Common Cause Case Updates

Supreme Court Cases Illegal Mining in Odisha: While disposing of the IA filed by Common Cause (I.A. NO. 42571/2023) focussed on directing the Union of India and the State of Odisha to impose a limit on the extraction of minerals, the Court on December 4, 2023, directed the Ministry of Environment, Forests and Climate Change to file an affidavit in pursuance of the Court’s directions of August 14, 2023. The Court observed that since several aspects that were engaging the Court’s attention would have a bearing on sustainable development and inter-generational equity, it would be appropriate for the Ministry to file an affidavit. Such an affidavit was directed to be filed within four weeks, based on the Ministry’s independent assessment.

The State of Odisha was directed to elaborate in its affidavit the steps taken to (i) Recover the outstanding dues, and (ii) Attach the assets of the defaulters. The Court directed that the affidavit shall specifically clarify the extent of the recoveries which have been made after the Court’s previous order dated 14 August 2023 as well as indicate a specific timeline for the action which is proposed and the schedule for the recovery of the balance outstanding. The affidavit filed by the Joint Secretary, Ministry of Mines in pursuance of the order dated August 14, 2023 of the Court was taken on record.

The matter was subsequently listed in January and February 2024, where the applications filed by the other parties were heard by the Court. The matter is likely to be listed on April 5, 2024.

Petition to Restrain the use of Public Funds for Political Campaigning Through Government Advertisements: The Supreme Court in its judgment dated May 13, 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. Despite the clear direction, the states continued publishing advertisements using public funds.

Common Cause filed a petition in 2022 to restrain the unnecessary use of public funds on government advertisements in ways that were completely malafide and arbitrary and amounted to a 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:

A notice was issued on September 26, 2022, by Justice DY Chandrachud and Justice Hima Kohli. Presently, the matter is pending before the Registrar H. Shashidhara Shetty. As only five states have filed their counter affidavit, on August 10, 2023, the respondents were given four weeks 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 on previous several occasions. On November 6, 2023, the court of the Registrar ordered to list the matter for hearing before the bench after four weeks. On November 6, 2023, the Court directed that the matter be listed after 4 weeks irrespective of the counter being filed or not. The matter is likely to be listed on May 17, 2024.

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 has led to the submission of draft rules by the Bar Council of India (BCI). Earlier the Court had expressed displeasure over the lack of proper action on the part of BCI.

On January 24, 2024, when the draft rules were placed before the Court, the counsel for BCI stated that the rules suggested by Common Cause counsel, Mr Prashant Bhushan had been taken into consideration. However, Mr Bhushan disagreed with this statement. The BCI counsel had stated that the rules may be examined by the Court and suggestion of the Court, if any, shall be accepted by the BCI without any condition. Observing that the rules needed to be examined in detail the Court directed that the petitions be listed on February 6, 2024.

During the hearing on February 6, 2024, arguments by the counsels were heard by the Court. On February 9, 2024, the Court appointed Justice Muralidhar, as Amicus, to examine the rules in the context of the existing judgments objections as filed by Mr. Bhushan, and to submit his report. It also granted an opportunity of hearing, if needed, to the parties and directed the registry to relist the matter on May 3, 2024.

Petition Challenging the Introduction of Electoral Bonds: On February 15, 2024, the Court pronounced its judgment striking down the electoral bond scheme, holding it as unconstitutional. The bench held that the scheme violated the voters’ right to information enshrined in Article 19(1)(a) of the Constitution. The Court also struck down the amendments made to the Income Tax Act and the Representation of the People Act, which enabled such anonymous political contributions. This ruling represents a rare instance of the Court taking the extreme step of rejecting almost every argument of the government to declare the EB scheme altogether unconstitutional. However, what’s most uplifting about the judgment is that it expanded, with transparency and accountability in mind, the scope of the right to information under Article 19(1) (a) of the Constitution. This will further strengthen the freedom of the citizens to exercise their right to vote more responsibly. As highlighted by CJI DY Chandrachud, the “information about funding of political parties is essential for the effective exercise of the choice of voting”.

Common Cause and the Association for Democratic Reforms (ADR) had challenged the constitutionality of the Electoral Bonds scheme, which was introduced by amending the 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. Looking at the current data, electoral bonds had 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 assumed great significance.

On October 10, 2023, the submissions by the parties were completed and the Court directed the nodal counsel to file all the submissions online. On October 16, 2023, the petitioners approached the Court during mentioning, to hear the case prior to the 2024 general elections. A bench led by Chief Justice D.Y. Chandrachud, with Justices J.B. Pardiwala, and Manoj Misra, noting the “importance of the issue” referred the case to a five-judge Constitution bench. On October 31, 2023, the five-judge Constitution bench heard arguments over three days.

In its verdict on February 15, 2024, SC quashed electoral bonds, terming it illegal and directed the SBI to furnish the details to the Election Commission by March 6, 2024. However, two days before the deadline, SBI filed a Miscellaneous Application seeking an extension of time till June 30, 2024, citing operational difficulties. The petitioners moved a contempt plea in the SC on March 7, 2024, challenging the SBI’s application seeking an extension of time till June 30, 2024, to disclose the details of each electoral bond encashed by the political parties.

A bench headed by Chief Justice D Y Chandrachud took note of the submissions made by Mr. Prashant Bhushan, the lawyer for the petitioners, that he was seeking initiation of contempt proceedings in the case. As the SBI’s plea was likely to be listed on March 11, 2024, the contempt application should also be heard together. To this, the CJI responded by saying “Please send an e-mail. I will pass the order,” On March 11, 2024, the SC disposed the MA as well as the contempt petition filed by SBI stating:

“In view of the discussion, the Miscellaneous Application filed by the SBI seeking an extension of time for the disclosure of details of the purchase and redemption of Electoral Bonds until June 30, 2024 is dismissed. SBI is directed to disclose the details by the close of business hours on March 12, 2024.

The SBI shall file an affidavit of its Chairman and Managing Director upon compliance with the directions which have been issued above. We are not inclined to exercise the contempt jurisdiction at this stage bearing in mind the application which was submitted for extension of time. However, we place SBI on notice that this Court will be inclined to proceed against it for willful disobedience of the judgment if SBI does not comply with the directions of this Court as set out in its judgment dated February 15, 2024 by the timelines indicated in this order. The Miscellaneous Application for extension of time shall accordingly stand dismissed. The Contempt Petitions shall stand disposed of at this stage in the above terms.”