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Friday, May 02, 2014

Concerns about the Supreme Court on BCCI

by Anirudh Burman and Pratik Datta.

When two parties have a dispute, they show up before a judge, and the judge adjudicates the matter based on facts and laws. The judiciary is not the executive; the judiciary is not the legislature. It is hard to see this vision of a court in recent actions of the Supreme Court of India.

The Supreme Court reserved its verdict on the constitution of a fresh probe panel to investigate allegations of betting against Mr. N. Srinivasan, the former President of the Board of Control for Cricket in India (BCCI). A month back, the Court had ordered removal of Mr. N. Srinivasan from the post and appointed eminent former cricketer, Mr. Sunil Gavaskar, as the temporary President `to function as and exercise the powers of the President of the BCCI in relation to the IPL, 2014'. This order was given by the Supreme Court in a special leave petition filed by BCCI challenging a judgement of the Bombay High Court.

We argue here that no law provides for the extraordinary remedy that the Supreme Court granted. The Supreme Court has overstepped its jurisdiction, to interfere in the functioning of a private entity, and supplanted its own remedy in the interest of `those who love cricket'. This decision has serious ramifications for legal process, judicial power and rule of law in India.

Chronology of events


The Supreme Court order comes in the wake of allegations of corruption against the previous President of BCCI, Mr. N. Srinivasan. Mr. Srinivasan is a shareholder and the Managing Director of India Cement Ltd., a company which owns the cricket team Chennai Super Kings. Chennai Super Kings participated in the IPL tournament organised by BCCI in 2013. To complicate matters further, the media reported on May 25, 2013 about the arrest of Mr. Gurunath Meiyappan, Mr. N. Srinivasan's son-in-law on allegations of betting and/or spot fixing. On May 26, 2013, BCCI announced that it would set up an internal commission to enquire into allegations of betting and spot fixing against Mr. Gurunath Meiyappan and India Cement Ltd.

Accordingly, on May 29, 2013, the BCCI constituted a committee comprising two retired Madras High Court judges, Mr. Justice Balasubramaniam and Mr. Justice T.J. Choutha, and the third member was the Secretary of BCCI, Mr. Sanjay Jagdale. Mr. Sanjay Jagdale tendered his resignation from the Commission on May 31, 2013 on the ground of irregularities in constituting the Commission. On June 02, 2013, Mr. N. Srinivasan announced that he would not be involved in day to day activities of BCCI until the complaints had been heard and decided by the Commission. Mr. Jagmohan Dalmiya took over Mr. N. Srinivasan's role. On June 06, 2013, Mr. Dalmiya decided that the Commission should continue with only two members. Subsequently, on June 10, 2013 BCCI ratified Mr. Dalmiya's decision.

The Bombay High Court case


In a Public Interest Litigation filed before the Bombay High Court, the Bihar Cricket Association alleged that the Commission was constituted in violation of the Operational Rules of IPL 2013. Admittedly, there was a clear conflict of interest between Mr. N. Srinivasan and the persons or entities against whom the Commission was to enquire. The Bombay High Court was required to examine if Mr. N. Srinivasan had any role to play in the constitution of the Commission.

Intriguingly, the High Court did find the constitution of the Commission to be faulty but not because of conflict of interest on part of Mr. N. Srinivasan or because of his role in the constitution of the Commission. Rather, it interpreted the Operational Rules of IPL 2013 as mandating at least one member from the IPL Code of Behaviour Committee on the Commission. Since, after Mr. Jagdale's resignation the Commission had no IPL Code of Behaviour Committee member, its constitution was held to be in breach of the Operational Rules (See paragraph 61 of the judgement). However, in spite of this finding the High Court refrained from constituting a fresh commission. It observed that under the Operational Rules of IPL 2013, the constitution of a probe commission is the prerogative of BCCI and it saw `no reason to deprive it of the same at this stage'.

The Supreme Court's interim order


BCCI challenged the Bombay High Court order by way of a special leave petition before the Supreme Court. The Supreme Court issued notice on August 07, 2013 to the respondents. The matter came up at five different occasions before the Supreme Court since August 2013. On March 28, 2014 the Court realised that the IPL is round the corner and passed the interim order appointing Mr. Gavaskar as the interim BCCI President.

Overreach by Supreme Court


The Supreme Court's order is marked by a lack of reasoning for its interference in the affairs of a private entity. It gives no reason for its order, apart from stating that it is doing so to "ensure that all those who love cricket continue to watch cricket in IPL 2014...". This is not a legally reasoned order. It also does not give adequate reasons for its removal of Mr. Srinivasan from a post he was duly elected to. Lastly, the order compels another private individual (Mr. Gavaskar) to hold a position within a private entity, without clarifying the consequences of a refusal to do so (contempt of court?). Even if the Supreme Court's order is an interim order, it interferes with the rights of private individuals (Mr. Srinivasan and Mr. Gavaskar) and the functioning of a private society. Since their rights have been interfered with, there is every reason to explain the legal and factual basis for its order.

The Supreme Court does not explain what law allows it to remove Mr. Srinivasan from his position in BCCI. It does not bother to cite the source of its legal power to order one private individual (Mr. Gavaskar) to take over the functioning of a private society without following the procedure under the relevant statute.

Contrast this with the case of Satyam. Pursuant to the admission of fraud committed by Ramalinga Raju and the other directors, the Central Government filed a petition before the Company Law Board (CLB) the Companies Act, 1956 to restrain all the extant Satyam directors from functioning and seeking permission to appoint 10 nominee directors to function as directors of the company. In its order dated January 9, 2009, the CLB permitted the Central Government to invoke the relevant provisions of Companies Act, 1956 to nominate its own directors on Satyam's board to substitute the extant directors. The CLB's order was based on explicit legal power conferred under the Companies Act, 1956, and never exceeded its mandate.

This order highlights a marked departure from principles of good governance - there was no sound reasoning to back its order and there was no citation of the exact source of its legal powers to pass such an order in disregard to the prescribed legislative procedure.

This episode speaks poorly about the priorities of the Supreme Court. The Court has passed a sum total of five orders, to `ensure that all those who love cricket continue to watch cricket in IPL 2014...' even as its pendency numbers increased from 58,519 in December 2011 (link) to 66,692 in December 2012 (link).

3 comments:

  1. This fits a wider trend. Read recent published rulings of the Supreme Court. The reasoning is often contrived & vague. Often the language itself is archaic, or grammatically incorrect or worse. The general quality of our rulings leaves a lot to be desired.

    I contrast this with US Supreme Court rulings. They are a delight to read & often masterpieces of logic & reveal a mastery over a wide swathe of the relevant subject matter.

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  2. I have had similar concerns about these rulings. It's good to see someone point this out. We as a nation are going down a wrong path.

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  3. The argument for supreme court's overreach is that BCCI is a private entity. And herein I think is a problem. BCCI may call itself a private entity but its business and what it represents - Cricket in India and what it controls - The Inidian National Cricket Team, dont think it can be easily setlled that the BCCI is a private entity.
    Also bear in mind that BCCI takes tax exmptions from Govt. of India on many of its events and dealings.

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