The SCBA chief writes that revealing the names of corporate donors will render them vulnerable to victimization.
Supreme Court of India. (iStock)
A suggestion by the president of the Supreme Court Bar Association (SCBA), Adarsh Aggarwala, to the President of India to seek a Presidential reference on the Supreme Court’s verdict on the electoral bonds issue and not to give effect to it unless the matter is re-heard has raised brows.
Lawyers and politicians alike have disagreed with the suggestion and expect the President, in her prudence, not to act on it. Aggarwala requested the President not to give effect to the verdict unless the top court has reheard the matter.
Aggarwala, saying the verdict was “unconstitutional”, wrote in the letter: “The Supreme Court should not allow itself to deliver judgments that would create a constitutional stalemate, undermine the majesty of the Parliament of India, the collective wisdom of the people’s representatives gathered in the Parliament and create a question mark over the very democratic functioning of political parties themselves.”
A Live Law report quoted Aggarwala as requesting “a presidential reference on the issue, advocating for a rehearing of the entire matter in the interest of ‘complete justice’ for “the Parliament of India, political parties, corporates and the general public”.
He argued in the letter that the election bonds scheme was legal and valid when the contributions were made.
This is the crux of his argument: “The 22,217 Electoral Bonds that had been received by different political parties from different corporate entities by way of corporate contributions were perfectly legal and constitutional. How can a corporate entity be punished for having played by rules valid and legal on the day the contributions were made? Even if the Supreme Court prohibited the electoral bonds scheme, the prohibition shall come into effect only prospectively and not retrospectively. When there was no legal or constitutional bar, and when there were express provisions and amended laws that enabled corporate entities to make contributions, how could they now be faulted and punished?
“Infringing their right against disclosure of either their name or the quantum of their donation or to the parties they had chosen differential contributions will amount to a betrayal of a constitutional trust and sovereign guarantee. Revealing the names of corporates that had contributed to different political parties would render the corporates vulnerable to victimization.”
He argues that disclosing donors’ data could have a ‘chilling effect’ on corporate donations. In the letter, he says, “…Infringing their right against disclosure of either their name or the quantum of their donation or to the parties they had chosen differential contributions will amount to a betrayal of a constitutional trust and sovereign guarantee. Revealing the names of corporates that had contributed to different political parties would render the corporates vulnerable to victimization.”
Reacting to the letter, Supreme Court lawyer Karuna Nandy said in a post on X: “This (is) highly improper, written in Mr Aggarwala’s personal capacity, and would be outside his legal ability even as President of SCBA as that Office is not competent to make such a reference.”
Tarun Khaitan, the Professor (Chair) of Public Law at the LSE Law School, said on X: “Using Art 143 reference procedure to reopen an issue already settled by the Court fraudulently converts an advisory jurisdiction into an appellate one. If the President demeans her office by using it, SC should immediately decline to answer, as it did in Ismail Faruqui case (1994).”
Secretary-General of CPI(M) Sitaram Yechury said, “Now, the President of the SC Bar Association seeks a rehearing of the EB case through a Presidential reference under Article 143. This move, if pursued, would fraudulently convert an advisory jurisdiction into an appellate one. What scares the Modi government, the nation wants to know.”
Aggarwala made headlines last December when he wrote to Chief Justice of India D Y Chandrachud, expressing “shock” at a senior member of the bar’s open letter to the head of the judiciary.
His letter followed an open letter by senior advocate Dushyant Dave to the CJI expressing anguish over “certain happenings” in listing cases and their reallocation to other benches in the Supreme Court and seeking immediate corrective measures.
The question doing the rounds after his latest missive, a letter to the President no less, is exactly what point he is driving at. The bond data is already the talk of the town because of its political implications, especially with elections around the corner.
It also comes at a time when the Opposition welcomed the Supreme Court verdict on the electoral bonds and is eager to know who all donated to the BJP.
In his letter, Aggarwala also raises the issue of “victimization” of the corporates. The data was delivered only on Tuesday evening by the SBI to the Election Commission of India, and nobody publicly knows or has admitted knowing who the donors are and how many of them are of the corporate kind.
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