Court's intervention not decisive

PROFESSOR JAGDEEP S. CHOKKAR was professor of management and organisational behaviour at the Indian Institute of Management Ahmedabad from 1985 to November 2006, when he retired. As a founding member of the Association for Democratic Reforms (ADR), one of the petitioners in the Supreme Court challenging the Electoral Bonds Scheme, he closely followed the hearing of the case by the three-judge bench.

In this interview to Frontline , he answers specific questions on the implications of the Supreme Court’s interim order in the case. Excerpts:

Do political parties that receive electoral bonds as donations know the identity of the donors? The bonds do not carry the names of donors, and parties are not expected to maintain any written record of their details. Therefore, is the Supreme Court’s interim order implementable? What if the party concerned says that it is not aware of the donor’s identity as someone dropped the bond at the party’s office anonymously?

You are right. This is a distinct possibility. Political parties cannot be faulted for saying this.

Is not the order against the proviso to Section 29C of the Representation of the People Act, which says parties are exempted from revealing donations received through bonds to the Election Commission? How can the Supreme Court pass an order that is inconsistent with this proviso, without staying or striking it down?

You are right here also, except that, just for the sake of argument, one can say that “exemption from disclosure” is not the same as “prohibition of disclosure”.

Section 13A (b) of the Income Tax Act exempts parties from keeping and maintaining a record of donors (including their name and address) if a donation exceeding Rs.20,000 is received by them by way of electoral bonds. Is the Supreme Court’s interim order not undoing this exemption, without staying or striking it down?

I am not sure if it is correct to say that “the Supreme Court’s order is against Section 13A(b) of the Income Tax Act”. The Supreme Court’s order has asked political parties to do what they are not required to do, but they are not “prohibited” from doing so. But I agree political parties can certainly take refuge under this excuse.

Was the Supreme Court correct in issuing directions to political parties, without hearing them on whether they could share the details of the donors under the Electoral Bonds Scheme with the E.C.?

Well, that is why the court has said the matter requires detailed hearing. One can expect the court to issue notices to all the political parties and hear them before arriving at the final decision. If the parties cannot comply with the interim direction given by the court, they may have to submit the reasons for non-compliance and seek an amendment of the order.

Would it be correct to say that the court could have directed the State Bank of India’s 29 designated branches, which sell these bonds and also receive them from political parties before crediting them to their accounts, to supply this information to the E.C.?

In fact, it was suggested to the court by our counsel Prashant Bhushan. The Communist Party of India (Marxist), which is another petitioner before the court, also submitted through its counsel, Raju Ramachandran, that the SBI should be asked to disclose the details.

The website factly.in has revealed from the data obtained from SBI under the Right to Information Act that a total of 520 electoral bonds worth Rs.222 crore were purchased in March 2018. It also revealed that as per the 2017-18 annual audit report submitted by the BJP to the E.C., the party received Rs.210 crore worth contributions in the form of electoral bonds. This is a whopping 95 per cent of all the electoral bonds purchased in 2017-18. Since the scheme enables the donors to remain anonymous, we don’t know who contributed Rs.210 crore to the BJP. The Supreme Court bench, which passed the interim order, knew this problem and could have directed the SBI to share the information.

Is the E.C. supposed to keep the sealed covers without opening them, until the next hearing of the case? What are the likely options before the court on the sealed covers?

The Supreme Court’s interim order clearly says the sealed covers [submitted by political parties with details of donors and donations received under the Electoral Bonds Scheme] will remain in the custody of the Election Commission of India and it will abide by such orders as may be passed by the court. This makes it obvious that the E.C. cannot open the sealed covers without the nod of the Supreme Court. It is not clear what the court intends to do with these sealed covers. If they didn’t want the E.C. to read the contents of these covers, why ask it to be their custodian until the next hearing? The court could have directed the parties to submit the sealed covers to it.