Common Cause Updates
Illegal Mining in Odisha: The matter was listed several times in 2023, where interlocutory applications filed by interested parties were disposed of and directions issued on penalties to be paid. In two related WPs, the Apex Court had raised the mining limits as well as allowed parties to lessen their contribution towards Special Purpose Vehicle formed.
On February 23, 2023 Common Cause filed an IA focussed on directing the Union of India and State of Odisha to impose limit on extraction of minerals and on constituting a committee of two or three independent experts to suggest and recommend such limit to be imposed on the extraction of iron ore in the State of Odisha and submit its report in a time-bound matter. The IA also asked for a status report with regard to amount of penalty deposited by the lessees till date (as well as the amount that is yet to be recovered) as directed in judgment dated 02.08.2017 as well as lease-wise details of the ore reserve, extraction permitted, current status of mining lease and also total iron ore reserves and total permitted extraction in the State.
Other than this, the IA seeks complete details of the work done for the benefits of tribal community in the affected districts and other area development works. As it involves public money in such a large quantity, the Special Purpose Vehicle (SPV) must fall under the purview of the Comptroller and Auditor General of India and the audit accounts of the receipts and expenditure of the SPV must be provided to the Apex Court. The matter was taken up on February 27, 2023, where the Court directed the service of IA to the standing counsel for the Union of India. Subsequently the matter was listed on March 17 and April 6, 2023 when the Court heard the IAs filed by the parties. The matter is likely to be listed on May 1, 2023.
Miscellaneous Application (MA No 1756/2022) 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 Justice BR Gavai and Justice 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 WP 1106/2022, 456/2022, 204/2022 and MA 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.
Petition to Completely Ban Export of Iron Ore: Common Cause filed a writ petition in April 2021, to completely ban the export of iron ore (whether in the form of pellets or otherwise). Alternatively, it sought the levy of export duty of 30%, on the export of iron ore in all forms, including pellets (except pellets manufactured and exported by KIOCL, formerly known as Kudremukh Iron Ore Company Limited). The petition also prayed to initiate proceedings under Section 11 of the Foreign Trade (Development & Regulation) Act, 1992 and Section 135(1) of the Customs Act, 1962. In addition, it sought the levy of appropriate penalty as per law against mining companies exporting iron ore pellets in contravention of the provisions of India’s export policy. By exporting iron ore pellets, they have been evading the duty chargeable on the commodity. In addition, the petition prayed for a thorough and independent investigation into the role of public officials in allowing the same. Notice was issued on September 24, 2021, directing the respondents to file their response within four weeks from the date of the order. The UOI filed its response on November 11, 2021, which was taken on record by the Court. The Union of India was directed to provide a copy of the counter affidavit to the counsel for the petitioner. Rejoinder affidavit, if any, was directed to be filed, in the meantime. The matter was taken up on February 18, 2022 when upon hearing the counsel, the Court ordered the matter to be listed on March 9, 2022 for final disposal. Further date was granted in the matter on March 22, 2022.
However, on May 21, 2022 the government increased the export duty from 0% to 45% on iron ore pellets. Recently, the export duties on certain steel products and iron ore imposed in late-May were removed and the duty on iron ore pellets has been reduced to nil again. The matter was taken up on January 17, 2023 and after hearing the counsels, the Court directed the matter to be listed for March 29, 2023. On the said date the Court heard the IAs filed by the parties and directed the matter to be listed for May 9, 2023.
Miscellaneous Application in Right to Living Will (MA No 1699/2019): On November 23, 2022, Justices KM Joseph, Ajay Rastogi, Aniruddha Bose, Hrishikesh Roy and CT Ravikumar heard SG Tushar Mehta, Mr Bhushan, Mr Datar and Dr RR Kishore. It was brought to the Court’s notice that efforts have been undertaken to engage the attention of the Ministry of Health, Union of India and the efforts may have to be made to arrive at suitable draft guidelines which can be placed before the Court for consideration.
On January 17, 2023 the Constitution Bench led by Justice KM Joseph heard the application to modify the SC’s 2018 Judgment which recognised the right to die with dignity and provided guidelines for terminally ill patients to refuse further treatment. The 2018 judgment also recognised the validity of ‘Advance Directives’, allowing individuals to provide instructions on how to proceed if they become terminally ill, unable to communicate their wishes and seek to refuse treatment.
The Indian Society for Critical Care Medicine (ISCCM) had filed a Miscellaneous Application in July 2019 claiming the SC’s guidelines were cumbersome and very few Advance Directives (ADs) were accepted and implemented. The Court directed the counsels to prepare a chart comparing the SC’s 2018 guidelines along with the changes suggested by the parties for the hearing on January 18, 2023.
On January 18, 2023, the counsel for the petitioner attempted to convince the Bench to include persons in a ‘permanent vegetative state’ who are not at risk of death but have no hope of recovery and no ability to communicate their wishes. This was not accepted by the Bench. It was suggested that instead of requiring the Judicial Magistrate to sign the AD, it can simply be attested by a notary public. The Bench appeared to be more amenable to this suggestion, although Justice Joseph suggested that someone should keep a copy of the AD for counterchecking purposes. The counsel provided a possible solution referring to the government portal maintained by the National Digital Health Commission. It was suggested that individuals could upload their ADs to the portal and it could be made available to doctors in the hospital where they eventually sought treatment. Removing the requirement for a second medical board to review the decision of the primary medical board, as well as limiting the number of members to three was also suggested. It was claimed that this would make the process more efficient. The Bench mandated a fourmember board comprising the treating physician and three ‘subject-experts’.
On January 19, 2023, the Bench directed the parties to submit a joint proposal by January 24, 2023. On January 24, 2023, the Bench orally delivered the order and accepted the joint proposal submitted by ISCC and the Union of India, subject to the minor changes proposed by the Bench during the hearings. The order contains a table of all the changes. Before concluding the proceedings, Sr. Adv. Datar gave the Bench a parting gift. Each judge received a signed copy of Arun Shourie’s book ‘Preparing: For Death’.
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 Bar Council of India prayed for yet further time to complete all his instructions as also to advice appropriately. On March 28, 2023 the Court taking note of the submissions made by learned counsel, appearing for the Bar Council of India in their affidavit dated 13.03.2023 and providing them time to take the contemplated processes to finality, deferred consideration of the matters to April 17, 2023. On April 17, 2023 the Chairman, Bar Council of India, informed the Court that further process was actively being taken up as regards the framing of Rules. He has also indicated that in another matter involving akin issues, order has been reserved in. Taking note of the submissions the Court listed the matter for May 8,.2023, as prayed.
Introduction of Electoral Bonds Challenged: On March 21, 2023, the Supreme Court said it would consider whether the pleas challenging the validity of the electoral bond scheme for political funding of COMMON CAUSE | Vol. XLII No. 1 January-March, 2023 | 35 parties could be referred to a Constitutional Bench for an “authoritative pronouncement”. Looking at the current data, Electoral bonds have legitimised unaccounted-for money to the tune of more than Rs 12,000 crores in our electoral and political process, where the citizens do not know the names of the donors. Under the circumstances, the Court’s observations to decide whether the pleas could be referred to a Constitution Bench assume great significance.
Common Cause and the Association for Democratic Reforms (ADR) challenged the introduction of Electoral Bonds, which was introduced by amending Finance Act 2017. These bonds have not only made electoral funding of political parties more opaque, but 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 November 22, 2022, a new petition challenging the government notification allowing the sale of electoral bonds for an additional 15 days in Assembly election years was tagged with our case. This petition filed by Dr Jaya Thakur sought the quashing of the November 7, 2022 notification issued by the Finance Ministry amending the electoral bonds scheme. “An additional period of 15 days shall be specified by the central government in the year of general elections to the legislative assembly of states and Union territories with the legislature,” the gazette notification had said. Earlier, a 30-day extra period for sale was allowed only in Lok Sabha election year.
On March 21, 2023, the Court granted three weeks’ time to the Union of India to file its counter affidavit. It also appointed two lawyers from both the petitioner as well as respondents’ side to act as nodal counsel for ensuring a smooth hearing of the PILs, and directed them to prepare a common compilation containing the written submissions, copies of judgments and any other material that the parties seek to rely upon at the time of the hearing. However, the matter could not be taken up on April 11, 2023 as dictated by the SC and is likely to be taken up on April 25, 2023.
Writ for Supreme Court Directions on Police Reforms: The battle for police reforms has been going on for the last 26 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 Ministry of Home Affairs 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. In October 2022 and December 2022, the Court entertained applications filed by the State of Nagaland and the UPSC to finalise the names of DGP for the state. The matter is directed to be listed for January 9, 2023. In January 2023, the matter was listed twice, when the Court decided on the IA filed by the State of Nagaland on appointment of DGP
