rajya Sabha.
The bonds can be bought for any value, in multiples of Rs 1,000, Rs 10,000, Rs 1 lakh, Rs 10 lakh or Rs 1 crore. The name of the donor will not be there in the bond. The bond will be valid for 15 days from the date of issue, within which it has to be encashed by the payee-political party. The face value of the bonds shall be counted as income by way of voluntary contributions received by an eligible political party, for the purpose of exemption from Income-tax under Section 13A of the Income Tax Act, 1961.
The Centre claims that the schemes will bring in more transparency in political funding. The anonymity of the scheme was intended to protect the privacy of the donor, stated the centre.
