'Disclosure Affects Corporate Donors' : SCBA President Adish Aggarwala Writes To CJI Seeking Suo Motu Review Of Electoral Bonds Verdict

In his letter written on the letterhead of All India Bar Association (AIBA), Dr Aggarwala has urged the Chief Justice of India to initiate suo motu review proceedings against the constitution bench's February 15 judgment striking down the government's electoral bonds scheme as unconstitutional.

Aggarwala was poised to orally mention his letter urging a review of this verdict this morning when the five-judges bench reconvened to hear an application filed by the Election Commission of India (ECI). The commission sought the return of sealed envelopes containing electoral bond details furnished previously to the apex court, stating that it did not retain copies to maintain confidentiality. The bench directed the registrar general to ensure the scanning and digitization of the data by 5 PM tomorrow, after which the original copy would be returned to the Election Commission. The digitized files will also be made available to them.

Additionally, the bench also stressed the need for the State Bank of India (SBI) to disclose the alphanumeric number corresponding to each electoral bond, along with the details it has already disclosed regarding the purchase and redemption of the bonds.

Accordingly, it issued notice to the SBI and directed the matter to be posted for hearing on Monday, March 18.

When Dr Aggarwala attempted to mention his letter during the proceedings, other lawyers intervened.

Today, the Supreme Court welcomed a foreign delegation from the United Kingdom, which included the Master of the Rolls of England and Wales, Sir Geoffrey Vos. As has recently become the tradition, these foreign judges were sharing the bench with our Supreme Court judges during the hearing of ECI's application in the electoral bonds case.

Pointing to this, Solicitor General Tushar Mehta said, “May I request…Your Lordships are keeping this on Monday. We have guests among us. This mentioning can wait until Monday.”

The other lawyers, including Senior Advocate Kapil Sibal, readily agreed with the solicitor general's suggestion. Addressing the SCBA president, SG Mehta then said, “All of us are jointly requesting you to mention this on Monday.”

The chief justice also asked the SCBA president, “Dr Aggarwala, would you like to mention this on Monday? Please respect the sentiments of your colleagues.”

At the end, Dr Aggarwala conceded, agreeing to defer the mentioning of his request until Monday.

On March 12, Dr Aggarwala penned a letter to President Droupadi Murmu, urging a halt to the enforcement of the Supreme Court's recent verdict striking down the electoral bonds scheme as unconstitutional.

Following this, the executive committee of the Supreme Court Bar Association strongly denounced the letter. Not only did they distance themselves from Aggarwala's stance, but also unequivocally condemned the views, terming it as an attempt to overreach and undermine the authority of the Supreme Court.

What has Dr Aggarwala argued in his latest letter?

The SCBA president has highlighted concerns about the potential adverse impacts of the verdict and urged a re-evaluation in the interest of protecting corporate donors from potential victimisation.

“At the time of donation, the corporate donor was fully aware that after donation, its identity, amount of donation and particulars of the donee political party, will not be made public and will be kept confidential. This provision of secrecy was made in the relevant scheme with a purpose that donor will be not subject to victimisation by any other political party whom the donor has not donated under the scheme…Revealing the names of corporate donors and the amount of donation would render the corporates vulnerable to victimisation.”

Aggarwala's letter also pointed out what he perceived as a flaw in the proceedings of the constitution bench with regard to the framing of substantial questions of law as to the interpretation of the Constitution in terms of Article 145(3). He reasoned that the division bench that referred the electoral bonds case to a bench comprising five judges did not frame such a substantial question of law in its reference order.

“A specific question of law 'Whether the amount of donation and the identity of the corporate donor, who have contributed according to the legal enactments, as are in force and believing that their identity and donation will not be disclosed, should be disclosed if the electoral bond scheme is declared ultra vires to the provisions of the Constitution of India' should have been framed either by the division bench or the constitution bench.”

Further, he alleged that the two questions of law framed by the constitution bench did not cover the issues raised by him in his letter. These two questions were related to the impact of unlimited corporate funding on free and fair elections and Article 14, and that of the non-disclosure of information relating to electoral bonds on the right to information under Article 19(1)(a).

Besides this, Aggarwala raised concerns about the impact of the court's direction on corporate donors and the international perception of India's legal and democratic systems. He called for a re-evaluation of the court's decision, particularly regarding the disclosure of corporate donor information, to prevent potential repercussions on corporate donors and foreign investment in India.

“The possibility of corporates being singled out by the parties, that had received less or no contribution from them, and further harassment, cannot be ruled out if the names of corporate donors and their quantum of donation to various parties are revealed. This will be reneging on the promise given to them while accepting their voluntary donation. India is a developing country. Hon'ble Prime Minister Mr Narendra Modi has developed confidence amongst the foreign business houses that there is a stable government in India and there is a suitable investment opportunity for foreigners in India. Adding to this, it is known worldwide that there is an independent, fair and bold judiciary in India. Most of the corporate donors may be foreign entities. The direction of constitution bench would discourage and dissuade foreign corporate entities from investing in India.”

Importantly, Aggarwala has clarified that his request for a suo motu review of the electoral bonds verdict is not on behalf of the Supreme Court Bar Association, but in his individual capacity as the "chairman of the All India Bar Association, the president of the Supreme Court Bar Association and the former vice-chairman of the Bar Council of India".