Real question on electoral bonds: Who donated to whom, and how much?

At the same time, Live Law reported that Chief Justice DY Chandrachud indicated during the hearing on Monday, “Whatever the Election Commission of India has placed before us, we’ll open it. In pursuance of an interim order, the Election Commission had furnished details. The registry has placed it in secured custody. We will direct them to open it right now.”

By this interim order issued in November last year, the court had asked the ECI to furnish, in a sealed cover, details of the funds received by all the political parties through electoral bonds till 30 September.

As per the SC’s judgment on 14 February and order on 12 March (after dismissing its plea for a deadline extension), the SBI’s role is limited to delivering the electoral bonds data to the EC before the end of 12 March.

Also read: Cough up the details by March 12, Supreme Court tells SBI

EC reference in the 14 February verdict

The main judgment of the SC delivered on 14 February by four justices led by Chief Justice DY Chandrachud, on page 149 under “Conclusion and Directions”, referred to the EC:

“We direct the disclosure of information on contributions received by political parties under the Electoral Bond Scheme to give logical and complete effect to our ruling. On 12 April, 2019, this Court issued an interim order directing that the information on donations received and donations which will be received must be submitted by political parties to the ECI in a sealed cover. This Court directed that political parties submit detailed particulars of the PART H 150 donors as against each Bond, the amount of each bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date on which each such credit was made.”

The rest of the directions are related to the SBI.

Also read: Supreme Court strikes down Electoral Bonds as unconstitutional

Directions to EC

On the fifth judge, Justice Sanjiv Khanna, who delivered a separate but concurring judgment, made the following points on pages 57-59 of his 74-page order related to the EC:

• On page 57, Justice Khanna said that the court’s order on 2 November, 2023 had asked for the EC’s compliance with the interim order of this Court dated 12 April, 2019.
• The judge quoted the relevant portion of the order: “In the above perspective, according to us, the just and proper interim direction would be to require all the political parties who have received donations through Electoral Bonds to submit to the Election Commission of India in sealed cover, detailed particulars of the donors as against the each Bond; the amount of each such bond and the full particulars of the credit received against each bond, namely, the particulars of the bank account to which the amount has been credited and the date of each such credit.”
• Explaining the intent of the 2019 order, Justice Khanna stated: “The ECI will continue to maintain full particulars of the donors against each Bond; the amount of each such Bond and the full particulars of the credit received against each Bond, that is, the particulars of the bank account to which the amount has been credited and the date of each such credit. This is clear from paragraph 14 of the order dated 12.04.2019, which had directed that the details mentioned in paragraph 13 of the order dated 12.04.2019 will be furnished forthwith in respect of the Bonds received by a political party till the date of passing of the order.”
• Against this backdrop, Justice Khanna said in his order on 14 February: “Given the findings recorded above, I would direct the ECI to disclose the full particular details of the donor and the amount donated to the particular political party through Bonds. I would restrict this direction to any donations made on or after the interim order dated 12 April, 2019. The donors/purchasers are unknown and not parties, albeit the principle of lis pendens applies, and it is too obvious that the donors/purchasers would be aware of the present litigation. Hence, they cannot claim surprise.”

Justice Khanna, in his order, directed the EC to “disclose” the “full particular details of the donor” and the “amount” donated to the “particular political party”.

On page 59, he made a concluding point about when the EC would complete the exercise of ascertaining bond, donor, and donee details:

“The ECI will ascertain the details from the political parties and the State Bank of India, which has issued the Bonds, and the bankers of the political parties and thereupon disclose the details and names of the donor/purchaser of the Bonds and the amounts donated to the political party. The said exercise would be completed per the timelines the Hon’ble the Chief Justice fixed.”

But when will the EC have to disclose these details? The question is: Will it publish the “matched” details, and if so, before the general elections? Or is it already busy because the election process has begun, and may upload the information given by the SBI as it is on 15 March?

The political implications of the details of which donors connected with which political parties are immense as the electoral campaign has already reached a pitch. Such details would have made weapons in the hands of the Opposition, considering that the BJP would have, as in previous years, secured the maximum amount of donations through the bonds.

Also read: ADR contempt petition against SBI

Why was SBI confused about SC order?

Having said that, there is a niggling issue. The SBI is a big bank with great influence and legal advice; then why did it raise the issue of “matching” the information “silos” when the Supreme Court order on 14 February did not ask for it?

The SBI counsel explained to the court on Monday why it needed a deadline of 30 June.

According to the bank, it interpreted the court’s order to mean the “matching” details between the two information silos were asked for. That was never the case.

On Monday, the bench told as much to Harish Salve, who represented the SBI.

The Supreme Court’s directions to the SBI included the following points:

“B. The State Bank of India shall submit the details of electoral bonds purchased since the Court’s interim order on 12 April 2019 to the Election Commission of India. The details shall include the date of purchase of each electoral bond, the name of the purchaser, and the denomination of the electoral bond purchased.

“C. State Bank of India shall submit the details of the political parties that have received contributions through electoral bonds since the interim order dated 12 April, 2019, to the ECI. SBI must disclose details of each electoral bond encashed by the political parties, including the date of encashment and the denomination of electoral bond.”

The order did not say the SBI had to match both data sets.

It was the SBI that said in its 4 March plea for a deadline extension, saying, “retrieval of information from each silo and the procedure of matching the information of one silo to that of the other would be a time-consuming exercise”.

Secondly, the SBI said donor details are kept in a sealed cover deposited in the main branch in Mumbai.

While hearing the deadline extension case on 11 March, the Supreme Court bench said: “What you are saying is that there are two different information silos and rematching them would require significant effort. But, if you see the directions we issued, we did not ask you to do this matching exercise. We have simply directed plain disclosure. The grounds you seek additional time do not accord with the directions we issued.”

(Views expressed are personal)