CURRENT FOCUS

In a major victory for Common Cause, the Supreme Court on Aug 2, 2017, imposed a hundred percent penalty on mining companies indulging in illegal mining on account of lack of forest and environment clearances, mining outside lease/permitted area and for mining in excess of what has been allowed.

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Common Cause Case Updates

Supreme Court:

New Intervention:

Even though the Central Government was fully aware that the Director CBI, Mr. Anil Sinha, was demitting office on December 2, 2016, it failed to convene a meeting of the selection committee for selecting the new director of the CBI. In order to safeguard the independence of the CBI against executive interventions, a detailed procedure has been laid down in Section 4A of the Delhi Special Police Establishment Act, 1946, as amended by the Lokpal and Lokayuktas Act, 2013. Through a series of omissions and commissions, Central Government chose to ignore the mechanism put in place to insulate the functioning of the CBI Director from undue executive influence.

Common Cause filed a PIL in the SC praying for issuance of appropriate writ directing the Union of India to appoint a regular Director of CBI as per procedure established by law and for quashing the appointment of Interim/Acting Director of the CBI. Notice was issued on December 12, 2016 and on December 16, 2016 the AG submitted that the procedure laid down under Section 4C of the Delhi Special Police Establishment Act, 1946 had been followed in the case of transfer of Mr. Dutta, (the 2nd senior most officer in the CBI). It further submitted that the process of appointment of regular Director to the CBI had been commenced and that the first meeting of the Committee was to take place in the last week of December, 2016. The SC directed the matter to be listed on January 17, 2017. Meanwhile, a meeting of the Selection Panel was held on January 16, 2017, as reported in the news. In the light of the AG’s submission that post deliberations of the Selection Committee, the minutes of the meeting was still being drawn up, the hearing was deferred to January 20, 2017. 

Previous Interventions:

Contempt Petition Against Lawyers Strike: The contempt petition filed by Common Cause against the strike of lawyers in Delhi HC and all district courts of Delhi on the issue of conflict over pecuniary jurisdiction, in WP (C) 821/1990 (Harish Uppal vs Union of India) was again taken up on January 13, 2017. After hearing the counsels, the Court ordered that reply, if any, be filed within six weeks and matter be listed thereafter.

Challenging the Vires of the Appointments Made to the CVC: The IA filed by Common Cause in November 2016, praying for directions for constitution of a Special Investigation Team to thoroughly investigate the evidence gathered in the raids on the Aditya Birla and the Sahara groups, came up for hearing twice in December 2016, with the Court on both occasions insisting for better material/further evidence on the record of the case. It said that one should not be cavalier in making allegations of corruption against top constitutional functionaries without sufficient evidence.

The request of our counsel for more time made on December 16, 2016, for submission and analysis of additional evidence was granted by the Court and the matter was listed for January 11, 2017. After hearing the counsels, the Court was of the opinion that the applications filed by Common Cause lacked evidentiary value, were irrelevant and legally inadmissible. Keeping in view principles laid down in the cases of of CBI v. VC Shukla (1998 (3) SCC 410) and State of Haryana and Ors v. Bhajan Lal and Ors, 1992 Supp (1) SCC 335, the Court held that it would not be legally justified, safe, just and proper to direct investigation and dismissed the applications. There are no further orders of listing.

Red Sandal Wood Case: Pleadings in the matter were completed on August 22, 2016. Despite an undertaking before the Apex Court, the Union of India (Ministry of Environment and Forests) did not file its vakalatnama and counter affidavit. Respondent No.2, Department of Commerce, too failed to do so despite directions from the Court in May and August 2016. Declining to grant them further opportunities, the Court directed the Registry to process the matter for listing as per rules. On November 23, 2016 the matter was taken up by the Court and posted for December 15, 2016 as it did not receive the files and hence could not hear the matter. The Court website has not uploaded any further orders.

Challenge to the Lokpal Search Committee Rules: Even though the Government filed an affidavit stating that the impugned Rules 10 (1) & (4)(i) (as prayed by Common Cause in the original writ petition) had been amended in terms of the prayers made in the petition, it did not initiate the process of appointing the Lokpal. As the inaction of the Government regarding the appointment of Lokpal was arbitrary and unreasonable and hence, violative of Article 14 of the Constitution, in March 2016 Common Cause filed an IA requesting the Court to allow an additional prayer in the already filed writ petition. The IA requested the Court to direct the Government to make the appointment of Lokpal as per the amended rules framed under the Lokpal and Lokayukt Act, 2013. The amended petition was taken on record and the respondents directed to file their counter-affidavit to the amended petition. This matter was taken up on November 22, 2016, and adjourned to November 23, 2016, at the request of the counsel for the Union of India. On November 23, the SC admonished the centre on delay caused in the selection process on the pretext of absence of leader of opposition in the Parliament. On December 7, 2016 the Court granted time to the ASG to file some additional documents, including the report of the Parliamentary Standing Committee proposing certain amendments to the Lokpal and Lokayuktas Act, 2013. This matter has been tagged with another PIL filed by Ashwini Kumar Upadhyay seeking directions to the centre and the states to appoint Lokpal and Lokayukta’s respectively. There are no further orders of listing.

Crime and Violence on TV: The petition sought to curb the excess of crime, violence and sex on TV. The Secretary, Ministry of Information & Broadcasting, has been forced to submit a personal affidavit on the compliance of various directions given by the Court in the matter, which stands tagged with a bunch of petitions relating to the right to freedom of speech and expression including our PIL on unreasonable restriction on private radios against relay of news. During the hearing on December 1, 2016 the Court observed that while the pleadings in the petition no. 387/2000 was complete, respondents in the connected matters were yet to file their counter affidavits. Granting time to file the counter and corresponding rejoinder, if any, the Court directed the matter to be listed for after the winter vacation. It was reported in the newspapers on January 13, 2017 that that SC had sought response from the government on allowing private radios to broadcast news.

Last week, the SC website uploaded an order by which a bunch of petitions, including two petitions filed by Common Cause were disposed of by the bench of the CJI, J Khehar and J Chandrachud by an order dated January 12, 2017. Stating that the factual and legal position depicted in the original writ petition (387/ 2000, filed by CC) and in other connected writ petitions stood incorporated and upgraded in writ petition (1024/2013, filed by Media Watch), the Court disposed both our petitions on Crime and Violence on TV and FM Radio writ summarily.

It held that the primary issue for consideration in the petitions was with reference to the introduction of a complaint redressal mechanism in respect of complaints made against television and radio programmes.

It was contended by the respondents that such a mechanism was in place and keeping in mind media rights contemplated under Article 19 of the Constitution, the existing rules need to be interpreted in a manner as would be sustainable, within the framework of Article 19 of the Constitution.

After considering the submissions of the Government, the Court concluded that though the mechanism existed, it needed adequate publication. It, therefore, directed the Union of India, to publish the mechanism, so as to enable complainants, to air their grievances, before the appropriate forum and to obtain a determination thereof, at the hands of the concerned competent authority, in the Ministry of Information and Broadcasting. The Government was advised to finalise a similar statutory framework for radio programmes as well.

Inquiry Against Ex-Chairman, NHRC:  During the hearing on March 14, 2016, the Attorney General submitted that the individuals (relatives of Mr. Balakrishnan) in whose names the properties stood were income tax assesses. He informed the Court that he had all the assessment orders of the said assesses. In view of this submission, the AG was directed to file a chart indicating the said facets and also keep the assessment orders and the orders passed by the appellate authorities, if any, for perusal of the Court. The matter was taken up October 18, 2016, when the AG submitted the chart to the Court. A copy of the said chart was provided to our counsel by the Court. The Court directed that other documents previously referred to by the AG, be made available for the perusal of the Court and the matter be listed after eight weeks. It is likely to be listed on January 31, 2017.

RTI Rules of the Allahabad High Court: The petition challenges the vires of the Allahabad High Court (RTI) Rules, 2006, which were found to be the most obstructive of all the High court rules examined by Common Cause. 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.

In January 2014, our PIL was clubbed with Lok Prahari’s PIL on the same issue, initially filed in the Allahabad High Court. After a long gap of over two years, the cunctation in listing of this matter finally ended with the Court taking it up on November 10, 2016. As the Court had already ordered returnable notice in September 2014, it directed that the matter be processed for listing.

Combating the Criminalization of Politics: The Supreme Court had on March 10, 2014, passed an interim order directing that trials in criminal cases against MPs and MLAs must be concluded within a year of the charges being framed. The Court also directed that if the trial court is unable to complete the trial within a year, it would have to submit an explanation to, and seek an extension from, the Chief Justice of the High Court concerned. While seeking compliance of the Supreme Court order, we sought specific timebound directions for closer monitoring of all such cases. Common Cause has filed an IA before the Apex Court seeking urgent directions to implement its order dated March 10, 2014. The matter is yet to be listed for hearing.

Delhi High Court:

Petition on Electrocution by Live Wire:

Our petition on the subject was disposed by the Delhi High Court on December 5, 2016 with the following directions: 

  • The Electricity Regulatory Commission being a regulatory body must oversee strict implementation and compliance of the safety measures by the DISCOMs (Distribution Companies) for all the residents against electrocution deaths and other electricity related injuries.
  • The Regulatory Commission has to ensure that officers of DISCOMs shall comply with the directions issued by the Commission from time to time. Any violation of these instructions or directions would attract penal action against the erring department/officer under the Electricity Act, 2003.
  • The Electricity Regulatory Commission and DISCOMs to take appropriate measures to prevent these accidents through the use of insulation, guarding, grounding, electrical protective devices and safe work practices.
  • DISCOMs to take urgent cognizance of cases of electrocutions and pay compensation in accordance with law to the dependents of the deceased in case lapses are established in maintaining the prescribed safety measures.
  • The other land owning agencies shall give the respondents proper assistance in order to prevent any untoward incidents due to electrocutions in future.

BSP Symbol Case: 

Common Cause had filed a petition challenging the order of the Election Commission (EC) rejecting our request for freezing the reserved symbol of BSP on account of its misuse by its government in UP. On July 7, 2016, the Delhi High Court disposed our petition with two requests to the EC. The first was to issue within three months of the date of order, guidelines preventing political parties from using public places and funds for propagating their election symbols to ensure free, fair and peaceful election and to safeguard the interest of the general public and the electorate in future. In response to this, the EC vide its letter dated October 7, 2016 directed the political parties to refrain from using or allowing the use of any public funds or public place or government machinery for carrying out any activity that would amount to advertisement for the party or propagating the election symbol allotted to the party. The EC clarified that any violation of the above directions would be treated as violation of a lawful direction of the EC within the meaning of paragraph 16A of the Election Symbols (Reservation & Allotment) Order, 1968.

The second request was that within further three months from the date of issuance of direction, the EC should  consider whether the actions already done by the BSP were in violation of its directions and to initiate proceedings under Clause 16A of the Symbols Order for withdrawal of recognition after according it sufficient opportunity to undo the same. On January 5, 2017, the EC issued subsequent order wherein held that though BSP was a beneficiary from the activity which propagated its party symbol, using public fund, action cannot be taken against it retrospectively. In any case, it is hoped that this order of the EC will go a long way in ensuring free and fair elections.

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NOTICE FOR ANNUAL GENERAL MEETING

To,

All members of COMMON CAUSE, The Annual General Meeting of COMMON CAUSE Society will be held at 3rd Floor, Common Cause House, 5, Institutional Area, Nelson Mandela Road, Vasant Kunj, New Delhi – 110070, on Saturday, March 4, 2017 at 11.00 AM.

The agenda will be as follows:

  1. Consideration of Annual Report and adoption of the Annual Accounts along with the Auditor’s Report for the year 2015-2016
  2. Appointment of Auditors for the year 2016-2017
  3. Activities and Programmes
  4. Elections
  5. Any other item with permission of the chair

It may kindly be noted that in accordance with Rule 15 of the Rules & Regulations of the Society, if within 15 minutes of the beginning of the meeting, the quorum is not present, the meeting would stand adjourned and be held after half an hour of the original scheduled time, and the members present in the adjourned meeting shall form the quorum of that meeting. Copies of the Balance Sheet and Income & Expenditure statement will be provided during the AGM.


Vipul Mudgal

Director,

COMMON CAUSE

Volume: Vol. XXXV No. 4
October-December, 2016