SC PUSHES FOR APPOINTMENT OF LOKPAL
The Supreme Court on April 27, 2017 delivered the judgment in the writ filed by Common Cause on delay in selection of Lokpal despite the legislation being passed. The Court held that if the Act, as it exists, is otherwise workable and the amendment sought to be introduced by the Legislature is aimed at a more efficient working of some of the provisions of the Act, the wholesome principle that a law duly enacted and enforced must be given effect to, will have to prevail and appropriate directions will have to be issued by the Court to the said effect. Unfortunately, no time frame was set by the Court for implementation of its directions.
REGULAR APPOINTMENT OF CBI DIRECTOR AFTER PIL
Common Cause had filed a PIL in the Supreme Court praying for the appointment of a regular Director of CBI as per procedure established by law as laid down in Section 4A of the Delhi Special Police Establishment Act, 1946, and for quashing the appointment of Interim/Acting Director.
With the appointment of Mr. Alok Kumar Verma as the new CBI Director, post approval by the selection committee, the Supreme Court on January 20, 2017, closed the petition.
EC BANS USE OF PUBLIC FUNDS FOR PARTY PROMOTION
The Election Commission has recently issued an order with the direction that no political party should use or allow the use of public funds, public place or government machinery for promoting itself or the symbol allotted to it. This directive came on a “request” of the Delhi High Court asking it to issue norms to restrain political parties from misusing public funds to publicize their poll symbol. This High Court Order had been issued on a petition filed by Common Cause.
CANCELLATION OF COAL BLOCK ALLOCATIONS
In 2012 a Common Cause PIL led to far-reaching changes in the ways in which India’s natural resources are allocated and it is widely felt that its aftershocks will be felt for a long time. By various estimates, the consequences emanating from the writ, and the historical judgment, led to earnings of over three lakh crores to the country’s exchequer directly, and many times more indirectly and over long term.
Common Cause approached the Supreme Court seeking inter alia cancellation of the arbitrary manner of allocations of captive coal blocks from 1993 onwards and a direction for a probe by a special investigation team. The PIL highlighted the arbitrary manner in which the Central Government alienated a scarce natural resource in favour of a few select private companies to the detriment of the public exchequer and deferred the introduction of competitive bidding. The petitioners urged that as per the law propounded in the 2G Spectrum Case and the subsequent Presidential reference, the coal blocks in question be resumed and auctioned as per Section 11A of the Mines and Minerals (Regulation & Development) Act.
In the course of the proceedings, the Society took the initiative to bring to the notice of the Court, various lapses in the investigation and prosecution of the cases arising from the impugned allocations. These interventions set in motion a chain of events leading, inter alia, to the resignation of the Union Law Minister. The Court also undertook a review of the autonomy of the Central Bureau of Investigation and the limits of government control and superintendence of the Central Vigilance Commission over the agency. The suitability of the Director of the agency to lead the ongoing investigations was also into question in view of certain revelations concerning a record of visitors to his residence.
In a landmark judgment delivered on August 25, 2014, the Court ruled that neither the Coal Mines (Nationalisation) Act, nor the Mines & Minerals (Development & Regulation) Act, empowers the Central government to allocate coal blocks. The Court also undertook a judicial review of the entire process of allocation and concluded that the allocations made on the recommendations of the Screening Committee as well as the allocations made through the Government Dispensation Route between 1993 and 2009 were arbitrary and illegal. Coal blocks, where competitive bidding was held for the lowest power tariff for Ultra Mega Power Projects, were excluded from the purview of the verdict. However, the Court directed that no diversion of coal for commercial exploitation would be permitted from the blocks allocated for UMPPs commercial exploitation.
The Court delivered its final order on September 24, 2014, cancelling 214 of the 218 allocations made in favour of private entities and joint ventures during the period 1993 to 2010.
Of the 214 blocks whose allocation was declared void by the Supreme Court, 31 (18 operational and 13 soon to be operational) were put under the hammer till March 10, 2015. According to newspaper reports, the proceeds from these coal blocks auction comfortably crossed 2 lakh crore (including proceeds from e-auction, royalty and the upfront payment). With the current bids already exceeding the CAG’s figures (reported loss of 1.86 lakh crore loss to the exchequer during the Coal block allocations from 2004 to 2011), the total revenue from 214 blocks is estimated to end up close to 15 lakh crore. The total bid amount of 2.07 lakh crore for the 31 blocks would be received by the Government over a period of 30 years, thus eroding the present value of this amount.
The cascading effect of transparency in mining auction is also bound to influence allocations of other natural resources. The success of coal block and telecom spectrum auctions augurs well for the financial part of the numerous ambitious programs of the Government such as the 100 smart city project, Make in India, allocations of radio frequencies and telecom spectrum, among others. Apart from the transparency it brought forth, the e-auction method would bring about a number of other changes. With bids soaring high, the companies would be forced to increase their mining efficiency putting an end to hoarding. All this, of course, is the tip of the iceberg and the real impact will unfold itself in the coming years and decades.
CANCELLATION OF ENTIRE SPECTRUM ALLOCATION
Common Cause joined hands with CPIL, eminent citizens and like-minded organizations to file writ petition (civil) 423 of 2010 seeking cancellation of the entire spectrum allocation and the telecom licenses issued in January 2008.
It was urged that in the interest of the telecom sector and the national exchequer, the allocation of 2G spectrum and telecom licences granted by Department of Telecommunication pursuant to its press releases of January 10, 2008 bedeclared as illegal and the spectrum auctioned as in the case of 3G spectrum in 2010.
The judgment pronounced by Justices G. S. Singhvi and A. K Ganguli, on February 2, 2012 quashed the 122 telecom licences and the subsequent allocation of spectrum to the licensees. The judgment firmly established the principle that the cloak of government policy cannot shield arbitrary and motivated executive decisions from the glare of judicial review.
The verdict also castigated A. Raja for his egregious transgressions and pulled up the telecom regulator for the ambivalence of its recommendation of August 2007, which were selectively adopted by the Minister to serve his ends. The Supreme Court had also been generous in acknowledging the role of the petitioners in exposing the scandal in the allocation of 2 G spectrum.
RESTRICTIONS ON PUBLIC FUNDING OF LAUDATORY POLITICAL ADS
Self-congratulatory and laudatory advertisements are routinely inserted in newspapers and magazines to bolster the image of political parties/ politicians at a huge cost to the exchequer. The Election Commission too has deprecated this practice and issued a caution to the parties concerned. In 2003 we had sought the intervention of the Supreme Court by filing a writ petition to stop this practice. Again in November, 2012, we filed an application for directions by highlighting the magnitude of the waste of public resources for the glorification of political personalities and electoral gains.
These examples showcased instances of government profligacy and the IA was taken on record by the Hon’ble Court in April 2013. The apex court, by the order passed on April 23, 2014 constituted a three-member panel to suggest guidelines for regulating Government advertisements after studying the best practices in other jurisdictions.
This expert committee submitted its guidelines for regulating publicly funded government advertisement campaigns in October 2014, following which the Apex Court in its judgment in May 2015 prohibited the use of photographs of ministers and other political leaders in government advertisements with the exception of the President of India, the Prime Minister and the Chief Justice of the Supreme Court of India. The Hon’ble Court also recommended the appointment of a three member Ombudsman to oversee the implementation of its directions and to ‘iron out the creases’ that may arise from time to time.
Common Cause went on to file a contempt petition against the state governments of UP, Delhi and Tamil Nadu for publishing publicly-funded advertisements in violation of the letter and spirit of the apex court's guidelines regarding large-scale advertisements. The centre and seven states, including the then poll-bound West Bengal and Tamil Nadu, sought revision of the verdict, pleading that it infringed on the fundamental rights and the nation’s federal structure. On March 19, 2016, the court ruled, modifying its earlier order, that photos of governors, chief ministers and cabinet ministers can also feature in the advertisements by central and state governments to announce schemes and to greet the public on various occasions.
STRIKING DOWN OF DRACONIAN SEC 66 (A) OF IT ACT
The freedom to air one’s views, howsoever inconvenient or annoying, is the life-line of any democratic institution and any attempt to stifle, suffocate or gag this right would sound the death knell of democracy. The Government of India passed the IT Act, 2000, which was later amended by the parliament in the wake of Mumbai terror attacks in November 2008, and it was felt that despite good intentions it encroached on the citizens’ Freedom of Expression.
Common Cause filed a petition, challenging the constitutional validity of various provisions including Sections 66A, 69A and 80 of the amended Information Technology Act, 2000, as being violative of Articles 14, 19 & 21 of the Constitution of India. The petitioners had contended that the phraseology of Section 66A of the IT Act, 2000 is so vague and incapable of being judged on objective standards, that it is susceptible to wanton abuse and hence falls foul of Article 14, 19 (1) (a) and Article 21 of the Constitution. Section 69A of the amended IT Act, 2000 is violative of Article 14, 19 & 21 of the Constitution of India, given the fact that it does not provide any effective remedies of redressal for the legal entities/members of the public whose information, generated, transmitted, received, stored or hosted on any computer resource, is blocked for access by the public or caused to be blocked for access under the said section. Section 80 of the Information Technology Act, 2000 is violative of the Constitution as it gives absolute, unbridled, and arbitrary powers to a police officer of the rank of an Inspector to arrest any person at any public place on the reasonable apprehension that he is about to commit any offence under the Information Technology Act, 2000.
Our plea was accepted by Supreme Court which struck down Section 66A as unconstitutional. This landmark judgment which upheld the freedom of expression will surely have far reaching consequences and a direct bearing on the citizens’ right to free speech enshrined in the Constitution. It is very significant that the bench has differentiated between discussion, advocacy and incitement, which is like an endorsement of the value of dissent and deliberation in democracy. The Court rightly found the language of the Section nebulous and unclear without proper definition of what is “offensive.” (Among others who had challenged the Act independently were People’s Union for Civil Liberties (PUCL) and a law student, Shreya Singhal)
LIVING WILL–RIGHT TO DIE WITH DIGNITY
Common Cause PIL in Supreme Court sought the enactment of a law on the lines of the Patient Autonomy and Self-determination Act of the USA, which sanctions the practice of executing a ‘living will’ in the nature of an advance directive for refusal of life-prolonging medical procedures in the event of the testator’s incapacitation. Without pronouncing any order on the specific prayer made in our petition, the Court on February 25, 2014 invited a Constitution Bench to resolve the inconsistencies between the Division Bench judgment in Aruna Shanbaug (2011), which allowed passive euthanasia under certain safeguards, and the Constitution Bench judgment in Gian Kaur (1996), which held that the right to life does not include the right to die.
The matter was taken up by the Constitution Bench on July 16, 2014. Notice was issued to all States and Union Territories in view of the prayers made in the writ petition, particularly, the prayer to declare 'right to die with dignity' as a fundamental right within the fold of right to live with dignity under Article 21 of the Constitution.
This decision of the Supreme Courtto hear out the views of each state on the legalisation of passive euthanasia (withdrawal of medical treatment with the intention of causing a terminally ill patient's death) was welcomed by doctors across the country. They said that they were relieved that the apex court had accepted the notion, at least in principle and hoped that the states and Union Territories would come out with positive responses.
A part of the impact was the fact that the decision of the Supreme Court rekindled the debate on the pros and cons of euthanasia, both active and passive which continues to this day.
QUASHING THE APPOINTMENT OF CVC
On a PIL filed by Centre for Public Interest Litigation (CPIL), Common Cause and a number of eminent citizens in 2010 the Supreme Court on March 3, 2011, quashed the appointment of Mr P J Thomas as Central vigilance Commissioner (CVC). The appointment of Mr. Thomas as CVC was challenged on the ground that he could not be considered as a person of impeccable integrity while there was a charge sheet against him in a case of corruption. The court held that the recommendation of the High Powered Committee for the appointment was non est in law and that the joint recommendation of the Prime Minister and the Home Minister without considering the relevant material on Mr. Thomas and disregarding the dissent of the Leader of Opposition in Lok Sabha amounted to official arbitrariness.
Enunciating the concept of institutional integrity, the Court declared that institutional integrity rather than personal integrity of the candidate should be the primary consideration for the appointment of the CVC and proceeded to lay down elaborate guidelines to be adopted in this regard.
CRIMINALIZATION OF POLITICS: SC SETS DEADLINE FOR MP/MLA TRIALS
That “criminalization of politics”, which implies a nexus between politicians, bureaucrats, police and criminals, negates and hits at the very root of the right to vote freely and without fear or favour. It directly targets the independent right to choose and debilitates democracy by denying equality of status and impairing the voter’s right of expression. Criminals, who contest elections use their might and money power to influence the outcome of elections, thereby rendering the rights of voters nugatory. Although the Constitution has provisions for disqualification of convicted politicians, cases would lie pending for long years with politicians still in power. This protected especially those charged with heinous crimes.
Common Cause, Public Interest Foundation and two others filed a PIL for debarring persons charged with serious criminal offences from contesting elections and expediting the disposal of pending criminal cases involving members of Parliament and state legislatures. The petition also challenged the constitutional validity of Sec. 8(4) of the Representation of the People Act, 1951, which provided that in the event of conviction of a sitting member the ensuing disqualification would be stayed if an appeal was filed within 3 months.
After an inordinate delay, the Election Commission filed its reply in February 2013. And reiterated its longstanding recommendation for debarring persons charged with serious criminal offences from contesting elections to Parliament and State legislatures. The EC also endorsed our prayer for declaring the Section 8(4) of the RPA as ultra vires the Constitution.
The UOI filed its response in October 2013.Taking shelter behind the Parliamentary Standing Committee’s rejection of the ECI’s recommendation for disqualification of persons charged with serious criminal offences, the government claimed that the issue of electoral reforms stood referred in its entirety to the Law Commission for consideration and examination. The Court thereupon posed two questions to the Law Commission: first, whether, in addition to conviction, filing of a charge-sheet with allegations of commission of a serious offence should result in disqualification; second, whether filing of a false affidavit by a candidate under Section 125 A of the Representation of the People Act should be a ground for disqualification.
After considering the response of the Law Commission, the Court passed an interim order on March 10, 2014 to the effect that trials in criminal cases against lawmakers must be concluded within a year of the charges being framed. The Court also directed that trials must be conducted on a day-to-day basis, and if a lower court was unable to complete the trial within a year, it would have to submit an explanation to the Chief Justice of the High Court concerned and seek an extension of the time limit. Supreme Court’s landmark order was welcomed by some of the national political parties as in their opinion, expeditious disposal of pending criminal cases against sitting legislators would provide a filter against motivated charge-sheets.
The matter came up for hearing on February 17, 2015, when the Court was urged to put in place an effective monitoring mechanism to ensure the implementation of its order which can go a long way in combating the scourge of criminalisation of politics in India.As regards the prayer for debarring persons charged with the commission of serious offences from contesting the elections, the Court seemed disinclined to assume the legislative role of Parliament.
ELECTIONS AND POLITICAL PARTIES’ EXPENSES
An important writ petition was filed by Common Cause in the Supreme Court, on the failure of political parties to comply with the statutory requirement of maintaining accounts, record of all contributions received by them above a prescribed limit, and getting the accounts audited. The main contention in the writ petition was that political parties were not maintaining accounts on the lines made mandatory under Section 13A of the Income Tax Act and Explanation I under Section 77 of the Representation of People Act. Consequently, the provisions relating to observance of limits of election expenditure by the individual candidates had been rendered meaningless.
It was also contended that the cumulative effect of the three statutory provisions, namely, Section 293A of the Companies Act, 1956, Section 13A of the Income Tax Act, 1961 and Section 77 of the Representation of Peoples Act, 1950, is to bring transparency in election funding. The people of India must know the source of expenditure incurred by political parties and by candidates.
The mandatory provisions of law are violated by political parties with impunity. The Supreme Court gave a widely acclaimed judgment (extracts below), which has been responsible for maintenance of some decorum in the conduct of elections.
That the political parties are under a statutory obligation to file return of income in respect of each assessment year in accordance with the provisions of the Income Tax Act. The political parties – referred to by us in the judgment – who have not been filing returns of income for several years have prima facie violated the statutory provisions of the Income Tax Act as indicated by us in the judgment.
That the income tax authorities have been wholly remiss in the performance of their statutory duties under law. The said authorities have for a long period failed to take appropriate action against the defaulter political parties.
The Secretary, Ministry of Finance, Department of Revenue, the Government of India shall have an investigation/inquiry conducted against each of the defaulter political parties and initiate necessary action in accordance with law including penal action under Section 276CC of the Income Tax Act.
The Secretary, Ministry of Finance, Department of Revenue, the Government of India shall appoint an enquiry body to find out why and in what circumstances the mandatory provisions of the Income Tax Act regarding filing of return of income by the political parties were not enforced.
A political party which is not maintaining audited and authenticated accounts, and has not filed the return of income for the relevant period, cannot, ordinarily, be permitted to say that it has incurred or authorized expenditure in connection with the election of its candidates in terms of Explanation 1 to Section 77 of the RP Act.
That the expenditure, (including that for which the candidate is seeking protection under Explanation I to Section 77 of the RP Act) in connection with the election of a candidate to the knowledge of the candidate or his election agent – shall be presumed to have been authorized by the candidate or his election agent. It shall, however, be open to the candidate to rebut the presumption in accordance with law and to show that part of the expenditure or whole of it was in fact incurred by the political party to which he belongs or by any other association or body of persons or by an individual (other than the candidate or his election agent). Only when the candidate discharges the burden and rebuts the presumption he would be entitled to the benefit of Explanation I to Section 77 of the RP Act.
The expression ‘conduct of election’ in Article 324 of the Constitution of India is wide enough to include in its sweep, the power of the Election Commission to issue – in the process of the conduct of elections – directions to the effect that the political parties shall submit to the Commission for its scrutiny, the details of the expenditure incurred or authorized by the political parties in connection with the election of their respective candidates.
SLAUGHTER HOUSE POLLUTION: CHECKS ON MALPRACTICES
In a petition filed in 2001, Common Cause had prayed for remedial measures against the rampant malpractices in slaughter houses, notably improper waste disposal, slaughter of diseased animals and employment of children in the trade.
The Court had directed the Central and State Pollution Control Boards and the Animal Welfare Board to confirm compliance with the laws for prevention of cruelty to animals and environment protection. The Ministry of Environment & Forest filed a compliance report on August 27, 2013 along with guidelines to be followed by the State Committees for ensuring effective supervision of slaughter houses.
This petition was taken up on July 18, 2016, and the Court took note of the cost deposited by the states which had failed to file the compliance report. Pursuant to the Courts orders of September and October 2016, a compendium of the Indian Standards governing the slaughter of animals and management of slaughter houses was prepared along with all relevant material in consultation with all stake-holders.
The Court directed the Union of India to print the compendium in sufficient numbers and circulate it to all the State Govts and UTs for compliance. The Court disposed of this case on February 17, 2017, with the observation that the petitioners were entitled to approach the concerned
PROLIFERATION OF FAKE UNIVERSITIES
During the 1990s, there was an increasing incidence of the multiplication and proliferation of universities, institutions and organizations in the country which advertised their claims of eligibility and capability of giving educational courses and training programmes in all sorts of subjects. Through these advertisements they had been luring and duping young students. A number of such institutions did not have capability and accreditation claimed by them in advertisements, charging high fees, often involving an expenditure of lakhs of rupees.
It was confirmed by the University Grants Commission (UGC) that as many as 18 universities that had put across their advertisements in newspapers are fake and that there were indications that 10 other advertised universities were also reported to be fake.
Common Cause had taken up the matter with the Government of India and other concerned organizations. The Government of India had constituted a Task Force which recommended issuance of an ordinance instead of waiting for the Parliament to pass a Bill amending the provisions of the UGC Act to give it more teeth for effectiveness. The Task Force submitted its recommendations in September 1998 but the Government did not take any action despite the urgency expressed by the Task Force.
Common Cause then went on to file a comprehensive Writ Petition in the Supreme Court impleading the Ministry of HRD, the UGC, Medical Council of India and All India Council for Technical Education (AICTE). Common Cause has sought directions to the respondents to indicate what steps were proposed to be taken on the recommendation of Task Force and also effectively check the menace of mushrooming and proliferating incompetent and non-accredited ‘teaching shops’. The Supreme Court issued notices to the respondents.
It is satisfying to note that, in the wake of these steps, the UGC and AICTE have started taking remedial measures by issuing suitable press notices from time to time, warning the public about fake institutions, and advising the institutions/universities to upgrade their infrastructural facilities. The UGC is reportedly working on the enactment of a new Act having more teeth.
OPERATION OF BLOOD BANKS
There were for long serious complaints that the operation of blood banks was very unsatisfactory. Most of them operated without any prescribed license and in very unhygienic conditions. They depended primarily on donation of blood by professional donors who were generally poor unemployed persons with low levels of hemoglobin and prone to diseases and who were exploited by middlemen. They were not equipped with testing facilities and laboratory equipment.
Due to these facts the blood collected and supplied by these blood banks was of poor quality and on occasions could prove very unsafe for transfusion. The entire matter was surveyed by a professional agency on an assignment of the Ministry of Health of the Government of India. The report of this survey highlighted these deficiencies and dangers of the operations of such blood banks. Common Cause was not able to secure positive assurance from the Government of India that any effective action had been initiated to eradicate the deficiencies pointed out in the operations of blood banks.
On the basis of this entire material Common Cause prepared a writ petition contending that inadequacy of action for improvement of blood banks is violative of the fundamental rights of life guaranteed under Article 21 of the Construction for those who will be the recipients of infected or poor quality blood.
The Supreme Court, in a very important judgment on January 4, 1996, gave six months to the Government of India to implement the directions embodied in it. The Government of India then submitted a comprehensive note to the Supreme Court indicating the steps that had been taken to revamp the operation of blood banks and remove the deficiencies that existed in their functioning.
Blood banking operations all over the country improved due to the directions contained in this judgment, and professional donors of blood got practically eliminated, encouraging the spread of the concept of voluntary donation of blood.
NO DISCRIMINATION IN AWARDING PENSIONARY BENEFITS
The first matter taken up by Common Cause to the Supreme Court was relating to pensions, which ended up benefitting 2.5 million pensioners. In 1979 the Government of India had introduced a measure of liberalisation for its pensioners, altering the formula of calculation of pension and thereby according a substantial increase, for further relief to the pensioners of civil as well as defence establishments, against developing inflationary pressures. In issuing the orders of liberalisation, however, the government restricted the benefit of this measure only to those who retired after April 1, 1979.
Common Cause made a collective presentation to the then Prime MinisterMrs Indira Gandhi. About 15, 000 representations were sent to her. In due course a three-line reply was received from the government, turning down the representations and saying that government decisions could not have retrospective effect.
Subsequently Common Cause filed a writ petition which was decided in 1982 with the Court holding that pensioners form one class and that no discrimination in the matter of pensionary benefits can be caused among them merely on the basis of date of retirement. The government was directed to apply the revised formula of calculation of pension to all pensioners, irrespective of the date of retirement. The government filed a review against the decision of Constitution Bench, which was rejected.
This landmark decision of the Supreme Court became applicable to all central government pensioners, civil and defence and was taken note of by the Guinness Book of Records and they wrote to say that according to their information no other single case in the world had directly benefitted such a large number of persons through one decision. Later Common Cause ensured that it became effective for state as well as local bodies, extending the benefits of this historic judgment of the Apex Court.
Two other important decisions relating to pensions were secured by Common Cause from the Supreme Court. One was related to pension commutation and the other to family pensions. These cases too benefitted hundreds of thousands of persons all over the country. When a person retired from government service he was entitled to seek the benefit of commutation of a portion of his pension, thereby taking payment of a lump-sum amount, equivalent generally to about ten years’ calculation of the commuted portion of the pension. The commutation rules, in operation for many decades, had decreed that pension will remain cut by the same commuted portion throughout the life of the pensioner. This was felt to be grossly unfair for the pensioners who lived long.
The Court decided in favour of the pensioners, laying down that full pension in each case should be restored after 15 years from the date of retirement. This was subsequently altered to 15 years from the date of commutation, because in some cases commutation takes place a considerable time after retirement. The decision forthwith restored full pension to hundreds of thousands of central government civil and defence pensioners who had already completed 15 years; and it also applied to pensioners of State Governments and institutions etc.
FAMILY PENSION FOR WIDOWS OF PENSIONERS
The family pension scheme was introduced in 1964, with orders that it would apply only to those persons who retired after January 1st, 1964. Common Cause felt that this decision of the government, taken many years ago, was patently discriminatory, depriving the widows of pre-1964 pensioners of its benefits. A writ petition was filed by Common Cause in the Supreme Court, highlighting the deprivation caused to the widows of pre 1964 pensioners. This case was decided by the Supreme Court directing the government to give pensions to widows of pre-1964 pensioners on the same basis as decided for pensioners retiring after January 1st, 1964 and also to pay them arrears from 1977 when rules relating to family pension had been revised. This decision, likewise, was later followed up by all State Governments.
The result of this decision was that hundreds of thousands of old widows, who had never dreamt that they would be made entitled to any pension, started getting pensions and were paid arrears from 1977.
SETTING UP OF DISTRICT FORUMS- NON IMPLEMENTAION BY STATES/UTS
The Consumer Protection Act, 1986 envisaged a three-tier fora comprising the District Forum, the State Commission and the National Commission for redressal of grievances of consumers. CC had filed a PIL on non establishment of District Forums in several districts, complaining that the implementation of the provisions was sluggish since the machinery for redressing the grievances of poor consumers at the base-level viz. the District Forum had not been set up in all the districts except a few. As a result of this petition almost all districts in the country had a Forum.
Some of the other recent cases which have had a significant impact have been flagged below:
RIGHT OF CONSTRUCTION WORKERS OF C’WEALTH GAMES PROJECTS
In 2010, the Commonwealth Games brought laurels for the country and helped in projecting India as an economic powerhouse. But in the process, reports emerged about flagrant violations of labor welfare legislations and neglect of safety norms during the construction boom in the run up to the games, leading to a high incidence of fatality of construction workers in games projects.
The plight of the construction workers, prompted a number of civil society organizations, including Common Cause to come together and form a coalition collectively known as Common Wealth Games – Citizens for Workers, Women & Children (CWG-CWC). The coalition initiated a campaign for securing the rights of the construction workers.
Eventually, a PIL was filed jointly by Common Cause, the Peoples Union for Democratic Rights, and Nirmaan Mazdoor Panchayat Sangam in the Delhi High Court.
The High Court in a series of orders issued directions to the Labour Department and other concerned authorities for registration of all construction workers, issuing pass book to them and ensuring that they receive the benefits due to them. The High Court gave specific instructions with regard to the children’s education scheme, medical benefits, maternity benefits and death benefits. The Court in another order directed that payments to construction workers should be made through ECS transfer as under NREGA and that that safety equipments and medical facilities be provided to the workers within one week.
The final order of the Delhi High Court, pronounced in September 2010, was couched in advisory terms and takes stock of the compliance by the respondents of the directions issued by the Court in a succession of interim orders and makes elaborate recommendations on measures to streamline the administration of labour laws and the implementation of labour welfare schemes. The order did not contain any clear directions to be executed within a fixed time schedule. The redeeming feature of the order was that an action taken report was to be filed in six months.
OBSTRUCTIVE RTI RULES OF THE ALLAHABAD HIGH COURT
Common Cause has been questioning the obstructive RTI rules framed by various High Courts under the rule-making powers conferred by the Right to Information Act, 2005. Our analysis showed that the Allahabad High Court (RTI) Rules, 2006, were particularly obstructive. In November 2011, Common Cause through a written representation urged the High Court to reformulate the provisions contrary to the RTI Act in line with various recommendations of the Central Information Commission. As there was no response from the High Court, a petition was filed in the Supreme Court for quashing the offending rules.
In November 2012, the High Court sought and was granted two months to amend the deviant rules. A gazette notification was issued on April 4, 2013 for the amendment of Rule 4 relating to application fees. Common Cause filed an additional affidavit on July 15, 2013, highlighting a deliberate ambiguity in the wording of the amended rule.
The PIL has now been clubbed with Lok Prahari’s PIL on the same issue, which has been transferred from the Allahabad High Court.
INQUIRY AGAINST CHAIRMAN, NHRC
Based on a meticulous compilation by Campaign for Judicial Accountability & Reform (CJAR) and CPIL of the transgressions of Justice K. G. Balakrishnan and his relatives, Common Cause filed a petition in February 2012 to seek a direction to the UOI for making a reference to the Supreme Court under Section 5 (2) of the Human Rights Act, 1993 for holding an inquiry for his removal from the post of Chairman, National Human Rights Commission. The Court asked the UOI to respond to the averments made in the petition and indicate the action taken in the matter of the allegations against Justice Balakrishnan and his relatives.
The UOI rejected the request for a Presidential reference and contended that the allegations of misbehaviour pertained to Justice Balakrishnan’s tenure as Chief Justice of India and that his current post could not be considered as an elongation of the office of CJI. Rebutting these arguments, we urged the Competent Authority to reverse its decision and refer the matter to the Supreme Court for an inquiry.
As there was no response, a PIL was filed, seeking a writ of mandamus to the UOI to comply with the Court’s order that a reference be made for holding an inquiry against the Chairman, NHRC. Our contention was that the UOI was not in a position reasonably to conclude that the allegations of misbehaviour cited by us were unworthy of any further action. The UOI in counter affidavit refused to seek an inquiry under the Act, claiming that it had found no evidence of corruption by Justice Balakrishnan, either as a judge, or as Chairman, NHRC. In the hearing on October 17, 2013, the Court wondered whether it could ask the government to seek a reference to itself.
In the hearing on September 16, 2015, our counsel brought to the Court’s notice that regrettably, the prayer seeking the removal of Justice Balakrishnan as chairperson of NHRC had become infructuous since he had already demitted the office in May 2015. He urged that this instance raised serious concerns regarding the accountability of judiciary in the country and that the Court should direct the CBI to register a preliminary enquiry into the charges of disproportionate assets against Justice Balakrishnan under the Prevention of Corruption Act. The Court was reluctant to delve into the allegations of ‘benami’ properties allegedly acquired by him but observed that source of income had not been duly examined by the Income Tax authorities and the issue could be looked into.
JUDICIAL ACCOUNTABILITY BEYOND RETIREMENT
Through a petition, Common Cause has questioned the practice of retired Supreme Court judges tendering legal advice, which is produced in a forum of adjudication to influence its judgment. The lucrative chamber practice of retired Supreme Court judges violates the letter and spirit of Article 124(7) of the Constitution, which forbids them to “plead or act in any court or before any authority within the territory of India”. Through a narrow and self-serving interpretation, they have construed the prohibition to “plead or act” to operate as a bar only on their appearance in courts. Our contention was that giving a written advice to be tendered in a court of law comes within the mischief of Article 124(7). The petition also sought a ban on acceptance of arbitration work by retired members of the higher judiciary while serving as chairpersons or members of official commissions and tribunals.
During the pendency of this petition, the Society was able to secure significant outcomes. At its instance, the High Court has followed the lead of the Supreme Court, which, in an unrelated PIL, had taken exception to the annexing of the legal opinion of a retired Chief Justice of India to the petition and directed its registry to ensure that such opinions were not taken on record. The High Court instructed its registry to refuse to accept writ petitions in which opinions of retired judges are annexed. This was in line with our prayer for the prohibition of this practice as violative of the spirit of Article 124 (7) of the Constitution.
As regards our prayer for debarring chairpersons and members of various tribunals from taking up arbitration work during their term of office, the Court was informed that a Bill to prohibit members of a tribunal or a statutory body from acting as arbitrator had been introduced in the Rajya Sabha and referred for consideration by the Standing Committee.
The said Bill (Tribunals, Appellate Tribunals and other Authorities (Conditions of Service) Bill, 2014), prohibiting members of a tribunal/statutory body from acting as arbitrator, stands referred for consideration by the Standing Committee.
EVIDENCE OF CORRUPTION BY SHRI VIRBHADRA SINGH
Our counsel, Shri Prashant Bhushan, had requested the CVC and the CBI in January 2013 to act on the unrebutted documentary evidence of corruption against Shri Virbhadra Singh, former Union Minister. The Society followed up the matter with letters to the CVC and the Director, CBI urging them to discharge their statutory responsibilities. As no satisfactory response was forthcoming, Common Cause filed a PIL, seeking a court-supervised probe by the CBI/Director General, Income Tax (Investigations) into the allegations.
Mr. Virbhadra Singh’s counsel had been challenging the maintainability of the PIL on the ground that it was motivated by our counsel’s alleged animosity with his client. At the hearing on January 29, 2015, opting not to adjudicate as to the bona fides of the petitioner, the Delhi High Court discharged Common Cause and appointed two amicus curiae to assist it in assessing whether there was any public interest in the petition and to suggest the future course of action in the matter.
As the Court took the case on its own motion, it dismissed the arguments raised on maintainability by the Respondent in the hearing on September 1, 2015. The Court in the said hearing also directed the CBI and Income Tax Authorities to submit within four weeks status reports on the action taken in the matter. The said reports have been submitted to the Apex Court and will be examined in the next hearing, if it deems necessary.
Besides the above, some of the other landmark PILs filed by us were either dismissed or withdrawn, or the orders pronounced in some of them were subsequently reversed, but this does not detract from the impact of the developments triggered by these initiatives. Let us take a look at some of such PILs:
Courts in this country are reeling under the enormous accumulation of backlog of cases. Civil as well as criminal courts as well as tribunals established under specific enactments and procedures of the Courts have made it impossible to secure early justice with the result that the entire judicial system of the country is under severe strain and is almost collapsing. To this scenario has been added, over the past few years, the further dimension of strikes resorted to by lawyers, bringing the functioning of the courts to a grinding halt.
Considering the agony caused to the litigants, by long adjournments of their cases, which are rendered inevitable because of the strikes by lawyers and the fact that the entire judicial system of the country is thereby brought into disrepute, Common Cause filed a writ petition in the Supreme Court against the strikes by lawyers. The contention was that the disruption of the cases in courts, by resort to strike by lawyers causes serious damage to the interests of their clients and affects their right of securing speedy justice. Under the Indian Advocates Act, the Bar Council of India lays down a code of professional conduct for observance by the lawyers and the suggestion in the petition was that in this code it should inter alia be laid down that lawyers cannot resort to strikes and thereby disregard the interest of their clients.
The writ petition was filed in September 1989, impleading the Ministry of Law, the Attorney General and the Bar Council of India. On the suggestion made by the Court, Bar Councils of all State and Advocate Generals of all states were impleaded.
The matter again assumed a new dimension arising from strikes launched by lawyers in various parts of the country to resist the notification of Civil Procedure (Amendment) Act which had been passed by the Parliament towards the end of 1999. On the general subject of Lawyers’ strike the Delhi High Court pronounced that the lawyers do not have the right to go on strike because it affects the fundamental rights of litigants who look for expeditious justice. On this subject and the connected issue of expediting the notification of the CPC (Amendment) Act Common Cause filed two writ petitions in the Supreme Court. The Apex Court held that legal professionals have no right to strike as this affects the litigant’s fundamental rights. The Court also observed that the weapon of strike does more harm than good, and the petition was thus disposed of.
APPOINTMENT OF LOKPAL AND LOKAYUKTAS
Our petition had sought the enactment of the Lok Pal Act and appointment of Lokayuktas and Up Lokayuktas under the Legal Services Authorities Act. Meanwhile, in the aftermath of a mass movement led by Anna Hazare, the government introduced a highly contested Lokpal & Lokayuktas Bill, 2011 in Parliament. The Select Committee of the Rajya Sabha tabled its report on the Bill in November 2012. The Cabinet has accepted some of the amendments suggested by the Committee. The Bill, which has been passed by Lok Sabha, is pending with Rajya Sabha.
Our petition was dismissed on April 30, 2015 for having become infructuous in view of the enactment of the Lokpal and Lokayuktas Act, 2013.
PENDING CRIMINAL CASES
In the 1980s there were about three crore cases pending in the country. Out of these, about one crore were criminal cases. A comprehensive petition on the subject of pending criminal cases was filed by Common Cause in the Supreme Court. The writ petition unfortunately got tagged on to other pending criminal cases which had already been referred to the Constitution Bench even though it had no relationship to these cases. Eventually the writ petition was delinked on our request when the other connected cases came up before Constitution Bench in November 1991. Specific suggestions for dealing with old pending criminal cases were made in our petition.