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 writ petitions, the Apex Court had raised the mining limits as well as allowed parties to lessen their contribution towards Special Purpose Vehicle (SPV) 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 manner. 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 was taken up several times during May 2023 till June 2023.
The Court directed that the applicant mining company be granted three months’ time to sell the iron ore in question, else it will be open to the respondent – State to take over and sell the iron ore in question. The Court directed that the amount so realised from the sale shall mandatorily be credited to the SPV in terms of the Courts order dated August 2, 2017. In the meantime, the Court granted the State the liberty to simultaneously begin the process for conducting the auction of the Leasehold Area in accordance with law and also to proceed with the recovery of the amount due from the applicant, which is said to be in the region of Rs. 600 crores plus interest.
On May 1, 2023 the Court noted that “from the perusal of the affidavit filed in response (Annexure A/1), it is clear that only a sum of Rs.305.32 Crores has been recovered in terms of compensation due from the defaulters. This is when total amount of compensation is reckoned as 3308.35 Crores. It is clear that the balance amount excluding interest shown due is Rs.3003.03 Crores. A supplementary affidavit to be filed by the Respondent-State indicating as to for what reason the entire amount has not been recovered and what steps have been taken for speedy recovery of the entire amount.” The matter is likely to be listed on July 10, 2023.
Miscellaneous Application (MA No 1756 of 2022 in WP(C) No 1374/2020) 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 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 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. The Court concluded the hearing and on May 8, 2023 judgment was reserved.
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), and 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 is 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. In view of the above submission, on the request of the Attorney General, the Court directed that the proceedings be posted on 8 August 2023.
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 further time yet again 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 similar issues, order has been reserved. 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 has 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 is likely to be listed on July 17, 2023.
