ANNUAL REPORT FOR THE YEAR 2016-17
The last one year has been notable in many ways. The society's initiatives in advocacy and PILs yielded a fair measure of success in making focused interventions. It engaged and teamed up with many institutions and like-minded organizations during the course of the year.
Common Cause journal, the society's link with its members, is known for its clarity and forthrightness. The journal continues to take up policy- oriented themes in its quarterly issues. The idea is to develop the journal over time in such a way that each issue becomes a collectors' item on social policies. There has been appreciation as well as criticism of our work, which we have attempted to use in a healthy and constructive manner for consistent improvement.
Our motto is “continuity with change”. The idea is to facilitate a dialogue among activists, academics, policy makers and public spirited individuals for action and intervention. The journal remains dedicated to policy-oriented issues with an objective of improving the quality of life and democracy in India.
Following are the other activities of the organisation over the past year:
I. Fund raising: Common Cause team has been making efforts to attract donations through the crowd funding platform. So far, the platform has yielded just above `50,000 and the bulk of the financial support came from young people of diverse backgrounds. Efforts were also made to attract funding from institutional donors and private trusts and foundations. Common Cause has secured funds from the SRTT Foundation of the Tata Group. The funds are meant for its police reforms programme, particularly for its Annual State of Policing Report.
a. Police Reforms
Police Reforms/ Rule of Law Project: Common Cause has initiated a project to study the functioning and performance of police in India keeping in mind the states' adherence to the Supreme Court guidelines given in the case of Prakash Singh vs Union of India, in which Common Cause was a co-petitioner. The attempt is to assess police-citizen relations, citizens' attitude towards police, levels of impartiality and responsiveness to crime, and provide a comparative framework to evaluate the performance of different states in India. In the current phase, an analysis of the objective data collated from official sources is underway. This is accompanied by a perception survey conducted across 22 major states, executed in collaboration with the Lokniti programme of CSDS which has several decades of experience in survey research. The exercise seeks to evolve an Annual State of Policing Report to trace the perception and performance of police across all major Indian states. The final report, expected to be completed and released by the end of March 2018, will analyse and present state-wise data under the following themes:
ii. Dialogue on Police Reforms with the Indian Police Foundation:
Common Cause and Indian Police Foundation held a dialogue on police reforms with legal luminaries, citizen stakeholders and political leaders on September 22nd, the 11th anniversary of the landmark Prakash Singh vs Union of India 2006 judgement, at the India International Centre, New Delhi. The theme of the conversation was “Without Fear or Favour: A Strong, Resilient and Resurgent India Needs a Modern & People-Centric Police That Is Unwaveringly Committed to The Rule of Law”
Common Cause has submitted its comments on the Draft RTI Rules 2017, pursuant to the public notice issued by the Department of Personnel & Training on March 31, 2017. Common Cause has been a vociferous advocate of citizens' right to information, having previously made representations before the Supreme Court and the DoPT for a robust, transparent and accountable system of information access and disclosure. Our comments have pointed out that several provisions of the RTI Act are not being properly implemented due to the absence of rules. Therefore, the DoPT ought to frame rules on the mentioned issues through public consultations. Some of these pertain to compliance with Section 4 (of RTI Act), accessing information about private bodies, setting up of information and facilitation centres to provide assistance to persons seeking information, time frames for disposal of appeals and complaints. More detailed inputs can be accessed through the following link: http://www.commoncause.in/wotadmin/upload/1424331600Suggestions%20on%20draft %20RTI%20Rules-%20Common%20Cause.pdf
Initiatives on Judicial Reforms- On Reserved Judgments
Common Cause had filed a Right to Information application before the Supreme Court seeking a list of the cases in which judgement had been reserved by it as of September 1,
2009. The details were refused by the Registrar, Supreme Court, following which a first appeal was filed, which too was dismissed. Subsequently, a second appeal was filed in the matter, which was heard by the Chief Information Commissioner (CIC), Shri Radha Krishna Mathur, on September 18, 2017. Both parties presented their cases before the CIC and Common Cause pleaded for the release of the information. The second appeal was unfortunately disposed of on September 18, 2017. The CIC order stated that no direction can be issued to a public authority to collate the information in a manner in which it is sought by the applicant and relied on a 2011 Delhi High Court judgement (Supreme Court of India vs Commodore Lokesh Batra) to dispose the matter.
Representation before the Prime Minister, the Finance Minister, the Speaker of Lok Sabha and the Leader of the Largest Party in Lok Sabha
Common Cause in its representations before the above-mentioned authorities has drawn their attention to the forthcoming appointment of the new Comptroller and Auditor General (CAG) of India, which presents a unique opportunity for the government to create an institutional criterion to make the selection process impartial and transparent. Putting in place an objective and accountable system will ensure that once and for all only high- integrity individuals with suitable professional skills will be selected for this crucial constitutional post.
Common Cause in its representation urged the Union Minister to consider the points raised by the organisation on the issue of rationalisation of motor vehicle taxes to facilitate seamless movement of private vehicles across the country. It was stated in the letter that on purchase of a vehicle, a lifetime tax is charged by the registering authority for registration for a period of 15 years. When the vehicle is moved from one state to another, the owner is supposed to pay a lifetime tax to the new state. In this way s/he is being forced to pay the lifetime tax twice or more for a single vehicle. It is inconceivable and illogical that lifetime road tax be paid twice or more for the same vehicle, hence the minister was urged to bring a uniform policy and in the taxes levied on private motor vehicles across the country.
Representation before Governor and CM, Uttar Pradesh
On September 15, 2016, we had written to the Governor, Uttar Pradesh, following his proactive engagement on the Ghaziabad Authority and pleading for the inclusion of the Noida, Greater Noida and Yamuna Expressway Authority in his campaign for transparency and accountability in UP's land development agencies. Common Cause has been advocating for such an audit for several years. After our initial case was disposed of by the Supreme Court in March 2015, we approached the Allahabad High Court in September 2015 and the matter is still pending.
Initially, the newly elected Yogi Adityanath government had approved the CAG audit of Ghaziabad Development Authority and 29 other authorities set up under the UP Urban Planning and Development Act leaving out the three above-mentioned authorities. Common Cause made a representation to the CM on July 3, 2017, complimenting him for the cabinet decision and also requesting him to include Noida, Greater Noida and Yamuna Expressway Authority in the ambit of such state agencies which were to be audited by the CAG. Subsequently, in a welcome development, the UP Government on July 13, 2017 wrote to the Accountant General to start conducting audit of Noida, Greater Noida and Yamuna Expressway Authority, as widely reported in the media.
It was further mentioned that a lack of comprehensive legal and regulatory framework has resulted in mushrooming of unscrupulous private employment agencies leading to widespread abuse, particularly of the low-skilled migrant workers. The government has developed an Integrated National Plan of Action against Trafficking, but there was a need for a more comprehensive legislation covering just and civilised working conditions and trafficking of domestic workers in accordance with the ILO norms.
Applications filed under the RTI Act
In the response received from the office of the Chief Engineer, Mo RT&H, Dehradun, we were informed that the entire project had been sub-divided into many sectors and environmental clearances were being obtained for executing the work on the ground. According to another reply received from the office of the PIO, NH Division, PWD, Lohaghat, we were informed that it was not mandatory to obtain environmental clearance since the project happened to be less than 100 kms in length, thereby exempting it from the purview of the MoEF notification dated Sep 14, 2006.
Appointment of Lokpal following Supreme Court's Direction in April, 2017
Common Cause has filed an application before the concerned authority seeking information on meeting(s) of the Selection Committee as constituted under The Lokpal and The Lokayuktas Act, 2013 since the Apex Court's order in April, 2017. Further, the Ministry of Personnel, Public Grievances & Pensions in a press note dated August 10, 2017 had stated that the Lokpal Bill, 2014, with the recommendations of the Standing Committee had been presented before an Inter-Ministerial Committee (IMC). Information has been sought in respect of this press release. We have also sought to know the timeline, when the Lokpal and Lokayuktas and other related law (Amendment) Bill, 2014 is scheduled to be brought before Parliament.
Public Interest Litigation
New interventions and significant developments in the writ petitions and applications filed by the society are summarised below:
Supreme Court Cases
Crime and Violence on TV: W.P. (C) 387/2000 tagged with W.P. (C) 880/2013 (PIL on FM Radio) -This petition seeking to curb the excess of crime, violence and sex on TV was tagged with our PIL on news broadcast by private radio stations.
The petition on crime and violence was disposed of by the bench of the CJI, Justice JS Khehar and Justice DY Chandrachud on January 12, 2017. The court observed that the factual and legal position depicted in the original writ petition and in other connected writ petitions stood incorporated and upgraded in the writ petition filed by Media Watch. The
Court observed that the primary issue was to institute a complaint redressal mechanism for complaints made against TV and radio programmes. After considering the submissions of the Government, the Court concluded that the existing mechanism needed adequate publication. The government was advised to finalise a similar statutory framework for radio programmes.
The PIL on FM Radio had sought the quashing of the unreasonable provisions in the policy guidelines and grant of permission agreements of the Ministry of Information and Broadcasting, which prohibits the broadcast of news and current affairs content on FM and community radio stations. In its order on February 10, 2017, the Court held that the Union of India should consider extending the content of news and current affairs for community radio stations and FM Radio Stations to include such news and current affairs, as are already in public domain, which are broadcasted by the licensed operators in the print and electronic media. In March, the Union sought more time to file its reply.
No documents were filed in the Court on in the hearing on 27 April 2017 by the counsel for the Union. There are no further orders of listing.
Living Will: W.P. (C) 215/2005- The petition sought the enactment of a law along 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. The Court had sought authoritative opinion of Constitution Bench in 2014 and in January 2016 the Centre's response on passive euthanasia was sought. The ASG submitted that the government was considering a legislation on the subject. It came up with a draft Bill called “Medical Treatment of Terminally Ill Patients (Protection of Patients and Medical Practitioners) Bill, 2016”, which ironically makes no mention of the word “Living Will.” Common Cause, subsequently, submitted its detailed comments on the Bill in response to a statutory notice. On October 11, 2017, hearing was concluded and judgment was reserved by the Court on the petition.
Safety Concerns in Nuclear Energy Programme: W.P. (C) 464/2011- We had challenged the constitutional validity of the Civil Liability for Nuclear Damage Act (CLNDA), 2010, and sought a safety reassessment and a comprehensive analysis of the long-term cost-benefits of Indian nuclear plants. The last order came in September 6, 2017 whereby the Court asked the respondents to file counter arguments, if any, and next date of September 20,
2017 was given for listing. However, the matter did not come up that day. There are no further orders for listing on the matter.
Combating the Criminalisation of Politics: W.P. (C) 536/2011- The PIL was filed for debarring persons charged with serious criminal offences from contesting elections and expediting the disposal of pending criminal cases involving MPs and MLAs. The constitutional validity of Section 8(4) of the Representation of Peoples Act 1951 was challenged. A landmark order was obtained in March 2014 for concluding criminal cases against lawmakers within a year of framing of the charges. The matter was tagged with two other cases with similar prayers and was referred to a Constitution Bench on March 8, 2016. In a hearing on July 12, 2017, the Court criticized the Election Commission for retracting its earlier position supporting a plea for lifetime ban on convicted lawmakers. The next date of listing is March 23, 2018.
Interestingly, the SC refused to entertain Mr. Ranjit Sinha's plea to modify investigation orders against him, restricting its order to call the probe “an enquiry” and not “an investigation”. Invoking the SC's recent dismissal of documentary material produced in the Sahara-Birla pay-offs case, former CBI Director on January 30, 2017 sought the Court to modify its January 27, 2017, order. The Bench, however, refused to entertain his plea as the order had already been passed and a modification could be sought under a separate plea for recall of the order.On April 25, 2017, the CBI filed an FIR against its former director Shri Ranjit Sinha in the coal block scam probe. In the hearing on 10 July 2017, the Court criticized the CBI for transferring DIG Shri Ravi Kant, the officers investigating the coal scam cases since 2012, without the Court's permission. While the Court abstained from passing any order on the transfer, it directed that no CBI officer, who is investigating the coal scam cases, would be transferred without the explicit permission of the Court. The Court said that the present CBI director would head the SIT that would look into the report of the ML Sharma panel, which had prima facie indicted Shri Sinha in the matter.
Inquiry Against Ex-Chairman, NHRC: W.P. (C) 678/2013- Our PIL had sought a writ of mandamus to the Union of India to comply with the Court's order of May 10, 2012 in our PIL WP (C) 35/2012 by making a reference for holding an inquiry against Shri K.G. Balakrishnan, Chairman, National Human Rights Commission.
In the last hearing held on December 12, 2017, the petition has been dismissed as withdrawn after the Court allowed Common Cause to approach the appropriate authority in order to follow proper procedure.
Preventing the Export of Logs of Red Sandalwood: W.P. (C) 976/2014- The intervention of the Supreme Court was sought to foil a determined bid by the Government of Andhra
Pradesh to export a huge quantity of confiscated red sandalwood, an endangered species.
Pleadings in the matter were completed on August 22, 2016. Despite an undertaking before the Apex Court, the Union of India (Ministry of Environments and Forests) did not file its vakalatnama and counter affidavit. Respondent no. 2, Department of Commerce, also 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 July 12, 2017 the matter was taken up before the Court but it could not hear the matter as the files were not received. There are no further orders of listing.
Challenge to the Lokpal Search Committee Rules: W.P. (C) 245/2014 - After admonishing the Centre for the delay caused in the selection process on the pretext of the absence of the Leader of Opposition in Parliament, the Court on February 13, 2017, directed that our petition, along with all connected cases, be listed for final disposal on
March 28, 2017, and pleadings, if any, may be completed in the meantime. The Court, on
April 27, 2017, held that there is no justification to put the appointment of Lokpal on hold and the matter was disposed on April 27, 2017, stating that the Lokpal Act as it stands is enforceable, turning down Center's argument to keep the Lokpal Act in suspension till the relevant laws are amended. The Court observed that if the Leader of the Opposition is not available, the chairperson and two other members of the selection committee may proceed to appoint an eminent jurist as a member of the selection panel.
Mismanagement of Defense Lands: W.P. (C) 204 /2014- The PIL seeks systemic reforms and court-monitored CBI investigation into illegalities and irregularities in management of defense lands. It was filed in the wake of CAG reports highlighting mismanagement noticed in audit of defense lands. On February 20, 2017, the Court issued a notice to the Center directing it to evict encroachers from the defense lands. On July 11, 2017, submissions were made by the petitioner pertaining to computerization of land records, removal of encroachment on the defense lands, establishment of an independent regulator, etc. The Court noted that there was a need to consolidate the position regarding actions already taken by the government and actions which are supposed to be taken. The matter was adjourned on August 25, 2017. The next date of listing is March 23, 2018.
Contempt Petition Against Lawyers' Strike: Cont. Pet. © 550/2015 in W.P. (C) 821/1990-
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 W.P. (C)
821/1990 (Harish Uppal vs UOI) was again taken up on January 13, 2017. After hearing the counsels, the Court ordered that reply, if any, be filed within six weeks. The matter was adjourned on July 5, 2017, and is likely to be listed on April 09, 2018.
Challenging the Vires of the Appointments Made to the CVC: W.P. (C) No. 505/2015 tagged with W.P. (C) No. 683/2014- The petition challenges the arbitrary and non-transparent appointments of KV Chaudhary as CVC and T M Bhasin as VC as being violative of the principles of 'impeccable integrity' and 'institutional integrity' laid down in Vineet Narain case (1998) and Centre for Public Interest Litigation (CPIL) case (2011).
Common Cause filed an IA praying that the UOI may be directed to not make any appointments which required the participation of either the CVC or the VC, since their appointment itself had been challenged by Common Cause. In the hearing held on September 7, 2017, a Bench of Justices Arun Mishra and MM Shantanagoudar has reserved its order on these appointments.
Illicit Payouts to Politicians- Birla Sahara Diaries: I.A. No. 3/2016 in W.P. (C) No. 505/2015 - Common Cause approached the Supreme Court regarding bribes paid to prominent politicians by corporate groups. It was feared that the groups, whose premises were raided by the CBI and the Income Tax Department in 2013 and 2014, might go for 'settlement' of their cases, amounting to a quiet burial of crucial evidence. The Interim
Application was filed in our pending petition challenging the arbitrary appointment of the CVC.
The I.A. prayed for a thorough investigation and further action on the seized Sahara/Birla documents allegedly detailing illicit payouts to political functionaries as both the CBI and the IT Department did not take appropriate action by conducting a thorough scrutiny of the contents.
In its order on January 17, 2017, the Apex Court rejected this demand, saying it would be dangerous for democracy to order a probe on the basis of loose sheets inadmissible as evidence.
With the appointment of Mr. Alok Kumar Verma as the new CBI Director, post approval by the selection committee meeting which was called subsequently, the Supreme Court closed the petition on January 20, 2017. The bench declined the request of our counsel, Mr. Prashant Bhushan, to direct the Centre to place before the Court, the minutes of meeting of the committee to ensure compliance with law laid down by the apex court.
Introduction of Electoral Bonds Challenged : W.P. (C) 880/2017- Common Cause and the Association for Democratic Reforms (ADR) have challenged the introduction of Electoral Bonds, as part of the Finance Act 2017, which have made electoral funding of political parties more opaque, thus legitimizing high-level corruption to an unprecedented scale by removing electoral funding limits for big corporates and foreign lobbyists.
The PIL seeks direction from the Supreme Court to strike down the amendments made through the Finance Act, 2017, and the Finance Act, 2016. It is alleged that such wide-ranging amendments in the Representation of People's Act, 1951, the Reserve Bank of India Act, 1934, the Income Tax Act, 1961 and the Companies Act were brought in illegally as a “Money Bill” in order to bypass the Rajya Sabha.
This matter was taken up on October 3, 2017, when notice was issued to the Union of India and other respondents. There are no further orders of listing.
Petition Challenging the Appointment of RK Asthana as Special Director, CBI: W.P.
1088/2017- In its quest to maintain transparency and institutional integrity in the appointment of key functionaries in sensitive organisations, Common Cause filed a petition in the Supreme Court challenging the appointment of Shri Rakesh Asthana as the Special Director (SD) CBI. The petition was dismissed on Nov 28, 2017 by a Bench comprising Justice R.K. Agrawal and Justice Manohar Sapre. The petition said that the appointment of Special Director, the second highest authority in the organisation, should be in strict compliance with all the norms laid down by the SC in the past.
The petition also alleged that the Government and the selection committee overruled the opinion of the Director, CBI in violation of the law on statutory consultation as laid down in various judgments. Further, the petition had sought directions to the Union of India to transfer him out of the CBI during the pendency of the its investigation concerning the payouts to various public servants by Sterling Biotech and Sandesara Group. It also sought directions to the parties concerned to produce before the court the agenda and the minutes of the selection committee meeting under Section 4C of the DSPE Act, 1946, as well as the note and material put up by the CBI Director regarding the proposed appointment of the Special Director.
Delhi High Court
It has been alleged in the petition, that the modus operandi is identical in all these cases. The coal or power equipment is shipped directly to India, however, its invoice is routed through another foreign company directly owned and controlled by the promoters of the project in India. Hence, it is a clear case of criminal offence and needs a thorough investigation by an SIT. During the hearing on September 13, 2017, Justice C Hari Shankar recused himself from hearing the case as he has appeared for some of the firms named in the petition in the past.
The matter was taken up on September 20, 2017, when the Bench of Justices S Ravindra Bhat and Sunil Gaur sought the details of the DRI enquiry against alleged over-invoicing of equipment and fuel imported for power plants. To this our counsel stated that a brief note describing the various show cause notices, outcome of investigations and the adjudicatory order made, if any, would be placed on the record of the Court. The matter was tagged along with a petition filed on similar issue by social activist Mr. Harsh Mander. In the hearing on 11
December 2017, notices were issued to UOI and DRI and were accepted by representatives of both. It has been listed for hearing on February 2, 2018.
Allahabad High Court