The tussle between the Supreme Court of India and BCCI has reached new heights. The Apex court has accepted majority of the recommendations made in Justice Lodha Committee Report and the two judge bench comprising of Justices Thakur and Khalifulla has directed Board of Control for Cricket in India (BCCI) to implement the report within a period of six months. The recommendations of the panel will have far-reaching effects and almost sweeping reforms in the BCCI administration, functioning and structure. To mention a few, Lodha Panel had recommended barring ministers from holding posts in BCCI, limiting tenure of administrators, single vote for every State Association in election and so on. This definitely has not gone down well with BCCI.. Realising BCCI is under fire, they chose the best form of defence – appointing former Supreme Court Judge Markandey Katju as its legal face to counter the Supreme Court.
The outspoken Judge has always garnered attention for his remarks and views on various subjects. Living up to this repute, he stated that this verdict of the Supreme Court is “unconstitutional and illegal” and has thrown discretion to the winds. Therefore, the BCCI had filed a review petition on August 16th, 2016 challenging the order before the Supreme Court. Surprisingly, BCCI has requested Chief Justice of India Justice Thakur to recuse from hearing claim, that he has been prejudice to BCCI.
The review petition of BCCI is on strong grounds. The whole set of arguments in this case lie in the fact whether BCCI performs a public function or not? Merely because a non-governmental body exercises some public duty that by itself would not suffice to make it a state for the purpose of Article 12 of Indian Constitution. Under the doctrine of Separation of Powers, the Judiciary in this case has transgressed into the realm of legislation. Judge ought not to make laws rather interpret and enforce them. BCCI is a registered society under the Tamilnadu Societies Registration Act, ideally the complaint against BCCI and its functioning should have been placed before the Registrar of societies to enquire and pass suitable orders. But the recommendations are coming from an external agency. There are numerable Supreme Court judgments in support of this argument. The Lodha Committee has literally made a new constitution for BCCI. The above statute empowers only the members of the society to pass a special resolution to amend its constitution. So, the Supreme Court has passed an order contrary to the law. The Lodha committee was also empowered to impose punishment. From when did the courts start outsourcing their powers to punish? This is unheard of. The two judge bench has ignored all the earlier judgements of larger benches that legislating is not in the domain of the courts.
In the pretext of public function performed by the BCCI, the Supreme Court cannot surpass its jurisdiction. If this principle is followed, then many functions performed by private institutions will come under the ambit of judicial review. There is no doubt that BCCI does need serious reforms but that should be done within the constitutional mandate. It is to be noted that just before reserving orders in the matter, the Supreme Court said the constitution of BCCI is highly incapable of achieving the values of transparency, objectivity and accountability. So, ideally the Supreme Court should have sent the Lodha panel report to parliament and state legislature to enact suitable laws.
The review petition filed by BCCI has strong grounds and the case is fit to be referred to a larger constitutional bench to decide upon. Though one may argue that Justice Katju shouldn’t have taken up this assignment as retired Supreme Court Judges are barred from to plead or act in any court or before any authority in India. But that is irrelevant to the subject matter of the case. Whatever may be the verdict, the game should be played on the field but it is unfortunate that it is being played out in the court rooms. Let’s hope the Supreme Court and BCCI reach to a mutually agreeable situation in the interest of the game and restore its lost glory.