A complete timeline of the Electoral Bond Scheme

Amended the definition of “foreign source” under the Foreign Contribution Regulation Act, 2010, to allow foreign companies who have a majority share in Indian companies to donate to political parties.

Jaitley proposed the Electoral Bond Scheme in the Lok Sabha in the 2017-18 Union Budget Speech, as a way to address donors’ “reluctance in donating by cheque or other transparent methods” and to protect them from having to “disclose their identity and entail adverse consequences.”

The Union introduced amendments to four laws.

The Reserve Bank of India Act, 1934 was amended to allow the Union government to “authorise any scheduled bank to issue electoral bond[s].”

The Income Tax Act, 1961 was amended to exempt political parties from keeping a detailed record of contributions received through electoral bonds.

Changes were made to the Representation of the People Act, 1951 to exempt political parties from publishing details of Electoral Bond contributions in “Contribution Reports.”

The Companies Act, 2013 was amended to remove the upper limit of corporate donation to a political party, and their obligation to disclose the breakup of contributions made to different parties.

The ADR filed a writ petition at the Supreme Court challenging the constitutionality of the scheme. They sought the striking down of the Finance Act, 2017 and Finance Act, 2016, arguing that they were unlawfully passed as money bills.

Further, they argued that the resultant scheme “opened doors to unlimited political donations, even from foreign companies and thereby legitimising electoral corruption at a huge scale, while at the same time ensuring complete non transparency in political funding.”

The notification listed out the features of the Scheme. Specific branches of the State Bank of India (SBI) were authorised to sell electoral bonds. Bonds were sold in denominations of ₹ 1,000, ₹10,000, ₹1,00,000, ₹10,00,000, and ₹ 1,00,00,000.

They would be sold for 10 days in January, April, July, and October each year. The SBI would would sell bonds only on the submission of Know Your Customer (KYC) details, but the details of the bond purchaser would not be disclosed otherwise

Political parties which secured more than one percent votes “in the last general election to the House of the People or the Legislative Assembly” were made eligible to accept electoral bonds.

The Scheme imposed a 15-day window for encashment of bonds, after which the funds would be deposited to the Prime Minister’s Relief Fund.

Electoral bonds would be interest and tax exempt.

Communist Party Of India (Marxist) filed a writ petition challenging the 2018 Scheme and the 2016 and 2017 Finance Acts. They raised concerns that the amendments would cause the “destruction of the principle underlying Article 19(1)(a) and the concept of democratic institutions functioning for the
interests of the people.”

CPI(M) was the only political party to challenge the Scheme in its own name.

ADR and Common Cause approached the Court arguing that bonds are being sold “for a large number of days in three months leading to general elections.” The petition anticipated enormous amounts of corporate funding particularly in the months preceding the election.

The ECI submitted that amendments to the five legislations will have “serious repercussions” on the transparency of political funding.

The ECI also made its position in the case clear. It stated that it “does not propose to take any contentious issues or to join any submission on merits, etc., as these are matters between contending parties.”

The Court recognised that “the rival contentions give rise to weighty issues which have a tremendous bearing on the sanctity of the electoral process in the country.”

Therefore, they said that the case “would require an in depth [sic] hearing.” The Court, also stated that it had to “ensure that any interim arrangement that may be made would not tilt the balance in favour of either of the parties.”

In light of this, it directed all the political parties who had received donations through Electoral Bonds to submit the details to the Election Commission of India in a sealed cover.

The information was meant to contain detailed particulars of the donors, details of the issuing bank, details of the amount purchased.

Transparency activists such as Commodore Lokesh Batra (Retd.), Anjali Bhardwaj and others had filed RTI applications seeking the release of all files, file notings and correspondence on the processing of the Electoral Bond Scheme.

The batch of responses they got in late 2019 indicated that the Scheme was introduced despite clear warnings issued by the Reserve Bank of India (RBI), the Election Commission of India (ECI) and various opposition parties.

Equipped with information from the RTI responses, ADR approached the top court to “bring on record certain vital documents which have surfaced recently and have a strong bearing on the instant case.” They argued that the concerns raised by the RBI and the ECI were dismissed by the Finance Ministry. Further, they stated that the Law Ministry was also apprehensive, but eventually buckled under the the Finance Ministry’s “insistence.”

They also stated that the Prime Minister’s Office had ordered “special and illegal sale of Electoral Bonds just before State Polls in violation of the Scheme.”

The request for stay as well as the wider challenge to the Scheme was not taken up for hearing by the Court.

After over a year of the case not being heard, petitioners approached the Supreme Court again, specifically in light of upcoming state elections in West Bengal, Tamil Nadu, Kerala, Puducherry and Assam. They asked that “no further opening of window for the sale of EBs be allowed during the pendency of the instant writ petition.”

The Supreme Court found that “the Scheme is intended to ensure that everything happens only through banking channels” and dismissed the interim application.

Most notably, the Court said that the State Bank of India had all the information on transactions due to the collection of KYC details of the buyer, and that companies were required to disclose donations in their financial statements. “All that is required is a little more effort to cull out such information from both sides (purchaser of bond and political party) and do some ‘match the following’.”

The Court also said “that there cannot be repeated applications seeking the same relief, merely because the interim reliefs sought relates to something that is to happen at periodical intervals of time.”

The Finance Ministry introduced a paragraph to the 2018 Electoral Bond Scheme so that in a year of state or general elections, Electoral Bonds could be sold for another 15 days in addition to the four 15-day windows for sale.

After the Supreme Court’s Order on 26 March 2021, petitioners could not approach the Court with a fresh Interim Application. Instead, they filed an additional affidavit on 15 November 2022 stating that the amendment had been made to ensure that donations increased around election season.

On 1 December 2022, they also filed a supplementary affidavit adding a point that the amendment was introduced while the Model Code of Conduct was in force for the 2022 Assembly elections in Gujarat and Himachal Pradesh.

Seven petitions filed in the case concerned three key issues. 

First was the challenges to the Union’s Electoral Bond Scheme; second was a plea to bring political parties under the Right to Information Act, 2005; and third was a challenge to the constitutional validity of the 2016 and 2017 Amendments to the Foreign Contribution (Regulation) Act, 2010 (FCRA) which allows political parties to receive foreign funding.

The Court bifurcated these cases in the interest of ease and clarity in hearings. 

A three-judge Bench comprising Chief Justice D.Y. Chandrachud, and Justices J.B. Pardiwala and Manoj Misra held that “in view of the importance of the issue which is raised and having due regard to the provisions of Article 145(3) of the Constitution, we are of the
considered view that the batch of petitions be listed before a Bench of at least five-Judges.”

Article 145(3) states that a minimum number of five Judges must assemble “for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143”

On Day 1 of arguments, petitioners argued that the Electoral Bonds Scheme allowed an increase in corporate funding, black money circulation and corruption. Advocate Prashant Bhushan for ADR, Senior Advocate Kapil Sibal for Dr. Jaya Thakur, Advocates Shadan Farasat for CPI(M), Nizam Pasha and Senior Advocate Vijay Hansaria argued.

Attorney General R. Venkataramani and Solicitor General Tushar Mehta argued for the Union government. They argued that the 2018 Scheme was introduced to bring in confidentiality into donations to protect donors from retribution and to “eradicate the menace of use of unclean money.”

The Union continued arguments stating that the element of confidentiality in the Scheme was “fool proof” and “unbreachable” even by the Union government. They argued that a donor’s right to keep donations a secret was part of their fundamental right to privacy.

In the rejoinder arguments, Advocate Prashant Bhushan argued that privacy is an individual right, flowing from the right to life and it cannot be enjoyed by a company. Senior Advocate Kapil Sibal argued that the Scheme was an “unconstitutional, undemocratic, unfair power given to the ruling party.”

The five-judge Constitution Bench unanimously struck down the Scheme. The Bench held that the Scheme violated voters’ right to information enshrined in Article 19(1)(a) of the Constitution. They held that “Information about funding to a political party is essential for a voter to exercise their freedom to vote in an effective manner.”

Rejecting the Union’s argument, they stated that “the Scheme is not fool-proof. There are sufficient gaps in the Scheme which enable political parties to know the particulars of the contributions made to them.”

On corporate funding, they held that “unlimited contribution by companies to political parties is antithetical to free and fair elections because it allows certain persons/companies to wield their clout and resources to influence policy making.”

The Court ordered the immediate end to all sales of Electoral Bonds, and ordered the State Bank of India to publish all data on Electoral Bond transactions since 12 April 2019.

Two days before the deadline that the Court had set for the disclosure of Electoral Bond sale details, the SBI filed an application seeking an extension of time, due to “certain practical difficulties.” It stated that because of the strict and secure methods adopted to record data, “decoding” of the information and matching donor details “would be a complex process.”

The application explained that the data on who the bond was issued to and who redeemed it were both stored in two different “silos” and to “re-match them would be a task requiring a significant amount of effort.”

ADR filed a contempt petition against SBI for “wilfully and deliberately disobeying” the order of the Supreme Court. They explained that as part of the Scheme, SBI has the details of a unique number allotted to each Electoral Bond, as well as the KYC details of its purchaser. “It is inconceivable that SBI does not have the recorded information readily available within its database,” they said.

The same five-judge Bench of the Supreme Court heard and dismissed the State Bank of India’s (SBI) plea for more time to submit the details of the Electoral Bonds and directed it to “disclose the details by the close of business hours of 12 March 2024.” The Court warned SBI that they would be forced to initiate contempt proceedings if they failed to comply with the Order.

The Court heard a Miscellaneous Application filed by the ECI which was asking for the sealed cover documents containing details of electoral bonds transactions to be returned. The Court stated that it would digitise the copy it had and share it with the ECI, which could then make it public on its website.

It had been three days since the SBI published the Electoral Bonds data as per the 11 March 2023 Order. In the hearing on 15 March, the Court took note of some missing information, particularly the alphanumeric details embedded on the bonds. They called on the SBI to appear before the Court to explain the reason for this omission.

The Supreme Court reiterated that the SBI must disclose “all” data. They directed the SBI Chairman to submit the affidavit by 21 March declaring that all data with the bank had been duly disclosed.

The Court explicitly noted that the details must contain alphanumeric and any other information. The SBI will submit the documents to the Election Commission. The ECI must publish this on their website immediately.

Senior Advocate Mukul Rohatgi, appearing for SBI, argued that donors had purchased bonds under the Scheme with the assurance of anonymity. “Was it the intention of the Court to know which man paid where?” he asked. “The answer is yes,” Justice Sanjiv Khanna responded.

The SBI submitted all data, including alphanumeric identifiers of the Bonds. The Chairman of the State Bank of India filed an affidavit confirming the same.