Electoral Bonds | Supreme Court Orders complete disclosure of transaction details from SBI

Procedural irregularities and breaking of court decorum

Senior Advocate Mukul Rohatgi appearing for the Associated Chambers of Commerce & Industry of India (ASSOCHAM), Confederation of Indian Industry (CII) and the Federation of Indian Chambers of Commerce and Industry (FICCI) sought to file an application in the case. The Bench forbade it. “You have come here after the judgement is delivered, you file an application. That’s not the way” The CJI said. He stated that proper procedure would be for the advocate on record to write an email to the CJI, after which it would be listed. “If I do it for ‘Mr. Rohatgi Senior Counsel’… as Chief Justice I have no face to tell all the other juniors to whom I declined mentioning in the morning.” Reiterating that no such case was found in the list for the day, the CJI Chandrachud sternly said that the counsel was appearing for “big clients,” and that the Court “will not tolerate this.” “You have to follow the rules in my Court.” 

Advocate Mathews J. Nedumpara began to interrupt the exchange, repeating that “the entire judgement was done behind the back of the public.” The Chief reminded him that this was not appropriate Court decorum. “Don’t shout at me,” he warned . When Nedumpara persisted, Justice B.R. Gavai warned him of issuing contempt proceedings against him for obstructing justice. Justice Sanjiv Khanna firmly added “we will not hear you until you follow the procedure prescribed.” 

Senior Advocate Adish C. Agarwala, who had written to the CJI seeking suo moto review of the Electoral Bonds Judgement sought to mention his request for review next. Agarwala is the president of the Supreme Court Bar Association (SCBA). “Mr. Agarwala, apart from being a senior counsel, you are the President of the SCBA. You know the procedure. You have written a letter to me asking me to invoke my suo moto jurisdiction…You have no locus to mention this…This is all publicity-oriented and we will not permit it,” the Chief said. 

When his turn came, Solicitor General Tushar Mehta said “on behalf of the Central Government, I completely disassociate myself with what Mr. Agarwala has written. It is completely unwarranted and ill advised.” Later, he declared that he also disassociated from the mentioning made in Court. 

Salve: SBI published what they did based on their interpretation of the Judgement

The Court stated that they had “expressly asked SBI to disclose all details…That includes the bond details as well. Let SBI not be selective in their disclosure of details.” They directed them to not wait for an order of the Court. “When we said all details of the purchases, that means every conceivable detail with the SBI.”

Senior Advocate Harish Salve, appearing for SBI, stated that he wanted to clear the “impression that SBI is playing ducks and drakes with the Court.”

Reading through the Interim Order from 2019 and the Court’s judgement in February 2024, he explained that SBI understood that the sealed cover content would show that details until 2019. They simply thought they had to submit the remaining data. “If the numbers are to be given, we will give them. That’s no problem,” he said.

The CJI then had a series of questions. How is the data on electoral bonds transaction stored? What is the purpose of the alphanumeric? Is it only a security feature or is it part of the audit trail? How does the redeeming branch “match the bond number” to ensure it is not a forged bond? What is the information you see when you see the alpha numeric? Do the details of the purchaser and the bank which issued the bond appear when it is scanned?

Salve explained that it is in two silos. The bond number is on the bonds, and cannot be seen outside of UV light. It is only a security feature, like in a currency note, to ensure that it is not a fake. No correlation or data matching is done between purchased and redeemed bonds, and it did not have any details of the purchased or the bank. Advocate Prashanth Bhushan interrupted to add that there was a 15 day limit to redeem the bonds—how would the bank discern how much time had transpired between the issuance and redemption? 

“Anyway Mr. Salve,” CJI Chandrachud continued, “the interim order merged with the final judgement of the Court.” This meant that all details had to be disclosed. “We’ll clarify to put it beyond any doubt. We’ll say that SBI will not only disclose the bond number, but it shall also file an affidavit…saying that you have not withheld any details… the burden should not lie on the petitioner or the Court to find what has not been disclosed,” he said. 

Conversations outside of Court are getting out of hand

After agreeing to disclose all details, Salve stated that the judgement was a landmark for transparency in democracy. But it was “not meant to give birth, once again, to the now dormant PIL industry.” This case must not be “fodder to the next 10 years of PILs,” he said, asking for any required safeguards to be put in place. 

Mehta joined him in pointing out that after the Judgement a “witch hunt” had begun. Those before the Court, he said, have given interviews “deliberately embarrassing the Court.” Using petitioners’ argument of the disadvantages of an “uneven playing field”, Mehta argued that the Court and the Union could not respond to these interviews and social media posts. 

“We are only concerned with enforcing the directions,” CJI Chandrachud said. “We are also the subject of comment on social media and the press. But surely, as an institution, our shoulders are broad enough.”

Supreme Court: The Interim Order was a well thought out decision

Rohatgi argued that donors had purchased bonds under the scheme of the Union which had explicitly offered anonymity. He sought to stand up for the “grievances” of those whose donations will be pointed out. 

“There’s only one simple answer,” the Chief said. He explained that after the interim order on 12 April 2019, everyone was made aware that any donations would be subject to the decision in the ongoing case. This is why the Constitution Bench judgement also mandated that details after that date be made public by the SBI. “This was a conscious and well thought out decision” by the Bench, CJI Chandrachud explained. 

“Was it the intention of the Court to know which man paid where?” Rohatgi asked. “The answer is yes,” Justice Khanna responded. 

The Court then issued the order, reiterating the need for complete disclosure and directed the SBI Chairman to submit the affidavit by Thursday this week. 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.