Supreme hold over cricket

SC vs BCCI: The exercise to purge the game has turned into a bitter battle of egos

Our Constitution endorses the doctrine of ‘separation of powers’, basic grammar of which suggests that in rank and precedence, one organ of the state should not control or interfere with the exercise of its functions by another organ. ‘Separation of powers’ ensures that the three independent branches - the judiciary, the legislature and the executive - follow a constitutional culture founded on the norms of mutual respect.

In India, the wall separating powers is not rigid and overlaps at places. The basic constitutional tension here stems from confusion as to the meaning of ‘power’, which in my submission is a means to an end and must be conferred on an authority which can best achieve that end. Therefore, primarily, the authority/power of judiciary lies only in three roles – interpret laws, review executive and legislative acts and resolve disputes.

Immediately after independence, institutional conflicts arose between the three organs and gradually mutual disregard among the branches increased as interagency cooperation decreased. In view of ‘judicial activism’ and to claim guardianship over the Constitution, the Supreme Court eventually assumed wide powers to interfere into works assigned to other branches. The Supreme Court today legislates (Vishakha), issues directions to citizens (National Anthem), monitors investigations (Coal scam), chooses and removes functionaries (Uttar Pradesh Lokayukta, CAG), hears frivolous PILs (Sardar jokes, Kohinoor diamond) and calls retired judges to argue in breach of constitutional provisions (Justice Katju).

Judicial discretion, judicial activism, judicial overreach, judicial destruction and judicialism - these can be understood as five steps in an ascending order. The Board of Control for Cricket in India (BCCI) is a society registered under the Tamil Nadu Societies Registration Act, 1975. The officials of BCCI, including the president and secretary, are democratically elected through proper by-laws.

The ‘cease and desist’ order that the Supreme Court passed against the then BCCI president Anurag Thakur is harsh and a poster example of judicialism. While I do not wish to comment on the court’s desire to clean the muck in cricket administration, to show the door to a president and his secretary, who have been duly elected vide a transparent and democratic process, by a writ of the court was unwarranted and excessive in nature. Further to humiliate him by stating that he was “unfit to head” may not be correct for the apex court to find. The court ought to have construed the difference between ‘fitness’ and ‘suitability’.

The court is not done yet and it has initiated contempt and perjury proceedings against Anurag Thakur. If the duo were found to have violated BCCI rules/by-laws/statutory provisions, then the correct course of action for the Supreme Court directly or through the appointed committee, would have been to recommend action against them and then, if necessary, they could have been removed vide a democratic method. It’s pertinent to note that there are no charges of corruption against the removed president or the secretary.

The only basis remotely connected to the removal are the charges of contempt or perjury which may fall in the bracket of ‘charged with criminal offence’, which in the same order the Court has approved to be a disqualification. In my view, the Lodha committee should not have recommended action against the two and the court should not have sacked them. Instead, the two should have been directed to run BCCI as per the Societies Registration Act, 1975.

If they would have violated statutory provisions or by-laws, they could have been questioned by proper forum and if then necessary, removed. The order virtually amounts to rewriting statutory provisions which is expressly barred. It does not only violate institutional autonomy, but also proposes an odd precedent that instead of granting opportunity to a sporting body, making it headless may tend to reform it.

As former attorney general Soli Sorabjee puts it, “judicial activism should not become judicial authoritarianism”. I am not against judicial activism per se, but the Supreme Court apparently has started intervening in matters which are completely outside the judicial sphere. Judicial activism and judicial self-restraint are two facets of the same coin wherever judicial discretion exists. In fact, the two positions are book ends which enclose a debate of many shades.

Even taking a pluralistic view of judicial activism, by no stretch of imagination can the Supreme Court extend its powers whimsically to cut off heads of democratic bodies without any proven allegation of violation of a law. Article 20(1) of the Constitution clearly prescribes that no person can be subjected to a penalty greater than that which might have been inflicted under the law in force at that time.

Article 20(2) further lays down that no person can be punished or prosecuted for the same offence more than once. In the instant case without violating any law per se, an elected representative of an institution has been removed. And for the same reasons has been summoned with contempt of the Supreme Court. This is in clear terms judicial destruction.

Judicial whistle

Judicial activism is a delicate exercise. Judicial whistle needs to be blown for a purpose and with caution. In the instant case, what the Supreme Court has done is extremely unfortunate. The BCCI is a going concern which has been doing well. It must not be treated like a sick company where at every step in the garb of reformation or restructuring, the Supreme Court assumes vast powers and imposes regulatory mechanism of its own. The mistake of converting recommendations by a committee into judicial orders has clearly been kept going.

If there is a law, the judges can enforce it. But the judges cannot enact a law by adopting recommendations of a committee and then seeking to enforce it. Inter-branch equality gets immensely diluted when the Supreme Court encroaches upon ultra vires spheres beyond its expertise. Judicial creativity is encouraged but must not be allowed to keep crossing its limits.
The Supreme Court is the head of the judiciary and must not attempt to become a super-executive or a super-legislature in its overzealousness for justice. Not only is it bad for democratic health of the country, it will also eventually deflate the system and destroy the structural restraint proposed by the founding fathers and mothers.

Structural denotations of the Constitution do not approve of a judicial executive or a legislative judiciary or an executory legislature. The Supreme Court is not final because it is right, it is right because it is final. Both notions, participation and consensus, have their dangers if pushed to the extreme.

(The writer is advocate, Supreme Court)