COMMON CAUSE UPDATES
While we make a conscious effort to update our website on a regular basis and keep it posted with reports of all our activities and the latest developments in our various initiatives, the readers of our quarterly journal do not get the benefit of this overview because of the periodicity of the publication and the constraints of space. We have, therefore, decided that starting with this issue, we shall give our esteemed readers a brief account of the activities of Common Cause and the significant developments relating to its initiatives. This report covers the period from January to July 2013. In the next issue, and in each subsequent issue, this column will cover further developments until the time of its publication.
We hope that our readers will welcome this innovation.
1. Public Interest Litigation
a. New Interventions
i) Internet Freedom
Against the background of an alarming increase in the incidence of high-handed police action against individuals for the views expressed by them on social media, Common Cause and Another filed a writ petition in the Supreme Court on January 9, 2013, challenging the constitutional validity of sections 66A, 69A and 80 of the Information Technology Act, 2000 (as amended in 2008). The next date of hearing is on Aug 8, 2013.
ii) Reforming the procedure for appointment of the CAG
Common Cause has been campaigning since 1995 for a transparent, broad-based and objective procedure for appointment to the Constitutional office of the CAG. A well-researched and comprehensive memorandum on the subject was addressed to the Chairman of the Public accounts Committee of Parliament in November 2012, when the term of Mr. Vinod Rai was drawing to a close.
The Union Government has validated the worst apprehensions of civil society by naming the incumbent Defence Secretary as the CAG. This appointment was challenged, inter alia, on the ground of a serious conflict of interest in a PIL filed in the Supreme Court on June 3, 2013. Dr. B. P. Mathur, former Deputy CAG & member of the Governing Council of Common Cause, and Kamal Kant Jaswal, Director, of the Society, put their names to the writ petition along with several former senior public servants. Mr. Fali Nariman, Senior Advocate, put in appearance on behalf of the petitioners.
Declining to entertain the petition, the Apex Court asked the petitioners to approach the High Court concerned for relief. A petition on the same grounds was accordingly filed in the Delhi High Court. The Union of India has been asked to file its response by Aug 8, 2013.
iii) Strengthening the Institution of Lokayukta, Delhi
The Society filed a PIL in the Delhi High Court to highlight the disregard by the competent authority of the considered recommendations made by the Lokayukta in various cases involving egregious acts of corruption by elected public functionaries. Specifically, the orders of the Lt. Governor on the Lokayukta's recommendations for action against eight former Municipal Councillors, who were caught in a sting operation in the act of negotiating the modalities of facilitating unauthorized construction, were challenged. The petition contends that the Lt. Governor deviated from the procedure prescribed in the relevant statute by conducting de novoinquiries into the matter and taking into account extraneous circumstances to arrive at his decisions. It urges the High Court to set aside the orders of the Lt. Governor and direct that the entire record pertaining to the cases of the ex Municipal Councillors be forwarded to the Commissioner of Police for consideration, evaluation and further action in accordance with law. Mr. Harish Salve, Senior Advocate, appeared on our behalf. The initial hearing of the petition was held on May 8, 2013 when notice was ordered to be issued to the respondents. The next hearing has been fixed for August 14, 2013.
iv) Intervention Application in Ashok Chavan's SLP
Common Cause, in concert with other like-minded civil society organisations and eminent citizens, has filed an IA in the SLP filed by Ashok Chavan, former Chief Minister of Maharashtra, against the order of the Delhi High Court upholding the Election Commission's power to inquire into the correctness of the account of election expenses filed by a candidate. The present issue carries a detailed report on the IA, which has been listed for hearing on August 27, 2013.
b. Developments in earlier PILs
i) Decriminalisation of Politics
The Election Commission of India (ECI) eventually filed its reply in February 2013, broadly supporting the prayers made in our PIL pending in the Supreme Court since November 2011. The ECI reiterated its longstanding recommendations for debarring persons charged with serious criminal offences from contesting elections to Parliament and State legislatures and endorsed our prayer for declaring Section 8(4) of the Representation of the People Act (RPA), which allows convicted legislators to avoid disqualification merely by filing an appeal or revision petition, as ultra vires the Constitution. The matter has been listed for hearing on August 19, 2013.
Meanwhile, in a significant judgment in the PILs filed by Lily Thomas and Lok Prahari, which had not been clubbed with our petition, the Supreme Court has held Section 8(4) of the RPA as ultra vires the Constitution. The Court has also disqualified persons detained in custody from contesting elections to Parliament and state legislatures.
ii)Removal of Justice Balakrishnan from the Chair of NHRC
Pursuant to the Supreme Court's order dated May 10, 2012 in disposal of our petition seeking a writ of mandamus to the Union of India for making a reference to the Supreme Court under Section 5 (2) of the Protection of Human Rights Act, 1993 for an inquiry into the allegations of misbehaviour by Justice K. G. Balakrishnan, Chairman, NHRC, we moved an IA with the prayer that the competent authority be directed to decide on the complaint of Centre for Judicial Accountability and Reforms within 30 days and inform us of the outcome.
The move succeeded in eliciting a response from the Ministry of Home Affairs. The Ministry rejected the request for a Presidential reference on the ground that the allegations of misbehaviour pertained to Justice Balakrishnan's tenure as Chief Justice of India and that his current post could not be considered as an elongation of the office of CJI. We have rebutted these arguments on points of fact as well as law vide our counsel's reply dated April 14, 2013.
iii) Unconstitutionality of Allahabad High Court (RTI) Rules
Our analysis of the RTI rules framed by various High Courts under the rule-making powers conferred by the RTI Act, 2005, showed that the Allahabad High Court (RTI) Rules, 2006, were the most obstructive of all High Court rules. Hence, the Society urged the Allahabad High Court in November 2011 to reformulate the provisions in conflict with the spirit of the RTI Act, keeping in view the recommendations of the CIC and the larger interest of protecting the fundamental right to freedom of speech and expression, which includes the right to information.
In the absence of a response from the High Court, we filed a PIL in the Supreme Court praying that the deviations in the Allahabad High Court Rules from the parent Act be held unconstitutional. The High Court Registry was asked to respond to the petition. The High Court was subsequently granted two months' time to amend the deviant rules to bring them in consonance with the provisions of the Act. The compliance by the High Court has been far from satisfactory. The deficiencies are being brought to the notice of the Supreme Court. A positive outcome in this initiative is expected to contribute to the reform of the RTI rules of other courts.
iv) Irregularities in Allocation of Coal Blocks for Captive Mining
In the context of reports of government interference in the CBI investigation and alteration of the agency's status report to the Supreme Court, the Society filed an Application for Directions seeking a thorough probe into the unlawful interference by the Government in the ongoing investigation by the CBI and the dilution of the status report filed by that organization.
This initiative set in motion developments of far-reaching consequence. The Union Law Minister, at whose behest the status report was altered, had to resign. The Apex Court issued a stern warning to the Union of India to refrain from disturbing the CBI investigation team and directed it to come up with a legal framework for ensuring the functional autonomy of the CBI. The Court has taken note of the government's compliance report and. listed the matter for further hearing on September 10, 2013.
v) Animal Hazard on Roads:
In December 2002, the Delhi High Court had disposed of our writ petition for mitigation of the hazard posed by stray cattle on the roads and the dairies located in residential areas. The Court had directed the Delhi government, MCD and NDMC to shift all illegal dairies outside the urban areas. Non-compliance of these orders was brought to the notice of the Court, which directed the MCD in May 2007 to ensure the shifting of the illegal dairies by August 2008. The matter has, however, yet to reach closure. As per the latest status report of MCD, 1432 out of the 1435 dairies in the city have been removed and are being rehabilitated in Ghogha Colony at the city outskirts. The remaining 3 are covered by interim stay orders. In the last hearing on April 29, 2013, the Society has undertaken to verify the tall claims made in the status report.
2. Advocacy Initiatives
a. Police Reforms
Common Cause, along with Commonwealth Human Rights Initiative, Foundation for Restoration of National Values and Manushi Sangathan, made a joint submission to the Justice J S Verma Committee, mandated to look into possible amendments to the criminal law so as to provide for quicker trial and enhanced punishment for criminals accused of committing sexual assault of extreme nature against women. The submission underlined the urgency of a comprehensive revamp of the criminal justice system, including policing. Deliberations are underway on a social media campaign to be launched by Common Cause, FRNV and CHRI in concert with other like-minded entities.
b. News broadcast by Private FM Radio and Community Radio Stations
The Society has addressed a letter to the Minister of Information & Broadcasting on May 31, 2013, highlighting the iniquity of the extant government policy that bars private radio channels from broadcasting news and current affairs programmes. Our case is that such exclusion violates the fundamental right to freedom of speech and expression and flies in the face of the law laid down by the Supreme Court in Ministry of I & B Vs Cricket Association of Bengal & Anr, which had made it amply clear that airwaves were public property to be used to promote public good and for expressing a plurality of views, opinions and ideas.
c. Money Circulation Schemes
The Society has mounted a multi-pronged campaign against money circulation schemes masquerading as Direct Selling/Multi Level Marketing companies. In its comprehensive representations to the authorities concerned, it has highlighted the inaction of the enforcement agencies in the face of flagrant violations of the provisions of the Prize Chits and Money Circulation Schemes (Banning) Act, 1978. An overview of the campaign is presented elsewhere in this issue.
d. Exploitation of Children by Begging Mafia
Common Cause had in a series of letters addressed to agencies concerned with child welfare and protection of child rights highlighted the rampant exploitation of infants by professional beggars and begging mafia in the National Capital and elsewhere in the country. Some photographic evidence gathered by the organization on the subject was furnished as corroborative evidence. The right to information had to be invoked to ascertain the action taken on our representations. The issue raised by us has received some media attention and featured in a story captioned `Child rights body wants probe into abduction ring', which was published in the Times of India on May 5, 2013.
3. Society elections and nominations
Mr. Vikram Lal and Maj. Gen. (Retd.) J.P. Gupta were unanimously re-elected as the President and Vice-President of Common Cause Society, respectively, for a fresh term of three years commencing May 10, 2013.
The Governing Council of the Society re-nominated Maj. Gen. (Retd.) J.P. Gupta and Mr. Prakash Singh to the Board of Trustees of Common Cause Trust for a fresh term of three years.
4. Support to other civil society organizations
Common Cause continued to extend financial assistance to Vanangana for its work in the fields of communal harmony and empowerment of women in Chitrakoot district of Uttar Pradesh.
The Society undertook to support Centre for Environment and Food security, Delhi, for a period of one year to enable it to pursue its PIL on systemic reforms in the implementation of the Mahatma Gandhi National Rural Employment Guarantee Act. The field surveys conducted by CEFS to document the gross irregularities in the implementation of the Act in UP, MP, Odisha and Bihar have made a significant impact and prompted the Supreme Court to order in-depth investigations by the CBI and pass consequential orders on various operational issues.