Common Cause Updates
Supreme Court Cases
Petition Challenging Constitutional Validity of Sedition (Section 124A of the IPC):
Sedition, a colonial era penal law, used to suppress the dissent of the freedom movement and silence its leaders by the British in India, continues to be heavily abused. It is misused by the law enforcement authorities against citizens for merely exercising their freedom of speech and expression.
Common Cause filed a petition 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 Indian Constitution.
In 2016, Common Cause had filed a writ requesting the court to issue appropriate directions. These directions would make it mandatory for the concerned authority to produce a reasoned order from the Director General of Police (DGP) or the Commissioner of Police, as the case maybe, certifying that the “seditious act” either lead to the incitement of violence or had the tendency or the intention to create public disorder. The order has to be produced before any FIR is filed or any arrest is made on the charges of sedition against any individual.
The current petition requested the court to step in again, this time to revive the spirit of the 1962 judgment. We also prayed that the court reiterate that sedition actually meant “incitement to violence or tendency or the intention to create public disorder” and not “strong criticism.” The court disposed the petition ordering authorities to rely on the Kedar Nath case while dealing with cases under Section 124A.
In Kedar Nath Singh v State of Bihar, 1962, the constitutionality of Section 124A was tested and upheld, as the court applied the Doctrine of Presumption of Constitutionality in order to save the Section. As per Kedar Nath, the offence of sedition is complete if the activities tend to create public disorder or disturbance of law and order or public peace. Since then, however, the Court in Navtej Singh Johar v. Union of India, (2018) and Joseph Shine v. Union of India, (2019), has held that the Presumption of Constitutionality does not apply to preconstitutional laws as they were made by a foreign legislature or body.
Petition to Completely Ban Export of Iron Ore (in the Form of Pellets or Otherwise):
Common Cause filed a writ petition to completely ban the export of iron ore (whether in the form of pellets or otherwise). Alternatively, it has 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 prays 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 seeks 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. The petition also prays for a thorough and independent investigation into the role of public officials in allowing the same. On September 24, 2021, the SC issued notice to the central government and other respondents and directed them to file counter affidavits. The matter is likely to be listed on October 25, 2021.
Petition Challenging the Appointment of Interim Director, CBI:
Common Cause filed a PIL challenging the appointment of an Interim/Acting Director of the Central Bureau of Investigation (CBI) again. It has 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 prays for a direction to the executive to initiate the process of selecting a regular Director forthwith. The petition has 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.
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 .
The current PIL challenging the appointment of CBI Interim/ Acting Director was filed on March 2, 2021 while notice was issued on March 12, 2021. On April 5, 2021 the Court expressed its displeasure on the interim appointment and granted adjournment. It directed the matter to be listed for April 16, 2021. Subsequently, the matter was taken up on April 19, 2021 and the next hearing date fixed on May 13, 2021.
Meanwhile, the Appointments Committee of the Cabinet, based on the panel recommended by the Committee, approved the appointment of Subodh Kumar Jaiswal as the new director of CBI on May 25, 2021. The selection committee of Prime Minister Narendra Modi, Chief Justice of India N.V. Ramana and the Leader of Opposition Adhir Ranjan Chaudhary shortlisted Jaiswal, along with Sashastra Seema Bal (SSB) chief K.R. Chandra and special secretary in the Ministry of Home Affairs (MHA), V.S.K. Kaumudi. Since Jaiswal was the senior-most among the three officers, his choice became easier. The principle of seniority is the default norm of selection. The matter has not been listed thereafter and is likely to be listed on September 21, 2021.
Petition Challenging Reappointment of the Director of Enforcement Directorate:
Common Cause on November 27, 2020 approached the Supreme Court with a prayer seeking to quash the Centre’s decision to “retrospectively” amend the tenure of Mr. Sanjay Kumar Mishra as the director of the Enforcement Directorate (ED). It has also sought a direction to the central government to appoint a director for the agency “in a transparent manner and strictly in accordance with the law.” The bench of Justices L Nageswara Rao and S Ravindra Bhat issued notice on February 15, 2021 and the matter was taken up on April 5, 2021, when the Court after hearing the parties directed for listing on April 16, 2021. On August 12, 2021 after hearing the parties, the Court directed the matter be listed for August 16, 2021. The matter was heard by the Court on August, 16, 17 and 18, 2021, when it reserved the judgment after conclusion of hearing. On September 8, 2021, the Court dismissed the petition with the following order:
“The justification given by the Union of India for extension of the tenure of second Respondent is that important investigations are at a crucial stage in transborder crimes. The decision to extend the tenure of the second Respondent is pursuant to the recommendation made by the high-powered committee. Though we have upheld the power of the Union of India to extend the tenure of Director of Enforcement beyond the period of two years, we should make it clear that extension of tenure granted to officers who have attained the age of superannuation should be done only in rare and exceptional cases. Reasonable period of extension can be granted to facilitate the completion of ongoing investigations only after reasons are recorded by the Committee constituted under Section 25 (a) of the CVC Act. Any extension of tenure granted to persons holding the post of Director of Enforcement after attaining the age of superannuation should be for a short period. We do not intend to interfere with the extension of tenure of the second Respondent in the instant case for the reason that his tenure is coming to an end in November, 2021. We make it clear that no further extension shall be granted to the second Respondent.”
IA in the suo motu matter of Covid-19 management
In June 2021, Common Cause filed an Intervention Application in the suo motu matter of Covid-19 management.
The Apex Court has taken cognisance on issues related to oxygen shortage, drug supply, and vaccine policy in relation to the Covid-19 pandemic.
The IA seeks directions to the Centre to revise the guidelines for implementation of the National Covid Vaccination Program dated June 8, 2021, specifically relating to the allocation of up to 25% of the vaccines produced in India to private hospitals. Alternatively, the IA prays for directions to the central government to modify its revised guidelines for implementation of the National Covid Vaccination Program in order to achieve free vaccination expeditiously. The IA also urges all the stakeholders, both public and private, to be transparent in the procurement and allotment of vaccines, as well as ascertain accountability for ensuring transparency. The matter was likely to be taken up on August 25, 2021 but was not listed on the said date and there are no further orders of listing.
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