Can Modi govt bring back Electoral Bonds scheme through ordinance? Experts weigh in

The central government cannot bring electoral bonds scheme through ordinance, Rajya Sabha MP Kapil Sibal has said.

Speaking to the Indian Express newspaper, the senior advocate said that the Modi government has to bring in a new funding system as an ordinance cannot set aside a judgement.

"They cannot. An Ordinance cannot set aside a judgment. No law can set aside a judgment. They can bring an Ordinance to put in place a new funding system. But not this," he was quoted as saying.

Echoing similar views, former additional solicitor general Vikas Singh also said that it was legally impossible to bring back the same law without making any modifications.

“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.

He said that the government needs to remove the element of anonymity from the current electoral bonds scheme.

"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," he told Moneycontrol.com

In a landmark verdict delivered within a spitting distance of the Lok Sabha polls, the electoral bonds scheme was scrapped by the Supreme Court on Thursday. The court termed the scheme "unconstitutional" and ordered a disclosure of the purchasers' names, the value of the bonds and the details of their recipients.

In an affidavit filed on March 27, 2019, the EC informed the top court that it had written to the Centre, saying the changes made in several laws relating to political funding will have "serious repercussions" on transparency.

The poll panel had also said the changes in the Foreign Contribution (Regulation) Act (FCRA), 2010 will allow unchecked foreign funding of political parties, which could lead to Indian policies being influenced by foreign companies.

The EC said on May 26, 2017, it had written to the Ministry of Law and Justice about its views that the changes made in the Income Tax Act, the Representation of the People Act and the Finance Act would be against the endeavour to have transparency in the funding of political parties.

A five-judge Constitution bench headed by Chief Justice D Y Chandrachud did not agree with the Centre's contention that the scheme was meant to bring about transparency and curb black money in political funding.

Also read| What is the electoral bonds scheme? Why did the Supreme Court strike it down?