Common Cause Updates
Supreme Court Cases
Petition Challenging the Appointment of Interim Director, CBI
: Common Cause filed a PIL challenging the appointment of an Interim/Acting Director of the Central Bureau of Investigation (CBI) again. It has 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 HighPowered 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 prays for a direction to the executive to initiate the process of selecting a regular Director forthwith. The petition has 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.
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.
The current PIL challenging the appointment of CBI Interim/ Acting Director was filed on March 2, 2021 while notice was issued on March 12, 2021. On April 5, 2021 the Court expressed its displeasure on the interim appointment and granted adjournment. It directed the matter to be listed for April 16, 2021. Subsequently, the matter was taken up on April 19, 2021 and the next hearing date fixed on May 13, 2021.
Meanwhile, the Appointments Committee of the Cabinet, based on the panel recommended by the Committee, approved the appointment of Subodh Kumar Jaiswal as the new director of CBI on May 25, 2021. The selection committee of Prime Minister Narendra Modi, Chief Justice of India N.V. Ramana and the Leader of Opposition Adhir Ranjan Chaudhary shortlisted Jaiswal, along with Sashastra Seema Bal (SSB) chief K.R. Chandra and special secretary in the Ministry of Home Affairs (MHA), V.S.K. Kaumudi. Since Jaiswal was the senior-most among the three officers, his choice became easier. The principle of seniority is the default norm of selection. The matter has not been listed thereafter.
Petition Challenging Reappointment of the Director, ED
Common Cause on November 27, 2020 approached the Supreme Court with a prayer seeking to quash the Centre’s decision to “retrospectively” amend the tenure of Sanjay Kumar Mishra as the director of the Enforcement Directorate (ED). It has also sought a direction to the central government to appoint a director for the agency “in a transparent manner and strictly in accordance with the law “. The bench of Justices L Nageswara Rao and S Ravindra Bhat issued notice on February 15, 2021 and the matter was taken up on April 5, 2021, when the Court after hearing the parties directed for listing on April 16, 2021. On April 19, 2021, after hearing the parties, the Court directed the matter be listed for May 12, 2021. There are no further orders of listing.
Availability of Vaccines to Every Citizen
Common Cause filed an Intervention Application in the Suo Moto Writ Petition in which the Apex Court has taken cognisance on issues related to oxygen supply, drug supply, and vaccine policy in relation to the Covid-19 pandemic. The Application seeks directions to the Centre to revise the guidelines for implementation of the National Covid Vaccination Program dated June 8, 2021, specifically relating to the allocation of up to 25 per cent of the vaccine produced in India to private hospitals. Alternatively, we have prayed for directions to the central government to modify its revised guidelines for implementation of the National Covid Vaccination Program in such a manner that it is able to achieve free vaccination expeditiously. No guideline should curtail its capacity to procure 100 per cent vaccines manufactured in India. The IA also urges all the stakeholders, both public and private, to be transparent in the procurement and allotment of vaccines, as well as ascertain accountability for ensuring transparency
Illegal Mining in Odisha
This matter was listed thrice in January 2021, where some interlocutory applications filed by interested parties were disposed.
Writ for Police Reforms
The battle for police reforms has been going on for the last 22 years. The Supreme Court took 10 years to give a historic judgment in 2006, in the petition filed by Prakash Singh, Common Cause and NK Singh. Since then, it has been a struggle to get the Court’s directions implemented. On July 3, 2018, responding to an interlocutory application filed by the MHA regarding the appointment of acting Director General of Police (DGP) in the states, the Supreme Court gave a slew of directions to ensure that there were no distortions in such appointments. It laid down that the states shall send their proposals to the UPSC three months prior to the retirement of the incumbent DGP. The UPSC shall then prepare a panel of three officers so that the state can appoint one of them as DGP
To curb the practice of appointing Acting DGPs by the states, the Court directed that the UPSC should ideally empanel officers who have at least two years of service left, giving due weightage to merit and seniority. It also held that any legislation/ rule framed by the states or the central government running counter to the direction shall remain in abeyance.
On March 13, 2019, a threejudge Bench of the SC, headed by the CJI, passed judgment in the said IA. Clarifying its order of July 3, 2019, the Bench said that the SC directions recommended that DGP appointments should be done by the UPSC by constituting a panel, selected purely on the basis of merit. It should feature officers who have a minimum residual tenure of six months, i.e., officers who have at least six months of service prior to retirement. The matter was taken up on April 12, 2019 where the SC dismissed a contempt petition filed against appointment of DGP Nagaland.
On June 12, 2021, the Court, while disposing an IA filed by the State of Tripura, said: “we consider it appropriate to direct that the UPSC shall prepare a panel for appointment of a Director General of Police for the State of Tripura on the basis of merit from out of candidates who have a minimum qualifying experience of 25 years instead of 30 years. We order accordingly. The instant interlocutory application for directions is disposed of in the above terms. This order shall not be treated as a precedent.”
Introduction of Electoral Bonds Challenged
Common Cause and the Association for Democratic Reforms (ADR) challenged the introduction of Electoral Bonds, which was introduced by amending the Finance Act 2017. These bonds have not only made electoral funding of political parties more opaque, but have also legitimised high-level corruption at an unprecedented scale by removing funding limits for big corporates and opening the route of electoral funding for foreign lobbyists. The PIL sought direction from the Supreme Court to strike down the amendments brought in illegally as a “Money Bill” in order to bypass the Rajya Sabha. On October 3, 2017, notice was issued to the Union of India and other respondents and on February 2, 2018, our petition was tagged with the one filed by the Communist Party of India (Marxist), also challenging the electoral bond scheme.
On March 14, 2019, the Centre, in its affidavit filed in the SC, claimed that electoral bonds would “promote transparency in funding and donation received by political parties.” The matter was taken up on March 26, 2019 when the Election Commission of India (EC) again red flagged the bonds scheme, conveying that it had expressed concerns about it even in 2017. The EC in its affidavit said that the electoral bond project and removal of caps on the extent of corporate funding would have “serious repercussions/impact on the transparency aspect of political finance/ funding of political parties.” Thereafter on April 12, 2019, the SC declined to stay the EB scheme ahead of the 2019 General Elections. It further observed that the question could not be determined on the basis of a short hearing, and that any interim orders of the court must not have the effect of tilting the balance in favour of any political party.
Ahead of the Assembly elections in four states and a Union Territory (UT), an application was filed again in the Supreme Court on March 6, 2021. This was to stop the sale of electoral bonds till their validity, already under examination by the Apex Court, was finally decided.
On March 26, 2021, the SC dismissed the application, saying that it did not find any justification to stay fresh sales of electoral bonds ahead of the Assembly elections in West Bengal, Tamil Nadu, Kerala, Assam and the Union Territory of Puducherry. The Bench, headed by Chief Justice S.A. Bobde, declined to stay their sale, noting that the bonds were allowed to be released in 2018 and 2019 without interruption and that “sufficient safeguards are there.” The EC, which had red flagged the issue in 2017 and 2019, took a different stand. Senior advocate Rakesh Dwivedi appearing for EC said: “The issue of transparency can be considered at the final argument stage, and there should be no interim stay.” Dwivedi added that the stay on electoral bonds would mean going back to the era of unaccounted cash transfers.
Representations Representation for prioritisation of vaccination for Persons with Disabilities (PwD)
On June 1, 2021, Common Cause sent representations for prioritising vaccine access for PwD to then Health Minister, Dr Harsh Vardhan, as well as all the states and the Government of NCT of Delhi.
We urged the authorities to immediately take all measures to ensure prioritisation of vaccination for PwD, who continue to face exclusion, discrimination, and neglect. Some of our suggestions included giving priority access to vaccinations to PwD, along with personal assistants, family care-givers, and persons working in disability-related services. We have also urged authorities to conduct specific outreach to ensure that persons with disabilities are aware of the availability of vaccines. It should also be made certain that all information campaigns are inclusive, accessible and age/ gender appropriate. In addition, the authorities at all levels must introduce helpline numbers with access to trained physicians and counsellors to allay fears concerning vaccination of the PwD as well as their guardians/ caregivers. All information systems related to vaccinations must also collect data disaggregated by age, gender and disability, and web-based services should be fully accessible, while ensuring respect for privacy and confidentiality of health-related information.
Representation in response to Draft Model Rules for Live-Streaming and Recording of Court Proceedings
Common Cause sent suggestions to the e-Committee, Supreme Court of India, on Draft Model Rules for Live-Streaming and Recording of Court Proceedings on June 30, 2021. Our suggestions included spelling out a time frame for the implementation of the draft model rules, in order to ensure functional interoperability. In this regard Common Cause also suggested the hiring of consultants for effective and timely implementation of targets. We asked the authorities to consider as precedents the computerisation of the Income Tax department or Indian Railways (RITES) in the context of outsourcing the target implementation to consultants. We also recommended that cases of sensitive nature, such as matters relating to child abuse or sexual abuse be exempt from the live/deferred webcasting of cases. Further, personal and private information of the parties, including the witnesses, should be protected through proper data protection rules enforced in concomitance with the rules for streaming of Court proceedings. The consent of all the parties in cases of sensitive nature should be taken before the broadcasting of the proceedings. In case a party wishes to exclude itself from the broadcasting, such opportunity may be provided to it in advance.
