In an interview on March 5 to share his response to the State Bank of India’s petition requesting more than three and a half months extra time till June 30 to make public electoral bond details, one of the Supreme Court’s most respected former judges told Karan Thapar that he did not believe in the SBI’s explanation.
Justice Deepak Gupta said the SBI’s position was “absolutely ridiculous” and highlighted the Supreme Court’s role now in ensuring that people get to know what they have the right to know.
Below is the full text of the 15-minute interview, edited lightly for coherence and style.
Karan Thapar: Hello and welcome to a special interview for The Wire. Just as we were preparing ourselves to receive critical details and information about electoral bonds; who bought them, who they were paid to, what was the sum involved, it seems the State Bank of India has thrown a spanner in the works. In a petition to the Supreme Court is requested for more than three and a half months extra time, making clear it cannot provide the information till the 30th of June. If that’s agreed to, the information will only come into the public domain after the elections are over. Joining me now to share his first response to this development, is one of the most highly regarded former judges of our Supreme Court, Justice Deepak Gupta.
Justice Gupta, on the 15th of February, when the Supreme Court passed what’s come to be commonly called ‘The Electoral Bonds Judgment’, it ordered the State Bank of India to hand over relevant details of electoral bonds; their amounts, who they were bought by, and who were they paid to, to the election commission by the 6th of March. In response, the State Bank of India has filed a petition seeking more than three months extra time, till the 30th of June. Let me start by asking, as a former judge of the Supreme Court, how do you respond to this development?
Justice Deepak Gupta: See, this order of the Supreme Court, this specific order, directing the SBI, State Bank of India, to furnish the information, is in respect to an earlier order passed on 12th April 2019; when the Supreme Court had directed them to keep, maintain these records. And from the application, what I’ve seen of the application, they say there are 22,000 such bonds, and they’ve maintained records of 22,000 at one end and – this is just 44,000. I’m sure these records have been maintained both physically and digitally. I think it should take a few hours, or a few days at the most, to collate all the records.
KT: You’re saying it should take a few hours, or a few days at the most; they don’t need time till the 30th of June.
DG: Yeah, I mean their application itself says that there are only 22,000 bonds sold after the April 2019 order.
KT: The other important thing is, you said the April 2019 order from the Supreme Court had told the SBI to keep a record of bonds, therefore this record should already be there.
DG: Yeah, in my view, I think I was a part of the bench which passed the order directing them to; it was headed by Justice Gogoi, and I think they had to maintain the records. Now they can maintain it secretly, they may be right that they’ve maintained in such a fashion so as not to disclose the anonymity which was required under the law as it then stored, but they were required to maintain records and it shouldn’t take three months time to collate the records. It should take a few days.
KT: Absolutely. Since they were ordered by the Supreme Court in 2019 to maintain records, those records have clearly been maintained, they need to be collated, they need to be made public, and it shouldn’t take three and a half months, beyond the time limit set. Let’s forget they already had three weeks, it shouldn’t take an additional three and a half months for them to do this.
DG: Yeah, I agree.
KT: In other words, you don’t accept the explanation they’re giving, and for the sake of the audience I’ll repeat that explanation; they’re saying they have 44,434 sets of information, which they claim are kept in two different silos. They also claim secondly, that some of this information is digitally stored and some is physically stored. You’re saying none of that should lead to the conclusion that they need three and a half months more till the 30th of June.
DG: See the same application says that the total number of bonds sold after April 12, 2019 are 22,217. So they say half the information was kept at one place, and half at another. So the information becomes double, with regard to 22,000 bonds only, 22,000-odd bonds. But that means…what of the information on the 44,000 bonds? Even if they kept at two different places, and once the court had directed that they have to keep this information, it was the bounding duty to keep it in such a manner that when the court asks them to disclose it, they should disclose it as early as possible, not that they take months to disclose it.
KT: Which means that by their explanation that they’ve given the court, they’ve either been negligent and haven’t followed court orders –
DG: No, I think, I mean I can’t prejudge, I mean the court’s important, but in my opinion this explanation is not really worth much.
KT: Now in its petition, and I’m quoting the version of the petition published by the Indian Express today, the State Bank of India cites Clause 74 of the Electoral Bond scheme of 2018. That clause says, and I’m quoting ‘the information furnished by the buyer, shall be treated as confidential except’, and this is the important part, ‘except when demanded by a competent court, or any law enforcement agency’. So their very scheme requires that the information should be made available to a competent court whenever required, at least the information about who bought the bonds, and what they were worth. So clearly now they can’t claim that they need three and a half months to put it together. If a competent court had asked them for this information a year or two or three earlier, they couldn’t have turned around and said, ‘Sorry sir it’s going to take us four months to give it to you’.
DG: No, I’m clearly of the view that, you see what happened was that the court said that time – there was not enough time left to go into the merits of the case on the electoral bonds, and elections were coming, so the court had ordered that please keep a record of everything. Now when the court orders you to keep a record, you must maintain it in a manner that when the court asks you to give the record, you don’t turn around and say ‘now it will take us three-and-a-half, four months time to give it. I’m very clear of the view they can’t. And this explanation also, 44,000 – Mr Thapar, in today’s day and age this bank must be dealing with millions, maybe 44 million entries a day, in its different branches all over the country. And to say that it requires three and a half months to collate 44,000 records, in my view is just, it’s absolutely ludicrous.
KT: Absolutely ridiculous?
DG: Yeah.
KT: A lot of people, Justice Gupta, have come to the prima facie conclusion, that the State Bank of India has requested extra time because it wants to deliberately delay making the information public until the elections are over. In turn, this seems to suggest that what they have could be incriminating and potentially embarrassing, very possibly or very particularly, for the government in part. Is that a fair inference for people to draw?
KDG: See I would not like to speculate, I mean I’m not a political animal either, but having said that when elections – please remember, what is the basis of this judgement declaring the Electoral bonds to be illegal? The basis of this judgement, especially Justice Sanjiv Khanna’s analysis, is that the public have a right to know who has contributed to whom. And if this application is allowed, then it will scuttle the very basis of that judgement. Then the people will not know who has contributed to which party, before the elections. I think, even if time is extended, it should not be extended to any period beyond the date, before elections are held.
KT: But you’re saying a very important thing, you’re saying if the petition requesting additional time till the 30th of June is agreed to –
DG: Partly. I’m not saying it should, even if some time has to be granted.
KT: But it must not be till after the elections?
DG: Till the polling, in fact I should say till the polling is said, it should be before the polling, it should be declared.
KT: Because otherwise it will effectively scuttle Justice Khanna’s judgement that people have a right –
DG: No the entire…no, in fact, the entire court’s judgement, the judgement of the constitutional bench, that people have a right to know.
KT: In other words what, so in other words what the State Bank of India is requesting effectively could undermine the Supreme Court’s entire judgement.
DG: Yes because by the next elections if there are no bonds, everybody would have forgotten. This is only relevant for these elections really, not after five years, they’re not going to be very relevant to the disclosures.
KT: Then let me ask you this Justice Gupta, given how critical this matter is for democracy, and in particular for the need for a level playing field, and also given that elections are around the corner; and this is particularly germane to this election, should the court take up the SBI’s petition, a) expeditiously, and b) respond very quickly?
DG: No, I think it should be taken up expeditiously, it should not be kept hanging in the air, it should be taken up. I’m sure the Master of the Roster, the Chief Justice of India, will decide, and they should take up the application. I see no harm in taking up, once this application is filed it must be taken up, and then they have to take their call, it’s for the, finally it’s for the Supreme Court to decide what to decide. They can decide whether to grant time, or not to grant time, but they should do it as early as possible.
KT: Ah, but the most important thing you’re saying is, take it up quickly and decide as early as possible.
DG: Yeah, definitely.
KT: Now let me ask you this, I know you will not speculate about how the Supreme Court will decide, and what the decision will be. But let me ask a slightly different question, does the Supreme Court have the power and authority to reject this explanation, and demand that the information be made public, or at least made available to the election commission within a limited space of time. Clearly it’s not going to happen by March the 6th, which is what the Supreme Court originally intended, but can they set a new deadline of, say the end of this month?
DG: Definitely the Supreme Court has the power to reject the application, it has the power to allow the application completely, it also has the power to say, ‘No we are granting you some time, but we can’t grant you more time.’ That is very well within the domain of the Supreme Court.
KT: And you are of the personal opinion that the information must be in the public domain before the polling starts.
DG: Yeah that is my personal opinion, because the crux of this judgment is that the public has a right to know.
KT: Now assuming that elections are announced by the middle of this month, which many people expect, polling could start by early or mid April. You’re saying the information must be in the public domain by early or mid April?
DG: No at least four-five days, in fact, before polling. I would, in fact, think four five days before polling it should be there, because if you declare…so that people have…I’m not, we don’t know who has, we only know which party has got what money, but we don’t know who has put in the money.
KT: And we don’t know what the implication and consequences of that was.
DG: that I would like to, you know, sort of guess what it is. We don’t know.
KT: Let me ask you this Justice Gupta, is this a test for India’s democracy?
DG: No, not really, it’s not such a big thing, it’s just the court will decide. It’s not, I mean I don’t like the way, I mean personally, I guess, speaking, I don’t like the way SBI has moved around on this, but I don’t think it’s a real grit, it’s such a deal breaker. It’s not going to be such a deal breaker.
Also read: Electoral Bonds and the Curious Case of SBI Keeping Crucial Data in Physical Form
KT: Let me ask you a connected question, is this a test for the Supreme Court? Many people will ask that question, if the Supreme Court agrees to the request for extra time –
DG: See, I don’t you know, this is my view which I’ve given. And I’ve given it by hearing Mr Karan Thapar, and a bare reading of the application. I don’t know what the council for the SBI is going to put the material before the Supreme Court in addition to this. I don’t know if they can bring out…so it’s for the court to decide, and I am very very clear on this. I never try to speculate. It’s the duty of the court. If I find that I don’t agree with the order, I will say that, and if I agree with the order, I will also say that. Because I have a right to agree, you know, to express my views on the orders, I can’t speculate or say what order they passed, and whether it’ll be right, at this stage.
KT: But you stand by, don’t you, Justice Gupta, what you said earlier in this interview. People have a right to know.
DG: Yes.
KT: That means they must know at least four or five days before polling happens.
DG: That is my view, yes.
KT: And also this is information that the Supreme Court had told the SBI as far back as in 2019 to keep and collect, they clearly don’t need three and a half months more, and let’s remember they’ve already had three weeks. They don’t need…
DG: That I am almost sure, that the court’s order was that you have to keep this information. Now they should have ensured that they kept this information in such a manner that it, and I still don’t believe this. I really don’t believe this explanation that it will take them three months to collate this 44,000 documents. You can put 50, 100, 200 people to do the job, it’ll be get done in three or four days, not more than that.
KT: Your last sentence was a critical one; you clearly don’t believe the State Bank of India’s explanation, repeating it because I think it’s very important. Have I been correct in repeating it?
DG: Yes, I don’t accept the explanation given by the State Bank of India.
KT: Justice Gupta, thank you very much for making time and agreeing to share with me, your initial response to something that has only just happened. I think a lot that you have said will be very reassuring, I only hope and pray that your fellow brother judges on the bench serving today think similarly.
DG: No, I disagree with you, they don’t have a right to – they have a right to take their own views. I’m as an ex-judge, nothing which I say is binding on them, there’s nothing of that sort.
KT: Absolutely. But let’s hope they hear your views, and smile in agreement. Thank you very much indeed.
DG: Thank you, thank you so much.
Transcribed by Mouli Joshi.
