Annual Report

2023 has been a steady and productive year for Common Cause. Several of our PILs were taken up during the year with judgment being reserved by a Constitutional Bench in the Electoral Bonds case in which Common Cause is a co-petitioner. The organisation brought out its sixth flagship study, the Status of Policing in India Report 2023 on Surveillance and the Question of Privacy and started work on the next report dedicated to the use of force, violence and torture by the police, to be released in 2024. We also continued our advocacy around the rule of law and governance reforms. As part of engagement with students and young people, we helped in conceptualising and introducing a full-fledged academic course on Development and the Rule of Law at the Shiv Nadar University recognised as an institution of Eminence.

Advocacy and Research Initiatives:

(a) Police Reforms Status of Policing in India Report (SPIR) 2024

The Status of Policing in India Report (SPIR), a policy-oriented study of law enforcement in India, which has become an important part of the organisation’s portfolio of activities since 2018, is continuing despite all odds. Our main philanthropic partner, the Tata Trusts, discontinued support beyond the first four reports ending in 2021 but we were able to sustain the endeavour, thanks to continuation of project grants from the Lal Family Foundation. Many other philanthropies have admired the reports and shown deep interest in the organisation’s police reforms programme but their praise is yet to get translated into tangible grants.

However, it is gratifying to note that the year 2024 will see the sixth comprehensive and nationwide SPIR on policing, the use of violence and custodial torture in India. Like all our earlier reports, this too will be first study of its kind in India on the subject. The main aim is to examine the nature, causes of and factors that contribute to the perpetuation of violence by the police in India. The term violence is used to clarify that the report’s focus is distinct from the lawful use of force by police. While each of the previous SPIRs addresses police violence in some way or the other, this report seeks to offer analysis as to why violence is normalised in police practice, in spite of legal safeguards and institutional mechanisms in place to prevent it.

As part of this study, elaborate surveys are being conducted with police personnel across the country on their views, experience and attitudes towards custodial violence. The team is also analysing the existing official data and conducting in-depth interviews with key stakeholders of custodial violence including doctors and magistrates, also a first of its kind. The surveys for the SPIR series are being steered by the Lokniti network of the Centre for the Study of Developing Societies (CSDS) our long-term academic partners. The earlier SPIR studies have covered citizens’ trust/ satisfaction in the police, police attitudes, working conditions, policing during the pandemic/ insurgency and digital surveillance by the state and the police in India.

Translation of the SPIR series into Hindi

A modest effort to translate the SPIR studies into Hindi started in the beginning of this year and is continuing. So far, about two third of the translation work has been completed for the reports on citizens’ trust and satisfaction in the police, a Study of Performances and Perceptions (SPIR 2018), and Policing in the Covid-19 Pandemic (SPIR 2020-21, Volume1). The reports will be released sometime in 2024. We hope that this will be a precursor to their translations in other major Indian languages.

(b) India Justice Report 2024

Common Cause continues to bring out the India justice Report (IJR) along with its partners, Commonwealth Human Rights Initiative (CHRI), Centre for Social Justice, Daksha, TISSPrayas, and Vidhi Centre for Legal Policy, under the chief editorship of Ms Maja Daruwala. The IJR uses the official statistics, compiled and brought out by the government agencies, to rank the capacity of the justice system operating in various states of India. The IJR tracks improvements and deficits in each Indian state’s capacity to deliver justice based on quantitative measurements of budgets, human resources, infrastructure, workload and diversity across the four pillars of the justice system, i.e., police, prisons, judiciary, and legal aid.

IMORTANT EVENTS

SPIR 2023 Launch – India Habitat Centre, New Delhi, March 21, 2023

Common Cause in collaboration with Lokniti Programme at the Centre for the Study of Developing Societies (CSDS) released the Status of Policing in India Report 2023: Surveillance and the Question of Privacy (SPIR 2023) on March 31, 2023.

Radhika Jha, the lead researcher of SPIR, began the event with a brief introduction of the survey and the research followed by Dr Sanjay Kumar, Co-Director of Lokniti programme of CSDS, talking about the methodology used in SPIR 2023. Dr Vipul Mudgal, the Director of Common Cause, explained how SPIR 2023 tried to make sense of public attitudes and the use of surveillance technologies by the government and police. Justice Jasti Chelameswar, former Judge, Supreme Court of India who was part of the nine-judge bench that recognised Right to Privacy gave the Keynote Address and made a strong pitch for enacting a law to regulate data collection.

The well-attended event also featured a panel discussion on rethinking surveillance which was moderated by transparency and accountability activist Ms Anjali Bhardwaj. The speakers were Mr Prakash Singh, former DGP of Uttar Pradesh, Assam, BSF, and Chairman, Indian Police Foundation; Prof. Ruchi Sinha, Associate Professor of Criminology at the Tata Institute of Social Sciences, Mumbai; and Mr Apar Gupta, Executive Director, Internet Freedom Foundation. The speakers also took questions from the audience.

IJR 2023 Launch – India International Centre, New Delhi, April 04, 2023

Common Cause in collaboration with Centre for Social Justice, Commonwealth Human Rights Initiative, DAKSH, TISS-Prayas and Vidhi Centre for Legal Policy released the India Justice Report 2023 (IJR 2023) on April 04, 2023. Introducing the report, the Chief Editor of India Justice Report, Ms Maja Daruwala, pointed out how India still has a long way to go in achieving access to justice for everyone and that making justice affordable, efficient and accessible.

The keynote address by Dr Bibek Debroy, Chairman of the Prime Minister’s Economic Advisory Council, was about access to justice and highlighted issues that may be addressed in the future editions of IJR. Former Supreme Court Judge, Justice (Retd) Madan Lokur also joined virtually and shared his views on the improvement made by the states. Speaking on the occasion, Common Cause Director, Dr Vipul Mudgal emphasised that the police fell short of expectations because of miserable allocations for the training of the staff. The key findings of the report were later highlighted and discussed.

(c) Seminars/Webinars and Conferences: Justice Capacity in Karnataka: A Data-Driven Perspective - January 21, 2023

Ms Radhika Jha from Common Cause participated as a speaker in a seminar on ‘Justice Capacity in Karnataka: A Data- Driven Perspective’, organised by the India Justice Report team, in collaboration with the Vidhi Centre for Legal Policy and Deccan Herald, in Bangalore on January 21, 2023. Mr TM Vijay Bhasker, Chairman, Administrative Reforms Commission gave the inaugural address, followed by expert panels that discussed the capacity of justice delivery systems in Karnataka across the four pillars of police, prisons, judiciary and legal aid. The panels featured representatives from CHRI, Daksh, Dhwani Legal Trust, The Justice Initiative and Vidhi Centre for Legal Policy, along with representatives from government agencies such as KLSLA, prisons and judiciary.

139th National RTI Webinar - February 19, 2023

Common Cause Director participated as a keynote speaker at a webinar jointly organised by the RTI Revolutionary Group of India, National Federation of Societies for Fast Justice (NFSFFJ) and Mission Free Legal Education to discuss “While most Indians are becoming poorer, how MPs and MLAs accumulate huge wealth within a few years of being elected”. The other notable speakers present included Dr. Jagdeep Chhokar of the Association for Democratic Reforms (ADR), Dr Hari Desai of IJC, former CIC Mr Shailesh

Gandhi, former and current SICs of MP, Mr Aatmdeep and Mr Rahul Singh, along with Mr Pravin Patel, General Secretary NFSFFJ.

CJAR & LiveLaw Seminar on Judicial Appointments & Reforms - February 18, 2023

Campaign for Judicial Accountability and Reforms with media partner LiveLaw organised a seminar and brought together Former Chief Justice of India, Supreme Court and High Court Judges, academics, lawyers and experts from the field to talk about Judicial Appointments and Reforms. The event featured three sessions on: Executive Interference in Judicial Appointments, building a Transparent and Accountable Collegium and Principles and Framework for Judicial Appointments, which were followed by a round of Q & A. Common Cause was represented by Ms Radhika Jha, Ms Anshi Beohar, and Dr Vipul Mudgal.

International Seminar on Media and Development: Retrospect and Prospect, Manipal University, Jaipur - May 12, 2023

Director Common Cause Dr Vipul Mudgal joined Ms Lyndee Prickitt, the Director of Village Square and Prof Sanjeev Bhanawat, formerly of Rajasthan University at an International Seminar on Media and Development: Retrospect and Prospect held at Manipal University, Jaipur, on May 12, 2023. The issued covered at the seminar included the significance of the Sustainable Development Goals (SDGs), the function of alternative media, and the role of the media in connection to rural development. The Chief Guest at the event was Prof (Dr) Ram Mohan Pathak, former Vice Chancellor, Nehru Gram Bharti, Prayagraj.

In his keynote address, Dr Mudgal highlighting the dilemmas of rural India facing multiple crises such as lack of investment, low productivity, agrarian distress, and dismal social indicators. He introduced im4change.org, a repository for media persons on issues affecting marginalised communities in rural India. The event concluded with a question & answer session.

India Justice Report discussion by Citizens’ Forum India - Sept 16, 2023

The Citizens’ Forum India organised a virtual discussion on India Justice Report (IJR) and invited two of its authors, Radhika Jha of Common Cause and Nayanika Singhal of India Justice Report to speak. Ms. Radhika Jha elaborated on the role of the police, one of the four pillars of the justice system. She spoke about the low expenditure on police training, slow filling of vacancies, dismal diversity in the police force and other indicators used in the report.

(d) Meetings with Academics/Faculties and Experts: Run up to SPIR 2024

The Common Cause team reached out to various reputed national and international experts and academics in the field of criminology and policing for discussions around the ongoing SPIR and other research projects. Individual meetings were held with Prof Beatrice Jauregui from the University of Toronto, Prof Andrew Ferguson from Washington University, Prof Arvind Verma, from Pennsylvania University and Prof Shishir Jha, Dr Kalindi Kokal and Prof Parthasarthy from the Ashok Desai Centre for Policy Studies, IIT Mumbai.

Mineral Inheritors Rights Association (MIRA) meeting - August 28, 2023

Common Cause team participated in a meeting of the Mineral Inheritors Rights Association (MIRA) on August 28, 2023. The meeting started with various stakeholders from the mining-affected regions raising their issues and MIRA members attempting to resolve them. Following this, Vaishnavi Varadarajan of International Accountability Project (IAP) delivered a talk on the Early Warning System (EWS), the first web-based tool to organise, summarise and standardise projects at 13 development finance institutions and extending support to people affected by the proposed mining project.

16th National Conference of the Association for Democratic Reforms (ADR) Gokhle Institute, Pune, July 15-16, 2023

The Association for Democratic Reforms (ADR) and the Maharashtra Election Watch (MEW) organised the 16th Annual National Conference at the Gokhale Institute of Politics and Economics (GIPE), Pune, on July 15 and 16, 2023. Released at the event were the ‘Analysis of Sitting MLAs from 28 State Assemblies and 2 Union Territories of India 2023 Report’ and the ADR’s Annual Report for FY 2022-23. The two-day event started with a focus on the urgent requirement of addressing the most pressing problems in the electoral and political arena. Keynote speakers at the event included Justice (Retd) Narendra Chapalgaonkar, former CEC of India Dr Nasim Zaidi while Dr Vipul Mudgal, Director Common Cause and Trustee, ADR, participated in a panel discussion on decoding the controversial electoral bonds scheme which the two organisations have challenged in the court.

26th Meeting of Chemical Division Council, Bureau of Indian Standards - February 15, 2023:

Common Cause’s Swapna Jha represented the organisation in the 26th Annual meeting of the Chemical Division Council, Bureau of Indian Standards on February 15, 2023.

Lecture on Indian Legal System and Access to Justice - August 29, 2023

Radhika Jha, Lead (Rule of Law Programme) at Common Cause was invited to deliver a guest lecture to the law students from the National Law School of India University (NLSIU), Bangalore, on Police violence and discrimination in India on August 29, 2023. The lecture focused on findings of the SPIR series that highlighted the systemic biases within the police in India. Simultaneously, the students were introduced to survey methodology as a research tool for studying the Indian criminal justice system. It was part of an elective course titled ‘Indian Legal System and Access to Justice’.

Police Reforms Day, 2023 - Mumbai, September 22, 2023

Common Cause joined the Indian Police Foundation (IPF) and Public Concern for Governance Trust (PCGT) to observe the Police Reforms Day, 2023, at a well-attended function that was held at the Hall of Culture, Nehru Centre, Mumbai. Hon’ble Justice Gautam Shirish Patel, a sitting Judge of the Bombay High Court, was the chief guest of the event. Speaking on behalf of Common Cause, a co-organiser of the function, its Director, Dr Vipul Mudgal highlighted the civil society’s unique perspective to policing. He said the civil

society wants an effective and accountable policing where the balance of power is not tilted in favour of the rich and the powerful. Their real obligation, therefore, is not only to control crime and maintain peace but to do so while treating people with dignity and respect, he said. He said that there must be consequences for violating the law even for the police. When someone is tortured or killed in custody, or in a fake encounter, the guilty must face the punishment for murder. We understand that politicians are also to blame but most custodial killing do not happen because of the politician – they happen because the officers responsible know that they can escape the consequences. And, that is why, we want a fine balance between effective & accountable policing, he said.

One of the highlights of the day was to confer a Lifetime Achievement Honour on a highly decorated former police officer Julio F. Ribeiro. Mr Ribeiro, 94, served as Mumbai Commissioner of Police and Director General of CRPF. Speaking on the relationship between police and politicians Mr Ribeiro candidly spoke in favour of operational independence of the force without undue interference of the political executive. The other notable speakers included the IPF’s Chairman Emeritus Mr Prakash Singh, Acting Chairman, Mr M L Kumawat and its President Mr N Ramachandran.

India’s Justice SystemAchieving Consumer Satisfaction – Nov 5, 2023

Speaking as the keynote speaker Dr Vipul Mudgal, Director of Common Cause emphasised on the need for extensive police reforms. He said that a prosperous and forwardlooking nation cannot be built on an archaic justice system. He also apprised the audience of activists and intellectuals with the vision of Mr H.D. Shourie, the founder of Common Cause who laid the foundation of public interest litigation in India. Highlighting the organisation’s mission to work for probity in public life and governance reforms, he introduced some of the organisation’s landmark PILs such as Prakash Singh v UOI; the ‘living will’ case, banning of the unscrupulous business of private blood banks, and controversial appointments of CBI directors, among others. The well-attended meeting was chaired by the Chief Editor of the India Justice Report, Ms Maja Daruwala.

Academic Curriculum on ‘Development and the Rule of Law in India’ at Shiv Nadar University – October 30 to November 06, 2023

The Common Cause team comprising its Director Dr Vipul Mudgal, Ms Devika Prasad and Mr Udit Singh successfully conducted an extensive and in-depth Academic Course on ‘Development and the Rule of Law in India’ for the students of MA (Rural Management) at Shiv Nadar University, Uttar Pradesh, from October 30 to November 06, 2023. This was a first attempt of its kind by Common Cause where its successive SPIR studies and IJRs formed the bedrock of an academic course at a leading university.

The Course was divided into 16 lectures delivered in four ninetyminute sessions devoted to the Indian Constitution and the Rule of Law; an introduction to policing in India; An introduction to India’s justice system; and a primer on Crime and Justice in Rural India, Prison System and Legal Aid.

The Course introduced the students to the foundational legal framework of the country and a critical examination of the functioning of justice institutions. It aimed to build amongst the students an understanding of the roles, scopes and importance of the various pillars of the country’s justice system, i.e., policing, judiciary, prisons and legal aid, and introduced them to concepts such as basic structure doctrine, fundamental rights, separation of powers and due process. A total of 42 students of MA (Rural Management) Program and several faculty members of the Shiv Nadar University attended the Course.

Training and Development of Staff

(a) Mohd Aasif, research executive at common cause, attended a quantitative research training program. It was organised by the CSDS as part of their summer workshop in Bangalore, Karnataka, from June 21, 2023 to July 1, 2023. The workshop aimed at sharpening the participants’ skills about quantitative data analysis which is extensively used by the organisation for its policing reports.

(b) Radhika Jha (Project lead, Rule of Law) and Mohd Aasif (Research Executive) attended one-day training workshop on qualitative research tool NVivo on October 18, 2023. It was organised by the Indian Population Council, India Habitat Centre, New Delhi. The one-day introductory course included the analysis of textual data and collective use of the software as a team.

(c) Ashok Kumar, assistant editor at IM4Change, attended a training workshop at Sambhaavnaa Institute, Palampur, Himachal Pradesh. It was four-day workshop on Petrochemicals, Plastics, and Politics from September 30 – October 3, 2023. It focused on harmful impacts of plastic use and the pollution caused in its disposal.

Special Training and Awareness Session on the Drafting of Living Wills - October 21, 2023

Common Cause Director, Dr Vipul Mudgal, was invited as a speaker and the Guest of Honour for a special training and awareness session on the Drafting of Living Wills. The event was organised by the Pro Bono Club from Maharashtra National Law University. Dr Mudgal said there was a need for setting up pro bono committees of lawyers and para legals at every law university in India. Explaining the process of writing a Living Will, he said the idea of passive euthanasia should not be confused with assisted deaths which continued to be illegal in

India. He explained to students that these are documents prepared by a person while he or she is in complete command of her/ his senses. Elaborating on who will finally operate the living will, he said there was a need to further simplify the procedure of writing and administering an advance medical directive (AMD) or a living will.

Ask Me Anything Conference

Dr Vipul Mudgal and Radhika Jha from Common Cause were invited for an Ask Me Anything session organised by 101Reporters and conducted by writer and journalist Ms Pranoti Abhyankar. Besides presentations on the rule of law and police reforms in India, there was a rich discussion on the role of media in making sense of policing. The session was centred around news stories that are trending and how to come up with ideas for grassroots stories that one can cover particularly about the rule of law. The online session was attended by a large number of working journalists across India.

Publications:

Book Reviews:

1. https://www.hindustantimes.com/books/review-libertyafter-freedom-by-rohan-jalva-101672926951217.html

About the triumph of due process within the scope of Article 21 of the Constitution (Liberty After Freedom by Rohan J Alva reviewed by Vipul Mudgal).

2. https://www.businessstandard.com/book/nano-tales-from-an-indianprison-123102501269_1.htm

A glimpse into the lives of prisoners in a colonial-era prison in Pune (From Phansi Yard by Sudha Bharadwaj, reviewed by Vipul Mudgal).

News Articles:

3. https://hindi.feminisminindia.com/2023/10/18/agriculturewomen-worker-daily-life-inrajasthan-hindi/

4. https://hindi.feminisminindia.com/2023/09/25/womenreservation-bill-obc-quotahindi/

5. https://hindi.feminisminindia.com/2023/09/18/indianpoliticians-crime-record-adrreport-hindi/

6. https://hindi.feminisminindia.com/2023/09/05/gender-ofcaste-charu-gupta-review-inhindi/

( All four articles by Ashok Kumar )

Public Interest Litigation Supreme Court Cases Illegal Mining in Odisha:

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 and submit its report in a time-bound matter. The IA also asked for an updated status report with regard to amount of penalty deposited by the lessees including the amount to be recovered, leasewise details of the ore reserve, extraction permitted, current status of mining lease, total iron ore reserves and total permitted extraction in the State as directed in judgment dated August 2, 2017.

Other than this, the IA sought complete details of the work done for the benefits of the tribal community in the affected districts and other area development works. As it involved public money in such a large quantity, the IA pointed that 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 October 2023. The Court directed that the applicant mining company be granted three months’ time to sell the iron ore in question, otherwise the State was granted the liberty 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 was 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.”

In its order of August 14, 2023, the Courts’ direction was as follows:

(i) 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

(ii) Hereafter, the terms and conditions of tender shall expressly clarify that no tender shall be entertained at the behest of an entity against which outstanding are due or companies in which the same promoters are interested.”

Our counsel, Mr Prashant Bhushan, highlighted the need for imposing a cap on mining in the State of Odisha as has been imposed both in respect of the States of Karnataka and Goa. In the note submitted by him, in the context of the State of Odisha, the data on the record indicated that the yearly mining permissions cover 58 leases with permissible excavation to the extent of 227.13 million tonnes and the total reserves was 4748.52 million tonnes. He pointed out that as a consequence of this, the reserves are liable to come to an end within twenty years.

The State of Odisha, submitted 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. In view of this the Union of India was directed to consider the position and decide whether a cap on mining was necessitated in the case of State of Odisha and, if so, the modalities to be followed for determining such a cap. The Union of India was also directed to examine the basis on which a cap was imposed in the States of Karnataka and Goa and file its affidavit on this aspect within a period of eight weeks. Regarding the request of Mr A D N Rao, Amicus Curiae, to entrust the task of submitting recommendations on the capping of mining to the CEC, the Court responded that it shall examine this aspect after the response is filed by the Union of India.

In its order dated October 10, 2023 the Court directed that the defects pointed out by the Office in the report under consideration may be cured within a period of three weeks from date, failing which the application for modification of the Court’s order dated February 27, 2023 shall stand dismissed without further reference to the Court. The matter is likely to be listed on December 15, 2023.

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 dated September 8, 2021 of the Supreme Court. The modification application, sought 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 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 reappointment of the ED Director.

This application was filed disguised as a Miscellaneous Application, instead of a 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.

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 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 vs. 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, 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 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

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’ time to file their counter affidavits. During the record of proceedings on September 21, 2023, the court of the Registrar declined the opportunity of filing counter 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. The matter is likely to be listed on December 8, 2023.

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 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 the request of the Attorney General and Solicitor General to defer considering whether a reference should be made to a larger bench, on the ground that Parliament is in the process of re-enacting the provisions of the Penal Code and the Bill has 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 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.

The court appointed advocates Prasanna S and Pooja Dhar as nodal counsels to facilitate the compilation of case laws and other materials before the hearing.

The Court directed the nodal counsel to prepare a common compilation of case law, documents and written submissions filed by the parties in terms of the Circular dated August 22, 2023 issued for regulating the course of submissions in larger bench cases. The parties were directed to file all submissions by December 31, 2023 with the nodal counsel. The nodal counsels were directed to prepare soft copies of the common compilations duly indexed in terms of the above circular, e-file the same on or before January 9, 2024 and make it available to all the parties. The Registry was directed to notify the date for hearing of the reference in the month of January 2024.

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 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 was 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. The matter was taken up on May 9, 2023 by the bench of Justice Bopanna and Justice Dutta who recommended the matter to be listed on a non-miscellaneous day in the 3rd week of July, 2023. On October 16, 2023 the matter was mentioned before the Court and was directed to be listed on November 7, 2023 when the Court heard the counsels and directed the matter to be listed for January 23, 2024.

Miscellaneous Application in Right to Living Will (1699/2019): 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 Medical Directives (AMDs) 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 also 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 four-member board comprising the treating physician and three ‘subjectexperts’.

On January 19, 2023, the Bench directed the parties to submit a joint proposal by January 24, 2023. On that day, the Bench disposed the MA and accepted the joint proposal submitted by ISCC and the Union of India, subject to minor changes proposed by the Bench during the hearings. Before concluding the proceedings, Sr. Adv. Arvind Datar gave the Bench a parting gift. Each Judge received a signed copy of Arun Shouries’ book ‘Preparing: For Death’.

The important points from the ruling is as follows:

Attestation before gazette officer: As per the 2023 Order, the requirement to approach the JMFC has been done away with. Now, the AMD-writer can get their AMDs attested before any notary or a gazetted officer who will ascertain the veracity and genuineness of the AMD.

Flexibility in appointment of guardians: While the 2018 Judgment provided for the appointment of “a” guardian or relative as the surrogate decision maker to act when the AMD-writer lost their capacity, the 2023 Order has modified the language to include multiple guardians and close relatives, thereby providing flexibility and the option to address other contingencies.

Easing the qualifications for appointment of Primary and Secondary Board: The teams comprising the Primary Board and Secondary Board were earlier required to have an experience of twenty years each in the relevant field which has now been decreased to five years. This issue was also argued at length in the apex court with the Applicant contending that most districts in India may not have the medical teams with twenty years of experience, which will eventually delay the process of implementing the AMD at a critical stage.

Prescribing time limits: Further speeding up the process, the Court has now clarified that both the medical boards are now required to form an opinion on Medical Futility ‘within’ forty-eight hours as opposed to no such time limit earlier which could have led to an unforeseen delay in enforcing the wishes of the AMD-writer.

Digital health records: In order to streamline the process of preserving the AMD, the person executing can get their AMD incorporated as a part of their digital health records for easy accessibility at the time of Medical Futility. The implementation of digital health records in India is still at a very nascent stage and is not widely adopted. Further, privacy concerns, regarding uploading AMDs on the relevant digital health record platform, could also be a deterrent in AMDs being linked to the digital health records.

Easing of procedural / implementation requirements: In addition to the changes provided herein, some of the relaxations introduced by the 2023 Order are set out below – (i)

the requirement of the AMD being forwarded by the JMFC to the district court has also been done away with under the 2023 Order; (ii) under the 2023 Order, it would suffice for the executor to hand over a copy of the AMD to the decisionmaker (stipulated under the AMD) and the family physician, if any, and the requirement of the JMFC having to inform the executor and family physician (under the Judgement) has been removed; and (iii) the requirement for the JFMC to maintain a copy of the AMD has been deleted.

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 4 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 Justice 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 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. On July 17, 2023, when the Court gave time to BCI to file an affidavit and said that the petitioner may place the suggestions in response to these Rules within two weeks. The matter is likely to be listed on December 7, 2023.

Petition Challenging Introduction of Electoral Bonds: Common Cause and the Association for Democratic Reforms (ADR) challenged the constitutionality of Electoral Bonds scheme, 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 March 21, 2023, the Court granted three weeks’ time to the UoI 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 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. The Court said it would consider whether the pleas challenging the validity of the electoral bond scheme for political funding of parties could be referred to a Constitutional Bench for an “authoritative pronouncement”. Looking at the current data, electoral bonds have legitimised unaccountedfor 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. On November 2, 2023 arguments were concluded and Court reserved its judgment. It also directed the EC to submit up-to-date data until September 30, 2023 regarding details of donations received by political parties under the electoral bond scheme.

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. 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.

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 the idea of creating a new post of chief investigation officer of India (CIO) to whom the chiefs of the Central Bureau of Investigation (CBI) and Enforcement Directorate (ED) will report.

Petition seeking cancellation of the entire allocation of coal blocks to private companies between 1993 and 2012 and a court monitored investigation of the said allocation: On July 24, 2023, the Chief Justice D Y Chandrachud, 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 again 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 December 11, 2023.

Delhi High Court

SIT on Over Invoicing requested by CPIL, Common Cause: Common Cause and the Centre for Public Interest Litigation (CPIL) approached the Delhi High Court seeking a thorough investigation by a SIT into the over-invoicing of imported coal and equipment. The overinvoicing was carried out by various private power companies as detailed by Directorate of Revenue Intelligence (DRI) in several of its investigative reports. In the last few years, major instances of such over-invoicing have been unearthed by the DRI, involving several prominent and influential companies with virtual impunity.

On December 4, 2018, the CBI was ordered to produce its original records/ investigation file relating to the two preliminary enquiries and the regular case, as mentioned in its earlier affidavits/ reply. The Court directed the DRI counsel to produce the four adjudicating orders concerning various entities. Additionally, the counsel was to file the status report and produce relevant records duly flagged, together with a comprehensive note vis-avis each one of them. The matter was taken up on August 8, 2019, when the CBI counsel submitted that there was no necessity for filing another status report as the enquiry stood closed.

The High Court directed that the records be produced before the court on the next date of hearing. The DRI counsel submitted that in three cases the adjudication was complete and it would take the same to their logical end. Arguments in the matter started in September 2023. On October 3, 2023 pursuant to the High Court’s order, the co-respondent, CBI submitted sequence of events post the letter dated January 31, 2014 as well as the status of investigation against the 40 firms mentioned in DRI alert dated June 30/31, 2016. It was kept in sealed cover for the purpose of dictating order by the Court. On conclusion of arguments, the Court reserved its judgment.

Finance and Accounts (2022-23)

The Audited Annual Accounts of Common Cause for the year ending March 31,2023 has been received. The Governing Council has accorded its approval on October 31, 2023. Briefly, the non-project expenditure during the year was Rs 121.84 lakh against Rs 116.39 lakh recorded in the previous year. The nonproject income during the year was Rs 106.24 lakh compared to Rs 114.97 lakh during 2021- 22. Thus there was a shortfall of Rs 15.60 lakh during the year as against a shortfall of Rs 1.42 lakh in the previous year.

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