Common Cause Case Updates

Supreme Court Cases

Miscellaneous Application (M.A. No. 1756 of 2022) by the Union of India Seeking Modification of the Supreme Court Order in the Common Cause Petition Challenging Re-appointment of the Director, ED: The Union of India (Respondent No.1) filed a Miscellaneous Application in the Common Cause petition, WP(C) 1374 of 2020, challenging the re-appointment of the ED Director, for modifying the judgment of the Supreme Court, dated September 8, 2021. By the way of the instant modification application, they have sought the deletion of the following from the judgment: “We make it clear that no further extension shall be granted to the second respondent”.

The Union of India has claimed that on the basis of the 5th proviso to Fundamental Rule 56(d) and Section 25(d) of the Central Vigilance Act, 2003 as well as various pending petitions challenging the extension of the incumbent ED Director’s tenure, the above statement must be deleted from the judgment of the petition challenging the re-appointment of the ED Director.

This application has been filed as a Miscellaneous Application, disguising the review petition. Several precedents have established that the Supreme Court disapproves the practice of filing such Miscellaneous Applications seeking “modification” or “recall” or “clarification” in an attempt to bypass Order XL of the Supreme Court Rules, 1966. In addition to this, the Supreme Court has also upheld that change in law or subsequent decisions by itself could not be grounds for review and such petitions shall be accordingly dismissed. The matter was taken up on January 30, 2023, when the SC gave the Centre three weeks to respond to the petition filed by Dr Jaya Thakur questioning the third extension given to director of the Enforcement Directorate (ED) Sanjay Kumar Mishra, while also indicating that it will not entertain any review of its September 2021 judgment that directed against further extension to Mishra based on the law being subsequently changed. “Subsequent legislative change cannot be a ground to review our earlier order (passed on September 8, 2021),” the bench of Justices BR Gavai and Vikram Nath said.

The Solicitor General stated that the petitioner was extensively relying on the September 2021 judgment where the Centre moved an application seeking clarification/modification (MA) and requested for tagging these matters together.

The bench refusing to entertain the MA said, “We will not entertain such an application. It amounts to review of our order.”

The court ordered that the concerned matters be tagged together and posted the matter for hearing on February 27, 2023. The court heard the counsels on March 21 and 23 2023 and directed that it be listed at number 1 as part heard case on April 20, 2023. The court concluded the hearing and on May 8, 2023 judgment was reserved.

On July 11, 2023 the SC disposed the batch of writ petitions as well as the MA and ruled that the central government extending the tenure of the director of the Enforcement Directorate (ED) is invalid and directed Sanjay Kumar Mishra, who is presently the director, to vacate the office by July 31, 2023.

The court however upheld the validity of amendments to the Central Vigilance Commission Act conferring power on the central government to extend the tenure of ED director.

Petition Challenging Constitutional Validity of Sedition: Sedition, a colonial law, used to suppress dissent by the British in India, continues to be heavily abused by the law enforcement authorities against citizens for exercising their freedom of speech and expression.

Common Cause filed a petition in 2021, challenging the constitutional validity of sedition under Section 124A of the Indian Penal Code, 1860, as being violative of Articles 14, 19(1)(a), & 21 of the Constitution of India.

In Kedar Nath Singh v State of Bihar, the constitutionality of this section was tested and upheld. The offence of sedition was presumed to be complete if the activities tended to create public disorder or disturbance of law and order or public peace.

In its welcome order on May 11, 2022, the Supreme Court granted interim stay on the use of the provision by governments. It suspended pending criminal trials and court proceedings under Section 124A (sedition) and allowed the Union of India to reconsider the law of the colonial times.

The order stated that the Union of India had agreed with the prima facie opinion expressed by Supreme Court, that the rigors of Section 124A of IPC are not in tune with the current social milieu. Rather, the section was from a time when India was colonised. The Union of India, in its May 9, 2022 affidavit, had agreed to re-examine and re-consider the provision of section 124A of the Indian Penal Code before the Competent Forum. The court adjudicated that it would be appropriate not to continue the usage of the aforesaid provision of law by the government. In addition, it said that the persons accused in fresh cases were free to approach courts for relief, which were asked to examine these cases, considering the present order passed as well as the clear stand taken by the Union of India.

The matter was taken up on May 1, 2023 when the Attorney General for India, stated that, in pursuance of the order dated May 11, 2022, the government has initiated the process of re-examining the provisions of Section 124A of the Indian Penal Code 1860 and the consultations are at a substantially advanced stage. On September 12, 2023 the Supreme Court declined to entertain request of the Attorney General and Solicitor General appearing for the Union of India to defer considering whether a reference should be made to a larger bench, since parliament is in the process of re-enacting the provisions of the penal code and the bill have been placed before a standing committee. The court in its order mentioned, “We are not inclined to accept the request for deferring the consideration of the 5 constitutional challenge in this batch of matters. The provisions of Section 124A of the IPC continue to remain on the statute book. Even if the new law which is proposed to be placed by the government before the legislature results in a modification of the existing provision of Section 124A, there is a presumption that a penal statute would have prospective and not retrospective effect.” Existing prosecutions under Section 124A will likely be governed by that provision. Consequently, the validity of the prosecutions which have been launched or would be launched so long as Section 124A continues to remain on the statute would have to be assessed under it. The issue of the validity of the provision for the period that it continues to operate would, therefore, need to be determined. Referring to the judgment in Kedar Nath Singh it was submitted by the petitioners that the observations in that case did not make a distinction between the state which falls within the ambit of Article 19(2) of the Constitution and the government, which does not. At the point in time when the Constitution Bench ruled on the validity of the provision, the challenge on the ground that Section 124A violated Article 19(1) (a) of the Constitution was tested only on the anvil of that article. This must be read in the backdrop of the constitutional position as laid down by this court at the relevant time, which was that a challenge to the validity of a statutory provision on the ground that it violated a specific article in Part III, say Article 19(1)(a), would have to be adjudged on the basis of whether the law was sustainable with reference to Article 19(2) of the Constitution. There was no challenge on the ground that Section 124A violated Article 14 nor did the Constitution Bench have occasion to consider the validity of the provision against a constitutional challenge on the basis of Article 14. The position as it has evolved in constitutional jurisprudence is that the fundamental rights do not exist in silos. There is, in other words, a coalescence of several of the rights protected by Part III. Article 14, which presents an overarching principle of reasonableness permeates Articles 19 and 21 as well. Hence the court directed that the matter be placed before the CJI, who may if so considered appropriate, pass orders for the batch of cases to be heard by a bench of five or more Judges, since the decision in Kedar Nath Singh’s case was rendered by a Constitution Bench.

Contempt Petition Against Lawyers’ Strike: The contempt petition filed by Common Cause against the strike of lawyers in Delhi High Court and all district courts of Delhi on the issue of conflict over pecuniary jurisdiction was eventually taken up on November 2, 2022, where the court asked for short notes on the proposed submissions and the propositions by the parties within four weeks. The matter was listed next on December 6, 2022, when on behalf of the petitioner, advocate Prashant Bhushan told the bench that the Bar Council of India (BCI) had not suspended those who went on strike. “We expect a serious response from you,” the bench told advocate Ardhendumauli Kumar Prasad, who represented the BCI. Noting that suspension was not sufficient, the Supreme Court said major steps were needed against striking lawyers. “BCI is the apex body and should act like one. What are the preventive measures being taken? This can never acquire the proportions of adversarial litigation,” a bench led by Dinesh Maheshwari said while hearing the contempt petition. The matter was taken up on January 24, 2023 when the counsel appearing for the BCI prayed for yet further time to complete all his instructions as also to advice appropriately. On April 17, 2023 the Chairman, BCI, informed the court that further process was actively being taken up as regards the framing of rules. He also indicated that in another matter involving akin issues, order has been reserved in another bench. On May 8, 2023, the Chairman BCI submitted that further steps have been taken for amending the rules as submitted before the court on the last few occasions and in that regard, meeting of the representatives of all the state bar councils have also taken place. The court took note of the submission that pursuant to the decision taken in these meetings, the BCI is actively considering the necessary amendment to the rules. The matter was listed on July 17, 2023.

Illegal Mining in Odisha: On July 10, 2023, a bench comprising of the Chief Justice and Justice Pamidighantam Sri Narasimha directed IA No. 42571 of 2023 to be listed on August 11, 2023.

On August 14, 2023, the three-judge bench of Chief Justice with Justices J.B. Pardiwala and Manoj Misra heard the matter. Earlier, on May 1, 2023, the bench comprising of Justice KM Joseph and Justice BV Nagarathna heard the counsel for the state of Odisha in this matter. The state had filed an IA to rectify errors in the previous submissions. The IA for rectification provided that of the total amount of compensation, i.e., Rs. 3308.05 crore, only a sum of Rs. 305.32 crore, have been recovered from the defaulters. Although the court allowed the IA for rectification, they also asked the state to indicate reasons for delay in recovery and to present steps taken for speedy recovery of the amount.

Answering the court, Mr Rakesh Dwivedi, senior counsel appearing on behalf of the state of Odisha made the following statements:

  • At present, an amount of Rs 2,622 crores, excluding interest, is due and outstanding on account of illegal mining, out of which an amount of Rs 2,215 crores is recoverable from five lessees;
  • The leases of the defaulters have either expired or, as the case may be, have been terminated and they are not operating any lease or allowed to participate in tenders; and
  • Proceedings for termination of the leases are pending against some of the defaulters who shall have small some amounts comparatively due and outstanding.

The bench issued the following directions:

  • The state government shall take expeditious steps to pursue the recovery proceedings in accordance with law and shall take necessary steps by attaching the assets of the defaulting entities; and
  • Hereafter, the terms and conditions of tender shall expressly clarify that no tender shall be entertained at the behest of an entity against which outstandings are due or companies in which the same promoters are interested.

During the hearing, Mr Bhushan highlighted that there is a need to impose a cap on mining in the state of Odisha and presented the states of Karnataka and Goa as examples. The records indicate that yearly mining permissions cover 58 leases with permissible excavation to the extent of 227.13 million tonnes. Mr Bhushan’s note has provided that considering the total reserves are 4748.52 million tonnes, the reserves would come to an end within twenty years.

In this regard, the state of Odisha countered that the estimate of iron ore reserves on the geologically explored strata at present is 9220 million tonnes and there is a likelihood of this increasing in future.

Ms Aishwarya Bhati, Additional Solicitor General on behalf of the union of India stated that the union of India shall consider the position and file its affidavit within eight weeks. They will be examining the states of Karnataka and Goa to identify whether a cap on mining is necessitated in the case of state of Odisha.

The amicus curiae, Mr A D N Rao opined that the Central Empowered Committee (CEC) may be tasked with submitting recommendations on the capping of mining. The CEC has functioned as a fact-finding body in this case and provided its report to the Supreme Court. The court shall also examine this after union of India’s response is filed.

The next listing of the application is on October 20, 2023.

Petition to Restrain the use of Public Funds for Political Campaigning through Government Advertisements: Presently, the matter is pending before the Registrar H. Shashidhara Shetty. Previously, on September 26, 2022, Justice DY Chandrachud and Justice Hima Kohli heard the petition to restrain the use of public funds for political campaigning through advertisements and issued notice to the respondents. As the service has been completed, the Registrar recorded the activities with respect to the filings of various respondents on August 10, 2023 and on July 7, 2023:

  • The states of Arunachal Pradesh, Himachal Pradesh, Rajasthan and Sikkim have submitted the counter affidavit.
  • Union of India and the states of Chhattisgarh, Goa, Karnataka, Nagaland, Uttarakhand and West Bengal were granted four weeks as final opportunity for filing the counter affidavit.
  • The representatives of the states of Haryana and Meghalaya had requested more time for filing vakalatnama and counter affidavit and were given four weeks as final opportunity.
  • Rest of the respondents (Andhra Pradesh, Assam, Bihar, Gujarat, Jharkhand, Kerala, Manipur, Mizoram, Odisha, Punjab, Tamil Nadu, Telangana, Tripura, Uttar Pradesh and Jammu & Kashmir) have not entered appearance

Common Cause filed a petition to restrain the unnecessary use of public funds on government advertisements in ways that are completely malafide and arbitrary and amount to breach of trust, abuse of office, violation of the directions/guidelines issued by this court and violation of fundamental rights of citizens. Noticing the unnecessary expenditure on advertising campaigns outside the territory of their respective states with no benefit to the target audience or prime beneficiaries of that government’s achievements, policies and welfare measures, six specific issues were pointed out in the petition:

  • Publication of advertisements by state governments outside the territorial limits of their respective states
  • Publication of government advertisements in the form of ‘advertorials’
  • Publication of government advertisements during/prior to the elections
  • Issues concerning the ‘Committee on Content Regulation of Government Advertisements’ (CCRGA)
  • Publication of photographs of functionaries on government advertisements
  • Advertisements in the name of awareness campaigns

The Supreme Court in its judgment dated 13-05-2015 in Common Cause v Union of India (2015) 7 SCC 1, had issued several guidelines aimed at regulating government advertisements in order to check the misuse of public funds by central and state governments. The five principles of those guidelines were as follows:

  • Advertising campaigns are to be related to government responsibilities,
  • Materials should be presented in an objective, fair and accessible manner and designed to meet objectives of the campaign,
  • Not directed at promoting political interests of a Party
  • Campaigns must be justified and undertaken in an efficient and cost-effective manner; and
  • Advertisements must comply with legal requirements and financial regulations and procedures

The objectives behind rolling out these guidelines, as pointed out in the judgment dated 13-05-2015, were as follows:

  • To prevent arbitrary use of public funds for advertising by public authorities to project particular personalities, parties or governments without any attendant public interest
  • Neither to belittle the need nor to deny the authority of the union and state governments and its agencies to disseminate information necessary for public to know on the policies and programmes of government but only to exclude the possibility of any misuse of public funds on advertisement campaigns in order to gain political mileage by the political establishment;
  • To address the gap in the existing DAVP Guidelines which only deal with the eligibility and empanelment of newspapers/journals or other media, their rates of payment, and such like matters and not on how to regulate the content of government advertisements;
  • To ensure that “all government activities satisfy the test of reasonableness and public interest, particularly while dealing with public funds and property”;
  • To ensure that government messaging is well co-ordinated, effectively managed in the best democratic traditions and is responsive to the diverse information needs of the public.

Notice was issued on September 26, 2022, by Justice DY Chandrachud and Justice Hima Kohli. On August 10, 2023 the respondents were given four weeks’ time to file their counter affidavits. During the record of proceedings on September 21, 2023, the court of the Registrar declined the opportunity to the respondent states who had failed to file the counters and directed the matter to be listed on November 6, 2023.

Petition Challenging the Appointment of Interim Director, CBI: : Common Cause had filed a PIL on March 2, 2021, challenging the appointment of an interim/acting CBI director. It also sought the appointment of a regular director, as per procedure established by law. As per the Delhi Special Police Establishment (DSPE) Act, 1946, the appointment of director, CBI is to be made by the High-Powered Committee comprising the Prime Minister, Chief Justice of India (or any judge of Supreme Court nominated by the CJI) and leader of opposition in the Lok Sabha.

The petition prayed for a direction to the executive to initiate the process of selecting a regular director forthwith. The petition also sought a direction to the centre to initiate and complete the process of selection of the CBI director well in advance. The selection process should be completed well before the date on which the vacancy to the post is about to occur.

Previously, in another petition in 2019, Common Cause had challenged the appointment of M Nageshwar Rao as interim director, CBI on similar grounds. On February 19, 2019, while declaring the decision of the case, the court indicated that if due process is not followed in appointments, it is always open to any incumbency and the said appointments could be questioned in accordance with the law.

After holding a few hearings in 2021, where the court expressed its displeasure on the interim appointment, the appointments committee of the cabinet, based on the panel recommended by the High Powered Committee, approved the appointment of Subodh Kumar Jaiswal as the new director of CBI on May 25, 2021. On October 20, 2021, the court asked the government to continue with the incumbent director till next director was appointed in accordance with the provisions of the law in force. On November 14, 2021, an ordinance extending the tenure of the director CBI by up to five years from a fixed tenure of two years was brought in force.

The matter was disposed on August 7, 2023 when Justices Sanjiv Khanna and SVN Bhatti held that:

“In view of the fact that the substantive prayer made in the writ petition has become infructuous, we are not inclined to continue further with the present writ petition and hence, the same is disposed of. However, it will be open to the petitioner(s) to file a fresh petition in case of a change in circumstances or need arising with regard to other prayers made in the present writ petition.”

As per news reports, the Union government is mulling over the idea of creating a new post of chief investigation officer of India (CIO) to whom will report the chiefs of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED).

Petition Seeking Cancellation of the Entire Allocation of Coal Blocks to Private Companies between 1993 - 2012 and a Court Monitored Investigation of the said Allocation: On July 24, 2023, the Chief Justice, Justice JB Pardiwala and Justice Manoj Misra heard and allowed transfer of the seven investigating officers of ED in the normal course and disposed of the concerned IA. On August 14, 2023, the threejudge bench of Chief Justice, Justice JB Pardiwala and Justice Manoj Misra heard the matter. The CBI placed on the record a “Note on Administrative Issues” indicating the present status of the investigation and prosecution in the coal block allocation cases. Pursuing this, permission was granted to relieve certain officials from their present charge. Previously, the Supreme Court had said that that no officials who were investigating the coal block allocation cases could be moved out without its prior permission. The matter is likely to be listed on October 17, 2023.

 

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