The Union Finance Ministry decided that it did not need the Election Commission’s concurrence for its November 7 amendment to the Electoral Bond Scheme that increased the period of sale of electoral bonds, documents show. The amendment was notified while the Model Code of Conduct (MCC) was in place for the Himachal Pradesh and Gujarat elections. File notings, obtained on Friday through a Right to Information request to the Department of Economic Affairs by transparency campaigner Commodore Lokesh Batra (retired), showed that the proposal was first discussed and approved within the ministry in March 2021. However, it was only notified on November 7 this year, and the 23rd tranche of electoral bonds were sold from November 9 to November 15. The Himachal Pradesh elections were held on November 12 and the Gujarat elections are scheduled to be held on December 1 and December 5. The amendment increased the window of sale of electoral bonds by 15 days in any year that has an assembly election. Under Paragraph 8 of the notified scheme, electoral bonds were available for a period of 10 days each in January, April, July and October. It also allowed for an additional 30-day period in a Lok Sabha election year. Officers within the ministry had in October and early November flagged the need for the EC’s concurrence since elections had been announced and the code of conduct meant to ensure a level playing field was implemented. The ministry decided to inform the EC, but not seek concurrence as it had already discussed the matter in 2021. “It may be mentioned that, last year (March 2021), with the approval of Hon’ble Finance Minister, a proposal to amend Clause 8 of the Electoral Bond Scheme, 2018. was prepared and draft amendment notification was also vetted by M/o Law & Justice…However, the amendment notification was not issued/published,” Director (Budget) Sunil B Chaudhari wrote on October 28, according to the documents. Noting that the electoral bond scheme was “sub-judice and the Model Code of Conduct is in place”, Chaudhari asked for the Finance Minister’s approval for the amendment, obtaining legal opinion from the Law Ministry and “obtaining concurrence” of the EC on account of the MCC for notifying the amendment and floating electoral bonds. On November 1, Deputy Director (Budget) Mamta placed a draft of the note “seeking concurrence of the Election Commission of India” for the notification of the amendment and press release on issuance of bonds on file. On the same day, Economic Affairs Secretary Ajay Seth wrote: “Extended duration of electoral bonds would allow for greater flexibility to all political parties to access legitimate resources for electoral funding. Similar amendment to the scheme was proposed in March, 2021. As this matter was already duly noted by ECI (Election Commission of India) in 2021, another reference on the matter for ECI concurrence is not necessary.” Seth wrote that the bonds could be issued from November 5 to 14 and then again from December 5 to 14. “The above matter was discussed with the Finance Minister today. It is felt that the proposed issuance does not violate any of the provisions of the Model Code of Conduct. However, the ECI may be kept informed about the proposed issuances.” According to the files, the EC had written to the Finance Ministry on March 17, 2021 to say it had “no objection from MCC angle” to the release of press communique, referring to the sale of electoral bonds during state assembly elections. However, the EC placed two conditions — that no political functionary would make any reference to the matter and all relevant MCC provisions are followed. In another letter on March 21, 2021, the EC said it had “duly noted” the contents of the ministry’s letter informing it of the proposed amendment. While discussing the amendment last year, then-Director (Budget) Vyasan R had written on March 12, 2021 that the amendment needed legal opinion from the Law Ministry and “clearance” from EC since the MCC was in place on account of assembly polls. Elections to the assemblies of Assam, Kerala, Puducherry, Tamil Nadu and West Bengal were held in March and April 2021. An assistant legal adviser in the Law Ministry, Arpit Anant Mishra, noted on March 15, 2021 that the proposed amendment was analogous to the additional 30 days allowed for sale of electoral bonds in a year of Lok Sabha elections, but it needed the opinion of the Solicitor General. In his opinion on March 16, 2021, Solicitor General Tushar Mehta had written: “In my considered opinion, there is no prohibition to the Government amending the scheme allowing an additional window of 15 days for issuance of electoral bonds for election to State Legislative Assemblies…” He added that the decision would be bound by the Supreme Court’s orders in the electoral bonds case.
