New Delhi: Bypassing constitutional or statutory authorities in decision making or informing them at the eleventh hour of its decisions appears to have become second nature of the Union government, Right to Information queries filed in connection with demonetisation and now the amendment of the Electoral Bond Scheme have revealed.
In November this year, RTI queries filed on the issue of demonetisation by activist Venkatesh Nayak had revealed that the Central Board of Reserve Bank of India, which is a statutory body, was only “assured” that the matter of demonetisation of Rs 1,000 and Rs 500 currency notes, which was announced by Prime Minister Narendra Modi on November 8, 2016, had been under discussion between the Union government and the RBI. This assurance was given hours before the announcement of the scheme was made.
Fast forward to November 2022, the Union government amended the Electoral Bond Scheme of 2018 to provide for additional days for sale of electoral bonds while the elections to the state assemblies of Gujarat and Himachal Pradesh were on, and at a time when the Supreme Court had listed for hearing the pleas seeking a stay on the Electoral Bond Scheme.
The Union government amended the scheme without seeking any “concurrence” from the Election Commission of India.
Incidentally, RTIs had also revealed that the Union government took no approval from the RBI before amending the scheme despite the fact that the original scheme was notified by it using powers conferred on it by Section 31 of the RBI Act, 1934.
EC gave no concurrence in November 2022
It was revealed through file notings and documents received by RTI activist Commodore Lokesh Batra (retired) that the Election Commission, the nodal agency for conducting elections, was only “informed” in the matter of amending the Electoral Bond Scheme and its concurrence was never received.
During the consultation on the amendment, on November 4, 2022, Secretary of Economic Affairs Ajay Seth wrote on the subject of “Amendment to Electoral Bonds (EBs) Scheme, 2018”, that “the Election Commission of India (ECI) was informed about issuance of EBs for a period of 10 days each in November 2022 and December 2022 on 1st November 2022. However, there has been no response from ECI till date.”
With the EC not approving of the scheme, there was some concern in the ministry. The official suggested that “in view of this, we may inform the Press not to go ahead with the publication of the notification amending the scheme”.
EC received no prior information on electoral bond sale
Now, in the latest instance, as per documents obtained by Batra, as per a letter from Director (Budget) in the Department of Economic Affairs, Ministry of Finance, dated December 3, 2022, the “Election Commission of India (ECI) was informed about the notification of amendment to the Electoral Bond Scheme, 2018 in GoI Gazette.” The issuance of electoral bonds, under the scheme was proposed for eight days from December 5 to 12, 2022 through a “Press Communique” dated December 3.
Incidentally, the manner in which the Union government went about only informing the ECI about its decisions at the eleventh hour was brought on record in one of the letters sent by the Commission.
In this letter, Deputy Election Commissioner Ajay Bhadoo wrote to AS (Budget) DEA, Ministry of Finance, on December 3 itself that the letter regarding the release of the “press communique” regarding the issuance of electoral bonds in December was “released almost simultaneously on the website of DEA, Ministry of Finance as well as on PIB while the communication was being sent to me by email at 13.47 hrs and by WhatsApp at 14.07 hrs.”
Clearly, the fact that the officer mentioned the time in the acknowledgement while replying to the letter the same evening on December 3 showed that there was a level of displeasure.
‘EC in no hurry to act’
However, the Election Commission has openly and publicly not criticised the Union government’s conduct in the matter. It has also been accused of not providing clear answers to queries on the issue of amendment of the Electoral Bond Scheme 2018.
Batra, who has been pursuing the matter with the Commission and also in the Supreme Court, said: “ECI failed to act on Model Code of Conduct complaints.” He said the Commission also appeared in no hurry to take action in the matter and only “mentioned” that the matter was already before the apex court. “ECI did not display its accountability towards complainants and the people at large,” he said.
Batra added that it was “extremely worrying” that the Election Commission took no action to stay the government’s move to stall the “unscheduled sale of ‘Electoral Bonds’ for anonymous donations to ‘Political Parties’ – caused by amendment to the ‘Electoral Bond Scheme, 2018’ by the Government of India” while the MCC was already in place due to state elections in Himachal Pradesh and Gujarat.
He said this ran contrary to EC’s earlier stance when it had stated that “donation received through an electoral bond is a retrograde step that would lead to increased use of black money for political funding through shell companies”.
‘Fair or not’
As the Supreme Court is due to hear the larger issue of opacity of electoral bonds this month, former Chief Election Commissioner N. Gopalaswami while talking to The Wire said the amendment to the Electoral Bond Scheme was not of much significance and rather it was if the scheme itself was “fair or not”.
“The matter is before the Supreme Court and it will pronounce whether it was a fair scheme or not. The timing of the scheme is not of essence. The issue at stake is whether the scheme is transparent or opaque and whether it should be allowed to be continued or there should be something against it. We should await the apex court’s decision,” he said.
On the role of the Election Commission in allowing the Union government to go ahead with the amended Electoral Bond Scheme, Gopalaswami said he did not see anything wrong with it per se. “When elections are allowed and if somebody gives money to a party, is there any prohibition to it? I have not seen this. Nowhere is it written that a donation cannot be made to a party after the elections are announced.”
“So,” the former CEC said, “the only difference here is that you do not need to find out if the RBI has opened the scheme or not. If I am not following the Electoral Bond Scheme and I have a cheque and I want to give it to a party, then it is not prohibited – irrespective of whether the election is on or not. Also, even if I am giving the money to a candidate and he or she is accounting for it, then too there is no problem. The only obligation on the part of the party or the candidate is to give me a receipt and reflect it in its or his accounts.”
On the difference being that under the Electoral Bond Scheme the donor’s identity is not disclosed, Gopalaswami said, “That is the key issue – it is not that money is being given but whether the scheme is transparent enough.”