On
18 July, 2016 a division bench of the Hon’ble Supreme Court in BCCI v. Cricket
Association of Bihar & ors.[1]made the recommendations of
Lodha Committee mandatory for the BCCI to implement. It will go down as a watershed
moment in the annals of unconstitutional history of Independent India.
It
is a legally unsound and regressive judgment by the SC. The SC has come a long way
from interpretation to interference. You should know about this judgment,
because you paid for it, through BCCI, to Lodha Committee, ordered by the Supreme
Court (on the price unilaterally fixed by the committee, and not disclosed).
This
judgment, originates from another judgment by same name & between same
parties, BCCI v. Cricket Association of Bihar & Ors.[2] delivered on 22 January,
2015 by the same bench of Hon’ble Supreme Court, which created the Lodha
Committee to ‘recommend’ reforms in BCCI, as per its whims, in absence of other
legal principles laid down by SC.
Exceeding the Brief:
The Supreme Court exceeded the brief in the present Judgment, when it appointed
the questionable Lodha committee for recommending “reforms” for BCCI,
especially once the questions raised in earlier Judgment (under Article 226) were
answered. It is worth mentioning that as per Constitution bench judgment in Zee
Telefilms Case[3],
the only jurisdiction available to courts against BCCI was under Article 226 (not
32), as it was held to be not a state under Article 12. The Supreme Court hence
went against its earlier larger bench pronouncement by opening up, what has
since become a Pandora’s Box.
Kith and Kin: While
there already existed a probe committee headed by a chief justice of a High Court
looking into the match/ spot fixing etc.- Mudgal Committee, whose work was
deeply appreciated by the Supreme Court, yet the Hon’ble Supreme Court randomly
just discontinued it from heading the probe against another suspect person
& to fix punishment for the ones found guilty, even though Mudgal Committee
was most privy to the working of the ‘ills’ that had recently crept in
functioning of BCCI, as compared to anyone else. Instead, without citing any
reasons, and according to the whims of the Bench, Lodha Committee was appointed
to lead the inquiry & recommendations for reforms in BCCI. It is nowhere
explained as to how a recently retired colleague & erstwhile senior brethren
of the contemporary judges heading the division Bench in the instant matter reached
the helm of affairs. It is simply improper appointment by browbeating, where
the parties have to choose between the wrath of SC for rejecting its choice of
committee (assuming it’s an option), which will hear the case and decide the matter
at hand, or to accept the choice of SC and blame your fate for being in the situation,
which later turned out to be unbearable for the BCCI, where in garb of
recommendations, mandatory, unsolicited and harsh instructions were issued
which hurt the very existence & independence of BCCI. While the Lodha Committee
talked at length about arm’s length in one of its key recommendations, it was
itself not formed at an arm’s length, in a sense. This is without talking about
possible friendship of the contemporary & retired judges on intellectual
level, or the regularly featuring amicus curie who has a publicly open history
with the Retired Judge heading the Committee. And clearly the amicus curie is
expected to be bipartisan & a friend of the court, while it behaved more as
a friend of the Committee. The close nexus only brings disrepute to the
Judicial functioning of the Court. A real bias is out of question since we obviously
do not have enough facts, but clearly a case is perceived bias is made out. The
legal ideal point I was about to make was- the Justice should not only be done,
but should be seen to be done.
Retired or not: Justice
Lodha ceased to be a “Justice” when he reached the age of superannuation i.e.
65 years. He should have therefore been referred as ‘Retired justice Lodha’ at
best. It is expected of SC to be careful with the words it chooses. It confuses
the common gullible men & women of this country. Why give title or
undeserved legitimacy to committee which had no locus in the case originally?
The Committee anyway went ahead to recommend the elaborate reforms, made
mandatory later by SC.
Viciousness:
Historically, the Supreme Court has always been way more tolerant considering
the power & wisdom it possesses. Yes, historically.
In
our legal system, an individual/ entity can be vicious while claiming its
rights/ purported rights, but an institution like SC is not supposed to be
vicious under our constitution. Sadly, it’s not so anymore. The piousness
attached to the Judicial organs of state is neither divine, nor constitutional,
but it emerges out of the innocent notion that the Courts could do no wrong, it
is better than human beings, it is tolerant because it can take criticism, it
has not been corrupted by the societal norms, it is humble, it is fair despite
the limited choices it gets in an adversarial setup chosen by founders of
constitution. Alas, it is not so. The witch-hunt is a new phenomenon plaguing
our judiciary, where the Supreme Court orders to go after an entity/ accused/
government etc. to meet a ‘perceived right end’ the individual judges seek
right in their conscience, judicial or not.
The
message is clear. Either the parties or their advocates appease the Supreme
Court through their conduct or soft arguments respectively or suffer at the
invincible judicial arms of state. The Supreme Court, just as a child, would
not relent unless it gets exactly what it wants, when it wants & how it
wants. It doesn’t matter whether Statutory or fundamental rights of citizens
are trampled in the process. The rights of Indian citizens take a back seat when
the Supreme Court wants anything done.
Colourable judicial legislation:
What the Supreme Court could not do directly through Judicial orders in an
adversarial setup, it did so indirectly by making the committee suggest detailed
recommendations and get it implemented through contempt threat. The law made in
this manner cannot be challenged anywhere for being unconstitutional since Supreme
Court had declared itself as not a state under article 12 of the constitution
through an authoritative pronouncement. Yet, it continues to defy the rationale
behind the judgment, which made it immune from Writ Jurisdiction. Maybe it’s
time for revisiting the judgment, considering the legislative misadventures of
Supreme Court, where it makes law/ judgment in rem, but hears only the parties to
the original dispute, the proceedings which were ‘in personam’ in nature
originally. Of course intervention is allowed, but it is not that well
publicized, as is the intrusive nature of the final judgment. Of course, Courts
can’t hear every individual, even though they have a stake in such a
pronouncement. Maybe, that is the rationale behind democracy. People vote, and
through representative democracy, indicate what they want. Hence the power of
legislation, with the legislature. The supreme Court misses the voting and
getting elected part, and starts playing the legislating part. Hence the
turmoil.
From
where did the powers for legislating ‘reforms’ flow to the Supreme Court? The whole
issue of discussing the judgment loses water when there is no power with Supreme
Court to appoint a committee to look into the functioning of an autonomous Society
just because it is rich, especially when it was functioning within the Statutory
rights conferred on it(except one rule, which was earlier set aside). The Supreme
Court didn’t care to look into the functioning of BCCI when it could not remunerate
properly our world cup winners back in 1983, when it was in poor financial shape?
But it’s a different ball game, when it started minting money. Make no mistake,
the popularity of cricket was the same, BCCI still had a unique monopoly like
situation in the Indian Cricket. Only, it did not make money. Being rich,
should neither curtail your rights in law, nor amplify it. I speak on the strength
of Article 14 here.
Tricking the Law: Before
legislating recommendatory- cum- mandatory reforms, the Supreme Court had a legal
way out- by declaring Tamil Nadu Societies Act to be unconstitutional (or parts
of it) for granting the societies the autonomy a.k.a. statutory rights,
possibly flowing from Article 19 of the constitution, and then frame guidelines
(rules) for all the societies to follow, as it so avowedly calls “fairness, transparency,
effectiveness etc.”. Not doing so, has created an adverse discrimination
against the Petitioner BCCI, since the freedom to all the other societies
remain same under the Tamil Nadu Societies Act, the BCCI is not treated
equally. Under Article 14 & 19, the BCCI had the same right to manage its
affairs, in the way it deemed fit. Any hindrance (be it by Lodha committee) to
such freedom & equality is in fact unconstitutional. And you don’t need a
Supreme Court bench telling us so.
The
Hon’ble SC has violated the spirit of laws in a very calculated manner. What
the SC had done is a vile attempt at creating a super- constitutional
authority, which is above every law and is allowed to be as arbitrary as
possible. It has all the powers of state- Legislative, judicial &
executive. It has legislated in garb of making ‘recommendations for reforms’ in
functioning of BCCI. The recommendations have arbitrarily been made mandatory by
the SC affirming it in its Judgment, thus putting a highest judicial stamp
possible. And of Course, the Supreme Court is executing the Lodha Committee’s
reform under the threat of Contempt of SC & by entrusting executive powers
in Lodha Committee. So much for the Separation of Powers or concentration of it.
What happens in para 88 is a judicial wonder & laziness at best-
“….We
make it clear that if upon reconsideration of the matter the Committee takes a
view that the induction of the nominees of the franchisees will not result in
any conflict of interest, it shall be free to stick to its recommendations in which
event the recommendations shall be deemed to have been accepted by this Court
to be formalized and carried out in such
manner as the Committee may decide.”
This
is not all. If we take Lodha Committee reforms (deforms really, if we look
closely at it) as a piece of enforceable law, had parliament enacted it, it
could have been challenged in High Court u/a 226 & 227, Supreme Court u/s
32 & 136 (also including possible review & curative petitions). But
here, by one stroke of pen, the SC wiped off every judicial remedy otherwise
available with BCCI, constitutional & statutory. In fact, the Supreme court
which is so obsessed with ‘reforms’ in BCCI, that it has decided to implement
its unique judgment, without even waiting for hearing a review of its own
Judgment. There could be a lot of reasons for the same. One could be- that the
BCCI or someone had impliedly accused the CJI as having a bias in the matter
(since he indicated in open court something to the effect that the Football in
India should also be given BCCI treatment) and hence the review petition was
requested to be heard in open court (as opposed to in- chamber) and by another
judge in place of CJI. Ouch!! That could hurt anyone’s ego seriously. But then,
it is the CJI one is talking about, who is not supposed to be a bundle of ego,
but a humble piece of wisdom. The Bench headed by CJI, in its judicial wisdom
should have let the review petition be heard, so as to settle the matter once
and for all. I am sure it would not matter to our CJI that the review petition,
which should have ordinarily been heard by him & another judge (who since
retired), by a bench entirely different. We do trust every judge of Supreme
Court to be equally capable and talented in handling constitutional & other
legal matters. But to hurriedly getting the BCCI to implement the judgment,
which sprung issues never originally raised by the parties to the Special Leave
Petition (especially in continuation of the writ jurisdiction of High Court),
only presents the BCCI with fait accompli. In Zee Telefilms case[4], the BCCI was held by a
constitutional bench of SC to not being a State under Article 12, however it
was made amenable to the Writ Jurisdiction of the High Court only. Nothing Else.
Judicial Arm- twisting of Democratic Principles:
The SC in the present case has trampled all over the democratic principles,
which the largest of constitutional benches of Supreme Court have declared as
basic features of our constitution and which cannot be amended/ destroyed by
parliament under its constituent power. But hey, the Kesavananda Bharati vs
State of Kerala[5]
never said anything about amending the constitution through judicial
pronouncement. So I guess that’s not going to come in the way of the recent
Supreme Court Order dated 07.10.2016[6] through which it has
financially constrained the BCCI to transfer the funds (owed well before this
judgment) to the State associations, unless they unconditionally comply to the
approved Lodha Committee Recommendations in letter & Spirit. For the
‘reforms’ to be adapted, the BCCI would have to change its constitution, which
could be achieved by a special resolution passed by 2/3rd of the
state associations. Now, I call any attempt to force the state associations to
vote in any particular manner, whether in favour of resolution or against it,
as undemocratic & hence unconstitutional. The supreme Court, if it thinks
in its wisdom that the Judgment is right and should be implemented, it must
find another way to implement the same. One simply can’t be forced to vote
against its will. For e.g. we have instances of persons with criminal
background being elected by the common Men & Women voters to the
legislature. {I presume that anyone would agree that barring of persons with
criminal antecedents to elected offices is a much novel cause than ‘reforms’ in
BCCI.} Would the Hon’ble Supreme Court force the masses to either not vote or
face the Court’s ire? Or, would the Hon’ble Supreme Court, issue writs to the
Parliamentarians to incorporate the ratio of Kesavananda Bharati in our constitution & repeal Article 13 (4)
of the constitution of India. If not, then stop the salary & emoluments of
parliamentarians till such amendment is passed? The point is, some principles
are simply non- negotiable. The Court has no business even touching those,
especially including democratic principles. Yet we see, a democratic process butchered
at the hands of judicial oversight.
This
judicial arm-twisting is being thrusted upon the State Associations, most of
whom were never a party to the instant set of litigations & consequently
are not even amenable to the contempt of the Court, even if they defy all the
orders passed by the Hon’ble Supreme Court. Since we are talking about legally stealing
the money earned by State Associations through their legitimate activities, we
must clearly notice how SC has also robbed them not just of their money (until
questionable compliance), but also of the principles of natural justice. If the
state association sues BCCI for money, the SC order comes in way and no other
court would entertain their suits, thus snatching of their legal remedies, unless
they approach this very bench of the Supreme Court (the matter field in SC
would automatically come to this bench), where they would be forced to comply
to the orders & Judgment of the SC. Isn’t it a Catch-22 situation?
I
see a need to invoke electoral offences under Chapter IXA of Indian Penal Code,
1860 against the Lodha Committee, unless of course it is immune under the aegis
of Supreme Court.
Moral of the Story: If
not overruled/ overturned, this judgment changes law to the effect that if a
society/ association formed in India has some public purpose attached to it or
related to field which is of pubic importance, then such an entity is liable to
be judicially robbed of its legal freedom & equality under the laws of
India, including the Constitution of India. So if an entity wants to retain
their fundamental rights under Article 14 & 19, it better chooses an area
which does not serve a good deal of public purpose or is for greater public
good in its memorandum of association or its practices.
(Keep Watching for more, since the issue is a live one.)
[1] https://indiankanoon.org/doc/101366341/
[2] http://supremecourtofindia.nic.in/FileServer/2015-01-22_1421928541.pdf
[3] https://indiankanoon.org/doc/404603/
[4] https://indiankanoon.org/doc/404603/
[5] https://indiankanoon.org/doc/257876/
[6] https://drive.google.com/file/d/0BzXilfcxe7yucDZsdVk5MGQ0dW8/view
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